Punjab-Haryana High Court
Darshan Singh S/O Swaran Singh S/O ... vs The State Of Punjab on 11 March, 2010
Crl. Appeal No. 1528-SB of 2002
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IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Crl. Appeal No. 1528-SB of 2002
Date of decision. 11.03.2010
Darshan Singh s/o Swaran Singh s/o Jaimal Singh, r/o village Koire
Singh Wala, P.S. Dayalpura, District Bathinda.
....... Appellant
Versus
The State of Punjab
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. B.S. Dhaliwal, Advocate,
for the appellant.
Mr.Aman Deep Singh Rai, AAG, Punjab
for the respondent.
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Sham Sunder, J.
This appeal is directed against the judgment of conviction, and the order of sentence dated 21.08.2001, rendered by the Special Judge, Faridkot, 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 as the 'Act' only) and sentenced him to undergo RI for a period of 10 years and 06 months and to pay a fine of Rs.1 lac, and in Crl. Appeal No. 1528-SB of 2002
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default of payment of fine, to undergo further rigorous imprisonment, for a period of two years, for having been found in possession of three bags, each containing 40 kgs. Poppy husk, without any permit or licence, which fall within the ambit of commercial quantity.
2. The facts, in brief, are that on 25.04.1998, Ram Singh, Assistant Sub Inspector, alongwith other police officials, was going from village Saadh Bhai towards village Ladhaika on an unmetaled road (katcha path) and when they reached near the bridge of canal minor, in the area of village Channuwala, at about 4.00 PM, the accused was seen sitting on the three bags, towards the western side of the bridge and Patri. On seeing the Police party, he tried to slip away. On suspicion, he was apprehended. In the meantime, Zora Singh, independent witness, came there and joined the Police party. The search of the bags was conducted, in the accordance with the provisions of law, as a result whereof, each bag was found containing 40 kgs poppy husk. A sample of 250 grams poppy husk was separated 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 separate parcels, sealed with the seal, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis of which, FIR was recorded.
Crl. Appeal No. 1528-SB of 2002
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Rough 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.
4. The prosecution, in support of its case, examined Gurpreet Singh, HC, (PW-1), a formal witness, who tendered his affidavit Ex.PA, Ram Singh, Assistant Sub Inspector, (PW-2), Investigating Officer, Natha Singh, Constable, (PW-3), who handed over the special report to the Illaqa Magistrate and higher Officers, Manjit Singh, Constable, (PW-4), who deposited the sample parcels alongwith seal impression in the office of the Chemical Examiner, Punjab, Chandigarh, Dilbag Singh, Head Constable, (PW-5), a formal witness, Sant Singh, Head Constable, (PW-6), a recovery witness, Vijay Kumar, DSP, Mullan Pur Dakha, (PW-7), in whose presence the recovery from the possession of the accused was effected, and Jang Singh, Sub Inspector, (PW-8), who produced the sample Crl. Appeal No. 1528-SB of 2002
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parcels alongwith the bags, containing poppy husk, with seal bearing impression 'RS' before the Judicial Magistrate Ist Class, Moga, on the application given by Ram Singh, ASI. The Additional Public Prosecutor for the State gave up Joginder Singh, Inspector, as unnecessary and, Zora Singh, independent witness, as won over. Thereafter, he 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. 5-A. In defence, the accused examined Bikkar Singh, DW-1, Sukhmander Singh, DW-2 and Hardeep Singh, DW-3. Thereafter, he closed the defence evidence.
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. 1528-SB of 2002
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9. The Counsel for the appellant, at the very outset, vehemently, contended that only one sample from each of the bags, was taken out by the Investigating Officer. He further submitted that, as per the requirement of law, two samples were required to be taken. He further submitted that, on account of this reason, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. There is no requirement of law that two samples must be taken, from the recovered contraband from the accused. A sample is taken out, with a view to send the same to the Chemical Examiner, for the purpose of analysis. In this case, the Chemcial Examiner, found that the contents of the sample were sufficient to analyze the same, and he gave the report. The mere fact that only one sample was taken instead of two samples, did not at all cause any dent in the prosecution story. Even no prejudice, whatsoever, was caused to the accused, on account of taking of one sample, instead of two samples, from the poppy husk, recovered from him. . The submission of 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 CFSL form was not prepared at the spot, as Crl. Appeal No. 1528-SB of 2002
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a result whereof, the case of the prosecution became highly doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It was not necessary for the Investigating Officer to prepare the CFSL form at the spot. At the time of sending the samples to the office of the Chemical Examiner, the CFSL form was prepared and sent alongwith it (sample parcels). No prejudice was caused , on account of non-preparation of CFSL form, at the spot as the evidence, produced by the prosecution, was sufficient to prove that none-tampered with the sample parcels until the same reached the office of the Chemical Examiner. Under these circumstances, 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, Zora Singh, independent witness was joined by the Investigating Officer, at the time of the alleged search and seizure, yet he was not examined, as a result whereof, adverse inference could be drawn, that had he been examined, he would not have supported the case of the prosecution. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It is, no doubt, true that Zora Singh, independent witness was not examined by the prosecution. On the other hand, he was given up as Crl. Appeal No. 1528-SB of 2002
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won over by the accused. It was for the Additional Public Prosecutor for the State, to decide, as to which witness he wanted to examine and which witness he did not want to examine. Since the Additional Public Prosecutor was satisfied that Zora Singh, independent witness, had been won over by the accused, he did not think it proper to examine him, as he knew that if he (Zora Singh, independent witness), was examined, he would damage the case of the prosecution. The Additional Public Prosecutor for the State, exercised the discretion, vested in him, in giving up Zora Singh, independent witness, as won over by the accused, with a bonafide motive. It could not be said that the discretion, exercised by the Additional Public Prosecutor, for the State, in giving up Zora Singh, as won over by the accused, was, in any way arbitrary or capricious. The evidence of the prosecution witnesses, is creditworthy, and inspires confidence, in the mind of the Court. 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, 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 has been won over or Crl. Appeal No. 1528-SB of 2002
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terrorized. 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 case, 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, a Division Bench of this Court, held that where the independent witness, was won over by the accused, and only the officials witnesses, were examined, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. The principle of law, laid down, in the said cases, is fully applicable to the facts of the present case. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
12. It was next submitted by the Counsel for the appellant that the appellant was not found in conscious Crl. Appeal No. 1528-SB of 2002
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possession of poppy husk, and, as such, no offence, punishable under Section 15 of the Act, was constituted against him. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. As stated above, in this case, the accused, was found sitting on three bags, each containing 40 Kgs. On seeing the Police party, the accused tried to slip away, but on suspicion, he was stopped. The subsequent conduct of the accused of making an attempt to slip away, on seeing the Police party, was sufficient to prove that he was having guilty conscience. Since the accused was found sitting on the bags, containing poppy husk, he was having special means of knowledge, as to where-from the bags, containing poppy husk were brought to that place, and for what purpose the same were kept there; to which place the same were to be taken; and for what purpose. He did not furnish any explanation, in that regard. The possession of Darshan Singh,accused, and his control over the bags, containing poppy husk, aforesaid,stood duly proved. Once the possession or control over the bags, containing poppy husk, of the appellant, stood proved, the statutory presumption under Sections 54 and 35 of the Act, operated against him that he was in conscious possession thereof. Thereafter, the onus shifted, on to him, to prove that Crl. Appeal No. 1528-SB of 2002
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he was not in conscious possession thereof. Thereafter, it was for him, to rebut the 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. 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 Crl. Appeal No. 1528-SB of 2002
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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 reasonable doubt and not merely when its existence is established by a preponderance of probability."
12-B. From the conjoint reading of the provisions Crl. Appeal No. 1528-SB of 2002
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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 he was not in 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."
12-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 therein 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 Crl. Appeal No. 1528-SB of 2002
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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 contents of the bags. It was not a small quantity of poppy husk, which was concealed, and, as such, could escape the notice of the accused. Keeping in view the principle of law, laid down, in the aforesaid cases, the provisions of Sections 35 and 54 of the Act, and the evidence produced, on record, the trial Court, in my opinion, was right in coming to the conclusion, that the accused was in conscious possession of poppy-husk. In this view of the matter, the submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected.
13. The Counsel for the appellant, however, placed reliance on Amrik Singh v. State of Punjab, 2010(1) RCR (Criminal) 330 in support of his contention that the accused was not in conscious possession of the alleged poppy husk. In Crl. Appeal No. 1528-SB of 2002
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Amrik Singh's case (supra), the mandatory provisions of Section 42(1) of the Act, were not complied with; and the DSP, PW-4, under whose supervision the search was conducted, did not put his seal, on the alleged contraband seized, and, as such, his presence at the time of the alleged recovery was doubtful. Primarily on account of these reasons, the accused was not held to be guilty. One of the reasons, which weighed with the Court was that, in these circumstances, mere sitting on the bags, did not prove the conscious possession of the accused. In the instant case, neither there was violation of the provisions of Section 42 of the Act, nor the presence of the Deputy Superintendent of Police was doubtful. As stated above, the subsequent conduct of the accused in making an attempt to slip away, on seeing the Police party, also proved his guilty conscience. Since the facts of Amrik Singh's case (supra) are distinguishable, from the facts of the instant case, no help, can be drawn by the Counsel for the appellant therefrom. The submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected.
14. No other point, was urged, by the Counsel for the parties.
15. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, Crl. Appeal No. 1528-SB of 2002
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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.
16. For thel reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction and the order of sentence, dated 21.08.2001 are upheld. If the appellant is on bail, his bail bonds shall stand cancelled.
17. 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 Cr.P.C. and compliance report be sent within two months.
18.. The District & Sessions Judge, Faridkot, is also directed to ensure that the directions, referred to above, are complied within the time-frame and the compliance report is sent immediately, thereafter, to this Court.
19. 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.
(SHAM SUNDER)
March 11, 2010 JUDGE
dinesh