Crl. Appeal No.73-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.73-SB of 1999 Date of Decision:September 08, 2008 Mangal Singh son of Didar Singh, resident of Bhai Ki Basti, Ferozepur. .... Appellant Versus The State of Punjab .... Respondent 2. Crl. Appeal No. 132-SB of 1999 Dhanna Singh son of Chanda Singh @ Hira Singh, son of Rangha resident of Bagrian Police Station Amargarh, District Sangrur. ... Appellant. Versus The State of Punjab .... Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Rajesh Gupta, Advocate( Amicus-Curiae) for the appellants, in both the appeals. Mr. S.S. Bhullar, DAG, Punjab for the respondent, in both the appeals. --- Crl. Appeal No.73-SB of 1999 2 SHAM SUNDER, J. This judgment shall dispose of Crl. Appeal No. 73- SB of 1999 filed by Mangal Singh and Criminal Appeal No. 132-SB of 1999, filed by Dhanna Singh, arising out of the judgment of conviction, and the order of sentence dated 24.12.1998, rendered by the Special Judge, Patiala, vide which he convicted both the accused/appellants, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter 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 of the same, to undergo further rigorous imprisonment for a period of two years each, for having been found in possession of 45 bags, each containing 35 KGS of poppy husk, without any permit or licence. 2. The facts, in brief, are that on 16.08.1993, a police party headed by SI/SHO Kuldip Singh of Police Station Bhadson, was present in connection with vehicle checking, at the bridge of canal minor, in the area of village Kalar Majri. Mukhtiar Singh, an independent witness, also came there, who was joined with the police party. At about 7.30 PM, truck bearing registration No. PC-L-9945, came from the side of Crl. Appeal No.73-SB of 1999 3 Bhadson. It was signalled to stop by Kuldip Singh, Sub Inspector. The truck was stopped. Dhanna Singh, who was earlier known to Maghar Singh, ASI, jumped down from the truck, and ran away, under the cover of darkness. He was chased by Balwinder Singh, HC, but could not be apprehended. Mangal Singh, who was driving the truck, was apprehended at the spot. The search of the truck was conducted, in accordance with the provisions of law, as a result whereof, 45 bags were found lying therein. Each bags was found containing 35 Kgs poppy husk. A sample of 250 grams of poppy husk, was taken out of each of the bags. The contents of the samples were put into separate containers, and the remaining poppy husk was kept in the same bags. The bags, and the samples, were converted into parcels, duly sealed, and taken into possession, along with the truck, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, the FIR was registered. The site plan was prepared. Mangal Singh, accused, was arrested. The statements of the witnesses were recorded. Dhanna Singh, accused was arrested on 25.08.1993. 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. Charge under Section 15 of the Act, was Crl. Appeal No.73-SB of 1999 4 framed against the accused, to which they pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Maghar Singh, ASI, (PW-1), a witness to the recovery, who also identified Dhanna Singh, accused, who escaped from the spot, on the ground, that he knew him earlier to the search and seizure, Jai Gopal, ASI ( PW- 2) , who tendered his affidavit Ex.PF, Kuldip Singh, Sub Inspector ( PW-3 ), who investigated the case and prepared various documents on record, Usha Rani Clerk, ( PW-4 ), who deposed that the truck was transferred in the name of Kuldip Singh son of Shingara Singh, Hardev Singh, son of Bhagwan Singh, ( PW-5 ), who deposed that when Dhanna Singh was produced, he was in the Police Station, and Kulwant Singh, Constable, ( PW-6 ), who tendered his affidavit Ex.PJ . Thereafter, the Additional Public Prosecutor for the State, gave up Mukhtiar Singh, as won over by the accused, on the police request, and closed the evidence. 5. 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. It was stated by Dhanna Singh, accused, that no recovery was effected from him. Crl. Appeal No.73-SB of 1999 5 5-A. Mangal Singh, accused, in his statement under Section 313 Cr.P.C. also put up the same plea. The accused, however, did not lead any evidence in defence. . 6. After hearing the Additional 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 appeals, were filed by the appellants. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for Dhanna Singh, appellant, at the very outset, vehemently, contended that the identity of Dhanna Singh, accused, as the perpetrator of crime, was not established, as he allegedly escaped from the spot. He further submitted that no identification parade was held by the Investigating Officer, to pin point his identity, as the perpetrator of crime. He further submitted that, even no evidence was produced by the prosecution, to prove that he was the person, who escaped from the spot. The submission of the Counsel for the appellant, Dhanna Singh, in this regard, does not appear to be correct. Maghar Singh, ASI ( PW-1 ), in Crl. Appeal No.73-SB of 1999 6 clear cut terms stated that he knew Dhanna Singh, accused earlier. He further stated that after the truck was stopped, he identified Dhanna Singh, accused in torch light. To the same effect, Kuldip Singh, Sub Inspector, made a statement. Maghar Singh, ASI ( PW-1 ) could not be shaken during the course of cross-examination, with regard to the identification of Dhanna Singh, accused, by him, in the torch light, as he knew him earlier to the search and seizure. Since Dhanna Singh, accused, was identified by Maghar Singh, ASI ( PW-1 ) at the spot, the question of holding identification parade, during the course of investigation, to pin point his identity, did not at all arise. Had there been any doubt with regard to his identification, at the spot, by Maghar Singh, ASI, it would have been said that on account of non holding of identification parade, during the course of investigation, to pin-point his identity, he was not connected with the case. Even Maghar Singh, ASI ( PW-1 ) stated that Dhanna Singh, accused, was sitting by the side of driver. He further stated that he was standing on the driver's side of the truck. The truck was stopped at 7.30 PM , when there was sufficient day light, in the month of August. If the person tried to escape, at that time, in the month of August, then he could certainly be identified by a witness, known to him, earlier in the torch light. Since the identity of Dhanna Singh, appellant, was established from the Crl. Appeal No.73-SB of 1999 7 evidence of Maghar Singh, ASI ( PW-1), he was connected with the commission of crime. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 10. It was next submitted by the Counsel for the appellants, that Kuldip Singh, Sub Inspector, the Investigating Officer himself sent ruqa from the spot, and also investigated the case. He further submitted that the complainant could not be the investigating Officer. He further submitted that adoption of such a course, by Kuldip Singh, Sub Inspector, was contrary to the provisions of law, and a prejudice was caused to the accused. However, it may be stated here, that in S.Jeevanantham Vs. State through Inspector of Police, T.N. (2004) 5 Supreme Court Cases, 230, a case decided by the Apex Court, it was held that if the Police Officer, who is the complainant, also conducts the investigation of the case, and it is not proved that any prejudice was caused to the accused, on account of the adoption of such a course, the accused cannot be acquitted. In this case, no evidence was led by the accused, that a prejudice was caused to them, on account of adoption of the aforesaid course, by the Investigating Officer. The Counsel for the appellants, however, placed reliance on Mohd Salim v. State of Haryana 2008(2) RCR ( Criminal ) 128, in support of his contention that the complainant cannot be the Crl. Appeal No.73-SB of 1999 8 investigating Officer. The facts of Mohd Salim's case ( supra ) are clearly distinguishable, from the facts of the instant case. In that case, there were a number of infirmities, on the basis whereof, the case of the prosecution became doubtful and, as such, the appellant was acquitted by a Single Bench of this Court. One of the grounds, which weighed with the Court to acquit the appellant, was that the police official, who sent ruqa, also became the Investigating Officer. It may be stated here, that in view of the principle of law, laid down in S.Jeevanantham's case (supra) , decided by the Apex Court, on the same point, the principle of law, laid down in Mohd Salim's case ( supra ), decided by this Court, shall not hold the field. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellants, that when the case property was produced, in the Court, the seals thereon, were found broken, and the paper chits containing the particulars of the case property were not found in existence. He further submitted that, under these circumstances, it could not be said, that the case property produced in the Court, at the time of evidence of the prosecution witnesses, was the same, as was allegedly recovered from the appellants. He further submitted that, under these circumstances, it could be said that no recovery, Crl. Appeal No.73-SB of 1999 9 whatsoever, was effected from the accused, but they were falsely implicated in the instant case. The bags containing poppy husk Ex.P2 to Ex.P46 were produced at the time of the evidence of Sub Inspector Kuldip Singh ( PW3 ) on 22.11.1996. Some of the bags were found torn, and the seals on some of the bags were found broken. It may be stated here, that the recovery, in this case was effected on 16.08.1993, whereas, the case property was, in the first instance, produced in the Court at the time of the evidence of Kuldip Singh, Sub Inspector, ( PW3 ) after more than three years. The case property remained lying in the malkhana, where the case properties of other cases, were also lying. On account of shortage of space, in the malkhana, the case properties of the cases, cannot be stacked properly. If, on account of irresponsible handling, lapse of sufficient time, between the date of recovery, and production of the case property, in the Court, and during the course of transit, seals on some of the bags, stood broken, and some of the bags, containing poppy husk underwent the process of decay, that did not mean that the case property, produced in the Court, did not stand connected with the case. Kuldip Singh, Sub Inspector, ( PW3 ), in clear- cut terms, stated that the bags, containing poppy husk, produced, in the Court, were the same, as were recovered from the truck, being driven by the accused. The only obligation, Crl. Appeal No.73-SB of 1999 10 upon the prosecution is to produce the case property, in the Court, and get it identified, from the prosecution witnesses, so as to connect the same with the case. In the instant case, the prosecution produced the witnesses, who identified the case property, as the same, as was recovered from the accused. Under these circumstances, the case property produced in the Court, stood duly connected with the case. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellants, that though an independent witness, in the name of Mukhtiar Singh, was joined, at the time of search and seizure, yet he was not examined, as a result whereof, it could be said that the best evidence, in possession of the prosecution, was withheld by it. It is, no doubt, true that though this independent witness was joined by the Investigating Officer, at the time, when the search was conducted and seizure was effected, in his presence, yet he joined hands with the accused, during the course of trial. It is also, no doubt, true that this witness was given up as having been won over by the accused, by the Additional Public Prosecutor for the State, vide separate statement on 18.01.1996. The Public Prosecutor, for the State, is the master of the case. It was for him, to decide, as to which witness he wanted to examine, and which Crl. Appeal No.73-SB of 1999 11 witness he did not want to examine. The Public Prosecutor for the State, exercised the discretion, vested in him in giving up Mukhtiar Singh, independent witness, as won over by the accused, on the basis of sound judicial principles. It could not be said that the discretion exercised by the Public Prosecutor for the State, in giving up Mukhtiar Singh, as won over by the accused, was, in any way, arbitrary or capricious. The evidence of the prosecution witnesses, is creditworthy, and inspires confidence, in the mind of the Court. 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 has been won over or terrorized. 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 Crl. Appeal No.73-SB of 1999 12 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, a Division Bench of this Court, held that where the independent witness, was won over by the accused, and only the officials witnesses, were examined, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. The principle of law, laid down, in the said authorities, is fully applicable to the facts of the present case. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 13. It was next submitted by the Counsel for the appellants, that the owner of the truck, was not associated during the course of investigation, as a result whereof, the case of the prosecution became doubtful. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. No doubt, the Investigating Officer committed an irregularity by not associating the owner of the truck, during the course of investigation. However, the mere fact that the Investigating Officer committed an irregularity or illegality, during the course of investigation, did not mean that the accused did not commit any offence. If, on account of irregularity or illegality, during the course of investigation,committed by the Investigating Officer, benefit of Crl. Appeal No.73-SB of 1999 13 doubt is given to the accused, then every dishonest or negligent officer, will certainly leave lacunae, in the case of the prosecution, so as to create an escape route for the accused. Had Kuldeep Singh, Sub Inspector associated the owner of the truck, during the course of investigation, at the most he(owner) could be challaned under Section 25 of the Act. However, the liability of the accused, who were found in conscious possession of the bags, containing poppy husk, could not be diluted. The appellants, thus, committed the offence under Section 15 of the Act. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellants, that the prosecution miserably failed to prove that the accused were found in conscious possession of the bags, containing poppy husk, and, as such, they did not commit an offence under Section 15 of the Act. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Both the accused were occupants of the truck. One of them was driving the same, and the other was sitting by the driver's seat. A big haul of poppy husk was lying in the truck. It was not a small quantity of contraband, which could escape notice of the accused. Under these circumstances, it could not be imagined that the accused were not aware of the contents of Crl. Appeal No.73-SB of 1999 14 the bags, lying in the truck. The accused were having special means of knowledge, as to under what circumstances, the bags containing poppy husk, were lying in the truck, and to which destination the same were being transported. It was for them to explain the aforesaid circumstances. They, however, failed to explain the same. As such the accused were found in possession of and in control over the bags, containing poppy husk. Once the possession of the accused, and their control over the contraband, was proved, then statutory presumption under Sections 54 and 35 of the Act, operated against them, that they were in conscious possession thereof. Thereafter, it was for them, to rebut the presumption, by leading cogent and convincing evidence. However, the appellants, failed to rebut that presumption, either during the course of cross-examination of the prosecution witnesses, or by leading defence evidence. In these circumstances, the trial Court was right, in holding that 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 substance or controlled substance; Crl. Appeal No.73-SB of 1999 15 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." 14-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 Crl. Appeal No.73-SB of 1999 16 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." 14-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.” Crl. Appeal No.73-SB of 1999 17 14-C. 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. In the instant case, the accused failed to explain, as to how, 45 bags each containing 35 Kgs poppy-husk were found in the truck, which was being driven by one of them. The facts of Madan Lal's case (supra) are similar and identical to the facts of the present case. 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 their statements, under Section 313 Cr.P.C., the accused took up the plea, only of false implication. They did not take up the plea, that they did not know the contents of the bags, lying therein. The driver of the truck, did Crl. Appeal No.73-SB of