Punjab-Haryana High Court
Surjit Singh vs The State Of Punjab on 4 February, 2010
Crl. Appeal No. 456--SB of 2002
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IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Crl. Appeal No. 456-SB of 2002
Date of decision. 04.02.2010
Surjit Singh, s/o Shankar Singh, r/o village Mehmra, P.S. Ratia.
....... Appellant
Versus
The State of Punjab
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. H.L. Bhatia, Advocate,Amicus-Curiae
for the appellant.
Mr.T.S. Salana, DAG, Punjab
for the respondent.
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Sham Sunder, J.
This appeal is directed against the judgment of conviction, and the order of sentence dated 29.11.2001, rendered by the Judge, Special Court, Mansa, vide which he convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act' only) and sentenced him to undergo RI for a period of Crl. Appeal No. 456--SB of 2002
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10 years and to pay a fine of Rs.1 lac, and in default of payment of fine, he was directed to undergo further rigorous imprisonment, for a period of one year, for having been found in possession of 7 bags, each containing 36 kgs. poppy husk, without any permit or licence, falling within the ambit of commercial quantity.
2. The facts, in brief, are that on 29.06.2000 Pritam Singh, Assistant Sub Inspector, alongwith other police officials in private maruti car bearing No.PB-11H-4533, was coming towards village Ahamadpur from village Kalenhari on metaled road and when the police party reached the bus stand of village Kalenhari, Faquir Dass son of Yama Ram r/o Kulana road, Budhlana, met it, who was joined. When the police party was one furlong short of the bridge of drain, falling on the road, running in between Kalenhari and Ahamadpur, in the area of village Ahamadpur, it saw a man, sitting on the legs in low-lying land 35/40 karams from the side passage of the drain. The car was stopped, in which the police party was travelling, near that site. The accused was apprehended. He disclosed his name as Surjit Singh son of Shankar Singh. Pritam Singh, Assistant Sub Inspector, suspected contraband in the gunny bags, on which the accused was found sitting. The bags were Crl. Appeal No. 456--SB of 2002
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seven in number. On search in the presence of Amrik Singh, Deputy Superintendent of Police (D), Mansa, who was called to the spot, each bag was found containing 36 Kgs poppy husk. Two samples of 100 grams of poppy husk, from each of the bags, were drawn, and the remaining poppy husk was kept in the same bags. The samples and the bags, containing the remaining poppy husk, were made into separate parcels, sealed with the seal, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis of which, FIR was recorded. Rough site plan was prepared. The statements of the witnesses were recorded. After the completion of investigation, the challan was presented.
3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was framed against the accused, to which he pleaded not guilty, and claimed judicial trial.
4. The prosecution, in support of its case, examined Amrik Singh, DSP(D), Mansa, (PW-1), a witness to the recovery, Paramjit Singh, Sub Inspector, (PW-2), before whom the case property was produced, Puran Singh, Crl. Appeal No. 456--SB of 2002
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Constable, (PW-3), who carried the samples for analysis to the Laboratory, Bogha Singh, Head Constable, ( PW-4 ), who proved copy of the special report and endorsement thereon, Pritam Singh, Assistant Sub Inspector,(PW-5), Investigating Officer, and Angrej Singh, Head Constable, (PW-6), another witness to the recovery. Faquir Dass, independent witness was given up as won over by the Additional Public Prosecutor for the State. Thereafter, the prosecution closed its evidence.
5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. It was stated by him that he was taken away by the police from his residence and thereafter false case was planted against him. He, however, did not lead any evidence in defence.
6. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore.
7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Crl. Appeal No. 456--SB of 2002
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Court, the instant appeal, was filed by the appellant.
8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. The Counsel for the appellant, at the very outset, vehemently, contended that the conscious possession of the appellant, in respect of the contraband was not proved by the prosecution through cogent and convincing evidence, and, as such, he did not commit any offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. No doubt, the drain, in which the bags were lying, whereon the accused was sitting, was not the ownership of the appellant. He had, however, kept the bags, containing poppy husk, at a place of concealment, which was not visible from a distance. Since he was found sitting on the bags, containing poppy husk, his physical possession in respect thereof, was proved. It was within his special means of knowledge as to where from the bags, aforesaid, containing poppy husk , were brought to that place and how he was found sitting thereon. He did not furnish any explanation, with regard to the bags, containing contraband, lying there, and why he was sitting Crl. Appeal No. 456--SB of 2002
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thereon. Once the possession of and control over the bags, containing poppy husk, in relation to the accused, was established, then statutory presumption under Sections 54 and 35 of the Act, operated against him, that he was in conscious possession thereof. Thereafter the onus shifted on to him, to prove that he was not in conscious possession thereof. Thereafter, it was for him, to rebut the presumption, by leading cogent and convincing evidence. However, the appellant failed to rebut that presumption, either during the course of cross-examination of the prosecution witnesses, or by leading defence evidence. 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 Crl. Appeal No. 456--SB of 2002
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any narcotic drug or psychotropic substance or controller substance; or
d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily."
9-A. Section 35 which relates to the presumption of culpable mental state, is extracted as under :-
"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.
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(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."
9-B. From the conjoint reading of the provisions of Sections 54 and 35, referred to hereinbefore, it becomes abundantly clear, that once an accused, is found to be in possession of a contraband, he is presumed to have committed the offence, under the relevant provisions of the Act, until the contrary is proved. According to Section 35 of the Act ibid, the Court shall presume the existence of mental state, for the commission of an offence, and it is for the accused to prove otherwise. In Madan Lal and another Vs. State of H. P. 2003 SCC (Crl.) 1664 it was held as under:-
The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended.
Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles."
9-C. In Megh Singh Vs. State of Punjab, (2003) 8 Crl. Appeal No. 456--SB of 2002
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SCC 266, on 22.2.1993, three persons were found sitting on the gunny bag, 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. It was not a small quantity of poppy husk, which was concealed, and, as such, it could escape the notice of the accused. Keeping in view the principle of law, laid down, in the aforesaid cases, the provisions of Sections 35 and 54 of the Act, and the evidence produced, on record, the trial Court, in my opinion, was right in coming to the conclusion, that the accused was in conscious possession of 7 bags, containing poppy husk. In this view of the matter, the submission of the Counsel for the appellant, in Crl. Appeal No. 456--SB of 2002
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this regard, being without merit, must fail, and the same stands rejected.
10. The Counsel for the appellant,however, placed reliance Sukhdev Singh alias Sukha v. State of Punjab 2006(1) RCR (Criminal)4 (P&H) and State of Punjab v. Balkar Singh and another, 2004, Supreme Court Cases (Crl.), 838 , in support of his contention that the mere fact that the appellant was allegedly found sitting on the bags, containing poppy husk, did not mean that he was found to be in conscious possession thereof. In Sukhdev Singh alias Sukha's case (supra), decided by a Division Bench of this Court, a Punjab Home Guard was joined as an independent witness. He was not examined. He appeared as a defence witness, and stated that he did not join the police party. In these circumstances, it was held that he being a limb of the police force, his evidence to the effect that no recovery was effected in his presence, was reliable. Not only this, it was not proved, in that case, beyond a reasonable doubt, that none tampered with the samples, until the same reached the office of the Chemical Examiner. Besides this, the appellant, was not found to be in conscious possession of the contraband. Keeping in view all these factors, the appellant, in that case, was acquitted.
Crl. Appeal No. 456--SB of 2002
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In State of Punjab v. Balkar Singh and another's case (supra) the accused were allegedly found present at the place, where about 100 bags of poppy husk were lying. The fields did not belong to them. No investigation was conducted by the Investigating Agency as to whom, the fields belonged. The accused, in that case also belonged to different villages. It was, under these circumstances, it was held that the prosecution miserably failed to prove the conscious possession of the appellants, in respect of the contraband. In Megh Singh's case (supra ) State of Punjab v. Balkar Singh and another's case (supra) was noticed and distinguished on factual matrix. No help, therefore, can be drawn by the Counsel for the appellant, from Sukhdev Singh alias Sukha's and State of Punjab v. Balkar Singh and another's cases (supra). In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
11. It was next submitted by the Counsel for the appellant that, no doubt, Faqir Dass, independent witness was joined by the Investigating Officer, at the time of the alleged search and seizure, yet he was not examined, as a result whereof, adverse inference could be drawn, that had he been examined, he would not have supported the case of the Crl. Appeal No. 456--SB of 2002
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prosecution. It is, no doubt, true that Faqir Dass, independent witness was not examined by the prosecution. On the other hand, he was given up as won over by the accused. It was for the Additional Public Prosecutor for the State, to decide, as to which witness he wanted to examine and which witness he did not want to examine. Since the Additional Public Prosecutor was satisfied that Faqir Dass, independent witness, had been won over by the accused, he did not think it proper to examine him, as he knew that if he (Faqir Dass, independent witness), was examined, he would damage the case of the prosecution. The Additional Public Prosecutor for the State, exercised the discretion, vested in him, in giving up Faqir Dass, independent witness, as won over by the accused, with a bonafide motive. It could not be said that the discretion, exercised by the Additional Public Prosecutor, for the State, in giving up Faqir Dass, as won over by the accused, was, in any way arbitrary or capricious. The evidence of the prosecution witnesses, is creditworthy, and inspires confidence, in the mind of the Court. 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 Crl. Appeal No. 456--SB of 2002
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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 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 case, 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, a Division Bench of this Court, held that where the independent witness, was won over by the accused, and only the officials witnesses, were examined, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. The principle of law, laid down, in the said cases, is fully applicable to the facts of the present case. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
Crl. Appeal No. 456--SB of 2002
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12. It was next submitted by the Counsel for the appellant, that there was delay of four days in sending the samples to the office of the Chemical Examiner, which remained un-explained, as a result whereof, the possibility of tampering with the same, until the same reached the said office, could not be ruled out. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that delay of four days in sending the samples to the office of the Chemical Examiner remained un-explained, in itself, could not be said to be sufficient to come to the conclusion that the sample parcels were tampered with until the same reached that office. In the absence of such explanation, the Court is required to go through the other evidence, produced by the prosecution. If from the other evidence, it is found that the link evidence was complete, then mere non- explanation of delay, pales into insignificance. The evidence, produced by the prosecution, was rightly held to be credible by the trial Court to come to the conclusion that the link evidence was complete. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that the mere delay in sending the samples to the Laboratory, is not fatal, where there is evidence that the seized articles remained in safe custody.
Crl. Appeal No. 456--SB of 2002
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Since, it was proved that none tampered with the samples, until the same were received in the office of the Chemical Examiner, the submission of the Counsel for the appellants, merely based on conjectures, does not hold good. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected.
13. It was next submitted by the Counsel for the appellant, that Pritam Singh, ASI, sent the ruqa and, as such, be became the complainant. He further submitted that Pritam Singh, ASI, also conducted the investigation in this case. He further submitted that the course, adopted by Pritam Singh, Assistant Sub Inspector, was unknown to law and caused a great prejudice to the accused. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. In the Code of Criminal Procedure, there is no provision that the Police Officer, who sends the ruqa, and becomes the complainant, cannot investigate the case. In the absence of any provision in the Code of Criminal Procedure, it cannot be said that on account of adoption of such a course, any illegality was committed by the Investigating Officer. However, it may Crl. Appeal No. 456--SB of 2002
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be stated here, that in S.Jeevanantham Vs. State through Inspector of Police, T.N. (2004) 5 Supreme Court Cases, 230, a case decided by the Apex Court, it was held that if the Police Officer, who is the complainant, also conducts the investigation of the case, and it is not proved that any prejudice was caused, to the accused, on account of the adoption of such a course, the accused cannot be acquitted. In this case, there is nothing, on record, to conclude that a prejudice was caused to the accused, on account of adoption of the aforesaid course, by the Investigating Officer. S.Jeevanantham's case (supra) being a direct authority, the principle of law, laid down, therein, is applicable to the facts of the present case. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
14. No other point, was urged, by the Counsel for the parties.
15. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference. The same are liable to be upheld.
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16. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction and the order of sentence, dated 29.11.2001 are upheld. If the appellant is on bail, his bail bonds shall stand cancelled.
17. The Chief Judicial Magistrate, 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 Cr.P.C. and compliance report be sent within two months.
18. The District & Sessions Judge, Mansa, is also directed to ensure that the directions, referred to above, are complied within the time-frame and the compliance report is sent immediately, thereafter, to this Court.
19. The Registry shall keep track of the matter, and put up the action taken report, if received, within the time frame. Even if, the same is not received, within the time frame, the matter shall be put up, within 10 days, after the expiry of the stipulated time.
(SHAM SUNDER)
February 04, 2010 JUDGE
dinesh