Punjab-Haryana High Court
Baldev Singh vs State Of Punjab on 23 April, 2010
Criminal Appeal No. 2467-SB of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 2467-SB of 2008
Date of Decision: 23.04.2010
1. Baldev Singh, aged 32 years son of Puran Singh son of
Partap Singh, Labourer, resident of village Nagra, Tehsil
Bhawanigarh, District Sangrur.
2. Harjinder Singh @ Kukku, aged 30/35 years son of
Gurcharan Singh son of Shria Ram, Agriculturist, resident of
village Nagra, Tehsil Bhawanigarh, District Sangrur.
... Appellants
Versus
State of Punjab.
...Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Karan Bhalla, Advocate,
for the appellants.
Mr. T.S. Salana, Deputy Advocate General, Punjab,
for the respondent - State.
SHAM SUNDER, J.
**** This appeal is directed against the judgment of conviction and the order of sentence, dated 30.10.08, rendered by the Judge, Special Court, Mansa, vide which, he convicted the accused, for the offence, punishable under Section 15, and, Section 25 read with Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only), and sentenced them as under, for having been found in possession of 103 kgs of poppy husk, Criminal Appeal No. 2467-SB of 2008 2 without any permit or licence, falling within the ambit of commercial quantity:-
Names of the accused Offence for which Sentence awarded (now appellants) convicted 1 2 3
(i) Baldev Singh (a) Under Section To undergo rigorous 15 of the Act. imprisonment, for a period of 10 years, and, to pay a fine of Rs. 1 lac, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of one year.
(b) Under Section To undergo rigorous
25 read with imprisonment, for a
Section 15 of the period of 10 years, and,
Act. to pay a fine of Rs. 1 lac,
and, in default of
payment thereof, to
further undergo
rigorous imprisonment,
for a period of one year.
(ii) Harjinder Singh (c) Under Section To undergo rigorous
15 of the Act. imprisonment, for a
period of 10 years, and,
to pay a fine of Rs. 1 lac,
and, in default of
payment thereof, to
further undergo
rigorous imprisonment,
for a period of one year.
Criminal Appeal No. 2467-SB of 2008 3
2. The facts, in brief, are that, on 06.12.01, Nachatar Singh, Assistant Sub Inspector, alongwith some other Police officials, was holding a picket, at canal bridge, in the area of Bhikhi main road Sunam-Mansa, when one Ashok Kumar, met him, and, was joined with the Police party. In the meantime, a gypsy, bearing registration No. DNH-2745, was seen coming, from the side of Mansa. It was signalled to stop with the help of torch light. The driver of the gypsy became perplexed and struck the same against the angle iron of the canal bridge as a result whereof, it stopped. After the gypsy stopped, one person jumped down, from its backside, and managed to escape. Baldev Singh, accused, was driving the gypsy, whereas, Kuku Singh alias Harjinder Singh, accused, was sitting by his side. On inquiry, both the accused, disclosed the name of the person fleeing, as Mohinder Singh son of Kaka Singh. Three gunny bags, were lying, on the backside of the gypsy. Thereafter, Nachatar Singh, Assistant Sub Inspector, apprised the accused, that he suspected some contraband, in the gunny bags, lying on the backside of the gypsy, and wanted to search the same.
Consequently, on search of the gunny bags, in the presence of Daljit Singh, Deputy Superintendent of Police, who was called to the spot, 36 kgs poppy husk, from two bags, and, 31 kgs poppy husk, from the third bag, was recovered. Two samples of 100 gms, from each bag, were separated, and the remaining poppy husk, was kept therein. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, Criminal Appeal No. 2467-SB of 2008 4 alongwith the gypsy, and its registration certificate, vide a separate recovery memo. The accused were arrested. Site plan of the place of recovery, was prepared. Ruqa was sent to the Police Station, on the basis whereof, the first information report, was registered. Mohinder Singh, accused, was also arrested later on. 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.
4. Charge under Section 15 and Section 25 read with Section 15 of the Act, was framed, against the accused, which was read-over and explained to them, to which, they pleaded not guilty, and claimed judicial trial.
5. The prosecution, in support of its case, examined Kulwant Singh (PW1), Nachatar Singh, Assistant Sub Inspector (PW2), Investigating Officer, Avtar Singh, Constable (PW3), Surjit Singh, Assistant Sub Inspector (PW4), Daljit Singh, Deputy Superintendent of Police (PW5) (wrongly numbered as PW4), witness to the recovery, Kesar Singh, Deputy Superintendent of Police (PW6) (wrongly numbered as PW5), and, Gurbachan Singh (PW7) (wrongly numbered as PW6). Ashok Kumar, prosecution witness, was given up, as having been won over by the accused. Thereafter, the prosecution evidence was closed.
6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the Criminal Appeal No. 2467-SB of 2008 5 incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Baldev Singh, accused, stated that, during the night intervening 05/06.12.01, two Home Guard Volunteers, were present, on the bridge of canal minor, on Sunam- Bhikhi road, in connection with patrolling or nakabandi. It was further stated by him that, on that night, his co-accused Harjinder Singh alias Kuku, was coming back, from the side of Sardulgarh, in his gypsy, towards village Gandiua. It was further stated by him that his co- accused Mohinder Singh, is a maternal uncle of co-accused Harjinder Singh, who was coming back, after giving some goods, to the daughter of the said co-accused. It was further stated by him that, when co- accused Harjinder Singh, reached near the bridge, one Home Guard Volunteer, gave a signal to stop the gypsy, as a result whereof, he (Harjinder Singh) became puzzled and struck the same against an iron angle thereof. It was further stated by him that, thereafter, an altercation, took place between Harjinder Singh and Home Guard Volunteer. It was further stated by him, that both the Home Guard Volunteers, took Harjinder Singh, co-accused, to Police Station and after reaching there, they started demanding some amount, by saying that, he (Harjinder Singh) wanted to kill them. It was further stated by him that then Mohinder Singh, co-accused, was informed, by Harjinder Singh, co-accused, about these facts. It was further stated by him that, thereafter, Mohinder Singh, informed him, about the same. It was further stated by him that Mohinder Singh, being friend, had asked Criminal Appeal No. 2467-SB of 2008 6 him, to give his gypsy, for one day, for going to his daughter's village Sardulgarh. It was further stated by him that, after getting information, Mohinder Singh, co-accused with Gobinder Singh alias Bhola, Beant Singh and himself, came to Police Station Bhikhi, in the morning. It was further stated by him that, Mohinder Singh, co-accused, alongwith the aforesaid persons and himself, met the Police officials. However, they told that, Harjinder Singh, had not stopped the gypsy, on receipt of signal, from Home Guard Volunteers, who saved himself, by chance, as he (Harjinder Singh), was driving the same carelessly. It was further stated by him that, Police officials, had asked Mohinder Singh, co- accused, to give Rs. 5,000/-, to the Home Guard Volunteer. It was further stated by him that he and Mohinder Singh, co-accused were asked to arrange the said amount, failing which, he (Harjinder Singh), shall not be left out. Mohinder Singh, co-accused, went to his village, for arranging the said amount. It was further stated by him that, Mohinder Singh, co-accused, was asked, to come back till 10.00 AM, with the aforesaid amount, failing which, a criminal case was threatened to be registered. It was further stated by him that, however, Mohinder Singh, co-accused, came back, at about 1.00 PM or 2.00 PM, after making arrangement. It was further stated by him that the case was already registered against him and his other co-accused. It was further stated by him that Mohinder Singh, co-accused alongwith Gurbinder Singh and Beant Singh, moved a written complaint, to the Senior Superintendent of Police, Mansa, but to no avail. It was further Criminal Appeal No. 2467-SB of 2008 7 stated by him that, no poppy husk, was recovered, from his gypsy. It was further stated by him that false case, was registered, on account of non-payment of the said amount. It was further stated by him that, the signatures of the Deputy Superintendent of Police, were obtained, on some papers, in his office.
7. Harjinder Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure, also took up the same pleas, as were taken up by Baldev Singh, in his statement, under Section 313 of the Code of Criminal Procedure.
8. Mohinder Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that, he had been falsely implicated, in the instant case. It was further stated by him that he was not present, at the spot. The accused, however, examined Bhagwant Singh, Head Constable (DW1), in their defence. Thereafter, they closed their defence evidence.
9. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced both the accused, as stated above, and, acquitted Mohinder Singh, accused.
10. Feeling aggrieved, the instant appeal, has been filed by the appellants.
11. I have heard the 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, Criminal Appeal No. 2467-SB of 2008 8 submitted that, though, Ashok Kumar, independent witness, was joined, at the time of effecting the alleged recovery, yet, he was not examined, but, on the other hand, was given up, as having been won over by the prosecution, as a result whereof, its case became highly doubtful. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. No doubt, Ashok Kumar, independent witness, was joined, at the time of effecting the alleged recovery, from the accused, yet, he joined hands with them, and, as such, he was given up as won over, by the Additional Public Prosecutor, for the State, vide his statement dated 29.11.05, on the basis of the written request of the Police. The Additional Public Prosecutor, for the State, is the master of the case. It is for him, to decide, as to which witness, he wants to examine, and which witness, he does not want to examine. Since Ashok Kumar, independent witness, had been won over by the accused, there was no necessity of examining him, as the Additional Public Prosecutor, for the State, very well knew that, if he examined Ashok Kumar, independent witness, he would cause damage, to the case of the prosecution. The discretion, exercised by the Additional Public Prosecutor, for the State, in giving up Ashok Kumar, could not be said to be arbitrary or capricious. On the other hand, the decision, taken by the Additional Public Prosecutor, for the State, could be said to be bonafide. 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, Criminal Appeal No. 2467-SB of 2008 9 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/she 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 could 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 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 Criminal Appeal No. 2467-SB of 2008 10 like a civil dispute, between two individuals, and do not involve themselves in it. The principle of law, laid down, in the said cases, is fully applicable to the facts of the present case. Even otherwise, the other evidence produced by the prosecution is cogent, convincing, reliable and trustworthy. 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 though, the alleged recovery, was effected, on 06.12.01, yet the sample parcels, were sent, to the office of the Chemical Examiner, on 10.12.01, i.e. after a delay of 04 days without any explanation and, as such, the possibility of tampering with the samples 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, as stated above, 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, Criminal Appeal No. 2467-SB of 2008 11 there is report of the Chemical Examiner, Ex. PX, which clearly proves that the seals on the samples, were intact, on their arrival, in the Laboratory, and tallied with the sample 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 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 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. It was held, in the aforesaid cases, 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 cases, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 04 days, in sending the samples, to the office of the Chemical Examiner, Criminal Appeal No. 2467-SB of 2008 12 did not cast any doubt, 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 prosecution, miserably failed, to prove the conscious possession of the accused, and, as such, they did not commit any offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Baldev Singh, accused, who was the owner of the gypsy, was driving the same, whereas, Harjinder Singh @ Kukku, accused, was sitting by his side. Three bags, containing poppy husk, were lying, in the body of the gypsy. Two bags, contained 36 kgs poppy husk each, whereas, the third bag, was found containing 31 kgs poppy husk. It was not a small quantity of poppy husk, which was lying, in the body of the gypsy. Huge quantity of poppy husk, was being, carried in the gypsy, which was owned by Baldev Singh, accused. It, therefore, could not be said, that Baldev Singh, driver-cum-owner of the gypsy and Harjinder Singh, accused, were unaware of the contents of the bags, lying in the gypsy. It was within their special means of knowledge, as to wherefrom, the bags, aforesaid, containing poppy husk, were loaded, in the gypsy; to which place, the same, were being taken; and for what purpose, the same, were being taken. They, however, did not furnish any explanation, on the aforesaid aspects of the matter. They were, therefore, in possession of and in control over the bags, containing Criminal Appeal No. 2467-SB of 2008 13 poppy husk. The possession of the appellants, in respect of the bags, containing poppy husk and their control over the same, therefore, stood duly proved. Once their possession, was proved, statutory presumption under Sections 35 and 54 of the Act, operated against them, that they were in conscious possession thereof. It was for them, to rebut the statutory presumption, by leading cogent and convincing evidence. They, however, failed to lead any evidence, to rebut the statutory presumption. As such, 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 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 Criminal Appeal No. 2467-SB of 2008 14 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 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 Criminal Appeal No. 2467-SB of 2008 15 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."
15. 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 Megh Singh Vs. State of Punjab, 2003 (4) RCR (Criminal) 319, on 22.2.1993, three persons 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 Criminal Appeal No. 2467-SB of 2008 16 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. The facts of Madan Lal's case (supra) are almost similar and identical to the facts of the present case. The principle of law, laid down, in Madan Lal's and Megh Singh's cases (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 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.
16. It was next submitted by the Counsel for the appellants, that CFSL Form, was not prepared, at the spot, and, as such, the possibility of tampering with the samples, until the same reached the office of the Chemical Examiner, could not be ruled out. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Criminal Appeal No. 2467-SB of 2008 17 There is no provision of law, that CFSL Form, should be prepared, at the spot. The CFSL Form, is required, to be sent alongwith the sample parcels. It was prepared, at that time, as is evident, from the report of the Chemical Examiner. The other evidence, produced by the prosecution, clearly proved that, none tampered with the sample parcels, until the same remained, in the custody of the Investigating Officer and the Moharrir Head Constable. Non-preparation of CFSL Form, at the spot, which is not the requirement of law, did not at all cause any dent, in the prosecution story, which was otherwise proved, beyond a reasonable doubt, from the cogent, convincing, reliable and trustworthy evidence. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected.
17. It was next submitted by the Counsel for the appellants, that the case property, when produced, in the Court, did not stand connected with the case. He invited my attention, to the cross-examination of Kulwant Singh, Assistant Sub Inspector, PW1, wherein, he stated that bag P1, bore the seal impression only of 'KS'. It did not bore the seal impression of the Station House Officer. It may be stated here, that the case property, is stacked, in the Malkhana, where, there is shortage of space. Under these circumstances, the case property, cannot be properly stacked, in the Malkhana. If, on account of irresponsible handling, during the course of transit and the lapse of sufficient time, from the date of recovery, until the case property, was produced, in the Court, Criminal Appeal No. 2467-SB of 2008 18 the seals of wax, on the bags, stood broken or underwent the process of decay, that did not mean, that the case property, did not stand connected with the accused. 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, when the case property, was produced, in the Court, it was duly identified, as the same, as was recovered, by Nachatar Singh, Assistant Sub Inspector. Under these circumstances, the submission of the Counsel for the appellants, in this regard, 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 judgement of conviction and the order of the sentence, rendered by the trial Court, are based on the correct appreciation of evidence and law, on the point. The same do not suffer from any illegality or infirmity and deserve to be upheld.
20. For the reasons recorded above, the appeal, being devoid of merit, is dismissed. The judgment of conviction, and the order of sentence, rendered by the trial Court, are upheld. If the appellants, are on bail, their bail bonds, shall stand cancelled.
21. The Chief Judicial Magistrate, 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, and submit compliance report, within 02 months.
22. The District & Sessions Judge, is also directed to ensure Criminal Appeal No. 2467-SB of 2008 19 that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court.
23. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action.
23.04.2010 (SHAM SUNDER) Amodh JUDGE