Punjab-Haryana High Court
Kuldeep Singh S/O Major Singh vs The State Of Punjab on 1 December, 2008
Crl. Appeal No.964-SB of 2008 1
Crl. Appeal No.1056-SB of 2008
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision : 1.12.2008
Crl. Appeal No.964-SB of 2008
Kuldeep Singh S/o Major Singh, ...Appellant
R/o Village Rasulpur, Tehsil Jagraon,
District Ludhiana.
Versus
The State of Punjab ....Respondent
Crl. Appeal No.1056-SB of 2008
Neela Singh S/o Amer Singh ....Appellant
R/o Jhorna, P.S.Raikot,
District Ludhiana.
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. C.L.Verma, Advocate,
for the appellant, in Crl. A. No.964-SB of 2008.
Mr. S.S.Rana, Advocate,
for the appellant, in Crl. A. No.1056-SB of 2008.
Mr. S.S.Bhullar, DAG, Punjab,
for the respondent-State, in both the appeals.
SHAM SUNDER, J.
This judgment shall dispose of Criminal Appeal No.964-SB of Crl. Appeal No.964-SB of 2008 2 Crl. Appeal No.1056-SB of 2008 2008, filed by Kuldeep Singh, and Criminal Appeal No.1056-SB of 2008, filed by Neela Singh, against the judgment of conviction, and the order of sentence dated 5.5.2008, rendered by the Judge, Special Court, Ludhiana, 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 1 year each, for having been found in possession of 15 bags, each containing 30 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 4.10.2001, Gurcharan Singh, SI, alongwith other police officials, was going towards village Manuke, in two official vehicles, in connection with the search of suspected persons, and when the police party was 2 kms. short of village Manuke, one truck, was seen coming from the side of the said village, followed by a car. Gurcharan Singh, SI, gave a signal to the truck, to stop. The truck was stopped by the driver, but the car, made a U-turn. Two persons were apprehended, from the truck. The driver of the truck, disclosed his name as Kuldeep Singh, while the person sitting on the side of the conductor, disclosed his name as Neela Singh. Some bags, were lying in the truck, which on counting came to be 15. Gurcharan Singh, SI, told the accused, that he suspected that these bags, contained some contraband. Option, in terms of Section 50 of the Act, was given to the accused, and the consent memos Exs.PA and PB, were prepared. Darshan Singh, DSP, was called Crl. Appeal No.964-SB of 2008 3 Crl. Appeal No.1056-SB of 2008 to the spot, who reached there. He introduced himself, as a Gazetted Officer, to the accused. He also gave an option to the accused, in terms of Section 50 of the Act. The accused, however, reposed faith in the DSP. The memos, Exs. PC and PD, were prepared, which were thumb marked by the accused, and attested by the prosecution witnesses. On search of 15 bags, referred to above, each was found containing 30 kgs. 500 grams poppy-husk. Two samples of 250 grams each, from each of the bags, were taken out, and the remaining poppy-husk, was put into 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, alongwith the truck. 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 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.
4. The prosecution, in support of its case, examined Karnail Singh, ASI (PW-1), Malkiat Singh, Constable (PW-2), Gurnam Singh, ASI (PW-3), Surinder Kaur, Clerk, DTO Office (PW-4), Devinder Singh, HC (PW-5), Darshan Singh, DSP (PW-6), and Gurcharan Singh, DSP (PW-7) (at the relevant time SI), the Investigating Officer. The Addl. Public Prosecutor for the State, tendered into evidence, report of the Chemical Examiner, Ex.PX. Thereafter, he closed the prosecution Crl. Appeal No.964-SB of 2008 4 Crl. Appeal No.1056-SB of 2008 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. It was denied by them, that 15 bags, containing poppy-husk, were recovered from them. They, however, produced Darshan Singh, Ex- Sapanch (DW-1), Sukhwinder Singh, HC (DW-2), and Kuldeep Singh, HC (DW-3), in their defence. Thereafter, they closed the 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 appeals, were filed by Kuldeep Singh and Neela Singh, appellants.
8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. The Counsel for appellants, at the very outset, submitted that the prosecution miserably failed, to prove that the accused were found in conscious possession of the bags, containing poppy-husk, and, as such, no offence was committed by them. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. It may be stated here, that the police party was going towards village Manuke, in connection with the search of suspected persons, when per chance, the truck aforesaid came, and it was signalled to stop. It was stopped. 15 Crl. Appeal No.964-SB of 2008 5 Crl. Appeal No.1056-SB of 2008 bags, containing poppy-husk, were found lying therein. Both the accused, one of whom, was the driver, were the occupants of the truck. It was not a small quantity of poppy-husk, which was lying in the truck, which could escape the notice of the accused. It was a big haul of poppy- husk, which was lying in the truck, and being carried by the accused, for the purpose of sale, on commercial basis, for minting money. It was within the special means of knowledge of the accused, as to wherefrom, those bags, containing poppy-husk, were loaded, in the truck, and to which destination the same were being taken. They were requied to explain the circumstances, aforesaid, but they failed to do so. 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 that presumption, either during the course of cross-examination of the prosecution witnesses, or by leading defence evidence. The only plea, which was taken up, by the accused, was that they were falsely implicated, in the instant case. 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 Crl. Appeal No.964-SB of 2008 6 Crl. Appeal No.1056-SB of 2008 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."
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 Crl. Appeal No.964-SB of 2008 7 Crl. Appeal No.1056-SB of 2008 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."
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 Crl. Appeal No.964-SB of 2008 8 Crl. Appeal No.1056-SB of 2008 presumption is available to be drawn from possession of illicit articles."
10. 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, but his plea, in this regard, was found to be concocted. 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, 15 bags, containing poppy-husk were found in the truck, which was being driven by one of them. They also failed to prove, as to how, they were found travelling in the truck, which was not meant for carrying passengers, but was only a goods carrier. 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 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 Crl. Appeal No.964-SB of 2008 9 Crl. Appeal No.1056-SB of 2008 stands rejected.
11. The Counsel for the appellants, however, placed reliance on Raj Kumar Vs. State of Punjab 2005(1) RCR (Criminal) 70, Kashmir Singh Vs. State of Punjab 2006(2) RCR (Criminal) 477, Avtar Singh Vs. State of Punjab 2002(4) RCR (Criminal) 180, and Sukhdev Singh and another Vs. State of Punjab 2006(4) RCR (Criminal) 263, in support of their contention, that the appellants were not found in conscious possession of the poppy-husk, aforesaid. In the aforesaid cases, the conscious possession of the appellants, was not proved. Under these circumstances, the Court held that they did not commit any offence, punishable under Section 15 of the Act. In Avtar Singh's case (supra), decided by the Apex Court, it was held that the accused, could at the most, be said to be the abettors. They were, however, not convicted for the offence, punishable under Section 29 of the Act, on the ground, that no charge for abetment, had been framed against them. Thus, the Apex Court, did not hold in Avtar Singh's case (supra), that the accused, did not commit any offence, under the Act. Even, Avtar Singh's case (supra), was duly noticed, and distinguished, on factual matrix, in Megh Singh Vs. State of Punjab, 2003 (4) RCR (Criminal) 319. The other cases relied upon by the Counsel for the appellants, were decided by this Court. In the first instance, the facts of the aforesaid cases, are clearly distinguishable, from the facts of the instant case. Secondly, any principle of law, laid down, in the cases, decided by this Court, and referred to above, which is contrary to the principle of law, laid down, in Madan Lal's case (supra), decided by the Apex Court, shall not hold the field. No help, therefore, can be drawn, by the Counsel for the appellants, from the aforesaid cases. In the instant case, no plea was Crl. Appeal No.964-SB of 2008 10 Crl. Appeal No.1056-SB of 2008 taken up by the driver, that he was carrying the bags, aforesaid, without knowing the contents thereof, as per the command of the owner. No plea was taken up by Neela Singh, that he only took a lift in the truck, as no public transport, was available. He also did not take up the plea that he was merely engaged as a labourer, for loading and unloading the bags, and therefore, he did not know, what was contained therein. They, thus, failed to prove that they were not in conscious possession of the bags, containing poppy-husk. 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 no question was put to the accused, in their statements, recorded under Section 313 Cr.P.C., that they were in conscious possession of the poppy- husk. It may be stated here, that in the statements, under Section 313 Cr.P.C., only the incriminating circumstances, appearing against the accused, in the prosecution evidence, are required to be put. There is no provision, in the Code of Criminal Procedure, that in the statements, under Section 313 Cr.P.C. either the provisions of law, or the presumption, obtaining under the provisions of law, should also be put to the accused. The accused were, however, put a specific question, that one of them, was the driver of the truck, and the other was sitting in the said truck, in which 15 bags, containing poppy-husk, were lying. They were, thus, made aware that they were in possession of, and in control over the bags, containing poppy-husk, lying in the truck. Once their possession was proved, the presumption under the aforesaid provisions of law, operated against them, that they were in conscious possession thereof. In this view of the matter, the submission of the Counsel for the Crl. Appeal No.964-SB of 2008 11 Crl. Appeal No.1056-SB of 2008 appellants, being without merit, must fail, and the same stands rejected.
13. The Counsel for the appellants, however, placed reliance on Kashmir Singh's case (supra). In Kashmir Singh's case (supra), it was held by this Court, that before the presumption, under Sections 54 and 35 of the Act, is attracted, to a particular case, the accused must be afforded an opportunity to rebut the same. In the instant case, charge was framed against the accused. They were made aware, that they were found in conscious possession of 15 bags, containing poppy-husk. They were afforded an opportunity, to cross-examine the prosecution witnesses. They cross-examined the prosecution witnesses. Thereafter, the statements of the accused, under Section 313 Cr.P.C., were recorded, wherein, they were made aware, that they were found in possession of 15 bags, containing poppy-husk. They were also afforded an opportunity to lead defence evidence. They led defence evidence. Under these circumstances, it could be said that full opportunity was granted, to the accused, to rebut the statutory presumption, operating against them, under the aforesaid provisions of law. No help, therefore, can be drawn, by the counsel for the appellants, from the aforesaid 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.
14. It was next submitted by the Counsel for the appellants, that no special report, as envisaged, by the provisions of Section 57 of the Act, was sent by the Investigating Officer, to the Officer superior, and, as such, a great prejudice was caused to the appellants. The submission of the Counsel for the appellants, in this regard, also does not appear to be correct. According to Section 57 of the Act, the Investigating Officer Crl. Appeal No.964-SB of 2008 12 Crl. Appeal No.1056-SB of 2008 was required to send the information, with regard to the search and seizure to the Officer superior, within 48 hours from the time of recovery. In the instant case, at the spot itself, the ruqa, containing the complete details of search and seizure, was prepared, and sent to the Police Station, on the basis whereof, the FIR was registered. Thereafter, the copies of the FIR, by way of special reports, were sent to the Illaqa Magistrate, as also the superior Officers. In this view of the matter, there being complete compliance of the provisions of Section 57 of the Act, the submission of the Counsel for the appellants, being without merit, must fail and the same stands rejected.
15. It was next submitted by the Counsel for the appellants, that Form No.29, was not filled up, at the spot, but it was prepared on 12.10.2001, in the Police Station. They further submitted that this caused a great prejudice to the accused. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. There is no requirement of the Act,or the Rules framed, thereunder, that Form No.29, should be prepared at the spot. It is required to be prepared, for the purpose of sending the same alongwith the sample parcels, to the office of the Chemical Examiner. Had there been any requirement of law, to prepare such a document, at the spot, and had the same been not prepared, it would have been said that there was some merit, in the argument of the Counsel for the appellants. No prejudice, was shown to have been caused, to the accused, on account of non-preparation of the said form, at the spot. The Counsel for the appellants, however, placed reliance on Kaur Singh Vs. State of Punjab 2007(2) RCR (Criminal) 630, in support of their contention. The perusal of the facts of the aforesaid case, reveals Crl. Appeal No.964-SB of 2008 13 Crl. Appeal No.1056-SB of 2008 that the appellant was acquitted therein, on a number of grounds. Recovery in that case was effected from the land and kotha, which were not proved to be the ownership of the accused; no independent witness was examined, no intimation was sent to any superior Officer, after recovery; the samples were sent to the Forensic Science Laboratory, after a delay of 7 days, and no evidence was produced, that none tampered with the same, until the same reached the Laboratory; the sample seal was given to an ASI of police party, but he was not examined; no evidence was produced that the seal remained with the said ASI, until the sample was sent to the Forensic Science Laboratory; and form No.29 had not been prepared, at the spot. Taking into consideration, all these factors, the appellant, was, ultimately, acquitted. In the instant case, it was a truck, in which the bags, containing poppy-husk, were being carried, by the accused. It was for them, to explain, as to how the bags, were found therein, but they failed to do so. There is nothing, on the record, that independent witnesses were not intentionally or deliberately joined. Intimation to the superior Officer, in this case, was sent from the spot itself. No doubt, there was delay, in sending the sample, to the Laboratory, as would be discussed, in the subsequent paragraphs, but sufficient evidence was led by the prosecution, to prove that none tampered with the sample parcels, until the same reached the office of the Chemical Examiner. The facts of the instant case, being distinguishable from the facts of the aforesaid authority, no help can be drawn, by the Counsel for the appellants, therefrom. Even no prejudice was shown to have been caused to the appellants, on account of non-preparation of form No.29, at the spot. The submission of the Counsel for the Crl. Appeal No.964-SB of 2008 14 Crl. Appeal No.1056-SB of 2008 appellants, being without merit, must fail, and the same stands rejected.
16. It was next submitted by the Counsel for the appellants, that there was a delay of 7 days, in sending the samples, to the office of the Chemical Examiner, whereas, according to law, it should have been sent, within 72 hours. They further submitted that the possibility of tampering with the sample parcels, until the same reached the office of the Chemical Examiner, could not be ruled out. They also placed reliance on Ramji Singh Vs. State of Haryana 2007(3) RCR (Criminal) 452, in support of their contention. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The mere fact that delay, in sending the samples, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcels were tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the prosecution, to complete the link evidence. The other evidence, produced by the prosecution, has been subjected to indepth scrutiny, it has been found to be cogent, convincing, reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcels, until the same reached the office of the Forensic Science Laboratory. Above all, there is report of the Forensic Science Laboratory, Ex.PZ, which clearly proves that the seals on the parcels, were found intact, and tallied with the specimen seals sent. The report of the Chemical Examiner is per-se admissible into evidence, in its entirety, as per the provisions of Section 293 Cr.P.C. The delay, in sending the samples, to the office of the Chemical Examiner, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, Crl. Appeal No.964-SB of 2008 15 Crl. Appeal No.1056-SB of 2008 been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the chemical Examiner, the matter would have been different. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the sample to the Laboratory is not fatal, where there is evidence that the seized articles remained in safe custody. In Narinder Singh @ Nindi Vs. State of Punjab 2005(3) RCR (Criminal) 343, which was a case, relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the samples were intact. In these circumstances, it was held that, in the face of the other cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of tampering with the samples, could not be ruled out. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 7 days, in sending the samples to the office of the Chemical Examiner, did not at all matter much. The facts of Ramji Singh's case (supra), are distinguishable, from the facts of the instant case, as no other evidence was produced in that case, that the sample parcels, remained untampered with, until the same reached the Laboratory. Even otherwise, there is no requirement of law, that the samples, should be sent within 72 hours of the recovery. If there are any instructions of the Department, that have got no force of law. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
Crl. Appeal No.964-SB of 2008 16Crl. Appeal No.1056-SB of 2008
17. It was next submitted by the Counsel for the appellants, that no independent witness was joined, at the time of the alleged recovery, and, as such, the case of the prosecution became doubtful. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. It may be stated here, that there was no secret information, against the accused. The police party had set out in search of suspected persons, where per chance the truck, in question, came, and was stopped. On search of the truck, 15 bags, containing poppy-husk, were recovered. Gurcharan Singh, DSP (PW-7) (at the relevant time SI), the Investigating Officer, during the course of his cross-examination, stated that, on the way, some independent witnesses, met them, but he did not make any attempt to join them. There was no occassion, on the part of Gurcharan Singh, SI, to join any independent witness, on the way, as he had no secret information, against the accused. There is nothing, on the record, that at the time of effecting the recovery, any independent witness, was present, but he was not intentionally or deliberately joined. However, Gurcharan Singh, DSP (PW-7) (at the relevant time SI), the Investigating Officer, stated that he asked the Constable, who was sent to bring the scale and weights, to bring the Sarpanch or Numberdar, from Village Manuke, but none accompanied him. Had a secret information been received, against the accused, non-joining of an independent witness, at the time of effecting the recovery, would have certainly cast a doubt, on the prosecution story. The mere fact that no independent witness was joined, in itself, was not sufficient to disbelieve the case of the prosecution. In the face of the evidence of the official witnesses only, the Court is required to scrutinize the same, carefully and cautiously. After Crl. Appeal No.964-SB of 2008 17 Crl. Appeal No.1056-SB of 2008 careful and cautious scrutiny, if the Court comes to the conclusion, that the same does not suffer from any serious infirmity, the same can be believed. The evidence of the official witnesses, in the instant case, has been subjected to indepth scrutiny, and nothing came to the fore, which may go to discredit the same. In Akmal Ahmed Vs. State of Delhi, 1999 (2) RCC 297 (S.C.), it was held that, it is now well-settled, that the evidence of search or seizure, made by the police, will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi Vs. Sunil (2000)I S.C.C. 748, it was held as under:-
"It is an archaic notion that actions of the Police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature."
18. 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 the prosecution. It was further held, in the said authority, that the civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victims' side, and from the side of the vigilant. They keep themselves away from the Courts, unless Crl. Appeal No.964-SB of 2008 18 Crl. Appeal No.1056-SB of 2008 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 aforesaid authorities, is fully applicable to the facts of the present case. In these circumstances, mere non-joining of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part, to falsely implicate the accused, no doubt, is cast on the prosecution story. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected.
19. The Counsel for the appellants, however, placed reliance on State of Punjab Vs. Jalaur Singh 2002(3) RCR (Criminal) 478, in support of his contention, that, in case, no independent witness is joined, despite availability, adverse inference, could be drawn, against the prosecution. The facts of the aforesaid authority, are clearly distinguishable, from the facts of the present case. In that case, recovery of poppy-husk, was effected at a thoroughfare. Though independent witnesses, were available, yet they were not joined. The provisions of Section 100 of the Cr.P.C., were also not complied with. Keeping in view the peculiar facts and circumstances of the case, the appellant was acquitted. In view of the principle of law, laid down, in Akmal Ahmed's, State of NCT's and Appa Bai's cases (supra), any principle of law, laid down, to the contrary in Jalaur Singh's case (supra), decided by this Court, shall not hold the field. The provisions of Section 100 of the Cr.P.C., in my opinion, were not applicable, in the instant case. In this view of the matter, no help can be drawn, by the Counsel for the Crl. Appeal No.964-SB of 2008 19 Crl. Appeal No.1056-SB of 2008 appellants, from the aforesaid case. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected.
20. It was next submitted by the Counsel for the appellants, that the case property was not connected with this case, in as much as Karnail Singh, ASI (PW-1), during the course of his cross-examination, stated that some of seals, on the case property were lying broken, and were not clearly matching with the seals affixed. It was further submitted that the prosecution, could not prove beyond doubt, that the case property produced in the Court, was the same, as was allegedly recovered from the accused. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. It may be stated here, that the recovery, in this case, was effected, on 5.10.2001, whereas, Gurcharan Singh, DSP (PW-7) (at the relevant time SI), the Investigating Officer, was examined in the Court on 8.3.2007 i.e. after a period of about 6 years. The case property remained lying in the malkhana, for all these years. It is a matter of common experience, that the case property of so many cases, are stacked in the malkhana. On account of insufficient space, in the malkhana, it is not at all possible to properly stack the case property of all the cases. If due to mis-handling of the case property, or during the course of transit, or on account of natural decay, the seals on some of the bags, stood broken, and the chits, containing the particulars of the case, on some of the bags, got removed, that did not mean, that the case property was not connected with the instant case. The only obligation, upon the prosecution was to produce the case property, and to get it identified, from the prosecution witnesses. In the instant case, the case Crl. Appeal No.964-SB of 2008 20 Crl. Appeal No.1056-SB of 2008 property was produced, in the Court, and the same was identified by the prosecution witnesses, as the one, as was recovered from the accused. In State of Rajasthan Vs. Udai Lal 2008(2) RCR (Criminal) 956 (S.C.), as many as 119 bags, containing poppy-husk, were recovered, from the accused. At the time of trial only 5 bags, out of 119 bags, of poppy-husk, were produced, in the Court. The trial Court, convicted and sentenced the accused, for the offence, punishable under Section 15 of the Act, whereas, in appeal, the High Court acquitted the appellant/accused. However, the Apex Court, in the appeal, set aside the judgment of the High Court, and restored that of the trial Court. As stated above, the case property, stood duly connected with the instant case. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
21. The Counsel for the appellants, however, placed reliance on Sarabjit Singh @ Sarba Vs. State of Punjab 1998(1) RCR (Criminal) 348, in support of his contention, that the case property, did not stand connected with the instant case. The facts of the aforesaid case, are clearly distinguishable, from the facts of the instant case. In that case, the appellant was acquitted, on a number of grounds viz. the disclosure statement, under Section 27 of the Act, made by the accused, was not held to be admissible, as per the provisions of law; the alleged recovery of poppy-husk effected, was from a joint field, possessed by the accused, his brothers, and father, which were accessible to all and sundry; there was no evidence, that the poppy-husk, was lying concealed; the only witness to the recovery was not examined, being won over; the mandatory provisions of Section 50 of the Act, were not complied with; Crl. Appeal No.964-SB of 2008 21 Crl. Appeal No.1056-SB of 2008 and that the seals, on the case property, were not decipherable. In the instant case, when the case property was produced, in the Court, it was duly identified by the prosecution witnesses, as the same, as was recovered from the accused. Even otherwise, the facts of Sarabjit Singh's case (supra), being distinguishable, no help can be drawn by the Counsel for the appellants, therefrom. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
22. It was next submitted by the Counsel for the appellants, that the link evidence, in this case, was incomplete, and, as such, the case of the prosecution became doubtful. He further submitted that according to Ex.PN, affidavit of Devinder Singh, HC, (PW-5), the case property was deposited in the malkhana, by ASI Gurnam Singh, whereas, Gurnam Singh, ASI (PW-3), stated that he handed over the case property to Gurcharan Singh, SI, for depositing the same, with the MHC. Gurcharan Singh, SI (PW-7), stated that he himself deposited the case property with the MHC. They further submitted that, in view of the contradictory statements of these witnesses, it could not be said, as to who deposited the case property with the MHC, and, as such, the link in the chain of the prosecution evidence, became incomplete. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Gurcharan Singh, DSP (PW-7) (at the relevant time SI), the Investigating Offier, in his statement stated that on reaching the Police Station, he produced the case property, before Gurnam Singh, ASI, who was acting as SHO, P.S. Jagraon, alongwith the accused, who verified it, and then sealed the same. He also stated that it was Gurnam Singh, ASI, who Crl. Appeal No.964-SB of 2008 22 Crl. Appeal No.1056-SB of 2008 himself deposited the case property with Devinder Singh, MHC. Ex.PN, affidavit of Devinder Singh, MHC, is also to the same effect. No doubt, Gurnam Singh, ASI (PW-3), stated that it was Gurcharan Singh, DSP (PW-7) (at the relevant time SI), the Investigating Offier, who deposited the case property with the MHC. There was certainly some contradiction, in the statements of Gurnam Singh, ASI (PW-3) and Gurcharan Singh, DSP (PW-7) (at the relevant time SI), and Devinder Singh, HC (PW-5), as to who deposited the case property. However, one fact is proved from the report of the Chemical Examiner, Ex.PZ, that the sample parcels, were received with seals intact, and the seals thereon tallied with the sample seal impressions. The report of the Chemical Examiner is per se admissible, under Section 293 Cr.P.C., in toto. No challenge, to this report, was made by the Counsel for the appellants. Once the case property, was received in the office of the Chemical Examiner, with seals intact, it could not be said that there was any tampering with the same, in any manner, at any stage. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
23. It was next submitted by the Counsel for the appellants, that a number of contradictions, occurred in the statements of the prosecution witnesses, which remained unexplained, and, as such, the case of the prosecution became doubtful. Karnail Singh, ASI (PW-1), stated that the entire writing work was done by Bakhshish Singh, ASI, on the dictation of Gurcharan Singh, SI, while sitting in the gypsy, whereas, Gurcharan Singh, DSP (PW-7), at the relevant time SI, stated that the writing work was done by Karnail Singh, ASI, Bakhshish Singh, ASI, and Karam Crl. Appeal No.964-SB of 2008 23 Crl. Appeal No.1056-SB of 2008 Singh, HC. Darshan Singh, DSP (PW-6), stated that the writing work was started at about 5.15/5.30 AM, which was done by one ASI, whose name he did not remember, in the light of the vehicle, and search light. He also stated that it was done, while sitting on the ground. These discrepancies are minor in nature. The same, being not material, and significant, did not cast any dent, in the prosecution case. Such like discrepancies, and contradictions, are bound to crop up, in the statements of the prosecution witnesses, after the lapse of time, and on account of fading of memory. However, all the prosecution witnesses, were unanimous in so far as the arrest of the accused, his search and seizure, were concerned. The aforesaid contradictions clearly go to prove that the prosecution witnesses, are truthful and not tutored. They could not be expected to make parrot-like statements. The trial Court was, thus, right in ignoring the insignificant contradictions, occurring in the statements of the prosecution witnesses, referred to above. The case of the prosecution, did not, therefore, become doubtful, on account of the aforesaid contradictions. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
24. No other point, was urged, by the Counsel for the parties.
25. 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, and are liable to be upheld.
26. For the reasons recorded, hereinbefore, both the appeals, referred to hereinbefore, are dismissed. The judgment of conviction, and the order of sentence dated 5.5.2008, are upheld. If the appellants are on Crl. Appeal No.964-SB of 2008 24 Crl. Appeal No.1056-SB of 2008 bail, their bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Ludhiana, 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.
27. 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, within 2 months, from the date of receipt of a copy of the judgement, and submit compliance report immediately, thereafter.
28. The District and Sessions Judge, Ludhiana, shall ensure that the directions are complied with, within the time frame, and the compliance report is submitted immediately thereafter.
29. 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.
1.12.2008 (SHAM SUNDER) Vimal JUDGE