Criminal Appeal No. 2056-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 2056-SB of 2003 Date of Decision: 25.05.2010 1. Manjit Kumar son of Nirmal Chand, aged 34 years, r/o village Sunra Rajputan, P.S. Sadar, Phagwara. 2. Amarjit son of Amrik Chand son of Harmesh Lal, aged 23 years, r/o village Lakhanpal, P.S. Noor Mahal, District Jalandhar. 3. Gurmail Singh son of Balwant Singh son of Arjan Singh aged 24 years, r/o village Hadiabad, Phagwara. ... Appellants Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Gagandeep Grewal, Advocate (Amicus-Curiae), for the appellants. Mrs. R.K. Nihal Singh Wala, Additional Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. * * * * This appeal is directed against the judgment of conviction and the order of sentence dated 28.10.03, rendered by the Judge, Special Court, Kapurthala, 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 Criminal Appeal No. 2056-SB of 2003 2 undergo Rigorous Imprisonment, for a period of 10 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 02 years each, for having been found in possession of 280 kgs poppy husk, without any permit or licence, falling within the ambit of commercial quantity. 2. The facts, in brief, are that, on 01.05.01, Hardeep Singh, Sub Inspector/Station House Officer alongwith Ram Kumar, Assistant Sub Inspector, and some other Police officials, was present, at the bus stand(Adda) of village Darvesh Pind, where, a secret information, was received, to the effect, that Manjit Kumar, Amarjit, and, Gurmail Singh alias Gela, accused, were indulging, in the sale of poppy husk, at the back side of Baba Peer Purania Jumma Shah, in the area of village Darvesh Pind, and, if a raid, was conducted, they could be apprehended, at the spot. Relying upon the secret information, the Police party, proceeded towards the pre-disclosed place, where, all the three accused, were found sitting, on 14 plastic bags. They were apprehended, at the spot. Thereafter, Hardeep Singh, Sub Inspector, apprised the accused, that he suspected some contraband, in the bags, and wanted to search the same. Consequently, on search of the bags, in the presence of Chaman Lal, Deputy Superintendent of Police, Kapurthala, who was called to the spot, 280 kgs poppy husk was recovered. Two samples of 250 gms each, were separated therefrom, and the remaining poppy husk, was kept, in the same bags. The samples and the bags, containing the remaining poppy husk, were Criminal Appeal No. 2056-SB of 2003 3 converted into parcels, duly sealed, and taken into possession, 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 Chaman Lal, Deputy Superintendent of Police (PW1), a witness to the recovery, Raman Kumar, Assistant Sub Inspector (PW2), Sukhwinder Singh, Constable (PW3), and, Hardeep Singh, Sub Inspector (PW4), Investigating Officer. Thereafter, the prosecution evidence was closed. 6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They wer put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was stated by them that, no recovery, was effected, from them. It was further stated by them that they were innocent. It was further stated by them, that they were illegally taken, from their house, and, had been falsely implicated, in the instant case. They, however, examined Luga Singh (DW1), and, Jarnail Singh (DW2). Thereafter, they closed their defence evidence. Criminal Appeal No. 2056-SB of 2003 4 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 appeal, has been filed by the appellants. 9. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellants, assailed the judgement of the trial Court, on the following points:- (i) That despite secret information, having been received, by the Investigating Officer, neither the same, was reduced into writing, nor sent to the officer superior, as a result whereof, there was vitiation of trial and further proceedings; (ii) That independent witness, in the name of Surinder Singh, was joined, but, was not examined, without any rhyme or reason, as a result whereof, the case of the prosecution became doubtful; (iii) That there was violation of the mandatory provisions of Section 50 of the Act, as only partial offer, was given, to the accused/appellants; (iv) That conscious possession of the accused, in relation to the contraband, was not proved, and, as such, they did not commit any offence, punishable under Section 15 of the Act; (v) That there were so many discrepancies, in the statements of the prosecution witnesses, which made the case of the prosecution Criminal Appeal No. 2056-SB of 2003 5 doubtful, but the same, were not taken into consideration, by the trial Court; (vi) That the arrest of the accused, was shown, as 5.15 PM, on 01.05.01, vide DDR Entry No. 18, and, on the same day, a Writ for Habeas Corpus, was filed, and, the Warrant Officer, went to the Police Station, at 8.00 PM, which showed that, after coming to know of the order, passed by this Court, in the Writ Petition, this case, was planted, against the accused. 11. First coming to the contention, that despite secret information, the same, was neither reduced into writing, nor sent to the officer superior, it may be stated here, that the submission of the Counsel for the appellants, in this regard, does not appear to be correct. In the first instance, it may be stated here, that the provisions of Section 42 of the Act, were not applicable, to the instant case, as the recovery, was effected, from the public place, when the accused, were found sitting, on the bags. As such, the provisions of Section 43 of the Act, were applicable, to the instant case. Despite that, the Investigating Officer, sent wireless message, to the Deputy Superintendent of Police, Kapurthala, for reaching the spot, by apprising him of the facts and circumstances of the case. The provisions of Sections 42 and 43 of the Act, read as under :- “42. Power of entry, search, seizure and arrest without warrant or authorization – (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, Criminal Appeal No. 2056-SB of 2003 6 narcotics, customs, revenue, intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, olice or any other department of a State Government, if he has reasons to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, (a) enter into an search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any which any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of offence under Chapter IV relating to such drug or substance : and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Criminal Appeal No. 2056-SB of 2003 7 Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an offence takes down any information in writing under sub- Section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior.” “43. Power of seizure and arrest in public place. -- Any officer of any of the department mentioned in Section 42 may -- (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance article liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be useful, arrest him and any other person in his company. Criminal Appeal No. 2056-SB of 2003 8 11-A. A conjoint reading of Sections 42 and 43 of the Act, shows that these sections are independent of each other. Section 43 authorises any Officer of the departments, mentioned in Section 42, for search, seizure, arrest and detention in any public place, or in transit, in respect of any narcotic drug or psychotropic substance, in respect of which, he has reason to believe that an offence punishable under Chapter IV has been committed, whereas, Section 42 of the Act empowers the Officer for search, seizure and arrest in a building, conveyance or enclosed place. When the information is with regard to concealment of some narcotic, in a vehicle, in transit, then the provisions of Section 43 of the Act are applicable. The word 'public place' has been explained for the purpose of Section 43 of the Act, which includes any public conveyance, hotel, shop or other places intended for use or accessible to the public. 12. A Division Bench of this Court in Dharminder Kumar Vs. State of Punjab, 2002(4) RCR (Crl.)278, has held as under :- “Thus it is evident that if seizure is made from any animal, conveyance or article in a public place or in transit then Section43 of the Act would be applicable. Section 43 and Section 42 of the Act operate in different spheres. Since the conveyance has been specifically included in Section 43 of the Act also, therefore, the conveyance which is found in a public place or in transit would be covered under the provisions of Section 43 of the Act whereas conveyance used in Section 42 of the Act has to be read as conveyance which is other than a public place. This interpretation is the only Criminal Appeal No. 2056-SB of 2003 9 harmonious interpretation of Sections 42 and 43 of the Act.” 12-A. It is well settled principle of law, that the provisions of a Statute, are to be construed, in harmonious manner, so that none of the same is rendered nugatory. By harmonious construing the provisions of Sections 42 and 43 of the Act, it can be safely concluded, that if a conveyance is intercepted or apprehended at a public place, or in transit, then the provisions of Section 42 of the Act, would not be applicable. 13. It was held in State of Haryana Vs. Jarnail Singh and others 2004(2) RCR (Crl.) 960 (SC), as under :- “7. Section 43 of the NDPS Act provides that any officer of any of the departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public. 8. Sections 42 and 43, therefore, contemplate two difference situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is Criminal Appeal No. 2056-SB of 2003 10 made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise.” In view of the principle of law, laid down, in the aforesaid cases, the trial Court was right, in holding that since the provisions of Section 42 of the Act were not applicable to the facts of the instant case, the question of compliance of the same did not at all arise. This argument, thus, being devoid of merit, stands rejected. 14. No doubt, independent witness, in the name of Surinder Singh son of Udham Singh, was joined, by the Investigating Officer, yet, he was not examined, by the Additional Public Prosecutor, for the State. It is for the Additional Public Prosecutor, for the State, to decide dispassionately, as to how many witnesses, he wanted to examine, to prove his case, but, he is not required to examine each and every witness, to prove a particular fact. Since the evidence of the other prosecution witnesses, was found, to be sufficient, by the Additional Public Prosecutor, for the State, to prove the case of the prosecution, he did not think it necessary to examine Surinder Singh, independent witness. Mere non-examination of an independent witness, in itself, is not sufficient, to throw away the case of the prosecution over-board. In Criminal Appeal No. 2056-SB of 2003 11 the face of the evidence of the official witnesses, without corroboration through any independent source, the Court, is required to scrutinize the same, carefully and cautiously. If, after careful and cautious scrutiny, the evidence of the official witnesses, is found to be cogent, convincing and reliable, then mere non-examination of an independent witness, does not cast any doubt, on the prosecution case. In the instant case, the evidence of the official witnesses, on reappreciation and re-evaluation, has been found to be cogent, convincing, reliable and credible. In these circumstances, non-examination of an independent witness, did not at all cast any doubt, on the prosecution story. 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. In State of NCT of Delhi Vs. Sunil (2000)I S.C.C. 748, it was held as under:- “It is an archaic notion that actions of the Police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature.” 15. In Appa Bai and another Vs. State of Gujrat, AIR 1988 Criminal Appeal No. 2056-SB of 2003 12 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 the prosecution. It was further held, in the said authority, that the civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victims' 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 cases, is fully applicable to the facts of the present case. In these circumstances, mere non-examination of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part, to falsely implicate the accused, no doubt, is cast on the prosecution story. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 16. In this case, the recovery, was not effected, from the personal search of the accused, but, from the bags, containing poppy husk, on which, they were found sitting. As such, the provisions of Section 50 of the Act, were not applicable. In these circumstances, whether there was partial or complete offer was hardly of any consequence. 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 Criminal Appeal No. 2056-SB of 2003 13 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, in this regard, being without merit, must fail, and the same stands rejected. 17. In this case all the accused, were found sitting on 14 bags, each containing 20 kgs poppy husk. It was a big haul of poppy husk, which was found in possession of the accused. It could not be said, that they were not aware of the contents thereof. It was within the special means of knowledge of the accused, as to wherefrom, the bags, containing poppy were brought, to that place; to which place, the same, were to be taken; and for what purpose. They, however, failed to furnish any explanation, in this regard. Since the accused, were found, in possession of and in control over the bags, containing the poppy husk, the 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. The accused, however, failed to lead any evidence, to rebut the statutory presumption. 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. 2056-SB of 2003 14 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." 17-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. 2056-SB of 2003 15 its existence is established by a preponderance of probability." 17-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.” 18. 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. 2056-SB of 2003 16 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