Punjab-Haryana High Court
Hanuman vs State Of Haryana on 29 August, 2013
Author: Inderjit Singh
Bench: Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(i) Crl. Appeal No.S-1121-SB of 2010
Date of Decision: August 29, 2013
Hanuman
...Appellant
VERSUS
State of Haryana
...Respondent
(ii) Crl. Appeal No.S-2606-SB of 2010
Hans Ram
...Appellant
VERSUS
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.Ashwani Bhardwaj, Advocate
Legal Aid Counsel, for the appellant
(in CRA No.S-1121-SB of 2010)
Mr.Ashwani Bhardwaj, Advocate
for the appellant (in CRA No.S-2606-SB of 2010)
Mr.Anil Kumar Malik, Deputy Advocate General, Haryana
for the respondent-State.
****
INDERJIT SINGH, J.
This judgment shall dispose of two connected criminal appeals i.e. CRA No.S-1121-SB of 2010 and CRA No.S-2606-SB of 2010 arising out of the same judgment of conviction dated 13.11.2009 and order of sentence dated 17.11.2009 passed by learned Addl. Sessions Judge, Sirsa, whereby both 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 in Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1121-SB of 2010 and connected appeal -2- default of payment of fine, to further undergo rigorous imprisonment for a period of one year each under Section 15 of Narcotic Drugs and Psychotropic Substances, Act 1985 (NDPS Act). Co-accused Mangi Lal absented from the proceedings and he was declared proclaimed offender vide order dated 24.12.2007 before framing of charges and Jaswinder Singh alias Jaggu was absented from the proceedings after framing of the charges and was declared proclaimed offender vide order dated 02.12.2008.
The brief facts of the prosecution case are that on 19.06.2007 ASI Diwan Singh along with ASI Ram Mehar and other police officials was present at chowk of bus stand Kurangawali for patrolling and were holding a picket (naka) there. In the meantime, one white coloured Bolero pick-up with registration number was seen coming, which was signalled to stop. The driver of the pick-up instead of stopping the vehicle, accelerated the speed and hit the same in the drums which were used for holding the picket (naka) and the vehicle was taken towards village Rori. The Investigating Officer along with other police officials chased the Bolero pick-up with their official vehicle and after crossing the pick-up, official vehicle was parked in front of it at T-point Raiyan road. Mangi Lal was driving the vehicle. Jaswinder Singh alias Jaggu was sitting by the side of the driver. Accused-appellants Hanuman and Hans Ram were sitting in the rear portion of the pick-up. Three gunny bags were found loaded in the rear portion of the pick-up. Suspecting some type of contraband in the gunny bags, a joint notice Ex.PG was served upon the accused Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1121-SB of 2010 and connected appeal -3- under Section 50 of the NDPS Act. All the accused wanted to get the search in presence of some Gazetted Officer. Therefore, BDPO, Baragudha was requested to reach at the spot. Charanjit Singh, BDPO reached the spot and on his direction, bags were searched and poppy straw was recovered. Two samples of 100 grams each from each gunny bags were separated. The remaining poppy straw on weighment came to be 39.8 kgs. in each bag. Sample parcels and bulk parcels were prepared by sealing the same with the seal of Investigating Officer bearing impression "DS". Charanjit Singh, BDPO also sealed the parcels with the seal bearing impression "RS" belonging to ASI Ram Mehar. Specimen seal impressions were also prepared. Case property was taken into police possession vide recovery memo Ex.PF, which was signed by BDPO also. Ruqa Ex.PA was sent to the police station on the basis of which formal FIR was registered. Rough site plan Ex.PH was prepared. Statements of witnesses were recorded. Report under Section 57 of the NDPS Act Ex.PE was prepared on the spot. On return to the police station, case property along with the accused, vehicle and witnesses were produced before SI Dalip Singh, the then SHO of police station Rori, who verified the investigation and affixed his own seal bearing impression "DS" on each parcel. Report under Section 57 of the NDPS Act was sent to the higher officer. On the next day, case property along with accused were produced before the Court. Photographs were taken. The order passed by learned CJM, Sirsa is Ex.PJ. He also attested the inventory. After necessary investigation Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1121-SB of 2010 and connected appeal -4- challan was presented against the accused-appellants and co- accused.
On presentation of challan against accused-appellants and co-accused, copies of challan and other documents were supplied to them under Section 207 Cr.P.C. Finding prima facie case, the accused-appellants and co-accused Jaswinder Singh alias Jaggu were charge-sheeted under Section 15 of the NDPS Act, 1985, to which they pleaded not guilty and claimed trial. As already discussed, co-accused Mangi Lal was declared proclaimed offender before the framing of charges.
In support of its case, prosecution examined PW-1 Head Constable Kuldeep Kumar, who had taken the photographs in the Court of CJM, Sirsa on 20.06.2007. He proved the photographs Ex.P1 to P6 and negatives Ex.P7 to Ex.P12. PW-2 Head Constable Ram Chander mainly deposed regarding recording of formal FIR on receipt of ruqa. PW-3 Constable Nazam Singh, is a formal witness, who tendered into evidence his affidavit Ex.PC. PW-4 Rajinder Sobti, A.D.E.T.O, Patiala mainly deposed that as per record vehicle in question was owned by Shivji Ram son of Krishan. PW-5 Shivji Ram mainly deposed that he is the owner of the pick-up. On 18.06.2007 his driver Palli Singh was ill. On that day, he engaged Mangi Lal as driver @ ` 200/- per day. On 20.06.2007, he came to know that Mangi Lal has been apprehended by the police and poppy husk was recovered which was being transported in his pick-up. PW-6 Om Parkash was President of Pick-up Dalla Union, Mansa. He also mainly deposed Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1121-SB of 2010 and connected appeal -5- same facts as has been deposed by PW-5 Shivji Ram. PW-7 Inspector/SHO Dalip Singh mainly deposed regarding verifying the case property and putting his seal on each parcel. PW-8 Sh.Charanjit Singh, BDPO mainly deposed regarding recovery from the accused as per prosecution version. PW-9 SI Diwan Singh, is the Investigating Officer. He mainly deposed regarding investigation conducted by him in the present case. PW-10 SI Ram Mehar, is the recovery witness. He also deposed as per prosecution version.
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. Accused-appellant Hanuman further pleaded that nothing was ever recovered from them and they have been implicated falsely in this case at the behest of opponents of Baljeet Singh with whom they had a dispute. Accused-appellant Hans Ram has taken the similar plea.
In defence, accused-appellants examined DW-1 Head Constable Madan Lal, who mainly brought the DDR register.
As already discussed, co-accused Jaswinder Singh alias Jaggu was declared proclaimed offender after framing of the charges.
On the basis of the evidence produced by the prosecution, accused-appellants were convicted and sentenced under Section 15 of NDPS Act, as stated above, by the learned Addl. Sessions Judge, Sirsa.
At the time of arguments, learned counsel for the appellants argued that case of the prosecution is doubtful. When the Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1121-SB of 2010 and connected appeal -6- police party stopped the vehicle of the appellants, the appellants were having sufficient opportunity to run away on foot. He further argued that defence version is more probable and false case has been planted upon the accused-appellants. A plea in this regard has been taken in the statement under Section 313 Cr.P.C. and it has also been put to the witnesses by way of suggestions. Learned counsel for the appellants next contended that compliance of Section 50 the NDPS Act has not been made. A common notice was given and the Gazetted Officer also did not give the option to the accused- appellants. Learned counsel for the appellants further argued that no independent witness was joined. Even, no person from the nearby dhani from where PWs stated that cot was brought, has been joined. He further contended that even driver of the BDPO has not been joined in the present case. He next argued that presence of BDPO is doubtful on the spot as he has not used his seal and seal of ASI Ram Mehar has been used, which shows that BDPO was not present on the spot. Learned counsel for the appellants further contended that conscious possession of the accused-appellants has not been proved. He next argued that site plan of the place where naka was held was not prepared. He further argued that as per prosecution version, the vehicle hit the drums but the vehicle was not mechanically examined, which fact also creates doubt in the prosecution version. Learned counsel for the appellants, therefore, argued that there being merit in both the appeals, the same should be allowed and appellants should be acquitted.
Gulati Vineet2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1121-SB of 2010 and connected appeal -7- On the other hand, learned Deputy Advocate General, Haryana for the respondent-State argued that case of the prosecution has been duly proved by the PWs. PW-9 SI Diwan Singh, Investigating Officer, PW-8 Sh.Charanjit Singh, BDPO and PW-10 ASI Ram Mehar, recovery witness, have consistently deposed regarding recovery of poppy straw from the accused-appellants. He further argued that conscious possession has been duly proved. He next argued that BDPO himself is an independent person. The defence version is not believable. There are no material contradictions or material improvements in the statements of the PWs. He further contended that Section 50 of the NDPS Act will not apply in the present case. 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 Deputy Advocate General, Haryana for the respondent-State.
From the evidence on record, I find no merit in the arguments of learned counsel for the appellants. The version of the prosecution cannot be held improbable, unnatural only on the ground that appellants did not run away when their vehicle was stopped by parking of the official vehicle in front of it. On this argument, I find that as per prosecution version, at the place of naka when signal was given to stop the pick-up, the driver did not stop the vehicle and by hitting the drums, ran away towards Rori side. Then the police officials in their official vehicle chased the pick-up at T-point Riayan Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1121-SB of 2010 and connected appeal -8- road, after crossing the pick-up, they parked their vehicle in front of the pick-up. So, there was no opportunity for the appellants at that time to run away from the spot on foot, otherwise they have tried to run away on vehicle by hitting the drums of naka. The perusal of the evidence shows that there is nothing on the record to show that accused-appellants have been falsely implicated in the present case. No defence evidence has been led by the appellants to prove their defence version. Merely, on the basis of statement under Section 313 Cr.P.C. by the appellants or some suggestions given to the witnesses, it cannot be held that appellants have been falsely implicated at the behest of opponents of Baljeet Singh, with whom appellants had a dispute. Even the name of the person had not been given at whose behest they have been falsely implicated. There is nothing on the record to show nature of the dispute between the appellants and opponents of Baljeet Singh. There is also nothing on the record as to how police officials and BDPO, who is a Gazetted Officer of other department, were under the influence of that person. Therefore, the defence version is not believable.
As regarding compliance of Section 50 of the NDPS Act, I find that Section 50 of the NDPS Act will not apply in the present case as the recovery has not been effected from the personal search of the appellants. Three gunny bags were recovered from the rear portion of the pick-up, where these appellants were also sitting. It is also held by the Hon'ble Supreme Court in Ajmer Singh vs. State of Haryana, 2010(3) SCC 746 as under:-
Gulati Vineet2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh
Crl. Appeal No.S-1121-SB of 2010 and connected appeal -9-
"13. The learned counsel for the appellant contended that the provision of Section 50 of the Act would also apply, while searching the bag, brief case etc., carried by the person and its non-compliance would be fatal to the proceedings initiated under the Act. We find no merit in the contention of the learned counsel. It requires to be noticed that the question of compliance or non-compliance of Section 50 of the N.D.P.S. Act is relevant only where search of a person is involved and the said Section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, brief case, container, etc., does not come within the ambit of Section 50 of the N.D.P.S. Act, because firstly, Section 50 expressly speaks of search of person only. Secondly, the Section speaks of taking of the person to be searched by the Gazetted Officer or Magistrate for the purpose of search. Thirdly, this issue in our considered opinion is no more res-integra in view of the observations made by this court in the case of Madan Lal v. State of Himachal Pradesh 2003(4) R.C.R. (Criminal) 100: 2004(1) Apex Criminal 426 : 2003 Crl.L.J.3868. The Court has observed:
"A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises (See Kalema Tumba v. State of Maharashtra and Anr. 1999(4) R.C.R. (Criminal) 575 : JT 1999 (8) SC 293), State of Punjab v. Baldev Singh (JT 1994 (4) SC 595), Gurbax Singh v. State of Haryana 2001(1) R.C.R. (Criminal) 702 : (2001 (3) SCC 28). The language of section is implicitly clear that the search has to be in relation to a person as contrast to search of premises, vehicles, or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). Above being the position, the contention regarding non-compliance of Section 50 of the Act is also without any substance."
14. In State of Himachal Pradesh v. Pawan Kumar, [2005 (2) R.C.R (Criminal) 622 : 2005(2) Apex Criminal 1 : 2005 4 SCC 350], this Court has stated:
"A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body or a Gulati Vineet human being. Depending upon the physical capacity 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1121-SB of 2010 and connected appeal -10- of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act."
After discussion on the interpretation of the word `person', this Court concluded:
"that the provisions of section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which (the accused) may be carrying"
The court further observed :
"In view of the discussion made, Section 50 of the Act can have no application on the facts and circumstances of the present case as opium was allegedly recovered from the bag, which was being carried by the accused."
As regarding non-joining of independent witness, I find that PW-8 Charanjit Singh, BDPO is a Gazetted Officer of other department. He can be treated as uninterested witness. He is not from the police department. Why he will depose falsely against the accused-appellants. There is no evidence regarding any motive or enmity of police officials or of BDPO against the accused-appellants, who states themselves as labourers, to falsely implicate them. When BDPO himself joined the investigation proceedings, then there was no need to join his driver in the proceedings. It is in the cross- Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1121-SB of 2010 and connected appeal -11- examination of the PWs that 2-3 persons were asked to join the proceedings but they refused to do so. Otherwise also, the Hon'ble Supreme Court in Kashmiri Lal Vs. State of Haryana 2013(3) RCR (Crl.) 259 has held as under:-
"9. As far as first submission is concerned, it is evincible from the evidence on record that the police officials had requested the people present in the 'dhaba; to be witnesses, but they declined to cooperate and, in fact, did not make themselves available. That apart, there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighs over the quantity of evidence. These aspects have been highlighted in State of U.P. v. Anil Singh, 1990(3) R.C.R. (Criminal) 585 : 1988 Supp SCC 686, State, Govt. of NCT of Delhi v. Sunil and another, 2001(1) R.C.R. (Criminal) 56 : 2001 (1) SCC 652 and Ramjee Rai and others v. State of Bihar, 2006(4) R.C.R. (Criminal) 289 : 2006(13) SCC 229. Appreciating the evidence on record on the unveil of the aforesaid principles, we do not perceive any acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and absolutely trustworthy."
As regarding conscious possession, I find that prosecution has duly proved that recovery has been effected from the rear portion of the vehicle in which both the appellants were travelling and were sitting in the rear portion. The prosecution is only to prove the physical possession and it is for the appellants to explain that they were not in conscious possession but there is nothing in the evidence Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1121-SB of 2010 and connected appeal -12- on record to show any explanation of the appellants. Both the appellants as per statement were working with Baljeet Singh and known to each other. The Hon'ble Supreme Court in Megh Singh Vs. State of Punjab 2003(4) R.C.R. (Criminal) 319, has 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 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 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 Gulati Vineet which assumes different colours in different contexts. It 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1121-SB of 2010 and connected appeal -13- 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 1972 SC 1756) possession in a given case need not be 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 appellant is duly proved.
The mere fact that site plan of the place where naka was held was not prepared, in no way can be held as defect in the investigation. Similarly, the vehicle was not got mechanically examined also does not in no way creates doubt in the prosecution version.
Gulati Vineet2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-1121-SB of 2010 and connected appeal -14- Therefore, from the above discussion, I find that there is no merit in the arguments of the learned counsel for the appellants. PWs have consistently deposed regarding prosecution version. There are no material contradictions or material improvements in the statements of witnesses, which may go to root of the prosecution case. Link evidence is complete. Necessary compliance of all the mandatory provisions of NDPS Act have been made in the present case. Defence version is not believable. Therefore, I find that judgment of conviction and order of sentence passed by Addl. Sessions Judge, Sirsa are correct and as per law and same are upheld.
Resultantly, both the appeals i.e. CRA No.S-1121-SB of 2010 filed by Hanuman and CRA No.S-2606-SB of 2010 filed by Hans Ram stand dismissed.
As accused-appellant Hanuman is on bail, his bail bonds stand cancelled and he is directed to surrender himself before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against him in accordance with law.
(INDERJIT SINGH)
August 29, 2013 JUDGE
Vgulati
Gulati Vineet
2013.09.18 10:20
I attest to the accuracy and
integrity of this document
Chandigarh