Punjab-Haryana High Court
Satish Son Of Lehna vs The State Of Haryana on 22 October, 2008
Crl. Appeal No.1164-SB of 2000
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.1164-SB of 2000
Date of Decision:October 22, 2008
1. Satish son of Lehna, resident of village Madina,
2. Dharambir son of Shiv Narain, resident of village
Chhichhrana.
.... Appellants
Versus
The State of Haryana
.... Respondent
2. Crl. Appeal No. 1185-SB of 2000
Raju alias Rajbeer son of Ram Kishan resident of
Chhichharana.
... Appellant.
Versus
The State of Haryana
.... Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Ms. Tanisha Peshwaria, Advocate
( Amicus-curiae )
for the appellants,
in Crl. A. No. 1164-SB of 2000.
Mr. S.R. Hooda, Advocate
for the appellant,
in Crl. A. No. 1185-SB of 2000.
Mr. A.K. Jindal, AAG, Haryana
for the respondent,
in both the appeals.
Crl. Appeal No.1164-SB of 2000
2
SHAM SUNDER, J.
This judgment shall dispose of Crl. Appeal No. 1164-SB of 2000 filed by Satish and another and Criminal Appeal No. 1185-SB of 2000, filed by Raju alias Rajbeer, arising out of the judgment of conviction dated 16.10.2000, and the order of sentence dated 20.10.2000, rendered by the Court of Additional Sessions Judge, Sonepat, vide which it convicted all the accused, for the offence punishable under Section 20(b) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced them to undergo rigorous imprisonment, for a period of ten years each, and to pay a fine of Rs.1 lac each, and in default of payment of the same, to undergo further rigorous imprisonment for a period of two years each, for having been found in possession of 500 grams, 500 grams and 1 KG., charas respectively, at the relevant time, falling within the ambit of commercial quantity, without any permit or licence.
2. The facts, in brief, are that on 29.08.1999, Amar Dass, Sub Inspector/Station House Officer along with other police officials, was present at Sonepat T-point Gohana. Baljeet Singh, independent witness met them. He was having talk with him, when a secret information was received that a Crl. Appeal No.1164-SB of 2000 3 motorcycle bearing No. HR-11-9597 being ridden by Raju, Dharambir and Satish, who were indulging in the business of charas, was coming and they were bringing charas. He was also informed that in case a picket was held, they could be apprehended. A picket was held at T-point, Sonepat road, Gohana. A motorcycle came from the side of Panipat, at a very fast speed. The motorcycle did not stop, despite the signal having been given to it. The riders thereof tried to run away towards Sonepat. However, all the three persons i.e. rider and the pillion riders of the motorcycle, were apprehended by the police. The motorcycle was being ridden by Raju, while Satish and Dharambir were the pillion riders. Sub Inspector Amar Dass asked them, that he suspected that they were carrying contraband. He further told them that they could be searched, in the presence of a Magistrate or a Gazetted Officer. Written notice, in this regard, was also given to Satish and Dharambir. However, Raju alias Rajbeer, accused , managed to run away, from the spot, after leaving his polythene packet on the motorcycle. The Deputy Superintendent of Police was summoned through wireless message. Ashok Kumar, DSP, reached the spot, on whose directions, the search was conducted. 500 Grams charas was recovered from the possession of Satish, accused, which was kept by him, in the Crl. Appeal No.1164-SB of 2000 4 right side pocket of his pant, in polythene packet. 10 grams charas was separated as a sample. 500 Grams charas, was recovered from the possession of accused Dharambir, which he had kept in the right side pocket of his shirt. 10 grams charas was separated as a sample. One Kilogram charas kept on the handle of motorcycle, in a bag, left by Raju, accused, who managed to escape, was also recovered. 10 grams charas, was taken out as a sample. The samples so drawn, and the remaining charas, were converted into separate parcels, duly sealed, and taken into possession, along with motorcycle, vide a separate recovery memo. Ruqa was sent to the Police station, on the basis whereof, the FIR was recorded. The site plan was prepared. Satish and Dharambir, accused were arrested. Raju, accused, was arrested later on. The statements of the witnesses were recorded. 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. Charge under Section 20(b) of the Act, was framed against the accused, to which they pleaded not guilty and claimed judicial trial.
Crl. Appeal No.1164-SB of 2000 5
4. The prosecution, in support of its case, examined Pawan Kumar,C, (PW-1), who handed over the special report to the Illaqa Magistrate, Subhash Chander, ASI, ( PW-2 ), a formal witness, who recorded FIR Ex.P-3, on the basis of ruqa Ex.P-2, Ramesh Chander, HC ( PW-3 ), a formal witness, who tendered his affidavit Ex.PA, Krishan Chander, Constable, ( PW-4 ), a formal witness, who tendered his affidavit Ex.PB, Ram Avtar, ASI, ( PW-5 ), a witness to the recovery, Baljit Singh, ( PW-6 ), an independent witness, who did not support the case of the prosecution, Amar Dass, S.I. ( PW-7 ), Investigating Officer, who investigated the case and prepared various documents, Chand Singh ( PW-8 ), who stated that Raju, accused is the brother-in-law of his brother Baljit , who is the owner of Motorcycle No. HR-11-7587 and Ashok Kumar, DSP, ( PW-9 ), a witness to the recovery. Thereafter, the Additional Public Prosecutor for the State, closed its evidence.
5. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence, and pleaded false implication. They, however, did not produce any evidence in their defence.
Crl. Appeal No.1164-SB of 2000 6
6. After hearing the 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 appeals, were filed by the appellants.
8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. The Counsel for Raju @ Rajbeer, appellant, at the very outset submitted that Raju alias Rajbeer, accused, allegedly escaped from the spot and one kilogram charas was recovered from the bag, lying on the handle of the motorcycle. He further submitted that under these circumstances, it could not be said that Raju alias Rajbeer, accused was in conscious possession of the contraband. The submission of the Counsel for Raju alias Rajbeer, appellant, in this regard, does not appear to be correct. Raju alias Rajbeer was the rider of the motorcycle, whereas Satish and Dharambir were the pillion riders. No doubt, in the first instance, all of them were apprehended, yet in the meanwhile, Raju, rider of the motorcycle, managed to escape by leaving the polythene Crl. Appeal No.1164-SB of 2000 7 packet, containing charas, on the handle of the same. Under these circumstances, it could be very well said that he was in possession of the charas, which he left on the handle of the motorcycle, while making good his escape. The mere fact that he managed to escape from the spot, in itself, clearly revealed his guilty conduct. In case, he was not in possession of the contraband, then why he ran away from the spot, after leaving the bag, containing charas, on the handle of the motorcycle, which he was riding. It was for him to explain the aforesaid circumstances. He , however, failed to explain the same. As such, the accused was found in possession of, and in control over the bag, containing charas. 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 he was in conscious possession of the contraband. Section 54 of the Act ibid reads as under :-
Crl. Appeal No.1164-SB of 2000 8 "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 account satisfactorily."
9-A Section 35 which relates to the presumption of culpable mental state, is extracted as under :-
Crl. Appeal No.1164-SB of 2000 9 "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."
9-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.1164-SB of 2000 10 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."
9-C. 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.
Crl. Appeal No.1164-SB of 2000 11 In the instant case, Raju alias Rajbeer, accused failed to explain, as to how, the bag containing one kilogram charas was kept on the handle of the motorcycle, which was being ridden by him. 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 his statement, under Section 313 Cr.P.C., the accused took up the plea, only of false implication. He did not take up the plea, that he was directed by the owner, to take the bag, to a certain place, and obeying his command, he was taking the same, to that destination. As stated above, the accused, thus, miserably failed to rebut the statutory presumption, referred to above. Thus, his conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel for Raju, appellant, being without merit, must fail, and the same stands rejected.
10. The Counsel for Raju, appellant,however, placed reliance Avtar Singh v. State of Punjab 2002 (4)RCR ( Criminal ), 180 ( S.C. ), to contend that Raju, accused was not found in conscious possession of the contraband. In Avtar Singh's case ( supra ) no doubt the accused were found travelling in a truck , where-from the contraband was Crl. Appeal No.1164-SB of 2000 12 recovered. The Apex Court held that they could not be said to be in conscious possession of the contraband. However, at the same time, it was held by the Apex Court, that, at the most, they could be said to be abettors. Abetment is an offence under Section 29 of the Act. They were, however, not convicted by the Apex Court, for the offence under Section 29 of the Act, on the ground, that no charge for abetment had been framed against them. Under these circumstances, in Avtar Singh's case ( supra ) , it was never held by the Apex Court that the appellants did not commit any offence, under the Act. Even in Megh Singh Vs. State of Punjab, 2003(4) RCR ( Crl. ) 319(SC), Avtar Singh and others's case ( supra ) was noticed and distinguished on factual matrix. The facts of Avtar Singh's case ( supra ) are distinguishable from the facts of the instant case. In view of the principle of law laid down, in Madan Lal's case ( supra ) , the facts whereof, are similar and identical to the facts of the instant case, the trial Court, was right, in holding that the appellants were in conscious possession of charas, recovered from them. No help, therefore, can be drawn by the Counsel for Raju alias Rajbeer, from Avtar Singh's case ( supra ). In this view of the matter, the submission of the Counsel for Raju, appellant, being without merit, must fail, and the same stands rejected.
Crl. Appeal No.1164-SB of 2000 13
11. It was next submitted by the Counsel for Raju, appellant, that the motorcycle did not belong to Raju, appellant. He further submitted that Chand Singh, PW8, stated that he was the owner of the motorcycle in question. He further submitted that under these circumstances, Raju, accused, did not commit any offence punishable under Section 20(b) of the Act. The submission of the Counsel for Raju, appellant, in this regard, does not appear to be correct. Chand Singh son of Hawa Singh, PW8, stated, on oath, that Raju son of Ram Kishan, accused, is the brother-in-law of his brother Baljeet. He further stated that he was the owner of motorcycle No. HR11- 7587. He further stated that about one year before 17.08.2000, Raju, appellant, had come to him, and asked him to give his motorcycle. He further stated that, at that time, he was accompanied by two other accused, who were correctly identified by him ( Chand Singh ), in the Court. He further stated that Raju alongwith his co-accused took his motorcycle. The suggestion put to him, during the course of cross- examination that Raju never took the motorcycle from him, was denied by him. From the statement of Chand Singh, PW8, it was, thus, proved beyond doubt that Raju, accused, took the motorcycle, from him, ( Chand Singh ). Since Raju, accused,is nearly related to Chand Singh, being the brother-in-law of his Crl. Appeal No.1164-SB of 2000 14 brother, it could not be possible for him ( Chand Singh ) to refuse to hand over the motorcycle, to him, on his request. It was, under these circumstances, that Raju, accused, alongwith his co-accused, was found in possession of the motorcycle in question. Even the other co-accused of Raju, accused, came along with him, to the house of Chand Singh, PW8, whose motorcycle was taken by them. Thereafter, Raju, accused and his co-accused namely Satish and Dharambir used his motorcycle, for the purpose of transporting charas, referred to above. In these circumstances, the mere fact that Raju, accused, was not the owner of the motorcycle, did not mean that he was having no connection with the same. Since he was in possession of the motorcycle, it was for him, to explain, as to how he along with his two co-accused was found carrying contraband on the same. There was no reason on the part of Chand Singh, PW8, to depose falsely against his relation Raju, accused, brother-in-law of his brother Baljeet. Chand Singh, PW-8 made a truthful statement, which by, no stretch of imagination, could be said to be tainted. In this view of the matter, the custody of Raju, accused, of the motorcycle, may be temporary, at the relevant time, but he along with his two co- accused was found transporting contraband on the same,. It , therefore, could be said to be sufficient to fasten the liability Crl. Appeal No.1164-SB of 2000 15 upon him, under the relevant provisions of law. The submission of the Counsel for Raju, appellant, being without merit, must fail, and the same stands rejected.
12. It was next submitted by the Counsel for the appellants that Baljeet Singh, independent witness, though joined and examined, as PW-6, yet he did support the case of the prosecution. They further submitted that, under these circumstances, it could be said that no recovery, whatsoever, from the accused was effected but they were falsely implicated in the instant case. No doubt, Baljeet Singh, PW-6, stated in his statement that nothing was recovered from the accused, in his presence. He further stated, during the course of cross- examination that Ex.PC, PE, PG, PH and PJ, the documents, which were prepared, at the spot, bore his signatures. He, however, further stated that his signatures were obtained on blank papers. The statement of Baljeet Singh, independent witness, cannot be said to be truthful by any stretch of imagination. The recovery, in this case, was effected on 29.08.1999. This witness was examined, in the Court, on 25.05.2000. It means that he was examined, in the Court, as a witness, after about nine months of the recovery. In case, no recovery had been effected, from the accused, in his presence or his signatures had been obtained on blank papers, he had Crl. Appeal No.1164-SB of 2000 16 many occasions to make a complaint, against the Investigating Officer, to the higher authorities. He, however, did not do so. He kept mum for about nine months and, ultimately, came to the Court, to depose that no recovery was effected, in his presence, just with a view to help the accused. It may be stated here, that the case of the prosecution cannot be allowed to hinge on the statement of a single witness. The Court is required to scrutinize the evidence of the prosecution, as a whole, and come to the conclusion, as to whether, the same is cogent, reliable, and trust worthy or not. Once the Court comes to the conclusion, after scrutiny of the evidence of the prosecution, as a whole that the same is reliable and carries a ring of truth, then the mere fact that one of the witnesses though he may be an independent witness, did not support its case, does not cause any dent. The other evidence has been thoroughly scrutinized, and it has been found, to be cogent, convincing, credible and trust-worthy. The trial Court was right in relying upon the same. In State of Rajasthan v. Udai Lal 2008 (2) RCR 956 ( SC ), four independent witnesses were joined, and examined by the prosecution. They all resiled, from their previous statements. However, they admitted their signatures, on the documents. In these circumstances , the Apex Court held that their evidence should Crl. Appeal No.1164-SB of 2000 17 be ignored as they were untruthfulness witnesses, and reliance, on the evidence of other witnesses, could be placed, to bring home the guilt to the accused. Ultimately, the accused was convicted on the basis of the other evidence, produced by the prosecution. In the instant case, the other evidence led by the prosecution has been held to be cogent and convincing and the trial Court was right in placing reliance upon the same. In P.P. Fathima v. State of Kerala 2004(1) RCR (Criminal) 81 (SC), the Panch witnesses did not support the case of the prosecution. It was held that their evidence, by itself, would not be fatal to the case of the prosecution. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. The prosecution, acted in an impartial and bonafide manner, in examining Baljeet Singh, independent witness. Had he been not examined, then the allegation against the prosecution, would have been that independent witness had not been examined by it, and, as such the material witness had been withheld by it. On account of non-corroboration of the evidence of other witnesses, by Baljit Singh, no dent was caused in the prosecution story, in any manner. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
Crl. Appeal No.1164-SB of 2000 18
13. The Counsel for the appellants, however, placed reliance on Jagdish v. State of Madhya Pradesh, 2002 AIR SCW 2765 , to contend that if the evidence of the official witnesses is not supported by the panches witnesses, then conviction could not be recorded on the basis thereof.. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Jagdish's case ( supra ) was decided, on the peculiar facts and circumstances, prevailing therein. In that case, the recovery of the contraband, was effected from one of the passengers, travelling in a bus. The Apex Court, in the facts and circumstances, prevailing in that case, came to the conclusion, that the Narcotic Sub Inspector, who had simply gone to check the buses, without any prior information, could not know, as to how only one of the many passengers, travelling in the bus, was in possession of contraband. The Apex Court also came to the conclusion, that the story put forth by the prosecution, was unnatural and improbable. The Apex Court further held that the driver and the conductor of the bus, who could be said to be the natural witnesses, to the alleged recovery, did not support the case of the prosecution, and, as such, the evidence of the official witnesses could not be believed. Even the testimony of Dudhnath Ram, Narcotic Sub Inspector, PW-1 , examined in Crl. Appeal No.1164-SB of 2000 19 that case, was found to be suffering from many infirmities. Taking into consideration, the overall facts and circumstances prevailing in that case, the Apex Court, came to the conclusion, that the accused was required to be given the benefit of doubt. In the instant case, the prosecution story is neither un-natural nor improbable, in any manner. It is quite natural and probable. The recovery in this case, was effected, in the presence of a Gazetted Officer, i.e. Ashok Kumar, DSP. The evidence of the prosecution witnesses, as stated above, on scrutiny, has been found to be cogent, convincing, reliable and trust-worthy. Nothing could be brought out during the course of their cross- examination, to discredit the same. The evidence of other prosecution witnesses, in this case, does not suffer from inherent lacunae and infirmities. The facts of the instant case, being distinguishable from the facts of Jagdish's case ( supra ), no help can be drawn by the Counsel for the appellant, therefrom. 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 seal, after use, was handed over to Baljit Singh, independent witness, who did not support the case of the prosecution. They further submitted that, under these Crl. Appeal No.1164-SB of 2000 20 circumstances, a serious dent was caused, in the prosecution story. It has been held above that non-supporting the case of the prosecution by Baljit Singh, independent witness, did not cause any dent. Even if, the seal had not been handed over to the independent witness that would not have made any difference. As there is no requirement of law, that the Investigating Officer, should hand over the seal, after use, to an independent witness, or to any other member of the raiding party, the mere fact that the seal was handed over to Baljeet Singh, after use, who did not support the case of the prosecution, did not, in any way, cast any doubt on the case. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
15. It was next submitted by the Counsel for the appellants, that though a secret information was received, by the Investigating Officer, yet he neither reduced the same into writing, nor sent the same, to the Officer superior immediately, as a result whereof, there was complete violation of the mandatory provisions of Section 42 of the Act. They further submitted that, on account of this reason, conviction and sentence stood vitiated. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. In the Crl. Appeal No.1164-SB of 2000 21 instant case, the recovery was effected when the accused were riding a motorcycle, at a public place. The recovery, in this case, was not effected, from a building or an enclosed place. Under these circumstances, the provisions of Section 42 were not applicable. On the other hand, the provisions of the Section 43 were applicable to the instant case. The provisions of Sections 42 and 43 are extracted hereunder:
"42. Power of entry, search, seizure and arrest without warrant or authorization - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government, if he has reasons to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such Crl. Appeal No.1164-SB of 2000 22 offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,
(a) enter into an search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any which any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of offence under Chapter IV relating to such drug or substance : and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance:
Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or Crl. Appeal No.1164-SB of 2000 23 facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an offence takes down any information in writing under sub-Section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior."
"43. Power of seizure and arrest in public place. -- Any officer of any of the department mentioned in Section 42 may --
(a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance article liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance;
(b) detain and search any person whom he has reason to believe to have committed an offence Crl. Appeal No.1164-SB of 2000 24 punishable under Chapter IV, and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be useful, arrest him and any other person in his company.
15-B. A conjoint reading of Sections 42 and 43 of the Act, shows that these sections are independent of each other. Section 43 authorises any Officer of the departments, mentioned in Section 42, for seizure, in any public place, or in transit, any narcotic drug or psychotropic substance, in respect of which he has reason to believe that an offence punishable under Chapter IV has been committed, whereas Section 42 of the Act empowers the officer for search and seizure and arrest in a building, conveyance or enclosed place. When the information is with regard to concealment of some narcotic, in a vehicle, in transit, then provisions of Section 43 of the Act are applicable. The word 'public place' has been explained for the purpose of Section 43 of the Act, which includes any public conveyance, hotel, shop or other places intended for use or accessible to the public.
15.C. A Division Bench of this Court in Dharminder Kumar Vs. State of Punjab, 2002(4) RCR (Crl.)278 has held as under :-
Crl. Appeal No.1164-SB of 2000 25 "Thus it is evident that if seizure is made from any animal, conveyance or article in a public place or in transit then Section43 of the Act would be applicable. Section 43 and Section 42 of the Act operate in different spheres. Since the conveyance has been specifically included in Section 43 of the Act also, therefore, the conveyance which is found in a public place or in transit would be covered under the provisions of Section 43 of the Act whereas conveyance used in Section 42 of the Act has to be read as conveyance which is other than a public place. This interpretation is the only harmonious interpretation of Sections 42 and 43 of the Act."
15.D. It is well settled principle of law that the provisions of a Statute are to be construed, in harmonious manner so that none of the same is rendered nugatory. By harmonious construing the provisions Sections 42 and 43 of the Act, it can be safely concluded that if a conveyance is intercepted or apprehended at a public place, or in transit, then the provisions of Section 42 of the Act would not be applicable.
15-E. It was held in State of Haryana Vs. Jarnail Singh and others 2004(2) RCR (Crl.) 960 (SC) as under :-
Crl. Appeal No.1164-SB of 2000 26 "7. Section 43 of the NDPS Act provides that any officer of any of the departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression "public place"
includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public.
8. Sections 42 and 43, therefore, contemplate two difference situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise."
Crl. Appeal No.1164-SB of 2000 27 15-F. In the instant case, Amar Dass, SI/SHO, had received an information, that the accused-referred to above, had been coming on a vehicle, with a big haul of charas, for the purpose of smuggling and selling the same to the people. It was, in this view of the matter, that a picket was held by the Inspector alongwith other police officials. Such information was general, in nature, and not specific. The recovery was effected from the motorcycle, in question, in transit, at a public place. The submission of the Counsel for the appellants, being devoid of merit, must fail, and is rejected.
16. It was next submitted by the Counsel for the appellants, that though the alleged recovery was effected, in this case, on 29.08.1999, yet the samples were sent to the office of the Forensic Science Laboratory on 26.09.1999 and received in the Laboratory on 05.10.1999. They further submitted that, thus, there was delay of one month and seven days, which remained unexplained, and ,as such, the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. It is, no doubt, true that there is no explanation, with regard to delay. 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 Crl. Appeal No.1164-SB of 2000 28 office of the Forensic Science 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 Forensic Science Laboratory. Even, there is report of the Laboratory Ex.P1, 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 Ex.P1 of the Forensic Science Laboratory is per-se admissible, in toto, under Section 293 of the Code of criminal Procedure. There is no challenge to the report of the Forensic Science Laboratory, 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 Forensic Science Laboratory, the submission of the Counsel for the appellants, 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. Since it was proved that none tampered with the samples, until the same reached the Crl. Appeal No.1164-SB of 2000 29 office of the Forensic Science Laboratory, 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 there was over writing in the number of the motorcycle in memo Ex.PJ and no explanation with regard to the same, was furnished. It may be stated here that if on account of inadvertence, wrong number of the motorcycle, was originally written in memo Ex.PJ and when the Investigating Officer, at the same time, came to know about the correct number thereof, and he corrected the same, that did not mean that such an over-writing was made by him, either to cause any prejudice to the accused or to give benefit to the prosecution. It generally happens that when a person writes a matter, some mistake are committed therein, or sometimes, wrong dates are written. If, in the same process, the wrong dates or other incorrect matter are corrected that does not mean that any dent is caused in the prosecution story. No help, therefore, can be drawn by the Counsel for the appellants, from this fact. In this view of the matter, the submission of the Counsel for the appellants, being without, must fail, and the same stands rejected.
Crl. Appeal No.1164-SB of 2000 30
18. It was next submitted by the Counsel for the appellants, that though the alleged recovery, in this case, was effected on 29.08.1999, yet Ashok Kumar, DSP, when appeared in the Court, stated that the recovery was effected on 29.07.1999. It appears that while deposing in the Court as PW-9, either Ashok Kumar, DSP forgot the correct date or due to slip of tongue gave the date as 29.07.1999, or on account of typographical mistake, the same was typed as 29.07.1999. Such inadvertent mistakes do occur while recording the evidence. In these circumstances, with a view to come to the correct conclusion, the Court, is required to take into consideration, the entire evidence, produced by the prosecution. If after due assessment of the entire evidence, produced by the prosecution, the Court comes to the conclusion, that the correct date of recovery, was the one, which was stated by the other witnesses, then, such a clerical or inadvertent mistake, can be ignored. Such a mistake, which occurred on account of the slip of tongue or while typing the deposition of Ashok Kumar, DSP, PW-9, could certainly be ignored. The trial Court was right in ignoring the same and coming to the conclusion, that the case against the accused, stood proved, beyond a reasonable doubt. In this view of the matter, the submission of the Counsel for the Crl. Appeal No.1164-SB of 2000 31 appellants, being without merit, must fail, and the same stands rejected.
19. No other point, was urged, by the Counsel for the parties.
20. 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.
21. For the reasons recorded, hereinbefore, both the appeals are dismissed. The judgment of conviction dated 16.10.2000 and the order of sentence, dated 20.10.2000, are upheld. If the appellants are on bail, their bail bonds shall stand 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 Procedure, and submit the compliance report immediately thereafter.
22. The District & Sessions Judge, Sonepat is also directed to ensure that the directions, referred to above, are complied with, within the time frame, and compliance report is Crl. Appeal No.1164-SB of 2000 32 sent immediately thereafter, to this Court.
23. The Registry shall keep track of the compliance of directions, and put up the file, immediately after the expiry of the stipulated period, whether the report is received or not.
(SHAM SUNDER) JUDGE October 22, 2008 dinesh