Punjab-Haryana High Court
Parveen Kumar Son Of Dalip Singh vs The State Of Punjab on 14 November, 2008
Crl. Appeal No. 846-SB of 2001
1
IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Crl. Appeal No. 846-SB of 2001
Date of decision. 14.11.2008
Parveen Kumar son of Dalip Singh, resident of village Neli
Bagwar Police Station Bhorej, District Hamirpur ( HP ).
....... Appellant
Versus
The State of Punjab
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. R.K. Dadwal, Advocate
for the appellant.
Mr.Shilesh Gupta, DAG, Punjab
for the respondent.
****
Sham Sunder, J.
This appeal is directed against the judgment of conviction, and the order of sentence dated 29.05.2001, rendered by the Special Judge, Hoshiarpur, vide which he convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be Crl. Appeal No. 846-SB of 2001 2 as the 'Act' only) and sentenced him to undergo RI for a period of 10 years and to pay a fine of Rs. 1 lac, and in default of payment of fine, he was directed to undergo further rigorous imprisonment, for a period of six months, for having been found in possession of six bags, containing 170 Kgs poppy husk (five bags, containing 30 Kgs poppy husk each and the sixth bag containing 20 Kgs poppy husk),falling within the ambit of commercial quantity, without any permit or licence.
2. The facts, in brief, are that on 11.02.1999 ASI Bhupinder Singh, alongwith other Police officials, was present at Bus Stand, Ram Pur, in connection with patrol duty and checking of suspects. A secret information was received by him that Parveen Kumar, accused was indulging in the sale of poppy husk, in the area of village Jaijon, in the sarkandas and was waiting for the customers. He was also informed that if a raid was conducted, heavy quantity of poppy husk, could be recovered from the accused. This information was reduced into writing Ex.PF, which was sent to the Police station, on the basis of which, FIR Ex.PF/1, was recorded. Thereafter, Bhupinder Singh, ASI, tried to join an independent witness, but none was willing to join the Police party. Thereafter, the Police party reached the pre-disclosed place. Parveen Kumar, accused, was found sitting, near six bags of poppy husk, lying Crl. Appeal No. 846-SB of 2001 3 under tarpaulin, in wild growth (sarkandas). Thereafter, the search of six bags was conducted, as a result whereof, five bags were found containing 30 Kgs poppy husk each and 6th bag was found 20 Kgs poppy husk. The same were taken into possession, vide a separate recovery memo, attested by the witnesses. On receipt of the wireless message, DSP Ajaib Singh reached the spot. He disclosed his identity to the accused. Thereafter, the bags were produced before Ajaib Singh, DSP, who verified the investigation and interrogated the accused. The seals were broken open. 250 grams of poppy husk was taken out of each of the bags, as a sample and the remaining poppy husk was kept in the same bags. The samples and the bags containing the remaining poppy husk were made into separate parcels, duly sealed and taken into possession, vide a separate recovery memo. The site plan was prepared. The statements of the witnesses were recorded. The accused was arrested. After the completion of investigation, the challan was presented.
3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was framed against the accused, to which he pleaded not guilty and claimed judicial trial.
Crl. Appeal No. 846-SB of 2001 4
4. The prosecution, in support of its case, examined Ashwani Kumar, MHC, (PW-1), Ajaib Singh, DSP, (PW-2), Gurdev Singh, HC, (PW-3), Navjot Singh, Inspector, ( PW-4 ), Bhpinder Singh, ASI, ( PW-5 ), and Jagir Singh, C, ( PW-6 ). Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence.
5. The statement of the accused, under Section 313 of 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. He, however, did not lead any evidence in his 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 appeal, was filed by the appellant.
8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
Crl. Appeal No. 846-SB of 2001 5
9. The Counsel for the appellant, at the very outset, vehemently, contended that though a secret information was received, against the accused, yet the mandatory provisions of Section 42 of the Act, were not complied with, as a result whereof, the conviction and sentence stood vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. On receipt of secret information, ruqa was sent by the Investigating officer, to the Police station, on the basis whereof, the FIR was registered. The copies thereof, in the shape of special reports, were sent to the Illaqa Magistrate, as also the other Officers superior. There was, thus, complete compliance with the provisions of Section 42 of the Act. It may, however, be stated here that the provisions of Section 42 of the Act, were not applicable, to the instant case, as the recovery was not effected from an enclosed place, but from a place, where there was a wild growth sarkandas. The provisions of Section 43 of the Act were applicable to the instant case. Even then, out of abundant caution, the Investigating Officer, complied with the provisons of Section 42 of the Act. Even Ajaib Singh, DSP, verified the investigation and interrogated the accused. The submission of Crl. Appeal No. 846-SB of 2001 6 the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
10. It was next submitted by the Counsel for the appellant that a partial option, was given to the accused, which was contrary to the provisions of law. He further submitted that, as such, the mandatory provisions of Section 50 of the Act, were breached in entirety, as a result whereof, the conviction and sentence stood vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The recovery, was not effected from the personal search of the accused, but from the wild growth (sarkandas). Thus, the provisions of Section 50 of the Act, were not applicable, to the instant case. Had the recovery been effected from the person of the accused, the provisions of Section 50 of the Act, would have been attracted to the instant case. 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. 846-SB of 2001 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, the trial Court was right in recording conviction and awarding sentence, to the accused. In this view of the matter, the submission of the Counsel for the appellant,being without merit, must fail and the same stands rejected.
11. It was next submitted by the Counsel for the appellant that the prosecution miserably failed to prove that the accused was found in conscious possession of the bags, containing poppy husk, and, as such, he did not commit an offence under Section 15 of the Act. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. A secret information was received against the accused, to the effect, that he was sitting at a particular place and indulging in the sale of poppy husk, in the area of Jaijon, in the wild growth (sarkandas) and waiting for the customers.
Crl. Appeal No. 846-SB of 2001 8 It was on the basis of the said information that the Police party reached the pre-disclosed place and found the accused, sitting near the bags, containing poppy husk, lying under a tarpaulin. It was not that the bags, containing poppy husk, were lying at an open and accessible place. The bags, containing poppy husk, were lying, in the wild growth ( sarkandas ) and the accused was found sitting near the same. The accused was found in constructive possession of the bags, and control over the same, at the time, when he was apprehended. He had concealed the bags, containing poppy husk, as also his presence from the pubic gaze . Had the bags, containing poppy husk, been lying in an open and accessible place and the accused had been found near the same, it would have been said that his mere presence could not be said to be his possession, in respect of the contraband. In the instant case, the facts and circumstances, being quite different, it could certainly be said that the accused was in constructive possession and in control over the bags, containing poppy husk. The accused was having special means of knowledge, as to how, the bags containing poppy husk, under the tarpaulin, were lying, in the wild growth ( sarkandas ), how he was found sitting near the same, and to which place those bags were to be taken. It was for him, to explain the aforesaid Crl. Appeal No. 846-SB of 2001 9 circumstances. He, however, failed to explain the same. As such, the accused was found in possession of and in control over the bags, containing poppy husk. Once the possession of the accused, and his control over the contraband, was proved, then statutory presumption under Sections 54 and 35 of the Act, operated against him, that he was in conscious possession thereof. Thereafter, it was for him, to rebut the statutory presumption, by leading cogent and convincing evidence. However, the appellant, 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 the accused was in conscious possession of the contraband. Sections 54 and 35 of the Act read 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;
Crl. Appeal No. 846-SB of 2001 10
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."
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.
Crl. Appeal No. 846-SB of 2001 11 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:-
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 Crl. Appeal No. 846-SB of 2001 12 where also presumption is available to be drawn from possession of illicit articles."
11-C. In Megh Singh Vs. State of Punjab, (2003) 4 RCR(Criminal) 319, on 22.2.1993, three persons were found sitting on the gunny bag, 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 contraband, 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 cases, the provisions of Sections 35 and 54 of the Act, and the evidence produced, on Crl. Appeal No. 846-SB of 2001 13 record, the trial Court, in my opinion, was right, in coming to the conclusion, that the accused was in conscious possession of the bags, containing poppy husk, referred to above. 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.
12. It was next submitted by the Counsel for the appellant that no independent witness was joined, despite the fact that a secret information had been received. He further submitted that, as such, the case of the prosecution, became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. ASI Bhupinder Singh, who is the Investigating Officer, in clear cut terms stated that he tried to join an independent witness, but none was ready. It, therefore, could not be said that no effort was made by Bhupinder Singh, ASI, ( PW-5 ), to join an independent witness. It is a matter of common experience, that the independent witnesses, hardly come forward, to join a search and seizure, with a view to avoid wrath of the accused, and complications, which may arise, on account of their appearance, in the Court, for evidence, from time to time. If despite efforts, having been made by the Investigating Officer, he was not successful, in joining an independent witness, then Crl. Appeal No. 846-SB of 2001 14 his conduct could not be said to be blame-worthy. The evidence of the official witnesses, on scrutiny, has been found to be cogent, convincing, reliable and trust-worthy. 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."
12-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 Crl. Appeal No. 846-SB of 2001 15 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 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, is 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 appellant, being without merit, must fail, and the same stands rejected.
13. It was next submitted by the Counsel for the appellant, that though the alleged recovery was effected in this case on 11.02.1999, yet the samples were sent to the office of the Chemical Examiner on 22.02.1999 i.e. after the delay of 12 days, which remained unexplained, as a result whereof, the possibility of tampering with the same, until the same reached the Laboratory, could not be ruled out. The submission of the Counsel for the appellant, in this regard, Crl. Appeal No. 846-SB of 2001 16 does not appear to be correct. It is, no doubt, true that there is no explanation, with regard to delay, in sending the samples to the office of the Chemical Examiner. However, mere delay, in itself, is not sufficient to come to the conclusion, that the sample parcels were tampered with, until the same reached the office of the Laboratory. The other evidence, produced by the prosecution, has been held to be cogent, convincing, reliable and trustworthy. From the other evidence, it was proved, that none tampered with the samples, until the same reached the office of the Chemical Examiner. Even, there is report of the Chemical Examiner Ex.PH, which clearly proves that the seals, on the exhibits, were intact, on arrival, till the time of their analysis, and agreed with the specimen impression of the seals. The report, referred to above, is per-se admissible, in toto, under Section 293 of the Code of criminal Procedure. There is no challenge to the report of the Chemical Examiner, in this case. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the samples to the Laboratory, is not fatal, where there is evidence that the seized articles remained in safe custody. Since, it was proved that none tampered with the samples, until the same were received, in the office of the Chemical Examiner, the Crl. Appeal No. 846-SB of 2001 17 submission of the Counsel for the appellant, merely based on conjectures, does not hold good. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
14. It was next submitted by the Counsel for the appellant that only one sample was taken out of the each bag instead of two, which is the requirement of law. He further submitted that on account of this reason, a prejudice was caused to the accused. The submission of the Counsel for the appellant, does not appear to be correct. There is no provision in the Act, or in the Rules, framed thereunder, that two samples from the contraband, should be taken. The purpose of taking the sample, is only to send the same to the Laboratory, for the purpose of analysis. In the instant case, the Chemical Examiner analyzed the same, and came to the conclusion, that the same constituted poppy husk. Had the quantity of the sample been found to be insufficient, by the Laboratory, it would not have analyzed the same, and sent back the same. On account of drawing of one sample only, from the recovered poppy husk, no prejudice, whatsoever, was shown to have been caused, to the accused. The submission of the Crl. Appeal No. 846-SB of 2001 18 Counsel for the appellant, being without merit, must fail, and the same stands rejected.
15. It was next submitted by the Counsel for the appellant, that the case property, was not produced before the Station House Officer and, as such, there was breach of the provisions of Section 55 of the Act, which must prove fatal to the case of the prosecution. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Navjot Singh, Inspector, the Station House Officer of Mahilpur, at the relevant time, appeared in the witness box as PW-4, and stated that Bhupinder Singh, ASI, produced before him, six bags, containing poppy husk, duly sealed with seal, bearing impression 'AS' along with the accused. He further stated that the seals were intact. He further stated that he verified the investigation and the case property. He further stated that he directed Bhupinder Singh, ASI, to deposit the case property and the sample parcels with MHC Ashwani Kumar. No doubt, he did not affix his own seal on the case property and the sample parcels. The mere fact that he did not affix his own seal, on the case property, and the sample parcels, in itself, did not mean that the same were not produced before him. At the most, Navjot Singh, Inspector, PW4, could be said to be negligent in not affixing his seal, on Crl. Appeal No. 846-SB of 2001 19 the case property, and the sample parcels. Mere non- affixation of seal on the case property and the sample parcels by Navjot Singh, Inspector, PW-4 , who was the Station House Officer, of Police Station Mahilpur, at the relevant time,. did not at all cause any dent, in the prosecution story. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
16. No other point, was urged, by the Counsel for the parties.
17. 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. The same are liable to be upheld.
18. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction and the order of sentence, dated 29.05.2001, are upheld. If the appellant is on bail, his bail bonds shall stands cancelled. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment, within two months, from the date of receipt of a certified copy of the same, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Crl. Appeal No. 846-SB of 2001 20 Procedure, and submit the compliance report immediately thereafter.
19. The District & Sessions Judge, Hoshiarpur, is also directed to ensure that the directions, referred to above, are complied with, by the concerned Court, within the time- frame, and compliance report is sent immediately thereafter, to this Court.
20. The Registry shall keep track of the matter, and put up the action taken report, if received, within the time frame. Even if, the same is not received, within the time frame, the matter shall be put up, within 10 days, after the expiry of the stipulated time.
14.11.2008 (SHAM SUNDER) dinesh JUDGE