Punjab-Haryana High Court
Mohan Singh Son Of Darbara Singh Son Of ... vs The State Of Punjab on 30 March, 2010
Criminal Appeal No. 872-SB of 2004 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 872-SB of 2004
Date of Decision: 30.03.2010
1. Mohan Singh son of Darbara Singh son of Kirpa Singh,
Labourer, r/o Saido-Ke, Distt. Moga.
2. Gurmeet Singh son of Lal Singh son of Sewa Singh,
Labourer, r/o village Lakha, Distt. Moga.
... Appellants
Versus
The State of Punjab.
...Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: None 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, dated 08.03.04, and the order of sentence, dated 09.03.04, rendered by the Judge, Special Court, Moga, vide which, he convicted the accused, for the offence, punishable under Section 15(c) of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only), and sentenced them, to undergo rigorous imprisonment, for a period of 10 years each, and, to pay a fine of Rs. 1 lac each, and, in Criminal Appeal No. 872-SB of 2004 2 default of payment thereof, to further undergo rigorous imprisonment, for a period of 01 year each, for having been found in possession of 06 bags, each containing 35 kgs poppy straw, without any permit or licence, now falling within the ambit of commercial quantity.
2. The facts, in brief, are that, on 30.05.99, Inspector Balwinder Singh alongwith other Police officials, was going, from village Machhi-ke towards village Bihle Wala, in official van, bearing No. PB-04C-7206, for checking the suspected persons, when two persons, were found concealing some bags, under the dried grass and straw near the seepage drain. On the basis of suspicion, they were cordoned off and their names and particulars were inquired. One of them disclosed his name, as Mohan Singh son of Darbara Singh, resident of Saido-Ke, at that time, residing at Machhi-Ke. The other person disclosed his name, as Gurmeet Singh son of Lal Singh, resident of Lakha, at that time, residing at Machhi-Ke. Since Balwinder Singh, Inspector, suspected some contraband, in the bags, message was sent, to Sarbjit Singh, Deputy Superintendent of Police, Baghapurana, who reached there. In his presence, the search of six bags, which were being concealed, by the accused, under the dried grass and straw, near the seepage drain was conducted. Each bag was found containing 35 kgs poppy husk. A sample of 250 gms, was drawn, from each of the bags, and the remaining remaining poppy husk, was kept, in the same bags. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. The accused were arrested. Ruqa was sent to Criminal Appeal No. 872-SB of 2004 3 the Police Station, on the basis whereof, the first information report was registered. The site plan of the place of recovery was prepared. After the completion of investigation, they 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 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 Pritpal Singh, Constable (PW1), Sanjay Kumar, Assistant Sub Inspector (PW2), Gursewak Singh, Moharrir Head Constable (PW3), Jasbir Singh, Sub Inspector, CIA Staff (PW4), Sandeep Kumar, Inspector (PW5), Sarabjit Singh, Deputy Superintendent of Police (PW6), a witness to the recovery, and, Balwinder Singh, Inspector (PW7), the Investigating Officer. 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 incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was stated by them that they were innocent. It was further stated by them, that they were picked up, from village Machike, in the presence of Jagjit Singh son of Karnail Singh, Mithu Singh son of Major Singh, and, Manjit Singh, by the Police of CIA, Moga. It was further stated by them that, later on, they were falsely involved, in the instant case. It was further stated by them Criminal Appeal No. 872-SB of 2004 4 that, nothing incriminating, was recovered, from them. They, however, did not lead any evidence, in defence, and closed the same.
7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above.
8. Feeling aggrieved, the instant appeal, has been filed, by the appellants.
9. None appeared for the appellant, despite due notice to his Counsel that the appeal was fixed for final hearing. The question, thus, arises, is, as to whether, in these circumstances, the Appellate Court, can decide the appeal, on merits, or not. In Dharampal Vs. State of U.P. 2008 (1) Law Herald (SC) 225, it was held, by the Apex Court, that when the appellant or his Counsel do not appear, despite due notice, it could be said that there was due compliance of the provisions of Sections 385 and 386 of the Code of Criminal Procedure. It was further held that, in such a situation, the Appellate Court can decide the appeal, on merits, after going through the record, the evidence, and the judgement of the trial Court. In Bani Singh and others Vs. State of U.P., AIR 1996 (SC), 2439, a three judge Bench of the Apex Court also observed as under:-
"It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place, when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385 and 386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of Criminal Appeal No. 872-SB of 2004 5 prudence of indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgement of the trial Court. The plain language of Sections 385 and 386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the code envisages disposal of the appeal on merits after perusal and scrutiny of the record."
Keeping in view the ratio of law, laid down, by the Apex Court, in the aforesaid cases, I am proceeding to dispose of the appeal, on merits.
10. I have heard the Counsel for the respondent, and with his assistance, have gone through the evidence and record of the case, as also the memorandum of appeal, and the judgement of the trial Court, carefully.
11. The first ground, taken up, in the memorandum of appeal, to assail the judgement of the trial Court, is, to the effect, that the accused, were not found in conscious possession of the bags, containing poppy husk, and, as such, they did not commit any offence, punishable under Section 15 of the Act. No doubt, the place, where the accused, were seen, was open and accessible. However, both the accused, were seen, by the Police party, concealing the bags, under the dried grass and straw. In case, the accused, had no connection, whatsoever, with the bags, containing poppy husk, there was no necessity, on their part, to conceal the same, under the dried grass and straw. The over-tact of the accused, in concealing the bags, under the dried grass and straw, clearly proved their possession and control over the bags, containing poppy husk. It was within the special means of Criminal Appeal No. 872-SB of 2004 6 knowledge of the appellants, as to wherefrom, those bags, had been brought, to that place; to which place, those bags, were to be transported; for what purpose, the bags, were to be transported; what those bags contained; and why they were concealing the same, under the dried grass and straw. They, however, could not furnish any explanation, on the aforesaid aspects of the matter. Thus, the possession of the accused, in relation to the bags, containing poppy husk, and their control over the same stood proved. Once the possession of the accused, in respect of the bags, containing poppy husk, was proved, the statutory presumption, under Sections 35 and 54 of the Act, operated against them, that they were in conscious possession thereof. Thereafter, it was for them, to rebut that statutory presumption, by leading cogent and convincing evidence. They did not produce any evidence, to rebut the statutory presumption, nor could they bring out anything, during the course of cross-examination of the prosecution witnesses, which could persuade the Court, that they were not in possession of the said bags. Had the accused, been not found concealing the bags, under the dried grass and straw, and the same, had been lying, at an open place, it would have been said that, since the said bags, were lying, at the open and accessible place, mere presence of the accused, near the same, could not be construed, as a circumstance, to prove their exclusive possession, in respect thereto. It was not the case of the accused, that they were just passing by, and sat down to urinate. It was also not the case of the accused, that the bags, belonged to somebody else, but, they were engaged, as labourers, to conceal the Criminal Appeal No. 872-SB of 2004 7 same, from the gaze of the public or the Police. The conscious possession of the accused, in respect of the bags, containing poppy husk, thus, stood duly proved. 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 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 Criminal Appeal No. 872-SB of 2004 8 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."
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 Criminal Appeal No. 872-SB of 2004 9 54 where also presumption is available to be drawn from possession of illicit articles."
12. 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 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 Megh Singh's case (supra) are similar and identical to the facts of the present case. The principle of law, laid down, in Megh Singh's case (supra) is fully applicable to the facts of the present case. In the instant case, in their statements, under Section 313 Cr.P.C., the accused/appellants, took up the plea 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 ground, taken up, in the memorandum of appeal, being devoid of merit, must fail, and the same stands rejected.
Criminal Appeal No. 872-SB of 2004 10
13. The next ground, which was taken up, in the memorandum of appeal, was to the effect, that joint consent memo of the accused, was prepared, which was not known, to the provisions of law, and, as such, the mandatory provisions of Section 50 of the Act, were blatantly breached, resulting into vitiation of trial, conviction and sentence. It may be stated here that, in the instant case, the recovery, was not effected, from the possession of the accused, but, from the bags, which were being concealed, by the accused, under the dried grass and straw. Under these circumstances, the provisions of Section 50 of the Act, were not applicable to the instant case. Thus, the preparation of joint consent memo, did not at all affect the merits of the 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 Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. This ground, therefore, does not hold good, and is rejected.
14. The next ground, in the memorandum of appeal, was to the effect, that the seals, affixed on the bags, were not found, to be legible and parts thereof, were also found, to be broken, when the same, were produced, in the Court, during the course of evidence of Sanjay Kumar, Assistant Sub Inspector, PW2, and, Balwinder Singh, Inspector, PW7. Even, on some of the bags, the particulars of the case, were not in existence. It may be stated here, that the recovery, in this case, was Criminal Appeal No. 872-SB of 2004 11 effected, on 30.05.99, whereas, Sanjay Kumar, Assistant Sub Inspector, PW2, was examined, on 30.10.2000, and, Balwinder Singh, Inspector, PW7, was examined, on 16.01.04. Sanjay Kumar, Assistant Sub Inspector, PW2, during the course of his cross-examination, stated that, on one bag, the seals, were not legible. He denied the suggestion, that, on the other bags, the seals, were not legible. He, however, admitted that the seals, were in broken condition. It a matter of common knowledge that, in the Malkhana, there is acute shortage of space. Under these circumstances, the case property of all the cases, cannot be properly stacked. If, on account of irresponsible handling, during the course of transit, and with the passage of time, wax seals, affixed on the case property, were found broken and the paper chits, containing the particular of the case, were not found, in existence thereon, that did not mean, that the case property, produced in the Court, was not the same, as was recovered, from the accused. The only obligation upon the prosecution, is to produce the case property and to get it identified, from the prosecution witnesses. The case property, was produced, in the Court, it was duly identified, by the prosecution witnesses, as the same, as was recovered, from the accused. Therefore, the case property stood duly connected with the accused. In this view of the matter, it could not be said, that the case property, was tampered with, at any point of time. This ground, does not hold good, and deserves to be rejected.
15. The next ground, which was taken up, in the memorandum of appeal, to assail the judgement of the trial Court, was to the effect, Criminal Appeal No. 872-SB of 2004 12 that the report of the Chemical Examiner, did not reveal, as to which test was conducted by him, to come to the conclusion, that the sample parcels contained poppy straw. The report of the Chemical Examiner, is per-se admissible in toto, under Section 293 Cr.P.C. The Chemical Examiner, tested the contents of the sample parcels, and found, that meconic acid and morphine were present. He also came to the conclusion, that the sample parcels, contained coarse powder of poppy heads. It was not necessary, for the Chemical Examiner, to state, in the report, as to which, method was adopted, by him, to test the contents of the samples. In case, the accused, had any doubt, with regard to the authenticity of the report exhibit PK of the Chemical Examiner, they could summon him, for cross-examination, through another expert. They could also produce another expert, in their defence, to prove, that the report PK, given by the Chemical Examiner, was not correct. Mere plea, taken up, in the grounds of appeal, that report PK of the Chemical Examiner, was not correct, is nothing, but merely a plea. This ground therefore, does not hold good, and deserves to be rejected.
16. No other material ground, was taken up, in the memorandum of appeal, to assail the judgement of the trial Court.
17. 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.
18. For the reasons recorded above, the appeal, is dismissed. Criminal Appeal No. 872-SB of 2004 13 The judgement of conviction and the order of sentence are upheld. If the appellants, are on bail, their bail bonds shall stand cancelled.
19. The concerned Chief Judicial Magistrate, is directed to comply with the judgement, in accordance with law, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and send the compliance report, within a period of two months, from the date of receipt of a copy thereof.
20. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court.
21. 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.
30.03.2010 (SHAM SUNDER) AMODH JUDGE