Punjab-Haryana High Court
Baljinder Singh And Another vs State Of Punjab on 12 August, 2013
Author: Inderjit Singh
Bench: Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No.S-117-SB of 2009 (O&M)
Date of Decision: August 12, 2013
Baljinder Singh and another
...Appellants
VERSUS
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.S.S.Rana, Advocate/Legal Aid counsel,
for the appellants.
Mr.Yogesh Gupta, Asstt. Advocate General, Punjab
for the respondent-State.
****
INDERJIT SINGH, J.
The present appeal has been filed by the appellants against the judgment of conviction and order of sentence dated 16.12.2008, passed by the learned Judge, Special Court, Ludhiana whereby, they were held guilty and convicted and sentenced to undergo rigorous imprisonment for a period of ten years each and to pay a fine of ` 1,00,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months each under Section 15 of the Narcotic Drugs and Psychotropic Substances, Act 1985.
The brief facts of the prosecution case are that on 12.07.2005, SI Dharampal along with other police officials was present at canal bridge Dangian, where Amarjit Singh independent witness was joined in the police party. After some time a truck bearing registration No. PB-29E-9368 came from the side of village Rasulpur Gulati Vineet 2013.08.29 15:18 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-117-SB of 2009 -2- side and it was got stopped. It was being driven by accused Baljinder Singh and Rajinder Kumar @ Bahadur was sitting in the cabin. On suspicion, an option was given to them as to whether they want to get the search of the truck in the presence of some Gazetted Officer or Magistrate. They reposed confidence in the Investigating Officer. Then on search, eight bags lying in the body of the truck were found containing 35kgs. of poppy husk each. Two samples of 100 grams each were separated from each bag and the sample parcels and the bulk parcels were sealed with the seal of Investigating Officer bearing impression "DP" and the case property was taken into police possession vide recovery memo Ex.PD. Rough site plan Ex.PM was prepared. Ruqa was sent to the police station, on the basis of which, FIR was registered. Statements of witnesses were recorded. Accused were arrested. On return to the police station, case property along with accused were produced before SI Kashmir Singh, Addl.SHO, who verified the investigation and put his seal bearing impression "KS" on all the sample parcels and sample seal slip was prepared and SI Kashmir Singh himself deposited the case property with MHC Sham Singh. The case property was produced before the Illaqa Magistrate. After necessary investigation, challan was presented against the accused-appellants.
On presentation of challan against accused-appellants, copies of challan and other documents were supplied to them under Section 207 Cr.P.C. Finding prima facie case, the accused-appellants were charge-sheeted under Section 15 of the NDPS Act, 1985, to Gulati Vineet 2013.08.29 15:18 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-117-SB of 2009 -3- which they pleaded not guilty and claimed trial.
In support of its case, prosecution examined PW-1 ASI Jagpal Singh, who was associated with the police party headed by SI Dharampal. He deposed as per prosecution version and also deposed regarding recovery of poppy husk from the accused- appellants. He also deposed that on 13.07.2005, he produced the case property in the Court of Sh.Manoj Singla, JMIC (D) Ludhiana. The case property was seen and signed by the learned Magistrate. On 28.07.2005, he again produced eight parcels of 100 gms. each sealed with the seal of DP and KS along with eight bags before learned SDJM, Jagraon for the proceedings under Section 52 of the NDPS Act. Learned Magistrate took one sample of 100 gms. from each bag and then sealed the samples as well as the bags with the seal bearing impression "JW". Then he deposited eight sample parcels sealed with the seal of "JW" and eight sample parcels sealed with the seal of "DP" and "KS" and eight bags containing 34.700 kgs. of poppy husk each sealed with the seal of "JW" in the judicial malkhana. He also deposed that all the parcels remained intact in his possession. PW-2 SI Kashmir Singh, before whom case property and accused were produced for verification mainly deposed the same facts. PW-3 Head Constable Sham Singh, is a formal witness, who tendered into evidence his affidavit Ex.PW3. PW-4 Constable Som Raj, is also a formal witness, who tendered into evidence his affidavit Ex.PW4/A. PW-5 SI Dharampal, is the Investigating Officer. He mainly deposed regarding investigation conducted by him in the Gulati Vineet 2013.08.29 15:18 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-117-SB of 2009 -4- present case. PW-6 Mahesh Kumar, Clerk, DTO Office mainly deposed as per record, that Gurdev Singh was the owner of the truck bearing registration No.PB-29E-9368. PW-7 Jaspal Kaur, Notary Public mainly deposed that affidavit Ex.PQ was attested by her. Learned Public Prosecutor closed the prosecution evidence after tendering report of Chemical Examiner Ex.PZ.
At the close of prosecution evidence, the accused- appellants were examined under Section 313 Cr.P.C. and they denied the correctness of the evidence and pleaded themselves as innocent. Accused-appellants pleaded that they have been falsely implicated in this case. PWs are police officials and they have deposed falsely against them. Accused-appellant Baljinder Singh further pleaded that he was picked up from his house on 11.07.2005 due to enmity with one woman resident of village Hathur with his brother Tejinder Pal Singh. Nothing was recovered from him. Accused-appellant Rajinder Kumar pleaded that police had asked him for begar of police and as he ignored, the police officials became angry with him and therefore, he has been falsely implicated in this case. Nothing was recovered from him.
In defence, accused-appellants examined DW-1 Head Constable Balraj Singh, DW-2 Head Constable Nirbha Singh and DW- 3 Narinderpal Singh Sidhu, Ex-M.C. On the basis of the evidence produced by the prosecution, accused-appellants were convicted and sentenced as stated above by the learned Judge, Special Court, Ludhiana.
Gulati Vineet2013.08.29 15:18 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-117-SB of 2009 -5-
At the time of arguments, learned counsel for the appellants argued that independent witness Amarjit Singh has not been examined by the prosecution and has been given up by prosecution and further, seal was not handed over to the independent witness, which creates a reasonable doubt in the prosecution version. He further argued that conscious possession has not been proved in the present case. He next contended that no question regarding conscious possession has been put to the accused-appellants. Learned counsel for the appellants further argued that CFSL Form No.29 was not filled up on the spot. He further argued that there is delay of seven days in sending the samples, which also creates doubt in the prosecution version. Learned counsel for the appellants, therefore, argued that there being merit in the appeal, it should be accepted and appellants should be acquitted.
On the other hand, learned Asstt. Advocate General, Punjab for the respondent-State argued that case of the prosecution has been duly proved by PWs. There are no material contradictions or material improvements in the statements of the PWs. Appellant Baljinder Singh was driving the truck whereas appellant Rajinder Kumar is the owner of the truck as per affidavit, which has been duly proved by PW-7 Jaspal Kaur and appellant Rajinder Kumar was sitting in the cabin of the truck. Therefore, they were in possession of eight bags of poppy husk. The conscious possession is to be proved by them as it is in their special knowledge. He next contended that link evidence is complete. Learned State counsel next argued that Gulati Vineet 2013.08.29 15:18 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-117-SB of 2009 -6- CFSL form was filled up on the spot. He further argued that whole incriminating circumstances in the evidence have been put to the accused-appellants in the statement under Section 313 Cr.P.C. He further contended that there is no enmity or motive of the police officials to falsely implicate the accused-appellants and such a huge recovery cannot be falsely planted upon the accused-appellants. Learned State counsel, therefore, argued that there being no merit, the appeal should be dismissed.
I have gone through the evidence on record minutely and carefully and have heard learned counsel for the appellants and learned Asstt. Advocate General, Punjab for the respondent-State.
From the evidence on record, I do not find any merit in the arguments of the learned counsel for the appellants. It is settled law that testimony of police official is as good as of any other witness unless some enmity or motive against the police official is alleged and proved. No such enmity or motive of police officials against the accused-appellants has been alleged and proved. The Court cannot start with the presumption of distrust against police officials. Therefore, on this ground, no reasonable doubt exists in the prosecution version. Otherwise also, the Hon'ble Supreme Court in Kashmiri Lal Vs. State of Haryana 2013(3) RCR (Crl.) 259 has held as under:-
"9. As far as first submission is concerned, it is evincible from the evidence on record that the police officials had requested the people present in the 'dhaba; to be witnesses, but they declined to cooperate and, in fact, did not make themselves available. That apart, there is no Gulati Vineet absolute command of law that the police officers cannot 2013.08.29 15:18 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-117-SB of 2009 -7- be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighs over the quantity of evidence. These aspects have been highlighted in State of U.P. v. Anil Singh, 1990(3) R.C.R. (Criminal) 585 : 1988 Supp SCC 686, State, Govt. of NCT of Delhi v. Sunil and another, 2001(1) R.C.R. (Criminal) 56 : 2001 (1) SCC 652 and Ramjee Rai and others v. State of Bihar, 2006(4) R.C.R. (Criminal) 289 : 2006(13) SCC 229. Appreciating the evidence on record on the unveil of the aforesaid principles, we do not perceive any acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and absolutely trustworthy."
The mere fact that seal was not handed over to the independent witness will also not create any doubt in the prosecution version.
As regarding the conscious possession, I find that both the appellants were apprehended in the truck. Appellant Baljinder Singh was driving the truck and appellant Rajinder Kumar was found sitting in the cabin of the truck. 8 bags were found by the police. As per PWs, this truck was in the name of Gurdev Singh and PW-7 Jaspal Kaur proved one affidavit according to which Rajinder Kumar has purchased this truck. Therefore, both these accused-appellants were known to each other and bags were found in the body of the truck. Therefore, prosecution has duly proved possession of the appellants. The fact regarding conscious possession is in the specific knowledge Gulati Vineet 2013.08.29 15:18 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-117-SB of 2009 -8- of the appellants and they are to explain regarding the same. But there is no explanation to prove that they were not in conscious possession. The Hon'ble Supreme Court in Megh Singh Vs. State of Punjab 2003(4) R.C.R. (Criminal) 319, has held that word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. Expression 'possession' is a polymorphous term which assumes different colours in different contexts. It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes. In that case, accused was found sitting on gunny bags containing contraband and it was held that accused was in conscious possession. The Hon'ble Supreme Court in Madan Lal and another Vs. State of Himachal Pradesh 2003(4) RCR (Crl.) 100, has held as under:-
"20. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record is that all the accused persons were travelling in a vehicle and as noted by the Trial Court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.
21. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in chapter IV of the Act which relates to offence for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.
22. It is highlighted that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.
23. The expression 'possession' is a polymorphous term Gulati Vineet which assumes different colours in different contexts. It 2013.08.29 15:18 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-117-SB of 2009 -9- may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes.
24. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended.
25. As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power.
26. The word 'possession' means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD).
27. 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 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."
In view of these above two citations, conscious possession of the appellant is duly proved. Therefore, this argument of learned counsel for the appellants has also no merit.
Learned counsel for the appellants also cited judgment passed in Avtar Singh Vs. State of Punjab, 2002(4) R.C.R. (Crl.) 180 regarding conscious possession. I have gone through the same. This citation will not apply in the present case having distinguished Gulati Vineet 2013.08.29 15:18 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-117-SB of 2009 -10- facts as in that case two accused were sitting on the bags and one accused was driving the truck. Five persons including three accused were traveling in the truck and two persons ran away from the spot. In those circumstances, the Court held that it was not proved by the prosecution that accused-appellants had custody and control over bags. In the present case, appellant Rajinder Kumar is stated to be owner of the truck and appellant Balinder Singh was driving the truck, therefore, they were known to each other and they had custody and control of the bags.
Learned counsel for the appellants further cited judgment passed in Raj Kumar Vs. State of Punjab, 2005(1) R.C.R. (Crl.) 70. This citation will also not apply in the present case having distinguished facts.
Therefore, from the above, I find that conscious possession of the appellants has been duly proved.
As regarding the argument that no question has been put regarding conscious possession to the appellants in the statement under Section 313 Cr.P.C., I find that all the incriminating circumstances appearing in the evidence, have been put to both the accused-appellants. As already held in Madan Lal's case (supra), the fact regarding conscious possession of the bags is to be explained by the accused-appellants. Therefore, the prosecution has only to prove the possession of the accused-appellants over the incriminating article. The incriminating evidence which the PWs have deposed against accused-appellants, has been duly put to them in their Gulati Vineet 2013.08.29 15:18 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-117-SB of 2009 -11- statements under Section 313 Cr.P.C. Therefore, judgments passed in Raj Kumar Vs. State of Punjab, 2005(1) R.C.R. (Crl.) 70 and Sees Vs. State of Punjab, 1995(3) R.C.R. 16, cited by the learned counsel for the appellants will also not apply in the present case.
Otherwise also, learned counsel for the appellants has not shown me that what prejudice has been caused to the appellants in this case by not specifically asking them regarding the conscious possession.
As regarding delay in sending the samples, I find that mere delay in sending the sample of the narcotic to the office of the Chemical Examiner would not be sufficient to conclude that the sample has been tampered with as has been held by the Hon'ble Supreme Court in Jarnail Singh Vs. State of Punjab 2011(3) SCC 521 as under:-
"Mr. Ujjal Singh then submitted that there was a delay of twelve days in sending the sample of narcotic for chemical examination. This submission, in our opinion, is without any factual basis. The trial court as well as the High Court, on examination of the entire material, concluded that there was sufficient independent evidence produced by the prosecution regarding the completion of link evidence. Therefore, the delay in sending the sample parcel to the office of Chemical Examiner pales into insignificance. We are of the considered opinion that mere delay in sending the sample of the narcotic to the office of the Chemical Examiner would not be sufficient to conclude that the sample has been tampered with. There is sufficient evidence to indicate that the delay, if any, was wholly unintentional. This Court had occasion to deal with a similar issue, in the case of Balbir Kaur Vs. State of Punjab, 2009(3) R.C.R. (Criminal) 580 : 2009(4) R.A.J. 330: (2009) 15 SCC 795. The Court made the following observations:Gulati Vineet
"As far as delay in sending the samples is 2013.08.29 15:18 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-117-SB of 2009 -12- concerned, we find the said contention untenable in law. Reference in this regard may be made to the decision of this Court in Hardip Singh case wherein there was a gap of 40 days between seizure and sending the sample to the chemical examiner. Despite the said fact the Court held that in view of cogent evidence that opium was seized from the appellant and the seals put on the sample were intact till it was handed over to the chemical examiner, delay itself is not fatal to the prosecution case."Hon'ble Supreme Court in Learned counsel for the appellants further cited judgment passed in Parminder Singh Vs. State of Haryana, 2006 (4) R.C.R. (Crl.) 495. In view of the law laid down by the Hon'ble Supreme Court in Jarnail Singh's case (supra), this citation will not apply in the present case.
As regarding the argument that form No.29 was not filled on the spot, I find that the Investigating Officer himself in the cross- examination has stated that form No.29 was filled on the spot. Therefore, this argument has also no merit. As regarding the fact that Investigating Officer has signed the form on some other date, I find that no question has been put to seek his explanation but the Investigating Officer in cross-examination stated that CFSL form was filled on the spot.
From the perusal of the evidence on record, I find that no material contradictions or material improvements have been pointed out by the learned counsel for the appellants, which may go to the root of the case. There is nothing in the cross-examination of the PWs to make their statements unreliable. PWs have consistently deposed as per prosecution version.Gulati Vineet
Defence version is not 2013.08.29 15:18 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-117-SB of 2009 -13- believable.
In view of the above, I find that prosecution has duly proved its case against accused-appellants by leading cogent evidence beyond reasonable doubt. Therefore, the judgment of conviction and order of sentence passed by the learned Judge, Special Court, Ludhiana are upheld.
Resultantly, the appeal stands dismissed. As appellant Rajinder Kumar @ Bahadur is on bail, his bail bonds stand cancelled and he is directed to surrender himself before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against him in accordance with law.
CRM No.35490 of 2013
Application is allowed subject to all just exceptions. Annexures A/2 and A/3 are taken on record.
CRM No.44059 of 2011
This is an application under Section 427(2) read with Section 482 Cr.P.C. for concurrent running of sentences awarded to applicant-appellant Baljinder Singh in case FIR No.243 dated 10.09.1989 and case FIR No.265 dated 06.04.1994, both under Section 18 of the NDPS Act, registered at police station Jagraon, District Ludhiana with the sentence awarded in the present case i.e. in FIR No.232 dated 12.07.2005 under Section 15 of the NDPS Act, registered at police station Jagraon, District Ludhiana.
As per Section 427 Cr.P.C., it is the discretion of the Court Gulati Vineet 2013.08.29 15:18 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-117-SB of 2009 -14- to pass an order regarding the sentences to run concurrently.
In view of the provisions of Section 427 Cr.P.C., this application is allowed and it is ordered that sentences awarded in above-stated case FIRs shall run concurrently. It is clarified that default sentences of non-payment of fine will have to be undergone separately and independently, if the fine is not paid.
Resultantly, CRM No.44059 of 2011 stands allowed and CRA No.S-117-SB of 2009 stands dismissed.
(INDERJIT SINGH)
August 12, 2013 JUDGE
Vgulati
Gulati Vineet
2013.08.29 15:18
I attest to the accuracy and
integrity of this document
Chandigarh