Crl. Appeal No.489-SB of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.489-SB of 1995 Date of Decision : February , 2008 Ram Sarup S/o Satti Yadav, ....Appellant R/o Sarwahad, Distt. Rai Bereli, U.P. at present Mali Complex, Faridabad. Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Sanjay Vashisht, Advocate, for the appellant. Mr. Kartar Singh, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 14.7.1995, and the order of sentence dated 15.7.1995, rendered by the Court of Addl. Sessions Judge, Faridabad, vide which it convicted the accused/appellant Ram Sarup, for the offence punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him to undergo rigorous imprisonment, for a period of ten years, and, to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of three years. 2. The facts, in brief, are that on 25.3.1994, Siri Dutt, ASI, alongwith Zile Singh, Constable, and other police officials, was present at Phavra Singh Chowk, Town No.1, Faridabad, in connection with patrolling, when Ram Parkash, met him. Meanwhile, a secret information was received against the Ram Sarup (accused), Mali, of Faridabad Complex Administration, to the effect that he had planted 700-800 poppy plants, alongwith other flowering plants, in the beds of flowers, in the area of Govt. Water works. A raiding party was constituted, and a raid was conducted at Water Works. Ram Sarup, accused, was found watering the plants. It was found that the accused had planted poppy plants at 2-3 places of the land of Government Tubewell. Photographer was Crl. Appeal No.489-SB of 1995 2 called, who took four snaps of the scene of recovery. On counting, 780 plants of poppy, were found to be in existence. 20 plants were uprooted and taken as sample. The sample and the remaining plants were made into two separate parcels, duly sealed with the seal bearing impression 'SDS'. The seal after use was handed over to Ram Parkash. The case property was taken into possession, vide recovery memo Ex.PC. The height of the plants was ranging between 2' to 4'. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. The statements of the witnesses were recorded. The accused was arrested. Rough site plan was prepared. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Section 18 of the Act, was framed against him, to which he pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Inder Jit, Photographer (PW-1), who took the snaps Ex.P-1 to P-4, of the scene of recovery. Rajinder Singh, Head Constable, (PW-2), Narender Singh, Constable (PW-3), Siri Dutt, ASI (PW-4), Ramesh Pal, Inspector/SHO, Police Station Central Faridabad (PW-5), and Zile Singh, Head Constable (PW-6). Thereafter, the Public Prosecutor for the State, closed the same. 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. It was stated by the accused, that he was working as Mali-cum-Chowkidar, at the relevant time, in the Faridabad Complex Administration. He, however, stated that one Rameshwar, was working as Head Mali, and had planted the seeds of various flowering plants. He further stated that he did not know, as to what was planted by him. He Crl. Appeal No.489-SB of 1995 3 further stated that he was not aware that those plants were of poppy. He also stated that he had been working as Mali for the last 3-4 years, and prior to that he used to do labour work. He, however, did not lead any 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 aggrieved, against the judgment of conviction and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant. 8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, contended that the trial Court was wrong in coming to the conclusion that the accused was found in possession of 780 plants of poppy, planted in Faridabad Administration Complex, in which he was Mali. He further contended that only 20 plants were taken as sample, which were sent to the Forensic Science Laboratory, and positive report was received. He further contended that there was no report, with regard to the remaining 760 plants, and it could not be said, as to whether, the same were poppy plants, or not. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The Investigating Officer, alongwith other officials, who were accompanying him, found 780 plants having been planted in the Faridabad Administration Complex. It was admitted by the accused, that he was Mali-cum-Chowkidar of the said Complex. Only representative sample of the poppy plants, was required to be sent to the Forensic Science Laboratory. Accordingly, 20 plants of poppy, from 780 plants, planted in the said Complex, were taken as a representative sample, and sent to the Forensic Science Laboratory Haryana, Madhuban (Karnal), and report Ex.PF, was received, that the same were identified as poppy plants of papaver Crl. Appeal No.489-SB of 1995 4 Sonmiferam L. The investigating Agency does not send the entire bulk of contraband recovered from the accused, to the Forensic Science Laboratory, for the purpose of analysis. Only a representative sample, taken therefrom, is sent to the Forensic Science Laboratory , for the purpose of analysis. Similar practice was adopted in the instant case. The submission of the Counsel for the appellant, to the effect that the remaining 760 plants, could not be said to be poppy plants, therefore, being without merit, must fail, and the same stands rejected. 10. It was next contended by the Counsel for the appellant, that the plants, in question, were planted by Rameshwar, Head Mali. He further contended that the accused did not know, as to which type of plants had been planted by the Head Mali. He further contended that the accused was only performing the duty of watering etc. of the plants, as ordered by the superior officers of the Administration. He further contended that merely watering of the plants, did not fasten any liability, upon the accused, that he had planted the poppy plants. He further contended that he could not be said to be in conscious possession of the same. The submission of the Counsel for the appellant, in this regard, also does not appear to be correct. The mere fact that the accused had taken the plea that the said plants were planted by the Head Mali, does not lead the Court anywhere. It is evident from the statements of Siri Dutt, ASI (PW-4), and Zile Singh, Head Constable (PW-6), that after receipt of secret information, the raid was conducted at the Government Water Works. Ram Sarup, accused, was found watering the plants, in that area. The poppy plants had been planted at 4 different places, in different beds of plants, as shown in rough site plan Ex.PE. At that time, the accused was found alone, looking after and tending those plants. The height of the poppy plants was ranging between 2' to 4'. The appellant/accused, in his statement under Section 313 Cr.P.C., admitted that he was working as Mali in the said Complex, where the plants had been planted, Crl. Appeal No.489-SB of 1995 5 for the last 3-4 years. It, therefore, could not be imagined that he did not know the nature of the plants planted in the said Complex. He could not be said to be unaware of the external appearance of the poppy plants. In-action, on the part of the accused in uprooting those poppy plants, and not making a complaint to the superior officers, in case, he had not planted the same, also clearly proves that it was he, who had planted the said poppy plants. Since, the possession of the accused, in respect of 780 poppy plants, planted in the aforesaid Complex, was proved, statutory presumption under Sections 35 and 54 of the Act, operated against him, that he was in conscious possession thereof. It was for him, to rebut that presumption, by leading cogent and convincing evidence. He, however, did not lead any evidence to rebut the statutory presumption, operating against him, under the aforesaid Sections. He could not save himself from the liability, by just naming Rameshwar, Head Mali. Had any cogent and convincing evidence been led by him, to prove that it was Rameshwar, Head Mali, who had planted those plants, the matter would have been considered, in the light thereof. In the absence of any cogent and convicing evidence, the statutory presumption, operating under Sections 35 and 54 of the Act, did not stand rebutted. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellant that though Ram Parkash, independent witness, was joined by the Investigating Officer, but he had not been examined, as a result whereof, a doubt was cast on the prosecution story. A perusal of the record shows that initially Ram Parkash refused service of summons. He was summoned through bailable warrants. The service of bailable warrants was effected upon him, but he did not appear. He was, thereafter, summoned through non-bailable warrants of arrest. However, the non-bailable warrants, could not be executed, despite several opportunities. Thereafter, the evidence of the prosecution was ordered to be closed, by the Crl. Appeal No.489-SB of 1995 6 Court. These circumstances, clearly showed that he was won over by the accused, and, therefore, he did not chose to appear in the witness-box, to depose in favour of the prosecution. The factum that, he was won over, stood also established from the affidavit dated 7.4.1995, sent by him, through post to the Court. On the affidavit, he was identified by R.S.Parasher, Advocate, who was representing the accused, in the instant case in the trial Court. It means that R.S.Parasher, Advocate, took him to the Oath Commissioner for execution of the affidavit. In case, he had not joined the police party, at the time of recovery of poppy plants, he could very well appear in the Court, and depose so. He did not muster courage to come to the Court, to depose and instead adopted an indirect method, with the help of the Counsel for the accused, to send an affidavit, that he was not present, at the time of recovery. In this view of the matter, non-examination of Ram Parkash, did not affect the merits of the case. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, it was 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. No adverse inference could be drawn, against the prosecution, on account of non- examination of Ram Parkash, public witness, in view of the facts and circumstances narrated above. The trial Court was, thus, right in holding the accused guilty. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. 12. No other point, was urged, by the Counsel for the parties. 13. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are based on Crl. Appeal No.489-SB of 1995 7 the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld. 14. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction dated 14.7.1995, and the order of sentence dated 15.7.1995, are upheld. The accused/appellant is directed to surrender to his bail bonds, to undergo the remaining part of the sentence. February , 2008 (SHAM SUNDER) Vimal JUDGE