Punjab-Haryana High Court
Uttam Singh S/O Narain Singh vs The State Of Punjab on 3 November, 2008
Crl. Appeal No.1133-SB of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.1133-SB of 2007
Date of Decision : 3.11.2008
1. Uttam Singh S/o Narain Singh, ...Appellants
R/o Jinsinala, Gwalior (MP).
2. Parveen Kumar S/o Narinder Naidu,
R/o Jabalpur (MP).
Versus
The State of Punjab ....Respondent
CORAM:HON'BLE MR. JUSTICE SHAM SUNDER
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. N.S.Swaitch, Advocate,
for the appellants.
Mr. C.S.Brar, DAG, Punjab,
for the respondent-State.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction, and the order of sentence dated 7.5.2007, rendered by the Judge, Special Court, Patiala, 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 two Crl. Appeal No.1133-SB of 2007 2 years each, for having been found in possession of 3 bags, each containing 35 kgs. 500 grams poppy-husk, falling within the ambit of commercial quantity, without any permit or licence.
2. The facts, in brief, are that on 13.10.2002, Gurinderjit Singh, Inspector, Incharge, CIA Staff, alongwith other police officials, was present in Government vehicle No.PB-11H-2413, on the turning of link road, Dahrian, on G.T.road, in connection with patrolling, and checking of bad elements, where Om Parkash S/o Ajmer Singh, met the police party, and started talking to him. In the meanwhile, from the side of Ambala, one military colour vehicle bearing No.-2D-148101A, make Tata 713, came there. On seeing the police party, the driver of the vehicle, stopped the same, at some distance, from the police party. The vehicle was being driven by Baldeep Kumar @ Parveen Kumar S/o Narain Swami, and Uttam Singh S/o Narain Singh, accused was sitting by his side. On search of the vehicle, 3 bags, each containing 35 Kgs. 500 grams poppy-husk, were recovered. Two samples of 250 grams each, were taken out of the same, 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. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. The statements of the witnesses, were recorded. The accused were arrested. After the completion of investigation, the accused were challaned.
3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Crl. Appeal No.1133-SB of 2007 3 Section 15 of the Act, was framed against them, to which they pleaded not guilty, and claimed judicial trial.
4. The prosecution, in support of its case, examined Harpreet Singh, Inspector (PW-1), Balkar Singh, SI (PW-2), Didar Singh, MHC (PW-3), Raj Kumar, Constable (PW-4), Gurinderjit Singh, Inspector (PW-5), the Investigating Officer, and Baldev Singh, ASI (PW-6). Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence.
5. The statements of the accused, 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.
5-A. Uttam Singh, accused, in his statement, under Section 313 Cr.P.C., stated that nothing was recovered from him, and he was falsely involved in this case. It was further stated by him, that he had no concern with army truck, allegedly recovered, in this case. It was further stated by him, that he was not an employee of M/s Simplex Engineering Company, Jabalpur. It was further stated by him, that he did not know Parveen Kumar. It was further stated by him, that he only took the lift, in the said truck.
5-B. Parveen Kumar, accused, in his statement, under Section 313 Cr.P.C., stated that he was innocent. He further stated that nothing was recovered from him. He further stated that he started his journey to drop the army vehicle at its destination. He further stated that on 12.10.2002, he and Uttam Singh, accused, were apprehended, by the Police, on the G.T.road, and were taken to CIA Staff, Rajpura. He further stated that on Crl. Appeal No.1133-SB of 2007 4 that day, the Police had also captured two other trucks, on military duty, and later on, on false allegations, this recovery was planted against them. 5-C. The accused, however, examined Krishan Kumar Nirdosh (DW-1), in their defence. Thereafter, they closed their defence evidence.
6. After hearing the Addl. 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 Court, the instant appeal, was filed by the appellants.
8. It was submitted by the Counsel for the appellants, that Baldeep Kumar @ Parveen Kumar, accused, had already died. Later on, the death certificate of Baldeep Kumar @ Parveen Kumar, showing that he died on 5.9.2008, was also submitted, which was taken on record.
9. Since, Baldeep Kumar @ Parveen Kumar, accused, had also filed the appeal, against the sentence of fine, the same could not abate, as a whole, under the provisions of Section 394(2) Cr.P.C. In this view of the matter, the Counsel for the appellants, submitted that he would address arguments, on behalf of both the appellants, on merits.
10. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully.
11. The Counsel for the appellants, at the very outset, submitted that an independent witness, in the name of Om Parkash, though joined by the Investigating Officer, at the time of the alleged search and seizure, yet he was not examined. He further submitted that the prosecution, thus, Crl. Appeal No.1133-SB of 2007 5 withheld the best evidence, in its possession. He further submitted that, under these circumstances, an adverse inference could be drawn, that had he been examined, he 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, Om Parkash, independent witness, was joined by the Investigating Officer, at the time of search and seizure, yet he sided with the accused, during the course of trial. Accordingly, the Addl. Public Prosecutor for the State, vide his statement dated 26.3.2003, gave him 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 Om Parkash, independent witness, was 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, or even if, it is known that he has been won over or terrorized. In Roop Singh Vs. Crl. Appeal No.1133-SB of 2007 6 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 stands rejected.
12. It was next submitted by the Counsel for the appellants, that the Crl. Appeal No.1133-SB of 2007 7 mandatory provisions of Section 50 of the Act, were not complied with, as a result whereof, the trial, conviction, and the sentence, stood vitiated. It may be stated here, that in the instant case, the recovery was not effected from the person of the accused, but from the body of the truck, of which they were occupants. As such, the mandatory provisions of Section 50 of the Act, were not applicable to the search and seizure, in this case. Had the recovery been effected from the person of the accused, then the provisions of Section 50 of the Act, would have been attracted to the instant case. In State of Punjab Vs. Baldev Singh, 1999 (6) S.C.C. 172, a Constitution Bench of the Apex Court, settled beyond doubt, that the language of Section 50, was implicitly clear that the search had to be, in relation to a person, and not in relation to the premises, vehicles, or articles. Similar view was taken in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. In these circumstances, it can be said that the consistent, and particularly the view of the larger Bench of the Supreme Court, appears to be that the search, must relate to the person, and not vehicles, other luggage and articles, and then alone the provisions of Section 50 would be attracted. Since, in view of the principle of law, laid down, in the aforesaid authorities, the provisions of Section 50 were not applicable, to search, in the instant case, the trial Court was right in recording conviction and awarding sentence, to the accused. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
13. It was next submitted by the Counsel for the appellants, that the mandatory provisions of Section 100(4) of the Cr.P.C., were not complied Crl. Appeal No.1133-SB of 2007 8 with, as a result whereof, the conviction, and sentence, stood vitiated. It may be stated here, that in the instant case, the recovery was not effected from the house of the accused. It was effected from a vehicle, at the public place, when it was being driven by Baldeep Kumar @ Parveen Kumar, accused (since demised). Under these circumstances, the provisions of Section 100(4) of the Cr.P.C., were not applicable, to the facts of the instant case. Had the recovery been effected from the house, non-compliance with the provisions of Section 100(4) of the Cr.P.C., might have been taken, as a circumstance, to come to the conclusion, that the prosecution case was suspicious. Since, the provisions of Section 100 (4) of the Cr.P.C., were not applicable, to the search in the instant case, non-compliance therewith, did not in any way, vitiate the conviction and sentence. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
14. It was next submitted by the Counsel for the appellants, that Uttam Singh, appellant, took up a plea, in his statement, under Section 313 Cr.P.C., that he only took a lift in the truck, the driver whereof, was Baldeep Kumar @ Parveen Kumar, accused (since demised). He further submitted that, under these circumstances, Uttam Singh, appellant, could not be said to be in conscious possession of the poppy-husk, allegedly recovered from the truck, in question. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Uttam Singh, was sitting by the side of Baldeep Kumar @ Parveen Kumar, who was driving the same. It was not a small quantity of poppy-husk, which was lying in the truck, which could escape the notice of Uttam Singh, accused. Even the bags, had not been concealed, in such a manner, as the Crl. Appeal No.1133-SB of 2007 9 same could escape the notice of Uttam Singh, accused. No doubt, Uttam Singh, took up a plea, that he only took a lift in the truck, yet it was required of him, to prove the same, by leading evidence, or during the course of cross-examination of the prosecution witnesses. He, however, took up the plea, in his statement, under Section 313 Cr.P.C., that he did not know Baldeep Kumar @ Parveen Kumar, driver of the truck. When he did not know him, the question of giving him lift, by Baldeep Kumar @ Parveen Kumar, did not at all arise. It was not a public transport, or a private vehicle, in which he took the lift. It was a military truck, in which, no private person is expected to be given lift. It was for the accused, to explain, as to under what circumstances, the bags, containing poppy-husk, were lying in the truck, and to which destination, the same were being caried. They, however, failed to explain the aforesaid circumstances. It means that both Uttam Singh and Baldeep Kumar @ Parveen Kumar, were found in possession of the bags, containing poppy- husk. Once the possession of the accused, and their control over the contraband was proved, then 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 presumption, by leading cogent and convincing evidence. However, the appellants failed to rebut that presumption, either during the course of cross- examination of the prosecution witnesses, or by leading defence evidence. 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 Crl. Appeal No.1133-SB of 2007 10 trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act, in respect of:-
a) any narcotic drug or psychotropic
substance or controlled substance;
b) any opium poppy, cannabis plant or coca
plant growing on any land which he has cultivated;
c) any apparatus specially designed or any
group of utensils specially adopted for the
manufacture of any narcotic drug or psychotropic
substance or controller substance; or
d) any materials which have undergone any
process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily."
14-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 Crl. Appeal No.1133-SB of 2007 11 prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation:- In this section "culpable mental state"
includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."
14-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 Crl. Appeal No.1133-SB of 2007 12 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."
15. The facts of Madan Lal's case (supra) in brief, were that accused Manjit Singh was driving the Car and the remaining four 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, 3 bags, each containing 35 kgs. 500 grams poppy-husk were found in the truck. 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. In the instant case, in his statement, under Section 313 Cr.P.C., the accused/appellants took up the plea, only of false implication. They did not take up the plea, that they were not aware of the contents of the bags, lying therein. Mere plea taken up by Uttam Singh, appellant, that he took a lift in the truck, is not Crl. Appeal No.1133-SB of 2007 13 substantiated through any evidence, and, as such, can be said to be a concocted one. As stated above, the accused miserably failed to rebut the statutory presumption, referred to above. Thus, their conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
16. The next submission of the Counsel for the appellants, was to the effect, that the trial Court, did not take into consideration, the defence version, and the defence evidence, produced by Baldeep Kumar @ Parveen Kumar, and discarded the same, without any rhyme or reason. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The defence version, and the defence evidence produced by Baldeep Kumar @ Parveen Kumar, was duly discussed in para No.10, of its judgment, by the trial Court. The trial Court, held that if the photo of Baldeep Kumar @ Parveen Kumar, appeared in the photograph, nothing suspicious could be found, from the same. The trial Court was also right in holding that separate recovery was effected from other military trucks, and the accused, who were found in possession of poppy-husk, in relation to those trucks, were separately challaned. The trial Court was also right in holding that the recovery effected from the truck, being driven by Baldeep Kumar @ Parveen Kumar, did not have any relation, with the other recovery. The trial Court, was also right in coming to the conclusion, that the judgment, Ex.DA, whereby, Sanjay Maratha and Sanjay Srivastav, accused, the occupants of some other truck, were acquitted, did not have any effect, on the present case. Under these circumstances, it could not be said that the defence version, and Crl. Appeal No.1133-SB of 2007 14 defence evidence, were neither discussed, nor taken into consideration, nor reasons were recorded for discarding the same. The trial Court, in my opinion, was right in not relying upon the defence version, and the defence evidence, produced in support thereof, by holding the same, to be not relevant, to the instant case. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected.
17. No other point, was urged, by the Counsel for the parties.
18. 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, except that the order of substantive sentence, and sentence awarded in default of payment of fine, qua Parveen Kumar (since deceased) shall abate.
19. For the reasons recorded, hereinbefore, the appeal filed by Uttam Singh, appellant, is dismissed. The judgment of conviction, and the order of sentence, qua him, are upheld. If he is on bail, his bail bonds, shall stand cancelled.
20. The judgment of conviction, and the order of sentence of fine, qua Parveen Kumar, are upheld. The order of substantive sentence, and the sentence awarded, in default of payment of fine, qua him, shall abate, on account of his death. In other words, the recovery of fine shall be effected from his estate, if inherited by his legal representatives.
21. The Chief Judicial Magistrate, Patiala, shall take necessary steps, to comply with the judgment, with due promptitude, in accordance with law, and send the compliance report, within a period of three Crl. Appeal No.1133-SB of 2007 15 months, from the date of receipt of a copy thereof.
22. The District and Sessions Judge, Patiala, shall ensure that the directions are complied with, within the time frame, by the Court concerned, and the compliance report is submitted immediately thereafter.
23. 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.
3.11.2008 (SHAM SUNDER) Vimal JUDGE