Punjab-Haryana High Court
Ajay Kumar S/O Samay Singh vs The State Of Haryana on 25 November, 2008
Crl. Appeal No.23-SB of 2004 1
Crl. Appeal No.963-SB of 2004
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision : 25.11.2008
Crl. Appeal No.23-SB of 2004
Ajay Kumar S/o Samay Singh, ...Appellant
R/o Juan, now Ashok Vihar,
in front of Police Lines, Sonepat.
Versus
The State of Haryana ....Respondent
Crl. Appeal No.963-SB of 2004
Samay Singh S/o Surat Singh, ....Appellant
R/o Juan, now Ashok Vihar,
in front of Police Lines, Sonepat.
Versus
The State of Haryana ....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. K.S.Dhaliwal, Advocate, with
Mr. Baljinder Singh, Advocate,
for the appellants, in both the appeals.
Mr. A.K.Jindal, AAG, Haryana,
for the respondent-State, in both the appeals.
SHAM SUNDER, J.
This judgment shall dispose of Criminal Appeal No.23-SB of 2004, filed by Ajay Kumar, accused (now appellant), against the Crl. Appeal No.23-SB of 2004 2 Crl. Appeal No.963-SB of 2004 judgment of conviction, and the order of sentence dated 1.10.2003, rendered by the Presiding Officer, Special Court, Kurukshetra, vide which he convicted Ajay Kumar, accused/appellant, for the offence, punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him, to undergo rigorous imprisonment, for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of 1 year, for having been found in possession of 3 kgs. 415 grams charas, without any permit or licence, and Crl. Appeal No.963-SB of 2004, filed by Samay Singh, accused (now appellant), against the order dated 8.4.2004, vide which his Maruti Van, bearing No.DL-8CC-4729, used for transporting the aforesaid charas, was confiscated. However, the trial Court, acquitted Ashok Kumar, accused.
2. The facts, in brief, are that on 31.10.2000, Harish Kumar, ASI, alongwith other police officials, was present at Saha turning point, at Shahabad, in connection with traffic checking. A Maruti van, bearing No.DL-8CC-4729, came from the side of Saha, which was stopped, for checking documents, and when the driver namely Ashok Kumar, came alongwith the documents, another person, who was sitting, on the front seat, by his side, got down, and tried to run away. He was apprehended, at some distance. He disclosed his name as Ajay Kumar S/o Samay Singh. Ashok Kumar, was, however, successful in escaping from the spot. The search of the van was conducted, on the direction of the Deputy Superintendent of Police, who was called to the spot, by sending Crl. Appeal No.23-SB of 2004 3 Crl. Appeal No.963-SB of 2004 a message. During the course of search of the van, a green coloured bag, was recovered from under-neath the seat. When the said bag was searched, it was found containing charas, in the form of tablets and sticks, which were lying in an envelope. Out of the said contraband, one tablet and one stick of charas, weighing 15 grams were separated, as sample, and the remaining charas, on weighment, was found to be 3 Kg. 400 grams. Thereafter, the sample, and the container, containing the remaining charas, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo, alongwith the maruti van. 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. Ajay Kumar, accused, was arrested at the spot. Ashok Kumar, accused, was arrested on 31.12.2000. 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 Section 20 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 Bhushan Dass, HC (PW-1), Raj Kishan, EHC (PW-2), Satbir Singh, SI (PW-3), Ved Parkash, EHC (PW-4), Anil Kumar, DSP (PW-5), Ram Dutt, ASI (PW-6), and Harish Chander, ASI (PW-7). Thereafter, the 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, Crl. Appeal No.23-SB of 2004 4 Crl. Appeal No.963-SB of 2004 appearing against them, in the prosecution evidence. They pleaded false implication.
5-A. Ashok Kumar, accused, in his statement, under Section 313 Cr.P.C., stated that he had no knowledge about this case, and he was arrested by the police falsely from his house.
5-B. Ajay Kumar, accused, in his statement, under Section 313 Cr.P.C., stated that he was innocent, and had been falsely implicated. He further stated that he was forcibly whisked away, from his shop, which was situated in front of Gohana road, Sonepat, in the presence of his father Samay Singh, and Jagdish, and, later on, falsely implicated, in this case.
5-C. The accused, however, examined Jagdish Kumar (DW-1) and Samay Singh (DW-2), in their defence. Thereafter, they closed their defence evidence.
6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced Ajay Kumar, accused, and acquitted Ashok Kumar, accused, as stated hereinbefore. The trial Court, vide order dated 8.4.2004, also confiscated the maruti van, aforesaid.
7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, Crl. Appeal No.23-SB of 2004, was filed by Ajay Kumar, appellant, and Samay Singh, appellant, filed Crl. Appeal No.963-SB of 2004, against the order dated 8.4.2004.
8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. Crl. Appeal No.23-SB of 2004 5 Crl. Appeal No.963-SB of 2004
9. The Counsel for appellant, in Crl. Appeal No.23-SB of 2004, at the very outset, submitted that out of the sticks and tablets of charas, allegedly recovered from the accused, only one stick and one tablet were taken as a sample, the total weight whereof, was 15 grams. He further submitted that it could not be said to be a representative sample. He further submitted that only one stick and one tablet, taken as sample, weighing 15 grams were sent to the office of the Forensic Science Laboratory, for analysis, and the said Analyst found the same to be charas. He further submitted that since neither the remaining sticks and tablets, nor the samples therefrom, were sent to the office of the Forensic Science Laboratory, it could not be said that the same contained charas. He further submitted that, under these circumstances, the trial Court was wrong, in coming to the conclusion, that the accused was found in possession of 3 kgs. 415 grams charas. He further submitted that, at the most, the accused was allegedly found in possession of 15 grams charas, which falls within the ambit of small quantity, as per Section 2 (xxiiia) of the Act. He also placed reliance on Gaunter Edwin Kircher Vs. State of Goa, Secretariat Panji, Goa, AIR 1993, SC 1456 and Javed A. Bhat Vs. Union of India 2008(1) RCR (Criminal) 57, in support of his contention. The submission of the Counsel for Ajay Kumar, appellant, in this regard, appears to be correct. In Gaunter Edwin Kircher's case (supra), a polythene bag, was recovered, from the accused, which he had put in the pocket of his pyjama. In that polythene bag, there were tobacco, one cigarette paper packet, and two cylindrical pieces of Charas. Two pieces of Charas were weighed, and found to be 7 grams, and 5 grams Crl. Appeal No.23-SB of 2004 6 Crl. Appeal No.963-SB of 2004 respectively. One of the pieces, weighting less than 5 grams was sent for chemical analysis, and the other piece, was not sent, nor part of it, by way of sample, was sent for chemical analysis. The Junior Scientific Officer, in the Directorate of Health Services, carried out the chemical analysis of the substance weighing 4.570 grams, consisting of three cylindrical pieces sticking together, and deposed that the substance which was examined, was found to have contained charas. The trial Court held that, as such, the accused was only found to be in possession of less than 5 grams of charas, which was a small quantity, and, as such, was entitled to the benefit of Section 27 of the Act. The Apex Court, in appeal, also agreed with the view taken up, by the trial Court, and held that only 4.570 grams chras, was recovered, from the accused, and he could not be said to have been found in possession of 12 grams charas, as no representative sample, from the other piece of substance recovered, was taken, nor sent to the Chemical Examiner. In the instant case, also, as stated above, a number of sticks and tablets, alleged to be of charas, were recovered, from the accused. It is evident, from the record, that only one stick and one tablet, were taken as a sample, the total weight whereof, was 15 grams, and sent to the office of the Forensic Science Laboratory. The Forensic Science Laboratory, vide report Ex.PM, came to the conclusion, that 15 grams substance, sent to it, for analysis, was identified as charas (canabeas). Similar principle of law, was laid down, in Javed A. Bhat's case (supra). The principle of law, laid down, in the aforesaid authorities, is fully applicable, to the facts of the instant case. As per entry No.23 of the Notification, 100 grams charas, falls within the ambit Crl. Appeal No.23-SB of 2004 7 Crl. Appeal No.963-SB of 2004 of small quantity. However, according to Section 2 (xxiiia), small quantity, in relation to narcotic drug means any quantity, lesser than the quantity specified by the Central Government, by notification, in the Official Gazette. Once, there is conflict between the notification, which falls within the ambit of Subordinate Legislation, and the provisions of the Act, then the latter would override the former. Since, the accused, was found in possession of small quantity of charas i.e. 15 grams, he was liable to be punished for the offence, punishable under Section 20(b)(ii) (A) of the Act. The trial Court, was wrong in awarding sentence to him, for 10 years, and imposing fine of Rs.1 lac, under Section 20(b)(ii)(C), holding that he was found in possession of commercial quantity of charas. The order of sentence, thus, deserves to be modified suitably.
10. The Counsel for the respondent, however, submitted that the other sticks and tablets were also recovered, from the possession of the accused, and, there was no need to send the entire quantity, or samples therefrom, for analysis. He further submitted that the fact that one stick and one tablet, which were sent for analysis, were found to contain charas, the necessary inference would be that the other sticks and tablets also contained charas. He further submitted that since the accused denied the recovery, in its entirety, he could not be given the benefit of Section 20(b)(ii)(A) of the Act. The submission of the Counsel for the respondent, in this regard, does not appear to be correct. A layman, like the Investigating Officer, or any other Police official, could not say, as to whether, the substance recovered from the accused, was charas, or otherwise. Only the expert i.e. the Scientific Officer, in the Forensic Crl. Appeal No.23-SB of 2004 8 Crl. Appeal No.963-SB of 2004 Science Laboratory, after due analysis of the substance, sent to the said laboratory, could come to the conclusion, as to whether, the same constituted charas, or not. Since, the other sticks and tablets, were neither sent as a whole, nor any sample was drawn therefrom, nor sent to the Forensic Science Laboratory, for analysis, it could not be said that the same contained charas. From the report, Ex.PM alone, it could not be presumed or inferred that the substance, in the other sticks and tablets, also contained charas. It has to be borne in mind, that the Act, applies to some Narcotic Drugs & Psychotropic Substances, and not to all other kinds of intoxicating substances. In any event, in the absence of positive proof, that all the sticks and the tablets recovered from the accused, contained charas only, it is not safe to hold that the accused was found in possession of 3 kgs. 415 grams charas, without any permit or licence. From the report, Ex.PM, it could only be said that 15 grams charas was recovered from the accused. The failure, on the part of the investigating agency, to send the other sticks and tablets, or representative samples therefrom, gives rise to such an inference. It would be better, if in future, the investigating agencies, take out samples, from each of the packets, or the pieces recovered, suspected to be containing some narcotic drug or substance, and send the same to the Laboratory, for the purpose of analysis, so that a report could be received that all the packets or pieces recovered, contained narcotic substance. However, the Counsel for the respondent, could not cite any case, laying down the principle of law, contrary to the principle of law, laid down, in Gaunter Edwin Kircher's and Javed A. Bhat's cases (supra). The submission of the Counsel for Crl. Appeal No.23-SB of 2004 9 Crl. Appeal No.963-SB of 2004 the respondent, in this regard, being without merit, must fail, and the same stands rejected.
11. It was next submitted by the Counsel for Ajay Kumar, appellant, that though, according to Harish Chander, ASI, (PW-7), the Investigating Officer, the police party was on a private vehicle, yet the driver thereof, being a public man, was not joined. He further submitted that, on account of this reason, the case of the prosecution, became highly doubtful. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The mere fact that the driver of the said vehicle, was not joined, in itself, is not sufficient to throw away the case of the prosecution overboard. In the absence of joining an independent witness, the evidence of the official witnesses, cannot be distrusted and disbelieved. In the face of the evidence of the official witnesses only, the Court is required to scrutinize the same, carefully and cautiously. After 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. The evidence of the official witnesses, was rightly found to be cogent, convincing, reliable and trustworthy, by the trial Court. The trial Court, was right, in placing reliance on the same, in coming to the conclusion, that the accused committed the offence, punishable, under Section 20 of the Act, but was wrong in holding that the quantity of charas recovered was commercial. This Court, after reappraisal of the evidence of the prosecution witnesses, Crl. Appeal No.23-SB of 2004 10 Crl. Appeal No.963-SB of 2004 also comes to the same conclusion. 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."
11-A. 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.
12. It was next submitted by the Counsel for Ajay Kumar, appellant, that there was delay of 8 days, in sending the samples to the Crl. Appeal No.23-SB of 2004 11 Crl. Appeal No.963-SB of 2004 office of the Forensic Science Laboratory. He further submitted that the delay of 8 days, in sending the samples, remained unexplained, as a result whereof, it could not be said that the samples were not tampered with, until the same reached the office of the Forensic Science Laboratory. 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 sample, to the office of the Forensic Science Laboratory, 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, and, as stated above, 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.PM, which clearly proves that the seals on the parcels, were found intact, and tallied with the specimen seals, as per forwarding authority. The report of the Forensic Science Laboratory 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 Forensic Science Laboratory, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the Crl. Appeal No.23-SB of 2004 12 Crl. Appeal No.963-SB of 2004 Forensic Science Laboratory, 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 8 days, in sending the samples to the office of the Forensic Science Laboratory, did not at all matter much. 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, that Ajay Kumar, accused, was not found in conscious possession of charas. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Ajay Kumar, was sitting by the side of the driver, wherefrom a bag, was recovered, in which the tablets, and sticks of charas, were recovered. The bag was lying under-neth the front seat. Ajay Kumar, accused, was sitting on the said seat. Under these circumstances, it could not be said that Ajay Crl. Appeal No.23-SB of 2004 13 Crl. Appeal No.963-SB of 2004 Kumar, accused, did not come to know of the bag, containing charas, lying in the said vehicle. It was within the special means of knowledge of Ajay Kumar, as to wherefrom, the bag, containing charas, and to which destination, the same was being taken. He, however, failed to explain the same. It, therefore, could be said that he was found in possession of charas. Once the possession of the accused, and his control over the contraband was proved, then statutory presumption under Sections 54 and 35 of the Act, operated against him, that he was in conscious possession thereof. Thereafter, it was for him, to rebut the presumption, by leading cogent and convincing evidence. However, the appellant failed to rebut that presumption, either during the course of cross-examination of the prosecution witnesses, or by leading defence evidence. In these circumstances, the trial Court was right, in holding that he was 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
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
Crl. Appeal No.23-SB of 2004 14
Crl. Appeal No.963-SB of 2004
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."
13-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 Crl. Appeal No.23-SB of 2004 15 Crl. Appeal No.963-SB of 2004 beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."
13-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."
14. 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. Crl. Appeal No.23-SB of 2004 16
Crl. Appeal No.963-SB of 2004 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, a bag containing charas, was found in the maruti van. 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/appellant took up the plea, only of false implication. He did not take up the plea, that he was not aware of the contents of the bag, lying therein. As stated above, the accused miserably failed to rebut the statutory presumption, referred to above. Thus, his conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
15. It was next submitted by the Counsel for the appellant (Ajay Kumar), that the link evidence, in this case, was totally missing, but the trial Court, did not take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording the conviction, and awarding his sentence. The submission of the Counsel for the appellant, Crl. Appeal No.23-SB of 2004 17 Crl. Appeal No.963-SB of 2004 in this regard, does not appear to be correct. Harish Chander, ASI (PW-7), stated that on reaching the Police Station, he produced the accused, alongwith the sample parcels, case property, specimen seal impressions, and the witnesses, before Satbir Singh, SHO. He further stated that Satbir Singh, SHO, verified the facts, from the accused, and the witnesses, and affixed his own seal 'SS', on all the sealed parcels. He further stated that on the directions of SI/SHO, he deposited the case property, with the MHC, of the Police Station. He further stated that Ajay Kumar, accused, was detained in the lock up. Bhushan Dass, HC, vide his affidavit, Ex.PA, stated that on 31.10.2000, Harish Chander, ASI, handed over to him, the case property of this case, alongwith the sample parcel, as also the sample impression of the seals. He further stated that on 8.11.2000, he handed over the sample parcel, and sample impression of the seals, to Raj Kishan, EHC, who deposited the same in the office of the Forensic Science Laboratory, and handed over to him, the deposit receipt. Raj Kishan, EHC, vide affidavit Ex.PB, stated that on 8.11.2000, he was handed over the sample parcel, duly sealed alongwith the sample impression of the seal, and he deposited the same, in the office of the Forensic Science Laboratory, on that date, and none tampered the same, till the same remained in his custody. Above all, there is a report, Ex.PM, of the Forensic Science Laboratory , according to which, seals on the parcels, were found intact and tallied with the specimen seals, as per forwarding authority. The report of the Forensic Science Laboratory is per-se admissible into evidence, as per the provisions of Section 293 Cr.P.C., in toto. No challenge, to this report, was made by the accused. Crl. Appeal No.23-SB of 2004 18 Crl. Appeal No.963-SB of 2004 From the aforesaid evidence, it is evident that none tampered with the sample parcels, until the same reached the office of the Forensic Science Laboratory. Under these circumstances, the submission of the Counsel for the appellant, that the link evidence was totally missing, being without merit, must fail, and the same stands rejected.
16. It was next submitted by the Counsel for the appellant, that the defence version, and the defence evidence, produced by Ajay Kumar, accused, were not taken into consideration, by the trial Court, in its proper perspective, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Jagdish Kumar, (DW-1), stated that Ajay Kumar, was forcibly lifted and captured by the police. He further stated that he informed his father. Samay Singh, (DW-2), father of the appellant, stated that on 31.10.2000, at about 9.00/9.30 AM, he was present in his house Jagdish Chauhan, who runs a hair-dresser shop, came to his house, and informed him, that the police, had taken away Ajay Kumar, with it. He further stated that he moved an application, regarding the false implication of Ajay Kumar, in this case. It may be stated here, that the evidence of both these witnesses, is not at all reliable. Samay Singh, father of the accused, is naturally interested in him, so as to save him, from the clutches of law. It was, under these circumstances, that he made a statement, that no recovery was effected from the accused, but he was falsely implicated. In case, he moved an application, before the higher Police authorities, then he could either produce copy thereof, or summon the record, from the office of the Crl. Appeal No.23-SB of 2004 19 Crl. Appeal No.963-SB of 2004 Superintendent of Police, for proving that such an application was moved by him. The story set up by him, to the effect, that he moved an application, regarding the false implication of Ajay Kumar, therefore, appears to be a concocted. The statement of Jagdish Kumar (DW-1), hair dresser, also appears to be concocted. He being a co-villager of the accused, was out and out, to help him. It was, under these circumstances, that he stated that Ajay Kumar, was taken away, in his presence, by the Police forcibly. The evidence of both these witnesses, being unreliable, is discarded.
17. Now coming to the appeal of Samay Singh, appellant, the Counsel for the appellant, submitted that the prosecution failed to prove, that he knowingly permitted the use of maruti van, for transporting the alleged narcotic. He further submitted that, it was the duty of the prosecution to prove this factum, beyond doubt. He further submitted that, in the absence of such evidence, having been produced by the prosecution, the trial Court, was wrong in confiscating the maruti van. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Ajay Kumar, convict, in Crl. Appeal No.23-SB of 2004, is the son of Samay Singh, appellant. Since, the son of Samay Singh, was found transporting charas, in the vehicle registered in his (Samay Singh) name, it was for him, to prove, as to under what circumstances, his vehicle came into the possession of his son, and how, it was being used for transporting the narcotic substance. It was also for him, to prove, under the provisions of Section 60(3) of the Act, that he took all reasonable precautions, against the misuse of this vehicle, by his Crl. Appeal No.23-SB of 2004 20 Crl. Appeal No.963-SB of 2004 son, and that his son, who was the incharge of the vehicle, at the relevant time, had also taken reasonable precautions against the misuse of the said vehicle. Once, the vehicle was found being used for the purpose of transporting the contraband, according to Section 35 of the Act, a statutory presumption arose, that the same was being used, with the knowledge of the owner. Such statutory presumption, could not be satisfactorily rebutted by Samay Singh. The order dated 8.4.2004, rendered by the trial Court, confiscating the vehicle, therefore, is based, on the correct appreciation of the material, placed, on record, and law on the point. The trial Court gave valid reason, for confiscating the vehicle. No ground is made out, for interfering with such an order, and the same is liable to be upheld.
18. No other point, was urged, by the Counsel for the parties.
19. For the reasons recorded, hereinbefore, the appeal filed by Ajay Kumar, appellant, i.e. Crl. Appeal No.23-SB of 2004, is partly accepted. The judgment of conviction, is maintained. The order of sentence, is modified, as the appellant was only found in possession of small quantity of charas, and he is directed to undergo RI for 6 months, instead of RI for 10 years, and pay a fine of Rs.10,000/- instead of Rs.1 lac, as also indefault of payment of fine, to undergo RI for a period of 2 months, instead of 1 year.
20. Crl. Appeal No.963-SB of 2004, filed by Samay Singh, is, however, dismissed.
21. The Chief Judicial Magistrate, Kurukshetra, shall take necessary steps, to comply with the judgment, in Crl. Appeal No.23-SB Crl. Appeal No.23-SB of 2004 21 Crl. Appeal No.963-SB of 2004 of 2004, with due promptitude, in accordance with law, keeping in view the provisions of Section 428 Cr.P.C. He shall also ensure that the confiscated vehicle is taken in custody, if already not taken, and dealt with, in accordance with law, after the expiry of period of appeal or revision, if one is filed or after the decision, thereof, if one is filed. He shall send the compliance reports, within a period of three months, from the date of receipt of a copy of the judgment.
22. The District and Sessions Judge, Kurukshetra, 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.
25.11.2008 (SHAM SUNDER) Vimal JUDGE