Crl. Appeal No.451-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.451-SB of 1997 Date of Decision : February , 2008 Surjit Singh S/o Banta Singh, .....Appellant R/o Gamewali, P.S.Zira, District Ferozepur. Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Gulshan Sharma, Advocate, for the appellant. Mr. O.P.Dabla, AAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence dated 24.5.1997, rendered by the Court of Addl. Sessions Judge, Amritsar, vide which it convicted the accused/appellant Surjit Singh, for the offence punishable under Section 15 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 one year. 2. The facts, in brief, are that on 4.5.1996, Rachhpal Singh, SI/SHO, of Police Station Harike, alongwith other police officials, including Faqir Fateh Singh, SI, and Tarlok Singh, ASI, happened to be present, at Bus Stand Harike, for checking of bad elements, and patrolling, near petrol pump. Rachhpal Singh, SI, received a secret information, to the effect that the accused was in possession of poppy-husk, in the mand area of River Beas, in the revenue limits of village Kirrian, and if a raid was conducted, recovery of huge quantity of poppy-husk, could be effected from him. This information was embodied by Crl. Appeal No.451-SB of 1997 2 him, in Ruqa Ex.PA. Ruqa was sent to the Police Station, on the basis, whereof, formal FIR was registered. Mandar Singh, DSP, was flashed wireless message, with a request to reach the spot. He met the police party on the main road within the revenue limits of the aforesaid village. He was also associated with the police party. Thereafter, the police officials parked their vehicles, on the kacha passage, and proceeded towards the accused, on foot. The accused was sitting in the Eastern direction, in the mand area. Two more persons were also with the accused. On seeing, the police party, those two persons, made good their escape. The accused was, however, apprehended by Mandar Singh, DSP. 20 gunny bags were lying by the side of the accused. Search of those gunny bags, was conducted, in accordance with the provisions of law, and each bag was found containing 40 kgs. poppy-husk. A sample of 250 grams, from each of the bags, was taken out. The samples and the remaining poppy husk, in the same gunny bags, were converted into parcels, duly sealed with the seal, and taken into possession vide a separate recovery memo. The specimen seal was prepared. The seal after use, was handed over to Faqir Fateh Singh, SI. The site plan of the place of recovery was prepared. The accused was arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 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 Faqir Fateh Singh, SI (PW-1), Rachhpal Singh, SI (PW-2), Kuldip Raj, MHC (PW-3), Gurmit Singh,Constable (PW-4), and Mander Singh , DSP, (PW-5). Thereafter, the Addl.PP for the State, closed the prosecution evidence. Crl. Appeal No.451-SB of 1997 3 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. He pleaded false implication. He, however, asserted that he was arrested from his house on 1.5.1996, and kept in illegal detention, in the Police Station, and, thereafter, this false case was planted against him. 6. After hearing the Addl. 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 case of prosecution was most unnatural and improbable. He further submitted that a number of police officials had gone to the mand area, on receipt of the secret information, and how, it could be imagined that two companions of the accused, on seeing the police party, made good their escape, and could not be apprehended. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It is a matter of common experience, that in the mand area, there is complete wild growth of sufficient height. On seeing the police party, if the two companions of the accused, made good their escape, and concealed their presence in the wild growth of sufficient height, in the mand area, and could not be apprehended, it could not be said to be something improbable or unnatural. Had the two companions of the accused been found, to have made their escape from a road or an open area, where the visible standard could be said to be too far, the matter would have been Crl. Appeal No.451-SB of 1997 4 different. The police party, after the two companions of the accused made good their escape, got busy in apprehending the accused and effecting the recovery from him. The case of the prosecution, could not be said to be improbable and unnatural. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 10. It was next contended by the Counsel for the appellant, that there was no evidence, on the record, that the accused was found in conscious possession of poppy-husk. He further contended that no evidence was produced by the prosecution that the place, where the gunny bags were lying and by the side of which, the accused was found sitting, belonged to him. He further submitted that under these circumstances, he could not be fastened with the exclusive possession of the gunny bags, containing poppy-husk. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. As stated above, mand area having wild growth of sufficient height, belongs to none, but the accused was found by the side of 20 bags, containing poppy-husk. He was, thus, found in constructive possession of and control over the contraband. It was for him to explain, as to under what circumstances, he was sitting by the side of gunny bags, containing poppy-husk, in such a concealed place. The possession and control of the accused, in respect of the gunny bags, stood proved. Once the possession and control over the gunny bags, containing poppy-husk, of the accused was established, then the statutory presumption under Sections 35 and 54 of the Act, operated against him. The onus then shifted on to him, to explain, as to whom those gunny bags, containing poppy husk, belonged, if the same did not belong to him, and, as to how, he was found sitting by the side of those gunny bags, containing poppy- husk. No such explanation was furnished by the accused, in this, case. The plea of the accused was that of simple denial, and false implication. In Megh Singh Vs. State of Punjab, (2003) 8 SCC 266, on 22.2.1993, three persons Crl. Appeal No.451-SB of 1997 5 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. It, therefore, could not be said that the accused was not aware of the bags, containing poppy-husk. It was not a small quantity of poppy-husk, which was concealed, and, as such, could escape the notice of the accused. Keeping in view the principle of law, laid down, in the aforesaid case, the provisions of Sections 35 and 54 of the Act, and the evidence produced, on record, the trial Court, in my opinion, was right in coming to the conclusion, that the accused was in conscious possession of 20 bags, containing poppy-husk. In this view of the matter, the submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 11. The Counsel for the appellant, however, placed reliance on Lakhvinder Singh Vs. State of Haryana 1996 CRL. L.J. 4511, a case decided by a Single Bench of this Court, in which the contrary principle of law regarding conscious possession was laid down. In view of the principle of law, laid down, in Megh Singh's case (supra), decided by the Apex Court, and the provisions of Sections 35 and 54 of the Act, no help can be drawn by the Counsel for the appellant, from Lakhvinder Singh's case (supra). Crl. Appeal No.451-SB of 1997 6 12. It was next submitted by the Counsel for the appellant, that though a secret information was received, in this case, yet the same was neither reduced into writing, nor sent to the Officer superior, as a result whereof, there was violation of the mandatory provisions of Sections 42(1) & 42 (2) of the Act. The submission of the Counsel for the appellant, in this regard, also does not appear to be correct. As soon as the secret information was received by Rachhpal Singh, SI, he embodied the same in ruqa Ex.PA and sent the same to the Police Station, for the purpose of recording the FIR, on the basis whereof, the FIR was recorded. He also sent a wireless message to Mander Singh, DSP, informing him about the details of the secret information. Under these circumstances, there was complete compliance, with the provisions of Section 42 (1) and 42 (2) of the Act. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 13. It was next contended by the Counsel for the appellant, that there was complete violation of the mandatory provisions of Section 50 of the Act, in this case. He further contended that mere statement of the police official, that he informed the accused of his right, as to whether, he wanted his search before a Gazetted Officer or a Magistrate, was not sufficient to comply with the mandatory provisions of Section 50 of the Act. He placed reliance on Amrit Singh Vs. State of Haryana 1990 (2) RCR 525. Reliance, on this authority, by the Counsel for the appellant, is misconceived, in as much as, in the instant case, the search of the person of the accused was not effected, for the recovery of poppy husk. It was search of the gunny bags, by the side whereof, he was sitting, which resulted into the recovery of poppy husk. 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 Crl. Appeal No.451-SB of 1997 7 Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. In these circumstances, it can be said that the consistent, and particularly the view of the larger Bench of the Supreme Court, appears to be that the search, must relate to the person, and not vehicles, other luggage and articles, and then alone the provisions of Section 50 would be attracted. Since, in view of the principle of law, laid down in the aforesaid authorities, the provisions of Section 50 were not applicable to the search, in the instant case, in this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. No other point was urged by the Counsel for the parties. 15. 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 the correct appreciation of evidence and law on the point. The same do not warrant any interference, and are liable to be upheld. 16. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 24.5.1997, are upheld. The bail bonds of the appellant are cancelled. The Chief Judicial Magistrate, shall take necessary steps, to comply with the judgment, with due promptitude. February , 2008 (SHAM SUNDER) Vimal JUDGE