Criminal Appeal No. 610-SB of 2004 and 1 Criminal Misc. No. 35486 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 610-SB of 2004 and Criminal Misc. No. 35486 of 2009 Date of Decision: 29.01.2010 Krishan son of Sh. Birbal, r/o Jakhod Khera, Police Station Sadar, Hissar, District Hissar. ... Appellant Versus The State of Haryana. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. V.S. Rana, Advocate, for the appellant. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for the respondent – State. SHAM SUNDER, J. This appeal filed by Krishan, accused (appellant) is directed against the judgment of conviction, dated 07.02.04, and the order of sentence, dated 09.02.04, rendered by the Court of Additional Sessions Judge, Hisar, vide which, it convicted him and his co-accused, and Criminal Appeal No. 610-SB of 2004 and 2 Criminal Misc. No. 35486 of 2009 sentenced them, as under:- Names of the accused Offence for which convicted Sentence awarded 1 2 3 i. Krishan (a) Under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the Act only) To undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs. 1 lac, and, in default thereof, to further undergo rigorous imprisonment for a period of two years. ii. Bansi (b) Under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the Act only) To undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs. 1 lac, and, in default thereof, to further undergo rigorous imprisonment for a period of two years. (c) Under Section 25 of the Arms Act. To undergo rigorous imprisonment for a period of one year, and to pay a fine of Rs. 5,000/-, and, in default thereof, to further undergo rigorous imprisonment for a period of three months. Vinod, accused, was, however, acquitted. 2. On 16.07.02, Ram Kumar, Inspector/Station House Officer, Criminal Appeal No. 610-SB of 2004 and 3 Criminal Misc. No. 35486 of 2009 Police Station Sadar Hisar, alongwith some other Police Officials, was present, at the bus-stand of village Mignikhera, in connection with patrol duty and crime detection, when Devi Lal, prosecution witness, met the Police party, and informed that, on that day, when he went, to the fields, he noticed that, in a room (kotha), belonging to him, where, he was storing his fodder, bags containing poppy-husk, were found to have been stored. On receipt of this information, the Police party, alongwith Devi Lal, prosecution witness, proceeded to the pre- disclosed place. When the Police party, reached the pre-disclosed place, it was found, that a fiat car, bearing No. HR-12-6629, was parked, outside the aforesaid room (kotha). Three persons, were found present there. One of them, was removing fodder, from above the gunny bags, and two were coming towards the fiat car with a gunny bag. On seeing the Police party, both the persons, who were carrying the gunny bag, towards the car, succeeded in running away. Devi Lal, disclosed, that the name of one person, who ran away from the spot was Krishan, accused (now appellant). The person, who was intercepted, in the room (kotha), disclosed his name as Bansi. On his personal search, 20 live cartridges and one country-made pistol, were recovered from him. He could not produce any licence, for keeping the same. The same, were taken into possession, vide separate recovery memo. Thereafter, a VT message, was sent, to the Deputy Superintendent of Police, Hisar, who came to the spot. In his presence, search was conducted. On search of the room, 28 bags, each containing 40 kgs of poppy-husk, and one bag, Criminal Appeal No. 610-SB of 2004 and 4 Criminal Misc. No. 35486 of 2009 lying near the fiat car, which was thrown away, by the accused, who escaped, containing 40 kgs of poppy-husk, were recovered. A sample of 200 gms, from each of the bags, was taken out, and the remaining poppy-husk, was kept in the same bags. The samples and the remaining poppy-husk, were converted into parcels, duly sealed, and were taken into possession alongwith the fiat car. Bansi, accused, was arrested. Later on, Krishan and Vinod, accused, were also arrested. After the completion of investigation, the accused, were challaned. 3. On their appearance, in the Court of the Committing Magistrate, the accused, were supplied the copies of documents, relied upon by the prosecution. 4. After the case, was received by commitment, in the Court of Sessions, charge under Section 15 of the Act, was framed against Vinod and Krishan, accused, and, under Sections 15 of the Act, and, 25 of the Arms Act, against Bansi, accused, was framed, to which they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Pat Ram, Assistant Sub Inspector (PW1), Bhanwar Lal, Head Constable (PW2), Jai Singh, Constable (PW3), Satbir Singh, Sub Inspector (PW4), Mann Singh, Deputy Superintendent of Police (PW5), a witness to the recovery, Ram Kumar, Inspector (PW6), the Investigating Officer, and, Devi Lal (PW7), another recovery witness. Thereafter, the Additional Public Prosecutor, for the State, closed the prosecution evidence. 6. The statement of Krishan, accused, under Section 313 of Criminal Appeal No. 610-SB of 2004 and 5 Criminal Misc. No. 35486 of 2009 the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that, his identity, as the alleged perpetrator of crime, was not established. He further stated that, he was falsely implicated, in the present case. He, however, did not lead any evidence, in defence. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court convicted and sentenced Bansi and Krishan, accused, as stated above, and acquitted Vinod, accused. 8. Feeling aggrieved, the instant appeal, has only been filed by Krishan, accused/appellant. 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 appellant, at the very outset, submitted that, the prosecution, miserably failed, to establish the identity of the accused, as the alleged perpetrator of crime. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Devi Lal, PW7, belonged to the same village, to which, Krishan, accused, belonged. In this case, the recovery, was effected, at about 4.30 PM, in the month of July, 2002. At about 4.30 PM, in the month of July, there is sufficient light of the day, and, under these circumstances, it was not at all difficult for Devi Lal, to identify Krishan, accused, belonging to his village, and already known to him. Criminal Appeal No. 610-SB of 2004 and 6 Criminal Misc. No. 35486 of 2009 Devi Lal, when appeared, as PW7, in clear-cut terms, stated that, he identified one of the accused, who escaped, from the spot, as Krishan, the present appellant. Since Devi Lal, independent witness, identified Krishan, as one of the accused, running from the spot, there was no question of holding his identification parade, by the Investigating Officer, during the course of investigation. Had the recovery been effected, at night, or after sun-set, the matter would have been different. Had Krishan, accused, not belonged, to the same village, to which, Devi Lal, belonged, it would have been said, that the possibility of wrong identification of the accused, could not be ruled out. Under these circumstances, the trial Court, was right, in holding, that the identity of Krishan, as one of the perpetrators of crime, stood duly established, from the evidence of Devi Lal, PW7. On reappraisal of the evidence of the prosecution witness i.e. Devi Lal, PW7, this Court, also comes to the same conclusion. The conclusion, arrived at, by the trial Court, with regard to the correct identification of Krishan, accused, as one of the perpetrators of crime, being correct, is affirmed. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 11. It was next submitted, by the Counsel for the appellant, that the conscious possession of Krishan, accused, in respect of the contraband, was not proved, by the prosecution. The submission of the Counsel for the appellant, in this regard, also does not appear to be correct. Devi Lal, PW7, to whom, the room, in question belonged, Criminal Appeal No. 610-SB of 2004 and 7 Criminal Misc. No. 35486 of 2009 which was being used for storing the fodder, when found some bags, containing poppy-husk, therein, he informed the Police. It was, on the basis of the information, given by him, that the Police party, reached there. Krishan, accused, was found carrying a bag, containing poppy- husk, towards the fiat car, referred to above, who alongwith another unidentified person, after throwing away the same, on seeing the Police party, ran away, whereas, Bansi, another accused, was apprehended inside the room, and 28 bags containing poppy-husk, were recovered, therefrom. The prosecution, is only required to prove either the physical or constructive possession of the contraband, in relation to the accused. Once the physical or constructive possession, in respect of the contraband, in relation to the accused, is proved, the statutory presumption, under Sections 35 and 54 of the Act, operates, against him. Thereafter, it is for the accused, to rebut that statutory presumption. In the instant case, when the sequence of events, referred to above, is viewed, in its proper perspective, then only one and one inescapable conclusion, that can be arrived at, is that, Krishan and Bansi, accused, were found, in constructive possession of the bags, containing poppy-husk. In case, Krishan, accused, had no concern with the bags, containing poppy-husk, lying in the room, then why, he was carrying one bag, from the room, to the place, where the fiat car, was standing, and why, he threw away the same, on seeing the Police party, and succeeded, in running away. It means that, Krishan, accused, alongwith Bansi, being in constructive possession of the contraband, Criminal Appeal No. 610-SB of 2004 and 8 Criminal Misc. No. 35486 of 2009 was carrying the bags, one by one, to the place, where the fiat car, was standing, so as to load the same, in installments, in the same, for carrying to some other place. The conduct of Krishan, accused also indicated his guilty mind. No explanation was furnished by him how he was found present near the room where the contraband was stacked; wherefrom the contraband was brought to that place; to which place, the same was to be taken; and why he threw away one bag, containing poppy husk, on seeing the Police party. 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; 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, Criminal Appeal No. 610-SB of 2004 and 9 Criminal Misc. No. 35486 of 2009 for the possession of which he fails to account satisfactorily." 11-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." 11-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:- Criminal Appeal No. 610-SB of 2004 and 10 Criminal Misc. No. 35486 of 2009 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.” 12. 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 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. The principle of law, laid down, in Madan Lal's case (supra) is fully applicable to the facts of the present case. In the instant case, in his statement, under Section 313 Cr.P.C., the accused/appellant, took Criminal Appeal No. 610-SB of 2004 and 11 Criminal Misc. No. 35486 of 2009 up the plea, only of false implication. As stated above, the accused miserably failed to rebut the statutory presumption, referred to above. Thus, his conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. It was next submitted by the Counsel for the appellant, that the mandatory provisions of Section 42 of the Act, were deliberately violated, in the instant case, as a result whereof, the trial, conviction and sentence, stood vitiated. The submission of the Counsel for the appellant, in this regard, also does not appear to be correct. There was no specific secret information, against the accused, that they had kept the bags, containing poppy-husk. Devi Lal, PW7, only gave an information, to the Police, that some bags, containing poppy-husk, were lying in a room, belonging to him, which was being used for storing the fodder. He had not given any information, to the Police, that the bags, containing poppy-husk, had been kept, by the accused, and his co-accused. It was per-chance, when the Police party, reached there, that it found, Bansi, accused, inside the room, and Krishan and one unidentified accused, carrying one bag, containing poppy-husk, towards the place, where the fiat car, was standing. Under these circumstances, the question of reduction into writing, the secret information and sending the same, to the officer superior immediately, did not at all arise. In Dharminder Kumar Vs. State of Punjab, 2002(4) RCR (Crl.) 278, in a similar situation, when there was no Criminal Appeal No. 610-SB of 2004 and 12 Criminal Misc. No. 35486 of 2009 specific information with the Police, against the accused, that they were in possession of the contraband, a Division Bench of this Court, held that, there was no necessity of reduction of the secret information into writing and sending the copy thereof immediately, to the Officer superior. Under these circumstances, there was no violation of the provisions of Section 42 of the Act. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 14. Coming to Criminal Misc. No. 35486 of 2006, the Counsel for the appellant/applicant, submitted that the appellant/applicant, was convicted, in another case, bearing No. 189 dated 13.04.97, under Section 15 of the Act, registered in Police Station Adampur, on 13.08.98, and was sentenced to undergo rigorous imprisonment, for a period of ten years, and to pay a fine of Rs. 1 lac. He further submitted that, in that case, the appellant/applicant, has already undergone about eight years of sentence, and is on conditional bail. He further submitted that, in the present case, he has already undergone three years of sentence. He further submitted that the substantive sentences, awarded in both the cases aforesaid, under the Act, to the appellant/applicant, be ordered to run concurrently. He also placed reliance, on Jang Singh Vs. State of Punjab, 2008(1), RCR (Criminal), 323 (P&H), a case, decided, by a Full Bench of this Court. The submission of the Counsel for the appellant/applicant, in this regard, does not appear to be correct. In Jang Singh's case (supra), it was held, that if the accused, is Criminal Appeal No. 610-SB of 2004 and 13 Criminal Misc. No. 35486 of 2009 habitual offender and is found guilty, on various counts, and it is suspected, that he would be a menace, to the Society, if let loose, then the term of consecutive sentences, should be given. It was further held that, the habitual offenders, should not be given the same treatment, as is given to the normal offenders. Segregation of the habitual offenders, by making them to undergo sentences consecutively, can also be accepted as principle, as held, in K. Prabhakaran Vs. P. Jayarajan, 2005(1), RCR (Civil), 667 : (2005), 1, SCC, 754. In the instant case, the Counsel for the respondent-State, opposed the submission of the Counsel for the appellant/applicant, for ordering the running of the substantive sentences, in both the cases concurrently. The appellant/applicant, is the habitual offender. He was convicted, in case FIR No. 189, dated 13.04.97, under Section 15 of the Act, registered in Police Station Adampur, on 13.08.98, and was sentenced to undergo rigorous imprisonment, for a period of ten years, and to pay a fine of Rs. 1 lac, for having been found, in possession of commercial-quantity of the contraband. For the second time, he was also convicted and sentenced, to undergo rigorous imprisonment, for a period of ten years, in case FIR No. 510, dated 16.07.02, registered in Police Station Sadar, Hisar, for having been found, in possession of 29 bags of poppy-husk, without any permit or licence. Since, he is a habitual offender, he will certainly be a menace to the society, if let loose. In these circumstances, the award of consecutive sentences, is the rule. Running of concurrent sentences, can only be ordered in relation to the convicts who are not Criminal Appeal No. 610-SB of 2004 and 14 Criminal Misc. No. 35486 of 2009 the habitual offenders, and have been convicted for minor offences. The offences, under the Act, are of serious nature. The persons, who deal in the sale and purchase of narcotics, annihilate the generation. The consumption of narcotics, by the youth of this Country, has not only deteriorated their health, but also caused loss, to the economy. No ground, therefore, is made out, for directing the running of substantive sentences, awarded, to the appellant, in both the aforesaid cases, to run concurrently. On the other hand, it is directed, that the sentences, in both the cases, referred to above, shall run consecutively. The submission of the Counsel for the appellant/applicant, in this regard, being devoid of 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 sentence, rendered by the trial Court, are based on the correct reading and due appreciation of evidence, and, law on the point. The same do not suffer from any illegality and infirmity, warranting the interference of this Court, and, are liable to be upheld. 17. For the reasons recorded above, the appeal, is dismissed. The judgement of conviction and the order of sentence are upheld. If the appellant, is, on bail, his bail bonds shall stand cancelled. 18. Criminal Misc. No. 35486 of 2009, is dismissed. 19. The Chief Judicial Magistrate, is directed to comply with the judgement, in accordance with law, keeping in view the Criminal Appeal No. 610-SB of 2004 and 15 Criminal Misc. No. 35486 of 2009 applicability of the provisions of Section 428 of the Code of Criminal Procedure, and send the compliance report, within a period of two months, from the date of receipt of a copy thereof. 29.01.2010 (SHAM SUNDER) Amodh JUDGE