Crl. Appeal No.119-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.119-SB of 1999 Date of Decision : July 31, 2008 1. Dhanna Singh S/o Pirthi Singh, ....Appellants resident of Chatthe (Haryana). 2. Kabal Singh S/o Hardial Singh, resident of Bangi Nihal Singh. Versus The State of Punjab ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Bipan Ghai, Sr. Advocate, with Mr. Sandeep Garg, Advocate, for the appellants. Mr. S.S.Bhullar, DAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 7.1.1999, rendered by the Court of Addl. Sessions Judge, Bathinda, vide which it convicted 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 rigorous imprisonment for another period of one year each, for having been found in possession of 11 bags, each containing 43 Kgs. poppy-husk, without any permit or licence. Crl. Appeal No.119-SB of 1999 2 2. The facts, in brief, are that, on 7.8.1997, Des Raj, SI, while posted as SHO, Police Station Raman, alongwith other police officials, was present at bus stop of village Bagha, in connection with patrol duty. In the meantime, Gurdev Singh S/o Bir Singh, came there, and he was joined with the police party. Thereafter, the police party was going on unmetalled path, from village Sekhu towards village Tarkhanwala, and when it reached at the bridge of canal minor, in the area of village Tarkhanwala, a canter mark 'DCM Toyata' bearing registration No.PIB-6525, was seen parked, on the opposite side. Kabal Singh, accused, was the driver of the canter, whereas, Dhanna Singh, accused, was standing in the canter. Gunny bags were loaded in the canter. On suspicion, the SI told the accused to come down. He told them (accused) that he suspected some contraband, in the gunny bags, loaded in the canter. Thereafter, the search of the bags, lying in the canter, was conducted, in the presence of Jasprit Singh, DSP, who was called to the spot, by sending a wireless message, as a result whereof, each bag was found containing 43 kgs. Poppy-husk. 250 grams poppy husk, was taken out, as sample, from each of the bags, and the remaining poppy-husk was kept in the same bags. The samples, and the bags, containing the remaining poppy-husk, were converted into parcels, duly sealed, with the seal, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. The accused were arrested. Rough site plan of the place of the recovery, was prepared. The statements of the witnesses, were recorded. After the completion of investigation, the accused were challaned. 3. On 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 them, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Jasprit Singh, DSP Crl. Appeal No.119-SB of 1999 3 (PW-1), Des Raj, SI (PW-2), Jasbir Singh, Junior Assistant, o/o D.T.O. Moga, (PW-3), Amar Nath (PW-4), and Manohar Lal, Constable, (PW-5). Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence. 5. The statements of the accused under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. 6. Dhanna Singh, accused, in his statement, recorded under Section 313 Cr.P.C., stated that he was apprehended from the village, and was kept in illegal confinement, for a number of days, due to enmity and party faction, in the village. It was further stated by him, that nothing was recovered from him. It was further stated by him, that he was falsely implicated in this case. 7. Kabal Singh, accused, in his statement, recorded under Section 313 Cr.P.C., stated that, he was taken from his house, in the presence of Ajaib Singh, Member Panchayat, and Chhota Singh, Member Panchayat of village Bangi Nihal Singh Wala, on 6.8.1997, and was falsely implicated, in this case. It was further stated by him, that nothing was recovered from him. 8. The accused, however, examined Manjinder Singh, (DW-1), and Ajaib Singh (DW-2), in their defence. Thereafter, they closed the defence evidence. 9. 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. 10. 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/appellants. 11. I have heard the learned counsel for the parties, and have gone through the evidence and record, of the case, carefully. 12. The Counsel for the appellants, at the very outset, submitted that the Crl. Appeal No.119-SB of 1999 4 conscious possession of the accused, in relation to the contraband, was not proved, by the prosecution. He further submitted that according to the prosecution story, no doubt, Kabal Singh, was stated to be the driver of the canter, whereas, Dhanna Singh, accused, was only standing therein. He further submitted that the mere fact, that a person was standing, in the canter, did not mean, that he was in conscious possession of the contraband, loaded therein. The submission of the Counsel for the appellants, does not appear to be correct. There were only two persons, in the canter, i.e. one driver namely Kabal Singh, and the other namely Dhanna Singh, who was standing therein. Huge quantity of poppy-huk, in the bags, had been loaded, in the said canter. It means, that they must be aware of the contents, contained in the bags. It was not a small quantity of contraband, contained in the bags, which could escape the notice of the accused. The constructive possession of the bags, containing poppy-husk, and control over the same, of the accused, was, thus, proved. Once the possession of the accused, in respect of the contraband, is proved, then statutory presumption under Sections 54 and 35 of the Act, starts operating against them. Thereafter, it is for the accused, to rebut that statutory presumption. In the instant case, Kabal Singh, and Dhanna Singh, accused, miserably failed to rebut the said 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.119-SB of 1999 5 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." 12-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 Crl. Appeal No.119-SB of 1999 6 reasonable doubt and not merely when its existence is established by a preponderance of probability." 12-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.” 13. 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 Crl. Appeal No.119-SB of 1999 7 Court upheld the conviction and sentence awarded to the accused. In the instant case, the accused failed to explain, as to how, 11 bags, containing poppy-husk were found in the canter, 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/appellants took up the plea, only of false implication. As stated above, the accused miserably failed to rebut the statutory presumption, referred to above. Thus, their conscious possession, in respect of the contraband, was proved, and, as such, 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 in the statements, under Section 313 Cr.P.C., no question was put to the accused, that they were in conscious possession of the contraband, and, as such, a prejudice was caused to them. It may be stated here, that once the accused, were found in possession of the contraband, in view of the presumption of law, operating under Sections 35 and 54 of the Act, they were deemed to be in conscious possession thereof. In the statements, under Section 313 Cr.P.C., the incriminating circumstances, appearing in the prosecution evidence, are required to be put, and not the law or the presumption of law, operating under the relevant provisions, referred to above. The accused were put a specific question, that they were found in a canter, in which 11 bags, containing poppy- husk, were loaded, when they were apprehended. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 15. It was next submitted by the Counsel for the appellants, that the alleged recovery was effected on 7.8.1997, whereas, the sample parcels, were Crl. Appeal No.119-SB of 1999 8 sent to the office of the Chemical Examiner, on 21.8.1997, and, as such, there was a delay of 11 days, which remained unexplained. He further submitted that, as such, the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The mere fact that delay, in sending the samples, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcels were tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the prosecution, to complete the link evidence. The other evidence produced by the prosecution, has been subjected to indepth scrutiny, and, it has been found to be cogent, convincing, reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcels, until the same reached the office of the Chemical Examiner. Above all, there is report of the Chemical Examiner, Ex.PL, which clearly proves that the seals on the samples, were intact, and agreed with the specimen seals sent. The report of the Chemical Examiner is per-se admissible into evidence, in its entirety, as per the provisions of Section 293. The delay in sending the samples, to the office of the Chemical Examiner, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the Chemical Examiner, the matter would have been different. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the sample to the Laboratory is not fatal, where there is evidence that the seized articles remained in safe custody. In Narinder Singh @ Nindi Vs. State of Punjab 2005(3) RCR (Criminal) 343, which was a case, relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the samples were intact. In these Crl. Appeal No.119-SB of 1999 9 circumstances, it was held that, in the face of the other cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of tampering with the samples, could not be ruled out. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 11 days, in sending the samples to the office of the Chemical Examiner, did not at all matter much. 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. It was next submitted by the Counsel for the appellants, that Gurdev Singh, independent witness, was no doubt, joined, at the time of the alleged search, and seizure, yet he was not examined, as a result whereof, it can be said that the prosecution withheld the material evidence, in its possession. He further submitted that non-examination of Gurdev Singh, independent witness, must prove fatal to the case of the prosecution. It may be stated here that Gurdev Singh, independent witness, joined hands with the accused, during the course of trial, of the case. Accordingly, he was given up as won over by the Addl. Public Prosecutor for the State, vide his statement dated 24.9.1998. The Public prosecutor for the State, is the master of the case. It is for him to decide, as to whether, he wanted to examine a particular witness, or not. Since, the Public Prosecutor came to the conclusion, that Gurdev Singh, independent witness, had sided with the accused, during the course of trial, and, in case, he was examined, he would damage the case of the prosecution, he took a wise decision, to give him up as won over. In my opinion, he rightly gave him up as won over. The evidence of the Investigating Officer, and other prosecution witnesses, has been reappraised, and nothing could be found, during the course of their cross-examination, which may go to discredit the same. The evidence of the prosecution witnesses, is creditworthy, and inspires confidence, in the Crl. Appeal No.119-SB of 1999 10 mind of the Court. 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 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 (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. Similarly in Appa Bai and another Vs. State of Gujrat AIR 1988 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 it. It was further held that civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victim's 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 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. 17. It was next submitted by the Counsel for the appellants, that when the case property was produced, in the Court, the seals thereon were not legible, and, as such, it could not be said that it was the same, as was allegedly recovered from the accused. The submission of the Counsel for the appellants, in this regard, also does not appear to be correct. The case property remained Crl. Appeal No.119-SB of 1999 11 lying in the malkhana. In the malkhana, the case properties of so many other cases, are also kept. On account of shortage of space, in the malkhanas, the case properties of the cases, are not properly stacked. When the case proprty of even a single case is taken out for production, in the Court, then, during the course of transit, the seals thereon get broken. Even, on account of irresponsible handling of the case property, the seals get broken. The only obligation upon the prosecution is to produce the case property, in the Court, and get it identified from the prosecution witnesses. In the instant case, the case property produced in the Court, was duly identified by the prosecution witnesses. It, therefore, could not be said that the case property was not identified, as the same, as was recovered from the accused. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 18. No other point, was urged, by the Counsel for the parties. 19. 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. 20. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 7.1.1999, are upheld. If the appellants are on bail, then their bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Bathinda, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Cr.P.C., and send the compliance report within 2 months, from the date of receipt of a copy of the judgment. 21. No specific order was passed by the trial Court, regarding the confiscation, or otherwise, of the Canter, in question. The trial Court shall initiate the proceedings, if already not initiated, regarding the confiscation of the Crl. Appeal No.119-SB of 1999 12 Canter, by resorting to the provisions of Sections 60(3) and 63 of the Act, complete the same, and submit compliance report to this Court, within 3 months, from the date of receipt of a copy of the judgment. July 31, 2008 (SHAM SUNDER) Vimal JUDGE