Criminal Appeal No. 1846-SB of 2003 1 Criminal Appeal No. 1894-SB of 2003 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1846-SB of 2003 Date of Decision: 30.04.2010 Nirmal Singh @ Nimma son of Amrik Singh, aged 30 years, Labourer, r/o village Langroya, Police Station Sadar, Nawanshahr, District Nawanshahr. ... Appellant Versus State of Punjab. ...Respondent Criminal Appeal No. 1894-SB of 2003 Date of Decision: 30.04.2010 Amrik Singh son of Bakshi Ram, aged 28 years, shopkeeper, r/o village Barwa, Police Station, Sadar, Nawanshahr, District Nawanshahr. ... Appellant Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Raman B. Garg, Advocate, for the appellant, in Criminal Appeal No. 1846-SB of 2003. Mr. R.S. Ghuman, Advocate, for the appellant, in Criminal Appeal No. 1894-SB of 2003. Mr. Jaspreet Singh, AAG, Punjab, for the respondent – State. Criminal Appeal No. 1846-SB of 2003 2 Criminal Appeal No. 1894-SB of 2003 SHAM SUNDER, J. * * * * This judgement shall dispose of Criminal Appeal No. 1846-SB of 2003, filed by Nirmal Singh @ Nimma, appellant, and, Criminal Appeal No. 1894-SB of 2003, filed by Amrik Singh, appellant, against the judgment of conviction and the order of sentence, dated 12.09.03, rendered by the Judge, Special Court, Nawanshahr, 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 175 kgs poppy husk, without any permit or licence, falling within the ambit of commercial quantity. 2. The facts, in brief, are that, on 29.11.99, Paramjit Singh, Sub Inspector/Station House Officer, Police Station Banga alongwith Bikkar Singh, Assistant Sub Inspector, Kashmir Singh, Head Constable, and some other Police officials, was holding a picket, at the bridge of river, in the area of village Manguwal. In the meanwhile, a cyclist, namely Mohinder Pal son of Pakhar Ram, resident of village Hakimpur, came from the side of village Rasool, and joined the Police party, as an independent witness. After sometime, a white coloured Criminal Appeal No. 1846-SB of 2003 3 Criminal Appeal No. 1894-SB of 2003 Maruti van, was seen coming, from the side of village Mussapur link road, by the side of the canal bank. On seeing the Police party, the driver of the Maruti van, stopped it, at a distance of 50/60 yards, short of the picket, and started plying the same, in reverse gear, but was overpowered on suspicion. On inquiry, he disclosed his name as Amrik Singh. On the back seat of the Maruti van, two bags, were lying and one young person, was sitting by their side, who disclosed his name, as Nirmal Singh @ Nimma. Thereafter, Paramjit Singh, Sub-Inspector, apprised the accused, that he suspected some contraband, in the Maruti van, and wanted to search the same. Consequently, on search of the Maruti van, in the presence of Pushkar Sandal, Deputy Superintendent of Police, who was called to the spot, five 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 Maruti van, vide a separate recovery memo. The accused were arrested. 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. After the completion of investigation, the accused 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 Criminal Appeal No. 1846-SB of 2003 4 Criminal Appeal No. 1894-SB of 2003 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 Balwant Singh, Clerk, Office of the DTO, Nawanshahr (PW1), Paramjit Singh, Moharrir Head Constable (PW2), Bal Kishan, Constable (PW3), Paramjit Singh, Sub Inspector/Station House Officer (PW4), Investigating Officer, Bikkar Singh, Assistant Sub Inspector (PW5), and, Pushkar Sandal, Deputy Superintendent of Police (PW6), witness to the recovery. Mohinder Pal, 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. It was stated by them, that they had been falsely implicated, in the instant case. It was further stated by them, that nothing, was recovered, from them. They, however, did not lead any evidence, in defence, and closed the same. 7. 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. 8. Feeling aggrieved, the instant appeals, have been filed by the appellants. 9. I have heard the Counsel for the parties, and, have gone Criminal Appeal No. 1846-SB of 2003 5 Criminal Appeal No. 1894-SB of 2003 through the evidence and record of the case, carefully. 10. The Counsel for the appellants, submitted that, the storpy of the prosecution, was highly improbable, as it was not at all possible, to adjust five bags, each containing 35 kgs poppy husk, in a Maruti van, as the space therein is very small. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. It was not a Maruti car, but, a Maruti van. The space, in Maruti van, is certainly much more than the space, in the Maruti car. Only the appellants, were travelling, in the Maruti van. Amrik Singh, was driving the Maruti van, whereas, Nirmal Singh, was sitting, in the same. There was a second seat, behind the seat of the driver. Two bags of poppy husk, were found lying, on that seat, and three bags, were found lying, in the dicky of the Maruti van, the space whereof, was made larger, by folding the seat. So, under these circumstances, five bags, each containing 35 kgs poppy husk, could certainly be adjusted, in the Maruti van, with two persons, one of whom, was the driver, travelling therein. Under these circumstances, it could not be said, by any stretch of imagination, that the story of the prosecution, was, in any way improbable. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellants, that Mohinder Pal, independent witness, though joined, at the time of effecting the alleged recovery, yet, he was not examined, but, on the other hand, was given up by the Additional Public Prosecutor, for the Criminal Appeal No. 1846-SB of 2003 6 Criminal Appeal No. 1894-SB of 2003 State, as a result whereof, the case of the prosecution became highly doubtful. There is, no dispute, about the factum, that Mohinder Pal, independent witness, was joined, but, he was given up, as won over by the accused, on the request of the Police, by the Public Prosecutor, for the State. It means that, this witness, was given up, by the Public Prosecutor, for the State, after being satisfied, that he had actually been won over. The 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 Mohinder Pal, independent witness, had been won over by the accused, there was no necessity of examining him, as the Public Prosecutor, for the State, very well knew that, if he examined Mohinder Pal, independent witness, he would cause damage, to the case of the prosecution. The discretion, exercised by the Public Prosecutor, for the State, in giving up Mohinder Pal, could not be said to be arbitrary or capricious. On the other hand, the decision, taken by the 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 he/she has been won over or terrorized. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Criminal Appeal No. 1846-SB of 2003 7 Criminal Appeal No. 1894-SB of 2003 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 other evidence produced by the prosecution is reliable. In this view of the matter, the submission of the Counsel for the appellants, being Criminal Appeal No. 1846-SB of 2003 8 Criminal Appeal No. 1894-SB of 2003 without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellants, that only joint offer, was given, to the accused, as to whether, they wanted the search to be conducted, in the presence of a Gazetted Officer or a Magistrate. He further submitted that the joint offer, was unknown, to the provisions of law, and, as such, there was violation of the mandatory provisions of Section 50 of the Act, resulting into vitiation of trial, conviction and sentence. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. In this case, the recovery, was not effected, from the person of the accused, but, from the Maruti van, which was being driven by Amrik Singh, and, Nirmal Singh, was sitting therein. Under these circumstances, 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 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 in relation to the premises, vehicles, or articles. Similar view was taken in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. The submission of the Counsel for the appellants, thus, being without substance stands rejected. 13. It was next submitted by the Counsel for the appellants, that the Maruti van, did not belong, to the appellants, and, as such, it could not be said, that they were, in conscious possession of the bags, containing poppy husk lying therein. The submission of the Counsel Criminal Appeal No. 1846-SB of 2003 9 Criminal Appeal No. 1894-SB of 2003 for the appellants, in this regard, does not appear to be correct. Whether the Maruti van, belonged to the accused, or not, hardly mattered. Amrik Singh, was driving the Maruti van, and, Nirmal Singh, was sitting therein. It was not a small quantity of poppy husk, which was lying therein. It was a big haul of poppy husk, which was lying, in the Maruti van. It could not be said, that the accused, were not aware of the bags, containing poppy husk, lying in the Maruti van. It was within the special means of knowledge of the accused, as to wherefrom, the bags, containing poppy husk, were loaded, in the Maruti van; at whose instance, the same, were loaded; and for what purpose, the same, were being taken. No explanation, with regard to the aforesaid aspects of the matter, was furnished, by the accused. Thus, the possession of the accused, in relation to the contraband and their control over the same stood proved. 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 Criminal Appeal No. 1846-SB of 2003 10 Criminal Appeal No. 1894-SB of 2003 substance or controlled substance; 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." 13-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 Criminal Appeal No. 1846-SB of 2003 11 Criminal Appeal No. 1894-SB of 2003 its existence is established by a preponderance of probability." 13-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.” 14. 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 Criminal Appeal No. 1846-SB of 2003 12 Criminal Appeal No. 1894-SB of 2003 Court, holding that they were found in conscious possession of charas, despite the fact, that one of the accused admitted his conscious 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 almost 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 Criminal Appeal No. 1846-SB of 2003 13 Criminal Appeal No. 1894-SB of 2003 their statements, under Section 313 Cr.P.C., the accused/appellants, took up the plea of false implication. As stated above, the accused miserably 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. 15. No other point, was urged, by the Counsel for the parties. 16. In view of the above discussion, it is held that the judgement of conviction and the order of the sentence, rendered by the trial Court, are based on the correct appreciation of evidence and law, on the point. The same do not suffer from any illegality or infirmity and deserve to be upheld. 17. For the reasons recorded above, the appeal, being devoid of merit, is dismissed. The judgment of conviction, and the order of sentence, rendered by the trial Court, are upheld. If the appellants are on bail, their bail bonds, shall stand cancelled. 18. The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within 02 months. 19. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court. 20. The Registry is directed to keep track that the directions are Criminal Appeal No. 1846-SB of 2003 14 Criminal Appeal No. 1894-SB of 2003 complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action. 30.04.2010 (SHAM SUNDER) Amodh JUDGE