Punjab-Haryana High Court
Gurdev Singh And Anr. vs State Of Punjab on 20 December, 2007
Author: Ranjit Singh
Bench: Ranjit Singh
JUDGMENT Ranjit Singh, J.
1. Five persons were intercepted with truckNo. MP-9K-4136 by the police party consisting of ASI Bhupinder Rai and others on 11.6.2001. On search of the vehicle, 40 bags of poppy husk were recovered from a secret cabin in the truck. 5 persons so arrested were prosecuted for an offence under Section 15 of Narcotic Drugs & Psychotropic Substances Act, 1985 (for short, "the Act") and sentenced to suffer 10 years RI coupled with fine of Rs. one lac each. They have now filed four separate appeals. Appellants, Gurdev Singh and Sarabjit Singh have filed common Criminal AppealNo. 218 SB of 2004 whereas appellants Dalip Singh, Bara Singh and Sohan Singh have filed separate appeals bearing Criminal Appeal Nos. 2347 SB of 2003, 15 and 99 SB of 2004 respectively to impugn their conviction. All the abovesaid four appeals are being disposed of by this common order.
2. The case of the prosecution, as can be discerned, is that ASI Bhupinder Rai received a secret information on 11.6.2001 to the effect that an inter-state gang was operating and indulging in smuggling of poppy husk. As per the information, the gang used to bring poppy husk from Madhya Pradesh and Rajasthan and sell in different parts of Punjab. In this background, it was revealed that a truckNo. MP-9K-4136, carrying poppy husk was likely to pass via Ghanaur Bahadurgarh and reach Bhawanigarh. The secret information also disclosed that if naka was held, heavy quantity of poppy husk could be recovered from the above referred truck. ASI Bhupinder Rai sent this ruqa for registration of a case, on the basis of which formal FIR was recorded by ASI Gurcharan Singh. Bhupinder Rai also sent a message to his superior officer, DSP Bhupinder Singh Virk, with a request to him to reach the spot. He alongwith ASI Rajnish Kumar, taking one independent witness, named Suraj Bhan, held a naka near Village Raipur Mandlan. He started checking the vehicles passing by the side of naka. Truck No. MP-09K-4136 came to the naka and was stopped. Five persons occupying the same were apprehended. On enquiry, they disclosed their identities and are the appellants before this Court. ASI Bhupinder Rai apprised that he suspected the truck to be carrying some contraband and as such, he was to conduct the search thereof. He also apprised the appellants that if they so desired, the said search could be conducted in the presence of a Gazetted Officer or a Magistrate. Upon this, the appellants opted for being searched in the presence of a Gazetted Officer. Their statements were accordingly recorded, which were signed by Bara Singh, Gurdev Singh and Sarabjit Singh and thumb marked by appellants Sohan Singh and Dalip Singh. DSP Bhupinder Singh Virk reached the spot in the meanwhile. He disclosed his identity being the DSP (R), Patiala. He also apprised the appellants that he wished to conduct the search of the truck. The appellants consented for the search of the truck by DSP Bhupinder Singh Virk. Consent statements of all the appellants were recorded and accordingly the offending truck was searched by ASI Bhupinder Singh. 40 bags of poppy husk were recovered from a secret cabin in the body of the truck. Two samples, weighing 250 grams, were drawn from each bag and made into separate parcels. Remaining quantity in the bags was weighed and it was found to be 38 Kgs. each. All the bags and the respective samples were numbered and sealed with the seal having impression 'BR' of ASI and `BSV' of DSP. Specimen seal impression was also prepared and the same, after use, was handed over to independent witness, Suraj Bhan. The contraband as well as the truck and its registration certificate were taken into possession. Other formalities in regard to the investigation were also completed, which included recording of the statements of various witnesses. Personal search of the appellants was also carried out. On return to police station, the case property was produced before SHO Mewa Singh by ASI Bhupinder Rai. Recovery was accordingly verified and affixed with the seal of the SHO on the case property. The case property was deposited with MHC Sohan Singh with the seals intact. In addition, ASI Bhupinder Rai also produced the case property before Ilaqa Magistrate, which thereafter was again re-deposited with MHC of the Police Station. The samples were also sent for examination by the Forensic Science Laboratory, which gave a report. The appellants were accordingly challaned, prosecuted and punished as already noticed.
3. The appellants, when confronted with the evidence and the incriminating circumstances appearing against them, pleaded that they are innocent. The appellants also raised a plea of false implication by saying that they were picked up from their houses due to party faction and involved in this case falsely by the local police.
4. The prosecution case is mainly supported by ASI Bhupinder Rai (PW2) and DSP Bhupinder Singh Virk (PW3). Head Constable Fakir Chand (PW5) appeared to depose about deposit of contraband with the FSL. Head Constable Sohan Singh was the witness who has testified about the deposit of contraband with him with the seals being intact. The report of the FSL was also produced on record. On appreciation of the evidence led by prosecution, all the appellants were convicted and sentenced.
5. Learned Counsel appearing for the appellants, Gurdev Singh and Sarabjit Singh, has raised mainly three fold submissions before me. He would first contend that as per the secret information, the poppy husk was statedly kept in a secret cabin in the truck, which fact is not borne out from the evidence on record. It is then submitted that the names, residence and parentage of all the appellants is found reflected in the secret information. As per the counsel, this would give an indication that first the contraband was intercepted and then formalities completed to bring home the offence against the appellants. As per the counsel, person giving secret information can not be expected to know the residential addresses of the appellants and so too the details of their parentage. He would further supplement this argument by referring to a fact that the FIR was received by the Ilaqa Magistrate at 9.35 AM on 12.6.2001 whereas the FIR was registered at 4.35 PM on 11.6.2001. The counsel has also argued that conscious possession of the contraband from the truck can not be attributed to the appellants, who were merely found sitting in the cabin of the truck or in the conductor cabin. In support of his submission, the counsel has relied upon Avtar Singh v. State of Punjab 2002 (4) RCR (Criminal) 180.
6. Mr.Dhaliwal appearing for appellant Bara Singh, in addition has also raised a plea that chemical examiner report in this case would not have probative evidentiary value in the absence of complete and full data about the finding relating to the contraband recovered. He has referred to the case of Mahmad Hanif Shaikh Ibrahim v. State of Gujarat 1995 (1) CRIMES 274 in support of his submission.
7. The State counsel, on the other hand, would say that recovery is well supported by the evidence of various police witnesses, which includes a Gazetted Officer, which would lend sufficient assurance to the case of prosecution. The State counsel would also refer to the evidence put to the appellants while being examined under Section 313 Cr.P.C. to say that the aspect of conscious possession of the appellants was put in a sufficient detail to them and as such, it was for the appellants to explain their presence as well as recovery from a vehicle in which they all were found travelling.
8. There is no evidence to support the submission that the recovery was not from the secret chamber of the truck. Evidence of PW2 would clearly show that recovery was from secret chamber in the truck along-side the driver's cabin. His version in this regard is that "I conducted search of the truck and there was one special chamber made in the truck along-side the driver's cabin, from which the Chura poppy husk bags were recovered." This submission, by learned Counsel for the appellants, as such is made without any basis. Similarly, the submission made by counsel for the appellants that secret information was reduced into writing after the interception, can also not be accepted. A secret information was obviously by a person who knew the details of the case. He would accordingly be in a position to know the description and other details of the appellants and would have so disclosed it to the police. From this aspect alone, it is not possible to say that the contraband was intercepted first and the formalities were completed subsequently to bring home the offence alleged. The argument raised by counsel for the appellants that they were not shown to be in conscious possession of the contraband recovered would also not cut much ice in this case. One of the appellants is a driver, who, on seeing the police party, made an attempt to run away with the truck but it was stopped with the help of police officials. Appellant Gurdev Singh was seen driving the truck. Sarabjit Singh was found sitting on the other side of the truck whereas Sohan Singh, Bara Singh and Dalip Singh were sitting on the rare side of the cabin of the truck. To seek support, the counsel has drawn my attention to the case of Avtar Singh (supra). No doubt, in this case mere presence of a person while sitting on the bags was not considered sufficient to attribute knowledge about conscious possession of the contraband but the facts in the said case were slightly different. In Avtar Singh's case (supra), some of the persons who were occupants of the truck were able to escape. In this context, the Hon'ble Supreme Court observed:
can it be said on the basis of evidence available on record that three appellants therein, one of whom was driving the vehicle and other two were sitting on the back, were having such custody or control.
Proceeding further, the Hon'ble Supreme Court observed:
it transpires from evidence that the appellants were not the only occupants of the vehicle. One of the person, who was sitting in the cabin and other persons sitting at the back of truck, made themselves scares after seeing the police and the prosecution could not establish their identity.
9. It is in this context the Hon'ble Supreme Court observed that it is quite probable that one of them could be the custodian of the goods, may not be that he was the proprietor. It was, thus, observed that the persons who were merely sitting on the bags, in the absence of any proof or anything more, can not be presumed to be in possession of the goods. Such a situation does not arise in the present case. No one was able to escape from the scene. All the five persons arrested were occupants of the truck. It can not be said that any one who has escaped was the custodian or in control of the contraband. It is also seen that the appellants were specifically questioned about not only the contraband but its recovery from the chamber made in the truck, besides the driver cabin from which the chura poppy husk was recovered. It is also not a case where this incriminating evidence was not specifically put to the appellants. This infirmity was another reason in the case of Avtar Singh (supra) for the Hon'ble Supreme Court to arrive at a conclusion that it did in the said case. It was held by the Supreme Court that their silence and failure to explain the circumstances in which they were travelling at odd hours is a strong circumstance that can be put against them. However, this was not so held against the appellant in Avtar Singh's case (supra) by the Hon'ble Supreme Court when it noticed that not even a question was asked that they were the persons in possession of the poppy husk placed in the vehicle. In the said case, they were only addressed a question under Section 313 Cr.P.C. to the effect that they were sitting on the bags of poppy husk. In the present case, the appellants were specifically addressed a question by the Court that this poppy husk was recovered from the secret cabin of the truck. The driver of the truck would not be in any possible position to explain that he is not aware of the secret cabin in the truck. The other appellants were confronted with this incriminating circumstance, who could very well have explained as to how they were present in the vehicle, it being in their special knowledge. The presumption under Section 54 of the Act can, thus, be drawn in this case and so too the presumption under Section 35 of the Act relating to culpable state of mind. The approach of the trial Court can not be faulted on this ground in drawing presumption against the appellants taking support from these special provisions made under the Act. The reference to the case of State of Punjab v. Balkar Singh 2004 SCC (Cri.) 838 would also be of no avail. This case and another case of State of Punjab v. Nachattar Singh 2007 (3) RCR (Crl.) 1040 relied upon by counsel for the appellants, in my view, would not be attracted to the facts and circumstances of the case. The present one is not a case where the appellants were simply found sitting on the bags of poppy husk. The case against the appellants, as such, was sufficiently proved by the prosecution. The evidence in this case is of reasonable assurance and as such, no interference in the appeals is called for.
10. To be fair to Mr.Dhaliwal, he, in addition, has raised an additional plea relating to the report of Chemical Examiner to say that it would not carry any probative evidentiary value in the absence of complete and full data about the finding of contraband recovered. In support, he has relied upon the case of Mahmad Hanif Shaikh Ibrahim (supra). No doubt, some observations have been made in this case that in the absence of any full and complete data, disclosing test and experiments performed, the report of the Chemical Analyst can not be attached probative evidentiary value for basing conviction. To my mind, this argument has been raised by taking clue from the ratio laid down in the case of Mahmad Hanif Shaikh Ibrahim (supra). No such plea was ever raised earlier. If the appellants had any intention to so urge, they would have sought permission to examine the analyst who had conducted the examination of the contraband and given his report. The fact remains that Chemical Examiner's report, which is per-se admissible was admitted on record without any objection by the defence. They did not pursue this line of reasoning either by calling a witness or otherwise lead any evidence to show what data was to be shown to attach the probative evidentiary value to the contraband. Even now before me, the counsel could not substantiate anything as to what is the error in the report, which could lead to any inference in favour of the appellants to say that the offence under the Act is not made out against them. This, in my view, is a red-herring introduced by the appellants just for the sake of arguments and would not effect the case of the appellants in any manner.
11. There is no infirmity in the findings recorded by the trial Court and the appeals are accordingly dismissed. The appellants, who are on bail, would surrender before the Chief Judicial Magistrate, Patiala, to undergo the remaining portion of sentence.