Punjab-Haryana High Court
Satta @ Satnam Singh S/O Sardul Singh vs The State Of Punjab on 27 November, 2008
Crl. Appeal No.384-SB of 1998, 1
Crl. Appeal No.58-SB of 2001 &
Crl. Appeal No.321-SB of 2001
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.384-SB of 1998
Date of Decision : 27.11.2008
1. Satta @ Satnam Singh S/o Sardul Singh ...Appellants
R/o Haryo Khurd.
2. Kulwinder Singh S/o Gurbax Singh,
R/o Haryao.
3. Amrik Singh S/o Ranjit Singh,
R/o Dhillon.
4. Jagdev Singh S/o Arjan Singh,
R/o Mauladwala.
Versus
The State of Punjab ....Respondent
Crl. Appeal No.58-SB of 2001
Bagga Singh S/o Gurnam Singh, ...Appellant
R/o Lachkari Patti Dhilwan, P.S. Tapa,
District Sangrur.
Versus
The State of Punjab ....Respondent
Crl. Appeal No.321-SB of 2001
Balwinder Singh S/o Balwant Singh, ...Appellant
R/o Village Mukandpura, P.S. Dehlon,
District Ludhiana.
Versus
The State of Punjab ....Respondent
CORAM:HON'BLE MR. JUSTICE SHAM SUNDER
Crl. Appeal No.384-SB of 1998, 2
Crl. Appeal No.58-SB of 2001 &
Crl. Appeal No.321-SB of 2001
Present: Mr. Bipan Ghai, Sr. Advocate, with
Mr. Deepak Garg, Advocate,
for the appellants, in all the appeals.
Mr. Shilesh Gupta, DAG, Punjab,
for the respondent, in all the appeals.
SHAM SUNDER, J.
This judgment shall dispose of Criminal Appeal No.384-SB of 1998, filed by Satta @ Satnam Singh, Kulwinder Singh, Amrik Singh, and Jagdev Singh, appellants, against the judgment of conviction, and the order of sentence dated 16.4.1998, rendered by the Judge, Special Court, Sangrur, vide which he convicted the accused/appellants, for the offence, punishable under Section 15 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 rigorous imprisonment for another period of one year each, Criminal Appeal No.58-SB of 2001, filed by Bagga Singh, accused/appellant, against the judgment of conviction, and the order of sentence dated 8.12.2000, rendered by the Judge, Special Court, Sangrur, vide which he convicted the accused/appellant, for the offence, punishable under Section 15 of the Act, and sentenced him, to undergo rigorous imprisonment, for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of one year, and Criminal Appeal No.321-SB of 2001, filed by Balwinder Singh, accused/appellant, against the judgment of conviction, and the order of sentence dated 1.3.2001, Crl. Appeal No.384-SB of 1998, 3 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 rendered by the Judge, Special Court, Sangrur, vide which he convicted the accused/appellant, for the offence, punishable under Section 15 of the Act, and sentenced him, to undergo rigorous imprisonment, for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of one year, all relating to FIR No.67, dated 17.4.1988, P.S. Dirba, for having been found in possession of 110 bags, each containing 38 kgs. Poppy- husk, (falling within the ambit of commercial quantity), without any permit or licence.
2. The facts, in brief, are that on 17.4.1988, Jarnail Singh, ASI, alongwith other police officials, was holding a picket, on the canal bridge, in the area of village Raidhriana, where they had gone in an official vehicle, bearing No.PBS-2673. Labh Singh and Harminder Singh, public witnesses, were also members of the police party. At about 4.00 AM, on 17.4.1998, a truck bearing No.DIL-781, came from the side of village Raidhriana, and it was proceeding towards the canal bridge, metaled road. When the truck came near the police party, Jarnail Singh, ASI, gave a signal with the torch light, to stop. The truck was stopped, by the driver thereof. It was encircled, by the police officials. The driver, on enquiry, disclosed his name as Balwinder Singh S/o Balwant Singh. Devinder Singh and Bagga Singh, were sitting by the side of the driver, on the front seat. On the back side of the truck, Jagminder Singh, and four other persons were sitting. When the police party was enquiring the whereabouts of the accused, four persons except Jagminder Singh, who were sitting on the back side, jumped from the truck, and ran away. The Crl. Appeal No.384-SB of 1998, 4 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 police party tried to chase them, but it was unsuccessful in arresting them, at the spot. However, those persons, who succeeded in running away were Satta @ Satnam Singh, Amrik Singh, Kulwinder Singh @ Kala and Jagdev Singh @ Jagga. They were already known to Jarnail Singh, ASI, the Investigating Officer, and identified by other police officials. Jagminder Singh, Balwinder Singh, Devinder Singh and Bagga Singh, were apprehended at the spot. They were told that the search of the truck was to be conducted, and whether they wanted the same to be conducted, in the presence of a Gazetted Officer, or a Magistrate. They, however, reposed confidence in Jarnail Singh, ASI. Thereafter, the search of the truck, in accordance with the provisions of law, was conducted, as a result whereof, 110 bags, each containing 38 kgs. Poppy-husk, were recovered therefrom. A sample of 250 grams each, from all the bags, was taken out, and the 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 truck, stepeny and tarpaulien, were also taken into possession, vide the same recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, with correct marginal notes, was prepared. Jagminder Singh, Balwinder Singh, Devinder Singh and Bagga Singh, accused were arrested.
3. Later on, all the remaining accused, except Devinder Singh, were also arrested, and supplementary challans, against them, were presented. After the completion of investigation, the accused were Crl. Appeal No.384-SB of 1998, 5 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 challaned.
4. On their appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against them, to which they pleaded not guilty, and claimed judicial trial.
5. In Sessions case No.18/31.1.89, 45 of 5.8.92 and 36 of 1996, and Sessions case No.301 of 23.11.2000, out of which Crl. Appeal Nos.384-SB of 1998 and 321-SB of 2001 respectively, have arisen, the prosecution, in support of its case, examined Gurdas Singh, ASI (PW-1), who partly investigated this case, Jagjiwan Singh, ASI (PW-2), a member of the police party, in whose presence, the truck was intercepted, and recovery of 110 bags, containing poppy-husk, was effected, Ajit Singh, ASI (PW-3), Puran Singh Bishat, Head Clerk,(PW-4), who brought the record of Transport Department of Delhi Administration, in relation to truck No.DIL-781, and stated that it was in the name of Paramjit Singh S/o Sampuran Singh, resident of Idgah, Delhi, Ramsher Singh, Constable (PW-5), who tendered his affidavit, Ex.PK, Nirmal Singh, HC (PW-6), who also tendered his affidavit, Ex.PL, and Om Parkash, SI (PW-7). The Addl. Public Prosecutor for the State, gave up Labh Singh, and Harminder Singh, PWs, as having been won over by the accused, vide his statements dated 30.3.1995 and 28.2.1997 respectively. Thereafter, he closed the prosecution evidence.
6. In Sessions case No.24 dated 27.1.1999, BT No.364/19.6.1999, out of which Crl. Appeal No.58-SB of 2001, has arisen, the prosecution, in support of its case, examined Ajit Singh, ASI (PW-1), Harminder Crl. Appeal No.384-SB of 1998, 6 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 Singh, ASI (PW-2), Nirmal Singh, HC (PW-3), Ramsher Singh, Constable (PW-4), Jagjiwan Singh, ASI (PW-5), and Om Parkash, Inspector (Retd.) (PW-6). Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence.
7. The statements of the accused, who were convicted in Sessions case No.18/31.1.89, 45 of 5.8.92 and 36 of 1996, and Sessions case No.301 of 23.11.2000, out of which Crl. Appeal Nos.384-SB of 1998 and 321-SB of 2001 respectively, have arisen, under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication.
7-A. Kulwinder Singh, accused, in his statement, under Section 313 Cr.P.C., stated that he alongwith Amrik Singh and Satta, were brought from the village, in the presence of Dhan Singh, Numberdar, and Kuldip Singh. He further stated that they were falsely implicated, in this case. He further stated that no recovery was effected from him. 7-B. Jagminder Singh, accused, in his statement, under Section 313 Cr.P.C., stated that the police of P.S.Dirba, declared Ruldu, accused, innocent, in the murder case of Hardev Singh, his brother, whereas Ruldu, accused, was challaned, on the complaints of Jagminder Singh, and convicted later on. He further stated that the police of P.S.Dirba, got Ruldu and Tara, accused, released from the Government. He further stated that someone shot him, but the Police of P.S.Dirba, did not trace the accused, and he gave applications. He further stated that Sohan Singh, HC, saved his nephew in the murder case of Hari Singh, in which Crl. Appeal No.384-SB of 1998, 7 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 he was a witness, and got the accused convicted. He further stated that a complaint was filed against the then SHO, P.S.Dirba, and Sohan Singh, HC, of village Raidhari, and in that case, he was also a witness. He further stated that he was taken away by Jarnail Singh, ASI, from Village Raidharana, on 15.4.1988, in the presnece of Karnail Singh, Numberdar, member Panchayat, Hazura Singh, Pala Singh and Baldev Ram, and was falsely implicated, in this case, due to the aforesaid reasons. He further stated that the police was inmically disposed, towards him. 7-C. Satnam Singh, accused, in his statement, under Section 313 Cr.P.C., stated that he, Kulwinder Singh and Amrik Singh, were brought from the village, in the presence of Dhan Singh, Numberdar, and Kuldip Singh, and were falsely involved, in this case. He further stated that no recovery was effected from him.
7-D. Jagdev Singh, accused, in his statement, under Section 313 Cr.P.C., stated that he had come to the house of his relatives Sobha Singh, Lamberdar, at village Ghanaur Jatan, alongwith truck. He further stated that they had come for the last few days for constructing his house. He further stated that Jarnail Singh, Thanedar, came there, and asked for the truck, without any payment. Jarnail Singh, ASI, had been quite often taking the truck, from Sobha Singh, without any payment. He further stated that his truck was also demanded by Jarnail Singh, with payment. He further stated that he refused to do so. He further stated that Darshan Singh and Sobha Singh, were present at that time. He further stated that the Thanedar took him, to the Police Station, alongwith the truck. He further stated that he as also the truck, have been involved falsely, in this Crl. Appeal No.384-SB of 1998, 8 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 case. He further stated that nothing was recovered from his possession. 7-E. Amrik Singh, accused, in his statement, under Section 313 Cr.P.C., stated that he, Satta and Kulwinder Singh, were brought from the village, in the presence of Dhan Singh, Numberdar, and Kuldip Singh, and were falsely involved, in this case. He further stated that no recovery was effected from him.
7-F. Balwinder Singh, accused, in his statement, under Section 313 Cr.P.C., took up the same plea, as was taken up by Jagdev Singh, accused.
7-G. In defence, they, however, examined Niranjan Singh (DW-1), Ramesh Kumar (DW-2), Maghar Singh, (DW-3), Kapur Singh, (DW-4), Labh Singh (DW-5), Ram Chand (DW-6), Tek Singh (DW-7), Harminder Singh (DW-9), Jarnail Singh, Constable (DW-10). Jagminder Singh, accused, also tendered into evidence certified copy of challan in Sessions trial No.23/A of 1983 decided on 15.2.1984, "State Vs. Ajaib Singh etc." under Section 302 read with 34 IPC, FIR No.190 dated 26.12.1992, P.S. Dirba, as Ex.DA, and certified copy of his statement in Sessions trial aforesaid, as Ex.DB, as well as copy of the judgment Ex.DC, in Sessions trial No.4 of 1984, decided on 31.5.1985, under Sections 302 read with 34 IPC "State Vs. Tara Chand etc." FIR No.127 dated 3.7.1983, P.S. Dirba. Thereafter, they closed their defence evidence.
8. The statement of accused Bagga Singh, who was convicted in Sessions case No.24 dated 27.1.1999, BT No.364/19.6.199, out of which Crl. Appeal No.58-SB of 2001, has arisen, under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, Crl. Appeal No.384-SB of 1998, 9 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that his brother Lal Singh, was murdered in a fake police encounter, on the basis that his brother was having the links with the extremists. He further stated that the police was inimical towards him, and his family, and for that reason, he was falsely implicated. He further stated that no recovery was effected from his possession. He, however, produced, mark-A, photocopy of the Newspaper.
9. Since, Balwinder Singh, accused, was declared Proclaimed Offender, when the case was fixed for arguments, and Bagga Singh, accused, was declared Proclaimed Offender, at the initial stage, when they were arrested, the supplementary challans, referred to above, against them, were later on, presented, and separate trials, were held against them, as stated above.
10. Devinder Singh, accused, could not be arrested, and is still Proclaimed Offender.
11. After hearing the Addl. Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, Satta @ Satnam Singh, Kulwinder Singh, Amrik Singh, Jagdev Singh, Bagga Singh, and Balwinder Singh, accused, were convicted and sentenced, by the trial Court, vide separate judgments of conviction, and orders of sentence, referred to above, whereas, Jagminder Singh, accused, was acquitted.
12. Feeling aggrieved, against the judgments of conviction, and the orders of sentence, rendered by the trial Court, the instant appeals, were Crl. Appeal No.384-SB of 1998, 10 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 filed by Satta @ Satnam Singh, Kulwinder Singh, Amrik Singh, Jagdev Singh, Bagga Singh, and Balwinder Singh, appellants.
13. I have heard the learned Counsel for the parties, and have gone through the evidence and record, of the case, carefully.
14. The Counsel for the appellants, at the very outset, contended that the Satnam Singh, Kulwinder Singh, Jagdev Singh and Amrik Singh, were not arrested, at the spot. He further submitted that, according to the prosecution story, they succeeded in running away, taking the shelter of darkness, and, therefore, their identity as the perpetrators of crime, could not be established. He further submitted that, even no identification parade, was conducted, by the Investigating Officer, during the course of investigation, so as to connect them, with the instant case. He further submitted that, under these circumstances, the trial Court, was wrong in recording conviction, and awarding sentence, to these accused. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. It is evident from the statements of Ajit Singh, ASI, (PW-3), and Jagjiwan Singh, ASI (PW-2), in Sessions case No.18/31.1.89, 45 of 5.8.92 and 36 of 1996, that the truck being driven by Balwinder Singh, accused was signalled to stop, and the same was stopped. It was further stated by them, that thereafter the truck was encircled. Jagjiwan Singh, ASI (PW-2), a recovery witness, in clear-cut terms, stated that when the whereabouts of the accused, were being enquired, Satnam Singh, Kulwinder Singh, Jagdev Singh and Amrik Singh, who were sitting in the body of the truck, succeeded in running away. They were seen in the torch light. He further stated that he Crl. Appeal No.384-SB of 1998, 11 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 identified the accused, who succeeded in running away. He further stated that the police party chased them, but they could not be apprehended. The recovery, in this case, was effected, at about 4.00 AM, in the month of April, 1988. At 4.00 AM, in the month of April, it could not be said to be too much darkness. From the evidence of the aforesaid witnesses, it is proved that the police party, had sufficient time, to recognize the accused, who were the occupants of the truck. It was not that they had only a glimpse of the occupants of the truck, when it was moving. Since, the truck was stopped, it was not at all impossible for Jagjiwan Singh, ASI (PW-2), to recognize the accused, namely Satnam Singh, Kulwinder Singh, Jagdev Singh and Amrik Singh, who succeeded in running away. During the course of his cross-examination, Jagjiwan Singh, ASI (PW-2), was put a suggesstion that he could not identify the accused, namely Satnam Singh, Kulwinder Singh, Jagdev Singh and Amrik Singh, but he stoutly denied the same. In case, Satnam Singh, Kulwinder Singh, Jagdev Singh and Amrik Singh, were not present, in the body of the truck, when the same was stopped, and were falsely implicated, in this case, they could move an application, before the Court concerned, that their identification parade be ordered to be held. They did not move any application, in that regard. It means that they did not dispute their identity, as the perpetrators of crime. The identity of the accused, namely Satnam Singh, Kulwinder Singh, Jagdev Singh and Amrik Singh, was duly established, as the perpetrators of crime. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
Crl. Appeal No.384-SB of 1998, 12Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001
15. It was next submitted by the Counsel for the appellants, that the prosecution miserably failed to prove that the accused were in conscious possession of the poppy-husk, referred to above. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Balwinder Singh, accused, was the driver of the truck. Two accused were sitting by his side, and the remaining five accused, were sitting in the body of the truck, on the back side. It was a big quantity of poppy-husk, which was being carried in the truck. It was not a small quantity of poppy-husk, which could escape the notice of the accused, who were the occupants of the truck. It was within the special means of knowledge of the accused, as to how, 110 bags, containing poppy-husk, were lying in the body of the truck, and to which destination the same, were being transported. It was not a small quantity of poppy-husk, which was being carried by the accused, for the purpose of consumption. Such a big haul of poppy-husk, was being carried by the accused, in the truck, for the purpose of sale, on commercial basis, for minting money. Since, these facts were within the special means of knowledge of the accused, they were required to explain the same. However, no explanation, was furnished by them. The possession of the accused, and their control over the bags, containing poppy-husk, was, thus, proved. Once, the possession of the accused, and their control over the bags, containing poppy-husk, was proved, statutory presumption, under Sections 54 and 35 of the Act, operated against them, that they were in conscious possession thereof. Thereafter, it was for them, to rebut the statutory presumption, by leading cogent and convincing evidence. However, the appellants failed to rebut Crl. Appeal No.384-SB of 1998, 13 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 that presumption, either during the course of cross-examination of the prosecution witnesses, or by leading defence evidence. No plea was taken up by Balwinder Singh, accused, driver of the truck, that he was carrying the poppy-husk therein, as per the command of the owner. No plea was taken up by the other accused, that they took the lift in the truck, as they had no other means of transport, to reach their village. No plea was taken by Satnam Singh, Kulwinder Singh, Jagdev Singh and Amrik Singh, that they were only the labourers, engaged by the owner, or the driver of the truck, to load the gunny bags, containing poppy-husk, and unload the same, at a particular destination. No plea was taken up, by any of the accused, that they did not know, as to what was contained in the bags, lying in the truck. The only plea, which was taken up, by the accused, was that they were falsely implicated, in the instant case. The accused, however, failed to rebut the statutory presumption, under Sectiosn 54 and 35 of the Act. In these circumstances, the trial Court was right, in holding that they were in conscious possession of the contraband. Section 54 of the Act ibid reads as under :-
"Presumption from possession of illicit articles:- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act, in respect of:-
a) any narcotic drug or psychotropic
substance or controlled substance;
b) any opium poppy, cannabis plant or coca
plant growing on any land which he has cultivated;
Crl. Appeal No.384-SB of 1998, 14
Crl. Appeal No.58-SB of 2001 &
Crl. Appeal No.321-SB of 2001
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."
15-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.
Crl. Appeal No.384-SB of 1998, 15Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 (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."
15-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 54 where also presumption is available to be drawn from possession of illicit articles."
16. The facts of Madan Lal's case (supra) in brief, were that accused Manjit Singh was driving the Car, and the remaining four Crl. Appeal No.384-SB of 1998, 16 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 accused, were sitting therein. One steel container (dolu) in a black coloured bag, was recovered from the said Car, which contained 820 gms. charas. All the accused were convicted and sentenced by the trial Court, holding that they were found in conscious possession of charas, despite the fact, that one of the accused, admitted his conscious possession, of the contraband. The Apex Court held that the trial Court was right, in coming to the conclusion, that the accused were found in conscious possession of charas, as they had failed to explain, as to how they were travelling in a Car together, which was not a public vehicle. The Apex Court upheld the conviction and sentence awarded to the accused. In the instant case, the accused failed to explain, as to how, 110 bags, containing poppy-husk were found in the truck, which was being driven by one of them. 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. As stated above, the accused, thus, miserably failed to rebut the statutory presumption, referred to above. Thus, their conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
17. It was next submitted by the Counsel for the appellants, that independent witnesses, in the name of Labh Singh and Harminder Singh, though joined by the Investigating Officer, at the time of the alleged search and seizure, yet they were not examined. He further submitted that the prosecution, thus, withheld the best evidence, in its possession. Crl. Appeal No.384-SB of 1998, 17 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 He further submitted that, under these circumstances, an adverse inference could be drawn, that had they been examined, they would not have supported the case of the prosecution. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. No doubt, Labh Singh and Harminder Singh, independent witnesses, were joined by the Investigating Officer, at the time of search and seizure, yet they sided with the accused, during the course of trial. Accordingly, the Addl. Public Prosecutor for the State, vide his statements dated 30.3.1995 and 28.2.1997 respectively, gave them up, as won over by the accused. The Public prosecutor for the State, is the master of the case. It is for him to decide, as to whether, he wanted to examine a particular witness, or not. However, he is required to exercise the discretion, in a bona-fide manner. In the instant case, the discretion was exercised by the Addl. Public Prosecutor for the State, in a bona-fide manner. There is nothing, on the record, to reveal, that he exercised such a discretion, in an arbitrary, and capricious manner. The other evidence, produced by the prosecution, on scrutiny, has been found to be cogent, convincing, reliable, and trustworthy. Under these circumstances, the mere fact that Labh Singh and Harminder Singh, independent witnesses, were given up as won over, did not affect the merits of the case. 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, Crl. Appeal No.384-SB of 1998, 18 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 or even if, it is known that he has been won over or terrorized. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference 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 authority, that the panch witnesses, being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements, and giving up of the public witnesses, as won over, is fully justified, in the present day situation, prevailing in the society. In Karnail Singh Vs. State of Punjab 1983 Criminal Law Journal, 1218 (DB), it was held that where the independent witness, was won over by the accused, and only the officials were examined, as witnesses for the prosecution, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. Similarly in Appa Bai and another Vs. State of Gujrat AIR 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined by it. It was further held that civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victim's side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals, and do not involve themselves in it. The principle of law, laid down, in the said authorities, is fully applicable to the facts of the present case. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same Crl. Appeal No.384-SB of 1998, 19 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 stands rejected.
18. The defence version, and the defence evidence, led by the accused, were duly noticed, and discussed in para Nos.23, 24 and 25, by the trial Court, in its judgment, dated 16.4.1998, in Sessions case Nos.18/31.1.89, 45 of 5.8.92 and 36 of 1996. The trial Court, came to the conclusion, that the defence evidence, produced by all the accused, except Jagwinder Singh, was not trustworthy, and reliable. The defence evidence, produced, in support of such defence version, has been carefully perused, and reappraised, by this Court. After such a reappraisal, this Court also comes to the conclusion, that the reasons recorded by the trial Court, for disbelieving and discarding the defence version, and the defence evidence, in respect of the accused, except Jagwinder Singh, are valid. The trial Court was, thus, right in reaching the conclusion, that the defence evidence, produced by the accused, except Jagwinder Singh, was not trustworthy. This Court, agrees with the conclusion, arrived at, by the trial Court, for disbelieving and discarding the defence evidence, produced by the accused, except Jagwinder Singh.
19. No other point, was urged, by the Counsel for the parties.
20. In view of the above discussion, it is held that the judgments of conviction, and the orders 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, and are liable to be upheld.
21. For the reasons recorded, hereinbefore, all the three appeals, referred to hereinbefore, are dismissed. The judgments of conviction, and the orders of sentence dated 16.4.1998, 8.12.2000 and 1.3.2001 Crl. Appeal No.384-SB of 1998, 20 Crl. Appeal No.58-SB of 2001 & Crl. Appeal No.321-SB of 2001 respectively, are upheld. If the appellants are on bail, their bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Sangrur, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, to this Court, within a period of three months, from the date of receipt of a copy thereof.
22. The trial Court is directed to initiate proceedings, under the relevant provisions of law, regarding the confiscation or otherwise, of the truck, if already not initiated, complete the same, pass the final order, within 3 months, from the date of receipt of a copy of the judgement, and submit compliance report immediately, thereafter.
23. The District and Sessions Judge, Sangrur, shall ensure that the directions are complied with, within the time frame, and the compliance report is submitted immediately thereafter.
24. The Registry shall keep track of the submission of compliance report, and put up the papers, whether the report, is received or not, within the time frame, immediately after the expiry thereof.
27.11.2008 (SHAM SUNDER) Vimal JUDGE