Punjab-Haryana High Court
Kulwant Singh Son Of Surjan Singh Son Of ... vs State Of Punjab on 26 April, 2010
Criminal Appeal No. 894-SB of 2004 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 894-SB of 2004
Date of Decision: 26.04.2010
1. Kulwant Singh son of Surjan Singh son of Dulla Ram, aged
24 years, r/o village Talwandi Butian, P.S. Shahkot, Distt.
Jalandhar.
2. Rakesh Kumar son of Om Parkash son of Jit Ram, aged 22
years;
3. Kamaljit son of Balbir Chand son of Mohan Lal, aged 19
years;
both residents of village Bashesharpur, P.S. Lambra, Distt.
Jalandhar.
... Appellants
Versus
State of Punjab.
...Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. D. N. Ganeriwala, Advocate,
for Rakesh Kumar, appellant.
Mr. K.S. Yadav, Advocate, Amicus Curiae,
for Kulwant Singh and Kamaljit, appellants.
Mr. T.S. Salana, Deputy Advocate General, Punjab,
for the respondent - State.
SHAM SUNDER, J.
**** This appeal is directed against the judgment of conviction and the order of sentence, dated 11.03.04, rendered by the Judge, Special Court, Jalandhar, vide which, he convicted the accused Criminal Appeal No. 894-SB of 2004 2 (now appellants), for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only), and sentenced them to undergo Rigorous Imprisonment, for a period of 10 years each, and, to pay a fine of Rs. 1 lac each, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of 06 months each, for having been found in possession of 280 kgs poppy husk, without any permit or licence, falling within the ambit of commercial quantity.
2. The facts, in brief, are that, on 08.11.02, Pritam Singh, Sub Inspector/Incharge, Police Station Shahkot, Jalandhar, alongwith Opinder Kumar, Sub Inspector, and some other Police officials, as also one Ram Singh son of Chanan Singh, independent witness, was holding a picket, at Dhusi Band, on the main road, leading from Shahkot to Dharamkot. After sometime, a tempo traveller, bearing registration No. PB-01-2469, was seen coming, from the side of Dharam Kot towards Shahkot. It was signalled to stop. The driver of the tempo traveller tried to speed away, but, was overpowered on suspicion. On inquiry, he disclosed his name, as Rakesh Kumar. Kamaljit Singh, accused, was found sitting by the side of the driver seat, whereas, Kulwant Singh @ Kanda, was found sitting, on a seat, behind the driver seat. Thereafter, Pritam Singh, Sub Inspector, apprised the accused, that he suspected some contraband, in the tempo traveller, and wanted to search the same. Consequently, on search of the tempo traveller, in the presence of Sarwan Singh, Deputy Criminal Appeal No. 894-SB of 2004 3 Superintendent of Police, who was called to the spot, eight gunny bags, each containing 35 kgs poppy husk, were recovered. A sample of 250 gms, from each bag, was separated, 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 alongwith the tempo traveller, vide a separate recovery memo. The personal search of Rakesh Kumar, accused, led to the recovery of Rs. 1100/-, in cash, and a wrist watch, whereas, from the personal search of Kulwant Singh, accused, one mobile phone, Rs. 1495/-, in cash, one watch, and a purse, were recovered, which were taken into possession, vide a separate recovery memo. However, from the personal search of Kamaljit, accused, nothing was recovered. Site plan of the place of recovery was prepared. Ruqa was sent to the Police Station, on the basis whereof, the first information report was registered. The accused were arrested. After the completion of investigation, they were challaned.
3. On their appearance, in the Court, the accused, were supplied the copies of documents, relied upon by the prosecution.
4. Charge under Section 15 of the Act, was framed, against the accused, which was read-over and explained to them, to which, they pleaded not guilty, and claimed judicial trial.
5. The prosecution, in support of its case, examined Sukhjit Singh, Moharrir Head Constable (PW1), Manjit Singh, Constable (PW2), Opinder Kumar, Sub Inspector (PW3), Vijay Kumar, Senior Criminal Appeal No. 894-SB of 2004 4 Assistant, office of the State Transport Authority, Punjab, Chandigarh (PW4), Pritam Singh, Sub Inspector (PW5), Investigating Officer, and, Sarwan Singh Dhillon, Deputy Superintendent of Police (PW6), witness to the recovery. Thereafter, the prosecution evidence was closed.
6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was stated by them that, no recovery, was effected, from them. It was further stated by them that, the Police, had detained their tempo traveller for begar. It was further stated by them that, the Police, was not returning the above said vehicle, and, there was a quarrel, on that account. It was further stated by them that, the Police, had registered a false case against them. They, however, did not lead any evidence, in defence, and closed the same.
7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above .
8. Feeling aggrieved, the instant appeal, has been filed by the appellants.
9. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
10. The Counsel for the appellants, at the very outset submitted that, though, independent witness namely Ram Singh son of Chanan Criminal Appeal No. 894-SB of 2004 5 Singh, was joined, yet, he was not examined, as a result whereof, the case of the prosecution, solely based, on the evidence of the official witnesses, became highly doubtful. It is, no doubt, true that, Ram Singh, independent witness, was joined, at the time of the alleged recovery, but, he was not examined, by the Additional Public Prosecutor, for the State, as he thought, that the evidence of the other prosecution witnesses, produced by him, was sufficient, to prove the case of the prosecution. It is not necessary for the Additional Public Prosecutor, for the State, to examine each and every witness, cited in the list of witnesses, thereby multiplying the number thereof, to prove a particular point. In this case, the statements of Pritam Singh, Sub Inspector, PW5, the Investigating Officer, Opinder Kumar, Sub Inspector, PW3, a witness to the recovery, and, Sarwan Singh Dhillon, Deputy Superintendent of Police, PW6, another witness to the recovery, had been recorded. The statements of these witnesses, were considered, by the Additional Public Prosecutor, for the State, to be sufficient, to unfold the case of the prosecution. In these circumstances, non-examination of Ram Singh, independent witness, neither caused any prejudice, to the accused, nor did it cause any dent, in the prosecution story. 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 Criminal Appeal No. 894-SB of 2004 6 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."
11. 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 case, 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 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 cases, is fully applicable to the facts of the present case. In these circumstances, mere non-examination of an independent witness, when the evidence of the other prosecution witnesses, is 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.
12. It was next submitted by the Counsel for the appellants, that CFSL Form, was not prepared, at the spot, and, as such, the possibility of tampering with the samples, until the same reached the office of the Criminal Appeal No. 894-SB of 2004 7 Chemical Examiner, could not be ruled out. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. There is no provision of law, that CFSL Form, should be prepared, at the spot. The CFSL Form, is required, to be sent alongwith the sample parcels. It was prepared, at that time, as is evident, from the report of the Chemical Examiner. The other evidence, produced by the prosecution, clearly proved that, none tampered with the sample parcels, until the same remained, in the custody of the Investigating Officer and the Moharrir Head Constable. Non-preparation of CFSL Form, at the spot, which is not the requirement of law, did not at all cause any dent, in the prosecution story, which was otherwise proved, beyond a reasonable doubt, from the cogent, convincing, reliable and trustworthy evidence. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected.
13. It was next submitted by the Counsel for the appellants, that the seal, after use, was kept, by the Police officials, with them, and, as such, the possibility of tampering with the case property and the samples, could not be ruled out. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. There is no provision of law, which required the Investigating Officer to hand over the seal, after use, to an independent person, or to another person. The Investigating Officer, cannot be expected to keep a number of seals, with him, as he is to detect the crime, and effect recoveries in a large Criminal Appeal No. 894-SB of 2004 8 number of cases. In Piara Singh Vs. The State of Punjab 1982 C.L.R. (2) 447, a case decided by a Full Bench of this Court, the seal, on the sample of illicit liquor, recovered from the accused, was not entrusted to an independent person forthwith. Similarly, the independent person, though entrusted with the seal, by the Investigating Officer, later on, was not produced as a witness. In these circumstances, it was held that this fact alone, was not sufficient to affect the merits of the trial, and the prosecution case, could not be thrown out, on that score alone. It was further held, in this case, that it was not incumbent upon the Police Officer, to hand over the seal to a third person forthwith, and even, in cases, where he had done so, it was not obligatory upon him, to produce such person, as a witness, during trial, as there was no statutory requirement, whatsoever, to this effect. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the present case. Non-examination of an independent witness, by the prosecution, in view of the cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, regarding the completion of link evidence, did not at all affect the merits of the 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 Pritam Singh, Sub Inspector, the Investigating Officer, when appeared, as PW5, during the course of his cross-examination stated that, weight of one bag, out of the bags, containing poppy husk, produced in the Criminal Appeal No. 894-SB of 2004 9 Court was less. They further submitted that, as such, the case property, did not stand connected with the case. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The mere fact, that weight of one bag, was found, to be less, when the same, was produced, in the Court, after a long time, during the evidence of Pritam Singh, Sub Inspector, PW5, did not cause any dent, in the prosecution story. It is a matter of common experience, that there is shortage of space, in the Malkhanas, and, it is not possible, to keep the case property, in a proper manner, therein. If, on account of irresponsible handling, or, during transit, or, on account of lapse of time, some poppy husk leaked out of one bag, on account of damage to the same, that did not cast any doubt, on the prosecution story. The only obligation, upon the prosecution, is to produce the case property and get it identified, from the prosecution witnesses. When the case property, was produced, in the Court, it was identified, by the Investigating Officer, as the same, as was recovered, from the accused. The case property, therefore, stood duly connected with the case. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected.
15. It was next submitted by the Counsel for the appellants, that the prosecution, miserably failed, to prove, that the accused, were found in conscious possession of the poppy husk, and, thus, committed the offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellants, in this regard, does not appear to be Criminal Appeal No. 894-SB of 2004 10 correct. Rakesh Kumar, was the driver of the tempo traveller and Kamaljit Singh, accused, was sitting by his side, whereas, Kulwant Singh @ Kanda, accused, was sitting, on a seat, behind the seat of the driver. On search of the tempo traveller, eight gunny bags, each containing 35 kgs poppy husk, were recovered. It was a big haul of poppy husk, which could not escape the notice of the accused. It was within their special means of knowledge, as to wherefrom, the bags, aforesaid, containing poppy husk, were loaded, in the tempo traveller; to which place, the same, were being taken; and for what purpose, the same, were being taken. They, however, did not furnish any explanation, on the aforesaid aspects of the matter. The possession of the appellants, in respect of the bags, containing poppy husk and their control over the same, therefore, stood duly proved. Once their possession, was proved, statutory presumption under Sections 35 and 54 of the Act, operated against them, that they were in conscious possession thereof. It was for them, to rebut the statutory presumption, by leading cogent and convincing evidence. They, however, failed to lead any evidence, to rebut the statutory presumption. As such, 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 committed an offence under this Act, in respect of:-
a) any narcotic drug or psychotropic Criminal Appeal No. 894-SB of 2004 11 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."
15-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.
(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 Criminal Appeal No. 894-SB of 2004 12 its existence is established by a preponderance of probability."
15-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."
16. 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 Criminal Appeal No. 894-SB of 2004 13 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 Megh Singh Vs. State of Punjab, 2003 (4) RCR (Criminal) 319, on 22.2.1993, three persons were found sitting, on the gunny bags, 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. The facts of Madan Lal's case (supra) are almost similar and identical to the facts of the present case. The principle of law, laid down, in Madan Lal's and Megh Singh's cases (supra) is fully applicable to the facts of the present case. In the instant case, in Criminal Appeal No. 894-SB of 2004 14 their statements, under Section 313 Cr.P.C., the accused/appellants, took up the plea of false implication. 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.
17. It was next submitted by the Counsel for the appellants, that no question, under Section 313 of the Code of Criminal Procedure, was put, to the accused, that they were in conscious possession of the poppy husk, and, as such, the trial Court, was wrong, in recording conviction and awarding sentence. They also placed reliance, on State of Punjab Vs. Hari Singh & others, 2009(2), RCR (Criminal), 143 (SC), in support of their contention. The provisions of Section 15 of the Act, are very clear. It is evident, from Section 15 of the Act, that a person, who produces, possesses, transports, imports inter-State, exports inter-State, sells, purchases, uses or omits to warehouse poppy straw or removes or does any act, in respect of warehoused poppy straw shall be punishable, to various imprisonments, as per the commercial, non-commercial or small quantity thereof. Section 15 of the Act, does not speak of conscious possession. Once the possession of the accused, is proved, then statutory presumption, under Sections 35 and 54 of the Act, operates against him, that he was in conscious possession thereof. Thereafter, it is, for him, to rebut, that statutory presumption. Section 313 of the Code of Criminal Procedure, clearly lays down, that only the Criminal Appeal No. 894-SB of 2004 15 incriminating circumstances, appearing against the accused, in the prosecution evidence, are required, to be put, to him, during the course of his statement, under the aforesaid Section. It does not lay down, that either the provisions of law, or, the presumption, operating under the provisions of law, are required, to be put, to him, during his statement, under Section 313 of the Code of Criminal Procedure. Possession of poppy husk, without any permit or licence, is an offence. Whether, it was conscious, or not, it was for the accused, to prove. State of Punjab Vs. Hari Singh's case (supra), relied upon, by the Counsel for the appellants, does not, in any way, lay down, that the provisions of law, or the presumption, operating under the provisions of law, should be put, to the accused, in his statement, under Section 313 of the Code of Criminal Procedure. The accused, were put specific question, that when they were travelling, in the tempo traveller, one of whom, was the driver thereof, and two, were sitting therein, it was found containing eight bags, each containing 35 kgs poppy husk. It means that, in their statements, under Section 313 of the Code of Criminal Procedure, the accused, were made aware, that they were found in possession of eight bags, each containing 35 kgs poppy husk. The incriminating circumstances, appearing against the accused, in the prosecution evidence, were put, to them, in their statements, under Section 313 of the Code of Criminal Procedure. No help, therefore, can be drawn, by the Counsel for the appellants, from State of Punjab Vs. Hari Singh's case (supra), in any manner. The submission of the Counsel for the Criminal Appeal No. 894-SB of 2004 16 appellants, in this regard, being without merit, must fail, and the same stands rejected.
18. No other point, was urged, by the Counsel for the parties.
19. In view of the above discussion, it is held that the judgement of conviction and the order of the sentence, rendered by the trial Court, are based on the correct appreciation of evidence and law, on the point. The same do not suffer from any illegality or infirmity and deserve to be upheld.
20. For the reasons recorded above, the appeal, being devoid of merit, is dismissed. The judgment of conviction, and the order of sentence, rendered by the trial Court, are upheld.
21. 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 Code of Criminal Procedure, and submit compliance report, within 02 months.
22. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court.
23. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action.
30.04.2010 (SHAM SUNDER) Amodh JUDGE