Criminal Appeal No. 216-SB of 2004 1 Criminal Appeal No. 368-SB of 2004 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 216-SB of 2004 Date of Decision: 20.04.2010 1. Mohinder son of Bachana Ram son of Miya Ram, aged 31 years, r/o Bhungrni, P.S. Mehtiana, District Jalandhar. 2. Darshano @ Maro wife of Mohinder son of Bachana Ram aged 29 years, housewife, r/o Bhungrni, P.S. Mehtiana, District Jalandhar. ... Appellants Versus State of Punjab. ...Respondent Criminal Appeal No. 368-SB of 2004 Date of Decision: 20.04.2010 1. Rajinder Singh son of Shingara Singh; 2. Ranbir Singh son of Nirmal Singh; both residents of village Jallowal, District Hoshiarpur. ... Appellants Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. B.S. Kathuria, Advocate, for the appellants, in Criminal Appeal No. 216-SB of 2004. Mr. J.B.S. Gill, Advocate, for the appellants, in Criminal Appeal No. 368-SB of 2004. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. Criminal Appeal No. 216-SB of 2004 2 Criminal Appeal No. 368-SB of 2004 SHAM SUNDER, J. * * * * This judgement shall dispose of Criminal Appeal No. 216-SB of 2004, filed by Mohinder and Darshano @ Maro, appellants, and, Criminal Appeal No. 368-SB of 2004, filed by Rajinder Singh and Ranbir Singh, appellants, against the judgment of conviction and the order of sentence, dated 25.11.03, rendered by the Judge, Special Court, Jalandhar, vide which, he convicted the accused (now appellants), for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only), and sentenced them to undergo Rigorous Imprisonment, for a period of ten years each, and to pay a fine of Rs. 1 lac each, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of one year each, for having been found in possession of 11 bags, each containing 35 kgs of poppy husk, without any permit or licence, falling within the ambit of commercial quantity. 2. The facts, in brief, are that, on 28.08.01, Sarabjit Rai, Sub Inspector/Station House Officer, alongwith some other Police officials and Sital Kumar, prosecution witness, was on patrol duty, at the bridge of canal, in the area of Tehang, where, a secret information, was received, to the effect, that the matador, bearing registration No. DL-1- CE-7598, loaded with contraband, was coming towards Phillaur. Sital Kumar, independent witness, was joined with the Police party. After about 20 minutes of the receipt of secret information, the matador, was Criminal Appeal No. 216-SB of 2004 3 Criminal Appeal No. 368-SB of 2004 seen coming and signalled to stop and it stopped. The matador, was being driven by Rajinder Singh, accused, whereas, Ranbir Singh, Mohinder Singh and Darshano @ Maro, were found sitting on eleven gunny bags loaded therein. Thereafter, Sarabjit Rai, Sub-Inspector, apprised the accused, that he suspected some contraband, in the matador, and wanted to search the same. Consequently, on search of the matador, in the presence of Satinder Singh, Deputy Superintendent of Police, who was called to the spot, eleven bags, each containing 35 kgs poppy husk, were recovered. A sample of 250 gms, from each bag, was separated, and the remaining poppy husk, was kept, in the same bags. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession alongwith the matador, vide a separate recovery memo. Site plan of the place of recovery was prepared. Ruqa was sent to the Police Station, on the basis whereof, the first information report was registered. The accused were arrested. After the completion of investigation, they were challaned. 3. On their appearance, in the Court, the accused, were supplied the copies of documents, relied upon by the prosecution. 4. Charge under Section 15 of the Act, was framed, against the accused, which was read-over and explained to them, to which, they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Kulwant Singh, Head Constable (PW1), Amrik Singh, Sub Inspector (PW2), Criminal Appeal No. 216-SB of 2004 4 Criminal Appeal No. 368-SB of 2004 Satinder Singh, Deputy Superintendent of Police (PW3), witness to the recovery, Bhajan Lal, Constable (PW4), and, Sarabjit Rai, Sub Inspector/Station House Officer (PW5), Investigating Officer. Sital Kumar, prosecution witness, was given up, as having been won over by the accused. Thereafter, the prosecution evidence was closed. 6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Rajinder Singh, accused, stated that, he was falsely implicated, in the instant case. It was further stated by him, that he was made to sit, in the Police Station earlier and false recovery of poppy husk, had been planted, against him, and the same was shown to have been made from matador No. DL-1-CE-7598. It was further stated by him, that he did not know Mohinder and Darshano. It was further stated by him that, however, Ranbir Singh, who was his co-villager, was also made to sit, in the Police Station. It was further stated by him that the said matador, was neither, in his name, nor did he was the driver thereof. 7. Ranbir Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure, almost took up the similar plea, as was taken up by Rajinder Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure. In addition, it was stated by him that, he did not know Mohinder and Darshano. 8. Mohinder, accused, in his statement, under Section 313 of Criminal Appeal No. 216-SB of 2004 5 Criminal Appeal No. 368-SB of 2004 the Code of Criminal Procedure, stated that, he alongwith his wife Darshano, had been falsely implicated, by the Police. It was further stated by him that, no recovery, was effected from him or his wife. It was further stated by him that, Police had falsely planted recovery against him and his wife, which was, in fact, effected from someone else. It was further stated by him that, he had three children, who were minor and were on road, on account of his false implication, and that of his wife, in the instant case. 9. Darshano alias Maro, accused, almost took up the similar plea, as was taken up by Mohinder, accused, in his statement, under Section 313 of the Code of Criminal Procedure. The accused, however, examined Satnam Singh, Sarpanch (DW1), in their defence. Thereafter, they closed their defence evidence. 10. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 11. Feeling aggrieved, the instant appeals, have been filed by the appellants. 12. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 13. The Counsel for the appellants, at the very outset, submitted that, though, Sital Kumar, independent witness, though, joined, at the time of the alleged recovery, yet, he was not examined, and, as such, the case of the prosecution became doubtful. The Criminal Appeal No. 216-SB of 2004 6 Criminal Appeal No. 368-SB of 2004 submission of the Counsel for the appellants, in this regard, does not appear to be correct. There is, no dispute, about the factum, that Sital Kumar, independent witness, was joined, but, he was given up, as won over by the accused, on the request of the Police, by the Additional Public Prosecutor, for the State, vide statement dated 27.03.02. It means that, this witness, was given up, by the Additional Public Prosecutor, for the State, after being satisfied, that he had actually been won over. The Additional Public Prosecutor, for the State, is the master of the case. It is for him, to decide, as to which witness, he wants to examine, and which witness, he does not want to examine. Since Sital Kumar, independent witness, had been won over by the accused, there was no necessity of examining him, as the Additional Public Prosecutor, for the State, very well knew that, if he examined Sital Kumar, independent witness, he would cause damage, to the case of the prosecution. The discretion, exercised by the Additional Public Prosecutor, for the State, in giving up Sital Kumar, could not be said to be arbitrary or capricious. On the other hand, the decision, taken by the Additional Public Prosecutor, for the State, could be said to be bonafide. In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it was held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material, or even if, it is known that Criminal Appeal No. 216-SB of 2004 7 Criminal Appeal No. 368-SB of 2004 he/she has been won over or terrorized. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference could be drawn, when the only independent witness, was given up by the prosecution, as won over by the accused. It was further held, in the said authority, that the panch witnesses, being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements, and giving up of the public witnesses, as won over, is fully justified, in the present day situation, prevailing in the society. In Karnail Singh Vs. State of Punjab 1983 Criminal Law Journal, 1218 (DB), it was held that where the independent witness, was won over by the accused, and only the officials were examined, as witnesses for the prosecution, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. Similarly in Appa Bai and another Vs. State of Gujrat 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined by it. It was further held that civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victim's side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals, and do not involve themselves in it. The principle of law, laid down, in the said cases, is fully applicable to the facts of the present case. Even otherwise, the Criminal Appeal No. 216-SB of 2004 8 Criminal Appeal No. 368-SB of 2004 other evidence produced by the prosecution is reliable. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellants, that the seal after use, was not handed over to Sital Kumar, independent witness, and, as such, the possibility of tampering with the case property, and the sample parcels, could not be ruled out. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. There is no provision of law, which requires the Investigating Officer to hand over the seal, after use, to an independent person, or to any other person. The Investigating Officer, cannot be expected to keep a number of seals, with him, as he is to detect the crime, and effect recoveries in a large number of cases. In Piara Singh Vs. The State of Punjab 1982 C.L.R. (2) 447, a case decided by a Full Bench of this Court, the seal, on the sample of illicit liquor, recovered from the accused, was not entrusted to an independent person forthwith. Similarly, the independent person, though entrusted with the seal, by the Investigating Officer, later on, was not produced as a witness. In these circumstances, it was held that this fact alone, was not sufficient to affect the merits of the trial, and the prosecution case, could not be thrown out, on that score alone. It was further held, in this case, that it was not incumbent upon the Police Officer, to hand over the seal to a third person forthwith, and even, in cases, where he had done so, it was not obligatory upon him, to produce such person, as a Criminal Appeal No. 216-SB of 2004 9 Criminal Appeal No. 368-SB of 2004 witness, during trial, as there was no statutory requirement, whatsoever, to this effect. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the present case. The evidence produced by the prosecution clinchingly proved the completion of link evidence. At no point of time, the sample parcels, until their deposit in the laboratory, were tampered with. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 15. It was next submitted by the Counsel for the appellants, that the owner of the vehicle, wherefrom, the alleged recovery of poppy husk, was effected, was not joined, during the course of investigation, and, as such, the origin of the poppy husk, which was allegedly recovered, from the vehicle, could not be known. It is, no doubt, true that, the Investigating Officer, during the course of investigation, committed some irregularity or illegality by not joining the owner of the vehicle, yet, that circumstance, in itself, is not sufficient, to throw away the case of the prosecution over-board. At the most, had the investigation been conducted, by the Investigating Officer, as to who was the owner of the matador, he (owner) could be challaned for the offence, punishable under Section 25 of the Act, yet such a lapse, on the part of the Investigating Officer, did not absolve the accused of their liability, for having committed the offence punishable under Section 15 of the Act. Even otherwise, it is settled principle of law that, if the Investigating Officer, during the course of investigation, Criminal Appeal No. 216-SB of 2004 10 Criminal Appeal No. 368-SB of 2004 commits any irregularity, or illegality, the benefit thereof could not go to the accused. If, on account of such illegality or irregularity having been committed, by the Investigating Officer, during the course of investigation, the benefit of doubt, is given to the accused, then every negligent or dishonest Investigating Officer, shall leave some loopholes, during the course of investigation, so as to create an escape route, for the accused. From the evidence, produced by the prosecution, it was proved, beyond doubt, that the accused were found in conscious possession of 11 bags, each containing 35 Kgs poppy husk, without any permit or licence. Any illegality or irregularity, committed, by the Investigating Officer, during the course of investigation, did not at all affect the merits of the case. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 16. It was next submitted by the Counsel for the appellants, that the prosecution, miserably failed, to prove, that the accused, were in conscious possession of the poppy husk, allegedly recovered, from the aforesaid vehicle. They further submitted that, thus, the accused, did not commit any offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The driver of the matador, was Rajinder Singh, accused, whereas, Ranbir Singh, Mohinder, and, Darshano @ Maro, were found sitting, on the gunny bags, loaded in the body of the same. It was a big haul of poppy husk, which was found, in the body of the matador, on which, three accused, were sitting, as stated above, and one Criminal Appeal No. 216-SB of 2004 11 Criminal Appeal No. 368-SB of 2004 accused, was driving the same. It was within the special means of the knowledge of the accused, as to wherefrom, those bags, containing poppy husk, were loaded, in the matador; to which destination, the same, were being taken; and for what purpose, the same, were being taken. No doubt, the Counsel for Mohinder and Darshano @ Maro, accused, husband and wife, respectively, submitted that, they were only passengers, in the matador, yet, no such plea, in this regard, during the course of cross-examination of the prosecution witnesses or in their statements, under Section 313 of the Code of Criminal Procedure was set up by them. The accused, failed to furnish any explanation, in respect of the aforesaid aspects of the matter. The accused, were found in possession of and in control over the bags, containing poppy husk. Once their possession, was proved, statutory presumption under Sections 35 and 54 of the Act, operated against them, that they were in conscious possession thereof. It was for them, to rebut the statutory presumption, by leading cogent and convincing evidence. They, however, failed to lead any evidence, to rebut the statutory presumption. As such, they were in conscious possession of the contraband. Section 54 of the Act ibid reads as under :- "Presumption from possession of illicit articles:- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act, in respect of:- a) any narcotic drug or psychotropic substance or controlled substance; Criminal Appeal No. 216-SB of 2004 12 Criminal Appeal No. 368-SB of 2004 b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controller substance; or d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily." 16-A. Section 35 which relates to the presumption of culpable mental state, is extracted as under :- "Presumption of culpable mental state:- (1) In any prosecution for an offence under this Act, which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation:- In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability." Criminal Appeal No. 216-SB of 2004 13 Criminal Appeal No. 368-SB of 2004 16-B. From the conjoint reading of the provisions of Sections 54 and 35, referred to hereinbefore, it becomes abundantly clear, that once an accused, is found to be in possession of a contraband, he is presumed to have committed the offence, under the relevant provisions of the Act, until the contrary is proved. According to Section 35 of the Act ibid, the Court shall presume the existence of mental state, for the commission of an offence, and it is for the accused to prove otherwise. In Madan Lal and another Vs. State of H. P. 2003 SCC (Crl.) 1664 it was held as under:- The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.” 17. The facts of Madan Lal’s case (supra) in brief, were that accused Manjit Singh was driving the Car and the remaining four accused, were sitting therein. One steel container (dolu) in a black coloured bag, was recovered from the said Car, which contained 820 gms. charas. All the accused were convicted and sentenced by the trial Court, holding that they were found in conscious possession of charas, despite the fact, that one of the accused admitted his conscious Criminal Appeal No. 216-SB of 2004 14 Criminal Appeal No. 368-SB of 2004 possession, of the contraband. The Apex Court held that the trial Court was right in coming to the conclusion, that the accused were found in conscious possession of charas, as they had failed to explain as to how they were travelling in a Car together, which was not a public vehicle. The Apex Court upheld the conviction and sentence awarded to the accused. In Megh Singh Vs. State of Punjab, 2003 (4) RCR (Criminal) 319, on 22.2.1993, three persons were found sitting, on the gunny bags, containing poppy husk. The appellant was arrested, while the other two fled. 25 bags containing poppy husk, were found, at the spot, which were seized. The appellant was convicted and sentenced by the trial Court, and the appeal filed by him, was also dismissed by the High Court. The Apex Court, upheld the conviction and sentence of the appellant, observing that he was in conscious possession. The word ‘conscious’ means awareness about a particular fact. It is the state of mind, which is deliberate or intended. It was further held that possession, in a given case, need not be physical possession, but can be constructive, having power and control over the article, while the person whom physical possession is given holds it subject to that power or control. The facts of Madan Lal's case (supra) are similar and identical to the facts of the present case. The principle of law, laid down, in Madan Lal's and Megh Singh's cases (supra) is fully applicable to the facts of the present case. In the instant case, in their statements, under Section 313 Cr.P.C., the accused/appellants, took up the plea of false implication. As stated above, the accused miserably Criminal Appeal No. 216-SB of 2004 15 Criminal Appeal No. 368-SB of 2004 failed to rebut the statutory presumption, referred to above. Thus, their conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 18. It was next submitted by the Counsel for the appellants that, though, the alleged recovery, was effected, on 28.08.01, yet, the sample parcels, were sent to the office of the Chemical Examiner, on 05.09.01, and, thus, there was a delay of 08 days, in depositing the samples, in the said laboratory, but, no explanation regarding delay, was furnished, and, as such, the possibility of tampering with the sample parcels, could not be ruled out. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The mere fact that delay, in sending the samples, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcels were tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the prosecution, to complete the