Punjab-Haryana High Court
Gurpal Singh @ Kirpal Singh S/O Mohinder ... vs The State Of Punjab on 30 July, 2008
Crl. Appeal No.261-SB of 1993 1
Crl. Appeal No.265-SB of 1993
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.261-SB of 1993
Date of Decision : July 30, 2008
1. Gurpal Singh @ Kirpal Singh S/o Mohinder Singh, ...Appellants
R/o Village Kaunke Kalan, District Ludhiana.
2. Manjit Kaur W/o Gurpal Singh @ Kirpal Singh,
R/o Village Kaunke Kalan, District Ludhiana.
Versus
The State of Punjab ....Respondent
Crl. Appeal No.265-SB of 1993
Jang Singh S/o Shamsher Singh, ...Appellant
R/o Sukhpura Maur.
Versus
The State of Punjab ....Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Ms. Monika Jalota, Advocate, Amicus Curaie,
for the appellants, in both the appeals.
Mr. S.S.Bhullar, DAG, Punjab,
for the respondent, in both the appeals.
SHAM SUNDER, J.
This judgment shall dispose of Criminal Appeal No.261-SB of 1993, filed by Gurpal Singh @ Kirpal Singh, and Manjit Kaur, and Criminal Appeal No.265-SB of 1993, filed by Jang Singh, accused (now appellants), arising out of the judgment of conviction, and the order of sentence dated 7.8.1993, rendered by the Court of Addl. Sessions Judge, Barnala, vide which it convicted Gurpal Singh and Jang Singh, accused/appellants, for the offence, punishable under Section 15 and Manjit Kaur, accused/appellant, for the offence, punishable under Section 25 of the Narcotic Drugs & Psychotropic Substances Crl. Appeal No.261-SB of 1993 2 Crl. Appeal No.265-SB of 1993 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 two years each.
2. The facts, in brief, are that on 13.4.1985, Shamsher Singh, SI/SHO, of Police Station Tapa, alongwith other police officials, was on patrol duty, from Tapa towards village Dhilwan, and when the police party reached on the bridge of a drain, in the area of village Tapa, they saw truck No.DIG-3302, coming from the opposite side. They stopped the truck. Gurpal Singh @ Kirpal Singh, accused, was driving the said truck. Jang Singh, accused was sitting on the bags, lying in the body of the truck. Thereafter, Shamsher Singh, SI/SHO sent a wireless message to S.S.Chhina, DSP, Barnala, as a result whereof, he came to the spot. On the directions of the DSP, Shamsher Singh, SI/SHO, searched the truck, and found it loaded with 20 bags, each containing 40 Kgs. poppy-husk. A sample of 250 grams of poppy-husk, was taken out from each of the bags, and the remaining poppy-husk was put into the same bags. The samples, and the bags, containing the remaining poppy-husk, were converted into parcels, duly sealed, with the seals, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, with correct marginal notes, was prepared. Gurpal Singh @ Kirpal Singh and Jang Singh, accused were arrested. During the course of investigation, it was found that Manjit Kaur, wife of Gurpal Singh @ Kirpal Singh, accused, was the owner of the aforesaid truck. She was also arrested. 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 Gurpal Singh @ Kirpal Singh, and Jang Singh, and Crl. Appeal No.261-SB of 1993 3 Crl. Appeal No.265-SB of 1993 charge under Section 25 of the Act, was framed against Manjit Kaur, accused, to which they pleaded not guilty, and claimed judicial trial.
4. The prosecution, in support of its case, examined Bhinder Singh, HC (PW-1), Bhupinder Singh, Constable (PW-2), Kuldeep Singh, ASI, (PW-3), S.S.Chhina, SP, (PW-4), (at the relevant time DSP), and Shamsher Singh, Inspector/SHO (PW-5), the Investigating Officer. 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. It was stated by Gurpal Singh @ Kirpal Singh, accused, in his statement, recorded under Section 313 Cr.P.C., that Manjit Kaur W/o Mohinder Singh, was the previous owner of the truck, and the registration certificate was in her name. He further stated that he purchased that truck from her (Manjit Kaur W/o Mohinder Singh), in the name of his wife, by means of an affidavit. He further stated that there was a dispute, between them, and Manjit Kaur W/o Mohinder Singh, over the payment of the price of that truck. He further stated that S.S.Chhina, wanted them to return the truck, to Manjit Kaur W/o Mohinder Singh, but they did not agree. He further stated that the Police took away the truck, from his house. He further stated that he was also taken away by the police. He further stated that they were falsely implicated, in this case. He further stated that the truck remained always in his possession, and he always used to drive this truck, although it was in the name of his wife Manjit kaur, his co-accused. He further stated that Manjit Kaur W/o Mohinder Singh wanted the truck on sapurdari, and his wife contested the application. He further stated that the truck was given to Manjit Kaur, his co-accused.
7. Jang Singh, accused, in his statement, recorded under Section 313 Cr.P.C., stated that he was falsely implicated in the instant case. Crl. Appeal No.261-SB of 1993 4 Crl. Appeal No.265-SB of 1993
8. Manjit Kaur, accused, in her statement, recorded under Section 313 Cr.P.C. took up the sample plea, as was taken up by her husband (Gurpal Singh @ Kirpal Singh).
9. The accused, however, examined Jaswant Singh (DW-1), in their defence. Thereafter, they closed their defence evidence.
10. 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/appellants, as stated hereinbefore.
11. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, were filed by the accused/appellants.
12. I have heard the learned Counsel for the parties, and have gone through the evidence and record, of the case, carefully.
13. The Counsel for the appellants, at the very outset, contended that no independent witness, was joined, despite availability, and, as such, the case of the prosecution, became doubtful. It may be stated here, that the police party was on patrol duty. No secret information had been received, by the Investigating Officer, against the accused, that they were coming in a truck, with a big haul of poppy-husk. It was a chance recovery. There is no evidence, on the record, that any independent witness was present, at the time of the apprehension of the accused, and recovery. Shamsher Singh, Inspector/SHO (PW-5), the Investigating Officer, during the course of his cross-examination, stated that after the rcovery was effected, people were found moving about on the road, but they refused to join the police party. Even if, those independent witnesses had been joined with the police party, their evidence would not have been of any significance, for the reason that they would not have been said to be witnesses to the recovery. It was, under these circumstances, that no independent witness, could be joined. It is settled principle of law, that the Crl. Appeal No.261-SB of 1993 5 Crl. Appeal No.265-SB of 1993 evidence of the official witnesses, cannot be distrusted and disbelieved, merely on account of their official status. Their evidence is as good, as that of any other independent witness. In the face of the evidence of the official witnesses only, the Court is required to scrutinize the same, carefully and cautiously. After careful and cautious scrutiny, if the Court comes to the conclusion, that the same does not suffer from any serious infirmity, the same can be believed. The evidence of the official witnesses, in the instant case, has been subjected to indepth scrutiny, and nothing came to the fore, which may go to discredit the same. In Akmal Ahmed Vs. State of Delhi, 1999(2) RCC 297 (S.C.), it was held that, it is now well-settled that the evidence of search or seizure, made by the police, will not become vitiated, solely for the reason that the same was not supported by an independent witness. 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."
13-A. 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 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 Crl. Appeal No.261-SB of 1993 6 Crl. Appeal No.265-SB of 1993 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 authorities, is fully applicable to the facts of the present case. In these circumstances, mere non-joining 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.
14. It was next submitted by the Counsel for the appellants, that the link evidence, in the instant case, was incomplete, on the ground, that the affidavits were defective, and the same were not put to the accused, during the course of their cross-examination, under Sections 313 Cr.P.C. The submission of the Counsel for the appellants, in this regard, also does not appear to be correct. Bhinder Singh, HC (PW-1), swore his affidavit, Ex.PY. He was cross- examined by the Counsel for the accused. Bhupinder Singh, Constable (PW-2), swore his affidavit, Ex.PZ, whereas, Kuldeep Singh, ASI, who was the MHC, in Police Station Tapa, on 15.4.1989, swore his affidavit, Ex.PXX. A question was put to the accused, in their statements, under Section 313 Cr.P.C. that the samples were sent to the Chemical Examiner, with seals intact, who submitted his report Ex.PX, that the contents thereof, were poppy heads as they contained Morphine and Meconic Acid. It is, no doubt, true that it was not put to the accused specifically, that Exs.PY, PZ, and PXX, affidavits were tendered by the formal witnesses. However, they were made aware that the samples, with seals intact, were sent to the office of the Chemical Examiner. In my opinion, in these circumstances, the link evidence was put to the accused, during the course of their statements, under Section 313 Cr.P.C. No prejudice was shown to have been caused to the accused, on account of non-specifically putting to them, Crl. Appeal No.261-SB of 1993 7 Crl. Appeal No.265-SB of 1993 Exs.PY, PZ, PXX, affidavits of formal witnesses, in their statements, under Section 313 Cr.P.C. In State of Punjab Vs. Naib Din, 2001 Criminal Law Journal 4656 (S.C.), the principle of law, laid down, was to the effect, that the conviction, could not be set aside merely, on the ground that the contents of affidavits were not put to the accused, in their statements, under Section 313 Cr.P.C., as the same related to the evidence only of formal nature. 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. The Counsel for the appellants, however, placed reliance on Padam Singh Vs. State of Haryana, 1997(4) R.C.R.(Criminal) 172, a case decided by a Division Bench of this Court, in support of her contention, that if the affidavits are not put to the accused, during the course of their examination, under Section 313 Cr.P.C., the same could not be used as evidence, against them. As stated above, the accused were made aware, in their statements, under Section 313 Cr.P.C., that the samples with seals intact, were sent to the Chemical Examiner, he analysed the same, and gave his report. Even, otherwise, in view of the principle of law, laid down, in Naib Din's case (supra), decided by the Apex Court, on the same point, any principle of law, to the contrary, laid down, in Padam Singh's case (supra), decided by a Division Bench of this Court, shall not hold the field. No help, therefore, can be drawn by the Counsel for the appellants, from Padam Singh's case (supra). 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 neither the CFSL form was prepared, at the spot, nor the same was deposited with the MHC, nor with the Chemical Examiner. She further submitted that in the absence of preparation of CFSL form, or deposit of the same with the MHC, and the Chemical Examiner, it could not be ascertained, as to whether, the seals Crl. Appeal No.261-SB of 1993 8 Crl. Appeal No.265-SB of 1993 on the samples were the same, as were allegedly affixed, at the time of alleged search and seizure. She further submitted that, as such, the link, in the chain of prosecution evidence, became incomplete. The submission of the Counsel for the appellants, in this regard, also does not appear to be correct. Bhupinder Singh, Constable, vide his affidavit, Ex.PZ, stated that on 17.4.1989, he was handed over the samples of this case, with seals intact, by the MHC, alongwith sample impression of the seals. He further stated that after getting the docket, issued from the office of the SSP, he deposited back the case property with the MHC. He further stated that on 19.4.1989, he was again handed over the samples with seals intact, alongwith the sample impression of the seals, and docket by the MHC, for deposit in the office of the Chemical Examiner. He further stated that he deposited the same, in the office of the Chemical Examiner, on 19.4.1989, and handed over the deposit receipt to the MHC. He further stated that none tampered with the samples, till the same remained in his custody. Above all, there is report Ex.PX of the Chemical Examiner, on the back whereof, sample impression of the seals, is pasted. It is evident from the report of the Chemical Examiner that the seals on the exhibits were intact, on arrival, till the time their analysis was started, and agreed with the specimen seals sent. It is further evident from the said report that the exhibits remained in safe custody, after their receipt. The report is per-se admissible, in toto, under Section 293 Cr.P.C. No challenge to this report, was made, by the accused. Under these circumstances, 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 the provisions of Section 55 of the Act, were not complied with, by the Investigating Officer. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Shamsher Singh, himself was the Inspector/SHO, Police Station Tapa, on the relevant day. Under these Crl. Appeal No.261-SB of 1993 9 Crl. Appeal No.265-SB of 1993 circumstances, there was no necessity for him, to produce the case property, and the sample parcels, before any other Superior Officer. However, S.S.Chhina, DSP, was called to the spot, and it was on his directions, that the search of the bags, was conducted. It means, that the DSP was fully aware of the search and seizure, in this case. There was, therefore, due compliance of the provisions of Section 55 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.
18. It was next submitted by the Counsel for the appellants, that the provisions of Section 57 of the Act, were not complied with, as a result whereof, a prejudice was caused to the accused. It may be stated here, that the DSP, was called to the spot, and in his presence, the search was conducted. The Officer Superior was, thus, well aware of the search and seizure proceedings. Even otherwise, the Investigating Officer, was required to send information, in writing, to the Officer Superior, within 48 hours of the recovery, as per the provisions of Section 57 of the Act. In the instant case, from the spot, ruqa was sent by the Investigating Officer, which contained the complete details of search and seizure. On the basis of the said ruqa, FIR was recorded. Special reports were sent to the Superior Officers. In these circumstances, there was due compliance with the provisions of Section 57 of the Act. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
19. It was next submitted by the Counsel for the appellants, that the conscious possession of Gurpal Singh @ Kirpal Singh and Jang Singh, accused/appellants, in relation to the poppy-husk, was not proved. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Both these accused, were present, in the truck, in which 20 bags, containing poppy-husk were loaded. It was not a small quantity of poppy-husk, which was loaded in the truck. It could not be said that the accused were not Crl. Appeal No.261-SB of 1993 10 Crl. Appeal No.265-SB of 1993 aware of the contents of the bags, loaded in the truck. The truck belongs to Manjit Kaur, accused, who is the wife of Gurpal Singh, accused. Under these circumstances, both Angrej Singh and Gurpal Singh were found to be 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 35 and 54 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;
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 Crl. Appeal No.261-SB of 1993 11 Crl. Appeal No.265-SB of 1993 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."
19-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."
19-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. Crl. Appeal No.261-SB of 1993 12 Crl. Appeal No.265-SB of 1993 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."
20. 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, 20 bags, containing 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/appellants took up the plea, only of false implication. As stated above, the accused, thus, miserably failed to Crl. Appeal No.261-SB of 1993 13 Crl. Appeal No.265-SB of 1993 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.
21. It was next submitted by the Counsel for the appellants, that Jang Singh, accused/appellant was 63 years of age, at the time of the alleged recovery. She further submitted that now Jang Singh, must have been very old, and some leniency be shown, in the matter of sentence. It may be stated here that the accused were found in conscious possession of 20 bags, containing poppy-husk, falling within the ambit of commercial quantity. When the recovery, in this case, was effected, there was no distinction, between the commercial and non-commercial quantity, and minimum sentence provided for such an offence was ten years, and the minimum fine was Rs.1 lac. Even now, in respect of the recovery of commercial quantity of contraband, minimum punishment is ten years, and minimum fine is Rs.1 lac. This Court is bound to adhere to the provisions of law, in strict sense. It cannot act against the mandatory provisions of law. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
22. Manjit Kaur, accused, is the owner of the truck. No doubt, she was not present, in the truck, at the time of recovery. Under Section 25 of the Act, the owner may be staying 100 miles away, when the recovery is effected from the vehicle. Even then he or she shall be liable, if it is proved, that the vehicle was being used for carrying the contraband, with his or her permission. Manjit Kaur, accused/appellant, as stated above, is the wife of Gurpal Singh @ Kirpal Singh, accused. Gurpal Singh, accused, in his statement, under Section 313 Cr.P.C., in clear-cut terms, stated that he got purchased the truck, in the name of his wife from one Manjit Kaur W/o Mohinder Singh. The husband and the Crl. Appeal No.261-SB of 1993 14 Crl. Appeal No.265-SB of 1993 wife were residing in the same house. They had a common mess. She did not state, in her statement, under Section 313 Cr.P.C., that her husband had been using the truck for carrying the contraband, without her permission. Once the offence under the Act, was committed, presumption of mental state and knowledge arose, under Section 35 of the Act. Such statutory presumption could be rebutted by the accused, by leading cogent, and convincing evidence. Manjit Kaur, miserably failed to rebut the presumption. It, therefore, could not be said that Manjit Kaur, did not knowingly permit the use of the truck, by Gurpal Singh, her husband, and Jang Singh, another accused, to carry the contraband. Manjit kaur, was also rightly convicted by the trial Court, for the offence, punishable under Section 25 of the Act.
23. No other point, was urged, by the Counsel for the parties.
24. 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.
25. For the reasons recorded, hereinbefore, both the appeals are dismissed. The judgment of conviction, and the order of sentence dated 7.8.1993, are upheld. If the accused/appellants are on bail, their bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Barnala, 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 Code of Criminal Procedure. Compliance report be sent within two months.
July 30, 2008 (SHAM SUNDER) Vimal JUDGE