IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH Crl. Appeal No.1769-SB of 2002 Date of decision : 29-04-2008 Phuman Singh son of Mohinder Singh resident of Village Talwandi Kanoongo, Police Station Sadar, Hoshiarpur. .............Appellant State of Punjab ..............Respondent CORAM : HON'BLE MR. JUSTICE SHAM SUNDER Present : None for the appellant. Mr. S.S. Bhullar, D.A.G., Punjab for the respondent. Sham Sunder, J. This appeal is directed against the judgment of conviction and the order of sentence dated 10-10-2002, rendered by Special Judge, Hoshiarpur, vide which it convicted the accused/appellant Phuman Singh and sentenced him to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1,00,000/-, and in default of payment of the same, to undergo rigorous imprisonment for another period of six months, for the offence, punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as `the Act' only) for having been found in possession of three bags, each containing 40 kilograms of poppy husk, without any permit or licence. Crl. Appeal No.1769-SB of 2002 -2- 2. The facts, in brief, are that on 23-08-2001, Rajwinder Kumar, ASI, along with Mohinder Singh, Head Constable, and other police officials was present at adda Mandiala. A secret information was received that Phuman Singh, accused was in the habit of selling poppy husk and that he was waiting for the customers. It was further informed that he had kept poppy husk on the western-southern corner of the maize crop field, and if a raid was conducted, he could be apprehended. ASI Rajwinder Kumar recorded this information in ruqa Ex.PF, and sent the same to Police Station for the registration of a case, on the basis whereof, FIR PF/1 was registered. Raj Pal, Sarpanch, was joined by the Investigating Officer. Thereafter, a raid was conducted at the maize crop field, where Phuman Singh, accused, was found present. Three bags covered with a tarpaulin were lying there. The search of the bags was conducted, in accordance with the provisions of law, as a result whereof three bags, each containing 40 kilograms of poppy husk, were recovered. Two samples of 250 gms. from each of the bags were taken out, and the remaining poppy husk was put into the same bags. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed and taken into possession, vide separate recovery memo. Site plan exhibit PG was prepared. The accused was arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against the accused, to which he pleaded not guilty, and claimed judicial trial. Crl. Appeal No.1769-SB of 2002 -3- 4. The prosecution, in support of its case, examined Mohinder Singh, Head Constable, PW1, Tarsem Singh, Head Constable, PW2, Ram Piara Patwari, PW3, Rachhpal Singh, Constable, PW4, Harkamalprit Singh, Inspector, PW5, and Rajwinder Kumar, ASI, PW6. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that no recovery of poppy husk was effected from him. He further stated that he never cultivated the land from which the bags, containing poppy husk, were recovered. He further stated that he was not the owner of the land in question. He, however, produced Raj Pal, DW1 in support of his case. Thereafter, he closed the defence evidence. 6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggreived, against the correctness and legality of the judgment of conviction, and the order of sentence, the instant appeal, was filed by the accused/appellant. 8. Despite due notice to the Counsel for the appellant, that the appeal was fixed for regular hearing, on the board of this Court, none appeared, on behalf of the appellant. Under these circumstances, no alternative was left with the Court, than to go through the record and evidence hear the arguments of the Counsel for the respondent and decide the appeal. 9. I have heard the learned Counsel for the respondent, and have gone through the evidence and record of the case, carefully. Crl. Appeal No.1769-SB of 2002 -4- 10. The first question, that arises for consideration, is, as to whether, the appellant was found in conscious possession of the bags, containing poppy husk or not. From the evidence produced by the prosecution, it is proved that three bags, each containing 40 kilograms poppy husk were recovered from the maize crop field, when the same were lying covered under tarpaulin. It was also proved from the cogent, convincing, reliable and creditworthy evidence of the prosecution witnesses, that the accused was found present, in the aforesaid fields, near the bags containing poppy husk at the relevant time. A secret information had been received against the accused that he was in possession of a big haul of poppy husk, as he was in the habit of selling the same, and if raid was conducted, the same could be recovered. Ram Piara, Patwari, Circle Pandori Mehatpur, appeared as, PW-3. He stated that there was maize crop, in the field. He further stated that the field was jointly owned by a number of co-sharers. He further stated that the accused and his father were jointly cultivating the agricultural land, in question. In Agriculturist families, the father and the son, jointly cultivate the land, until and unless, the same is partitioned. There is nothing, on the record, to prove that the land, in question, had been partitioned. Under these circumstances, it could be said that the accused was in exclusive possession of the bags, containing poppy husk, referred-to-above, lying in the fields, though belonging to his father, yet being cultivated by him and his father jointly. Once, the possession of the accused, in respect of the bags, containing poppy husk was proved, then presumption under Sections 54 and 35 of the Act, operated against him, that he was in conscious Crl. Appeal No.1769-SB of 2002 -5- possession thereof. Thereafter, the onus shifted on to the accused, to prove that he was not in conscious possession of the same. The accused , in the instant case, miserably failed to rebut the statutory presumption, operating against him, under the provisions of Sections 54 and 35 of the Act. He did not take up the plea, in his statement under Section 313 Cr.P.C., that, in fact, the bags containing poppy husk, were possessed by his father, or his brother. He also did not take up the plea, that he had just gone to the fields, to answer the call of nature. He also did not take up the plea, that he was only helping his father in cultivation and did not know, as to who had kept the bags, containing poppy husk, in the fields. He also did not take up the plea, in his statement, under Section 313 Cr.P.C, or during the course of cross-examination of the prosecution witnesses, that somebody else had kept the bags, containing poppy husk, in the fields, and when in routine, he went there, he being un-aware of the contents of the same was, all of a sudden, apprehended by the police. As stated above, the accused failed to rebut the statutory presumption, operating against him, under the aforesaid provisions of law. Under these circumstances, he failed to prove that he was not in conscious possession of the contraband. Since the conscious possession of the accused, in respect of the bags, containing poppy husk, was proved, the offence under Section 15 of the Act was constituted. 11. The next question, that arises for consideration is, as to whether, it was obligatory upon the prosecution to join a Gazetted Officer or a Magistrate before searching the fields, where, bags containing poppy husk (aforesaid) were lying. The recovery, in this case, was not effected from the person of the accused. As such, the provisions of Section 50 of the Act, were not applicable to the instant case. In State of Punjab Vs. Baldev Singh, 1999(6) S.C.C. 172, a Constitution Bench of Crl. Appeal No.1769-SB of 2002 -6- the Apex Court, settled beyond doubt, that the language of Section 50, was implicitly clear that the search had to be in relation to a person, and not search of premises, vehicles, or articles. Similar view was taken in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. In these circumstances, it can be said that the consistent, and particularly, the view of the larger Bench of the Supreme Court appears to be that the search, must relate to the person, and not vehicle, other luggage and articles, and then alone the provisions of Section 50 would be attracted. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts and circumstances of the present case. Since the provisions of Section 50 were not applicable, to the facts of the present case, the question of non-compliance of the provisions of Section 50 of the Act paled into insignificance. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. Had the provisions of Section 50 been applicable, it would have been said that the search was required to be effected, either in the presence of a Magistrate or a Gazetted Officer, if the accused had given his option to do so. Under these circumstances, there was no necessity of effecting the search of the fields, where the bags containing poppy husk were lying in the presence of a Magistrate or a Gazetted Officer. Even then, out of abundant caution, the Investigating Officer had given a written offer, Ex. PA to the accused, as to whether, he wanted his search, to be conducted in the presence of a Gazetted Officer or a Magistrate. The accused, however, reposed faith in Rajinder Singh, ASI, the Investigating Officer and consented that the search be conducted by him. Under these Crl. Appeal No.1769-SB of 2002 -7- circumstances, the accused, waived off his right of search, for being conducted, in the presence of a Gazetted Officer or a Magistrate. Under these circumstances, it could not be said that he was deprived of a right of being searched, in the presence of a Gazetted Officer, or a Magistrate. The evidence of the prosecution witnesses, has been subjected to in-depth scrutiny, and nothing came to the fore, which may discredit the same. The evidence of the prosecution witnesses, as stated above, being cogent, reliable and creditworthy, was sufficient to record the conviction and award sentence to the accused. The trial Court was, thus, right in recording conviction and awarding sentence to the accused by placing reliance on the reliable evidence of the prosecution witnesses. 13. The next question, that arises for consideration, is as to whether, the link evidence, in the instant case, was complete or not. From the cogent, convincing, reliable and creditworthy evidence of Rajwinder Kumar, ASI, PW6, Harkamalprit Singh, Inspector, the then SHO of Police Station Sadar, PW5, and Rachhpal Singh, Constable, PW4, it was proved beyond doubt, that none tampered with the samples, till the same reached the Office of the Chemical Examiner. Above all, there is the report, Ex.PJ of the Chemical Examiner, to the effect, that the seals on the exhibits were intact, on arrival, and agreed with the specimen impressions of seals sent. The link evidence was thus complete. Completion of link evidence also provides strength to other evidence produced by the prosecution. The trial Court was also right in holding that the link evidence was complete. On reappraisal of the prosecution evidence, this Court also comes to the same conclusion, and endorses the findings of the trial Court, in this regard. 14. The next question that arises for consideration, is, as to whether the provisions of Section 55 of the Act were complied with, in the Crl. Appeal No.1769-SB of 2002 -8- instant case or not. No doubt, the provisions of Section 55 are directory, in nature, and non-compliance therewith, ipso facto, does not vitiate the investigation and trial. However, if the accused is able to show that prejudice was caused to him, on account of non-compliance of the provisions of Section 55 of the Act, then certainly, a doubt is cast on the prosecution story. However, in the instant case, the Investigating Officer did not take any chance even to flout the directory provisions of the Act. He, in letter and spirit, observed the compliance of the directory provisions. Harkamalprit Singh, who was the SHO of the concerned Police Station, at the relevant time, appeared as, PW5, and stated that on 23-08-2001, Rajwinder Kumar, ASI, the Investigating Officer, produced before him six sample parcels, three bags, containing poppy husk, duly sealed with the seal, bearing impression `RK', along with the accused, Tarpal and weights along with weighing scale etc. He further stated that he checked all these articles, and interrogated the accused. He further stated that, thereafter, he affixed his own seal, bearing impression `HPS' on all the six sample parcels and the three bags and, thereafter, entrusted the accused and all these articles to ASI Rajwinder Kumar for further investigation vide memo Ex PE which was attested by him (Rajwinder Kumar), Head Constable Harminder Singh and Head Constable Santokh Singh. He further stated that he entrusted the seal to ASI, after affixing the same on the aforesaid case property. It means that the provisions of Section 55 of the Act were duly complied with by the Investigating Officer. There was no necessity, on the part of the Investigating Officer, to open the sample parcels. The trial Court was right in coming to the conclusion that the provisions of Section 55 were complied with. This Court, on reappraisal of the evidence of the Crl. Appeal No.1769-SB of 2002 -9- prosecution witnesses, endorses the finding of the trial Court, in this regard, as the same has been found to be correct. 15. No doubt, Raj Pal, Sarpanch was joined as an independent witness by the Investigating Officer, yet he was given up as won over by the Public Prosecutor for the State. The factum that he was actually won over by the accused, was proved when he was examined by him (accused) as DW-1. He stated that no recovery was effected, from the accused, in his presence. At the same time, it was stated by him, that the documents bore his signatures. In case, no recovery had been effected, from the accused, in his presence, then, under what circumstances, he appended his signatures on various documents, prepared at the time of recovery of poppy husk, from the accused, is not known. Since, he signed the documents, it could not be said that he was an illiterate person. He could not be expected to sign the documents, without going through the contents thereof. Since, he had been won over by the accused, he went out and out, to support him, by appearing as, DW1, but could not wriggle out of his signatures which were found on documents PA, PB, PD and PH. In Roop Singh Vs.State of Punjab 1996(1) RCR 146, a Division Bench of this Court, held that, no adverse inference, can 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 (P&H) (Division Bench), it was held that where Crl. Appeal No.1769-SB of 2002 -10- the independent witness, was won over, by the accused, and only the official witnesses were examined, by 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, A.I.R 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 aforesaid authorities, is fully applicable to the facts of the present case. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 17. In view of the above, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld. 18. For the reasons recorded, hereinbefore, the appeal being without merit, must fail, and the same is dismissed. The judgment of conviction, and the order of sentence dated 10-10-2002, are upheld. The appellant, if on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, Hoshiarpur, shall take necessary steps to comply with the judgment, with due promptitude. (SHAM SUNDER) JUDGE April 29,2008 gurpreet