Punjab-Haryana High Court
Jaswinder Kumar vs State Of Punjab on 5 August, 2013
Author: Inderjit Singh
Bench: Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(i) Crl. Appeal No.S-1642-SB of 2010
Date of Decision: August 05, 2013
Jaswinder Kumar
...Appellant
VERSUS
State of Punjab
...Respondent
(ii) Crl. Appeal No.S-1859-SB of 2010
Sucha Ram and another
...Appellants
VERSUS
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.H.S.Rakhra, Advocate
for the appellant (in CRA No.S-1642-SB of 2010)
Mr.N.S.Rapri , Advocate/Legal Aid Counsel,
for the appellants
(in CRA No.S-1859-SB of 2010)
Mr.Yogesh Gupta, Asstt. Advocate General, Punjab
for the respondent-State.
****
INDERJIT SINGH, J.
This judgment shall dispose of two connected criminal appeals i.e. CRA No.S-1642-SB of 2010 and CRA No.S-1859-SB of 2010 arising out of the same judgment of conviction and order of sentence dated 05.06.2010 passed by learned Judge, Special Court, S.B.S.Nagar, whereby all the appellants 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 Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1642-SB of 2010 and connected appeal -2- in default of payment of fine, to further undergo rigorous imprisonment for a period of two years each under Section 15 of Narcotic Drugs and Psychotropic Substances, Act 1985.
The brief facts of the prosecution case are that on 24.12.2007, SI Hardip Kumar along with other police officials was present at bus-stand, Malpur, where he received secret information that three persons are present in a truck, which is coming/going towards Jabbowal and if a nakabandi is laid, poppy husk can be recovered. Then a naka was laid. Avtar Singh independent witness was also joined in the police party. In the meantime, a truck was seen coming from the side of village Naura and the driver was given signal to stop the truck with the help of torch. The driver of the truck suddenly applied brakes and Investigating Officer along with other police officials encircled the truck. The driver tried to slip away from driver's side but was apprehended, likewise another person also tried to slip away from cleaner's side but he was apprehended and the third person, who was sitting on the bags in the body of the truck also tried to slip away but was apprehended. The driver of the truck was Sucha Ram. The person who was sitting with him on cleaner's side disclosed his name as Gurvidner Singh alias Ladi and third person disclosed his name as Jaswinder Kumar. An offer was given to the accused and they opted to get the search conducted in the presence of Gazetted Officer. Then, DSP Narinder Kumar Bedi was requested and he reached the spot. In his presence, search was conducted by Investigating Officer and 12 bags containing poppy husk were Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1642-SB of 2010 and connected appeal -3- recovered. Sample of 250 gms. of poppy husk from each bag was separated and remaining contents on weighment came to 31.750 kgs. in each bag. The case property and the samples were sealed by the Investigating Officer with his seal bearing impression "HK" and DSP also affixed his seal bearing impression "NB". Sample seal impressions were also prepared. Case property was taken into police possession vide recovery memo Ex.PW5/G. Rough site plan Ex.PW6/A was prepared. Accused were arrested. Ruqa Ex.PW6/B was sent to the police station, on the basis of FIR Ex.PW5/C was registered. Statements of witnesses were recorded. When the police party was coming back to the police station, SHO Surinder Pal Singh met them on the railway crossing, Nawanshahar. He verified the investigation and also put his seal bearing impression "SS" on the samples and case property. The case property and accused were produced before the Illaqa Magistrate, Nawanshahar, who passed order Ex.PW6/F. 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 which they pleaded not guilty and claimed trial.
In support of its case, prosecution examined PW-1 ASI Surinder Singh, who mainly deposed regarding investigation partly conducted by him in the present case and regarding recording of Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1642-SB of 2010 and connected appeal -4- statements of MHC Prem Lal and HC Jagtar Singh and he also filed application before DTO to enquire about the ownership of the truck. PW-2 Kuldip Singh, Clerk office of DTO Hoshiarpur mainly deposed that truck bearing No.PB-07C-5694 is in the name of Paramjit Singh and deposed regarding the endorsement made by Amarjit Kaur. PW- 3 Head Constable Prem Lal, is a formal witness, who tendered into evidence his affidavit Ex.PW3/A. PW-4 Head Constable Jagtar Singh, is also a formal witness, who tendered into evidence his affidavit Ex.PW4/A. PW-5 SI Varinder Kumar deposed regarding recovery of poppy husk from the accused as per prosecution version. He has joined in the police party headed by SI Hardip Kumar on 24.12.2007. PW-6 SI Hardip Kumar, is the Investigating Officer. He mainly deposed regarding investigation conducted by him in the present case and also regarding recovery from the accused. PW-7 Surinder Mohan Sharma, Junior Asstt. DTO Office, Nawanshahar mainly brought the record of driving licence of accused Sucha Ram. PW-8 DSP Narinder Kumar Bedi mainly deposed regarding recovery of poppy husk from the accused in his presence and also deposed as per prosecution version. PW-9 Vijay Kumar, Civil Ahlmad deposed regarding order Ex.PW6/F passed by SDJM, Nawanshahar. PW-10 SI Surinder Pal Singh mainly deposed that case property was produced before him and deposed that he also verified the investigation.
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. Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1642-SB of 2010 and connected appeal -5- Accused-appellant Sucha Ram pleaded that he was picked up from his house at village Jabbowal on 23.12.2007 in the night time and a false case has been registered against him. He and other accused were implicated at the instance of one Paramjit of Magowal as there was some dispute regarding ownership of the truck between Paramjit and some other person. Earlier he was implicated by the same Investigating Officer in other case and he was acquitted in that case.
Accused-appellant Gurvinder Singh also took the same plea that he has been picked up from his house in the night on 23.12.2007. He further pleaded that he and other accused have moved application to Human Rights Commission against CIA Staff, Nawanshahar.
Accused Jaswinder Kumar has also taken the same plea. In defence, accused-appellants examined DW-1 Hussan Lal, Sarpanch, who stated that police officials reached the house of Sucha Ram and took him with them. DW-2 Davinder Singh Bains deposed that he knows Jaswinder Singh. There was some dispute involving a truck, which in fact belongs to Paramjit Singh, to whom, he also knows personally and the truck was involved in some case earlier with a party of village Jabbowal. DW-3 Head Constable Sukhwinder Singh mainly brought roznamcha register and deposed regarding entries.
On the basis of the evidence produced by the prosecution, accused-appellants were convicted and sentenced under Sections 15 of the NDPS Act, as stated above, by the learned Judge, Special Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1642-SB of 2010 and connected appeal -6- Court, S.B.S.Nagar.
At the time of arguments, learned counsel for the appellants argued that there is no compliance of Section 42 of the NDPS Act as the Investigating Officer was having secret information in this case. They further argued that Avtar Singh, independent witness has not been examined and was given up by the learned Public Prosecutor. Learned counsel for the appellants next argued that conscious possession of the appellants has not been proved. They further contended that defence version is more probable as the accused were lifted by the police from their houses and a false case has been planted upon them. Learned counsel for the appellants further argued that on CFSL form, specimen seal was not affixed. They next argued that the owner of the truck was not interrogated in the present case. Learned counsel for the appellants further argued that seals were found broken when the case property was produced in the Court. Learned counsel for the appellants further contended that the Investigating Officer in cross-examination has stated that he does not know when police party started and how many members were there in the police party etc., which creates doubt in the prosecution version. They, therefore, argued that there being merit, both the appeals should be accepted and accused-appellants should be acquitted.
On the other hand, learned Asstt. Advocate General, Punjab for the respondent-State has argued that PWs have consistently deposed regarding recovery from the accused-appellants. Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1642-SB of 2010 and connected appeal -7- All the appellants were found in possession of the incriminating article as they were in the truck. He further argued that there was specific information that three persons were in the truck. He next argued that it is to be shown by the accused-appellants as to how they were not in the conscious possession as these facts were specially within their knowledge. The conduct of the accused-appellants to run away when the truck was stopped, itself shows that they were knowing about the incriminating article in the truck. Learned State counsel further contended that Section 43 of the NDPS Act will apply in the present case, therefore, there was no need to comply with the provisions of Section 42 of the NDPS Act. He next argued that link evidence is complete. CFSL form was prepared on the spot. The mere fact that owner of the truck was not interrogated, will not create any doubt. The discrepancies pointed out by the learned counsel for the appellants in the statements are minor in nature. Defence version is not believable. Learned State counsel, therefore, argued that there being no merit, both the appeals 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 learned counsel for the appellants. First of all, in the present case, recovery has been effected from the truck, which was in transit on a public road. Therefore, Section 42 of the NDPS Act will not apply in the present case. Rather, Section 43 of the NDPS Act will Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1642-SB of 2010 and connected appeal -8- apply in the present case as has been held by a five-Judges Bench of Hon'ble the Supreme Court in 'Karnail Singh v. State of Haryana' (2009) 5 RCR (Crl.) 515 as under:
"12) The material difference between the provisions of Sections 42 and 43 is that Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful."
As regarding conscious possession, I find that recovery was effected from the truck. Appellant Sucha Ram was driving the truck and appellant Gurvinder Singh was sitting with him on the cleaner side whereas appellant Jaswinder Singh was sitting on the bags in the body of the truck. PWs have consistently deposed regarding the same and when the police party had signalled the truck to stop, all of three tried to slip away but they were apprehended by the police. Therefore, their conduct itself shows that they were in the knowledge that there were narcotics in the bags, which were in the body of the truck. Otherwise also, there was no need to try to slip away. Otherwise also, the prosecution is to prove only the physical possession as per law laid down by the Hon'ble Supreme Court in Megh Singh Vs. State of Punjab 2003(4) R.C.R. (Criminal) 319, wherein it is 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 Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1642-SB of 2010 and connected appeal -9- 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 also 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 which assumes different colours in different contexts. It 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 Gulati Vineet 1972 SC 1756) possession in a given case need not be 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1642-SB of 2010 and connected appeal -10- 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 appellants is duly proved. Therefore, it was for the accused- appellants to explain as to how they were not in conscious possession as these facts were especially within their knowledge.
Further, I find that the defence version of the appellants is not believable. There is no document to support the defence version. The oral statements of the witnesses at the defence stage without any corroboration from the documents on record, cannot be believed. Such type of witnesses can be produced at any time. It is in the statement of accused that application was sent to Human Rights Commission against CIA Staff but there are no particulars given of that application nor that application has been proved on the record. Similarly, there is no document on record to prove the earlier FIR and under which Section that FIR was registered against accused- Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1642-SB of 2010 and connected appeal -11- appellant Sucha Ram. There is also no cogent evidence on record to show that what was the dispute regarding the ownership of the truck and between whom and why the present accused have been falsely implicated in the present case. Therefore, defence version is not believable.
Further, I find that independent witness Avtar Singh was joined in the police party but he was given up by the learned Public Prosecutor being won over. It is for the Public Prosecutor to examine or not to examine the witness who was not supporting the prosecution version. Therefore, on this ground also no reasonable doubt exists in the prosecution version. Link evidence is complete in the present case.
As regarding the argument that seals were found broken at the time of production of the case property in the Court, I find that it will not create any doubt in the prosecution version. The case property is a corroborative piece of evidence and even non-production of case property is not fatal to the prosecution version. Otherwise also, PWs have deposed that they have not tampered with the samples and the case property nor they allowed anybody to tamper with the same. The mere fact that sample seal was not affixed on the CFSL form, will also not create any doubt. Specimen seal slips were prepared on the spot. It is also in the evidence that CFSL form was also prepared on the spot. So, on this ground also, no reasonable doubt exists in the prosecution case.
The Investigating Officer has proved the ownership of the Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1642-SB of 2010 and connected appeal -12- truck, which belonged to one Paramjit Singh. It is for the Investigating Officer to challan or not to challan the owner of the truck. If the owner was not found abetting the offence, then it was for the Investigating Officer not to challan him. So, on this ground also no reasonable doubt exists.
Further, I find that the discrepancies pointed out are minor in nature. No material contradictions or material improvements have been pointed out. Such type of minor discrepancies can occur in the statements of witnesses due to gap of time.
Therefore, from the above discussion, I find that PWs have consistently deposed regarding recovery of poppy husk from the accused. There is nothing in their cross-examination which may make their statements unreliable. There are no material contradictions or material improvements in their statements which may go to the root of the case. Defence version is not believable. All the mandatory provisions of the NDPS Act have been complied with. The prosecution has duly proved its case against accused-appellants by leading cogent evidence beyond reasonable doubt.
Therefore, I find that the judgment of conviction and order of sentence passed by learned Judge, Special Court, S.B.S.Nagar are correct and as per law and the same are upheld.
Resultant, both the appeals i.e. CRA No.S-1642-SB of 2010 filed by Jaswinder Kumar and CRA No.S-1859-SB of 2010 filed by Sucha Ram and Gurvinder Singh stand dismissed.
As appellants Jaswinder Kumar and Sucha Ram are on Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1642-SB of 2010 and connected appeal -13- bail, their bail bonds stand cancelled and they are directed to surrender themselves before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against them in accordance with law.
(INDERJIT SINGH)
August 05, 2013 JUDGE
Vgulati
Gulati Vineet
2013.08.29 10:20
I attest to the accuracy and
integrity of this document
Chandigarh