Punjab-Haryana High Court
Bhajan Singh vs State Of Punjab on 10 July, 2013
Author: Inderjit Singh
Bench: Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No.S-678-SB of 2006
Date of Decision: July 10, 2013
Bhajan Singh
...Appellant
VERSUS
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.N.S.Sodhi, Advocate
for the appellant.
Mr.Yogesh Gupta, Asstt. Advocate General, Punjab
for the respondent-State.
****
INDERJIT SINGH, J.
The present appeal has been filed by the appellant against the judgment of conviction dated 27.02.2006 and order of sentence dated 28.02.2006, passed by the Special Judge, Ferozepur, whereby he was held guilty and convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of `1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one month under Section 15 (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS).
The brief facts of the prosecution case are that ASI Gurmail Singh on 30.07.2004 along with other police official was going for patrolling on private scooters towards village Talwandi Nepalan and when they were about one farlong ahead of Bangaliwala Gulati Vineet 2013.08.07 14:28 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-678-SB of 2006 -2- bridge at about 6.30 P.M., accused Bhajan Singh was found sitting on the bags covered with tarpauline. On seeing the police party, he tried to run away. He was apprehended. After removing tarpauline, bags were smelling like poppy straw. The accused was given option by the Investigating Officer that he could opt his search from Magistrate or from him. Accused reposed confidence in the Investigating Officer and opted his search from him. Then the Investigating Officer conducted search of the bags, which were five in number. Poppy straw was recovered from the said bags. Two samples of 250 gms. each from each of the recovered bags were separated and were sealed. The weight of the remaining poppy straw bag came to 34 kgs. 500 gms. each and separate parcels were prepared. All the samples and bulk parcels were sealed with the seal of Investigating Officer bearing impression "GS". Sample seal slip was prepared. Case property was taken into police possession vide recovery memo Ex.P4. The Investigating Officer called SHO Ravi Kumar at the spot. On reaching, SHO Ravi Kumar also sealed all the parcels with his seal bearing impression "RK". He also prepared sample seal slip. Ruqa Ex.P6 was sent to the police station, on the basis of which FIR Ex.P7 was registered. Accused was arrested. Rough site plan of the place of recovery was prepared. Statements of witnesses were recorded. On return to the police station, Investigating Officer handed over the custody of the accused along with case property to ASI Major Singh, who also sealed the parcels with his seal bearing impression "MS". He also prepared sample seal slip. He took into possession the entire Gulati Vineet 2013.08.07 14:28 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-678-SB of 2006 -3- case property by preparing handing over memo Ex.P9. After necessary investigation challan was presented against the accused- appellant.
On presentation of challan against accused-appellant, copies of challan and other documents were supplied to him under Section 207 Cr.P.C. Finding prima facie case, the accused-appellant was charge-sheeted under Section 15 of the NDPS Act, 1985, to which he pleaded not guilty and claimed trial.
In support of its case, prosecution examined PW-1 SI Ravi Kumar, who reached the spot when the recovery was already effected. He deposed regarding sealing the parcels with his seal. PW-2 Head Constable Sarbjit Singh deposed regarding handing over of five sample parcels of poppy straw in this case on 04.08.2004 for depositing the same in the office of Chemical Analyst, Chandigarh. He deposited the same on 05.08.2004 in intact condition. He also deposed that neither he nor he allowed anybody to tamper with the samples till they remained in his possession. PW-3 Head Constable Gurmit Singh is the recovery witness. He was with the police party of ASI Gurmail Singh and deposed as per prosecution version. PW-4 ASI Gurmail Singh, is the Investigating Officer. He deposed regarding recovery of poppy straw from the accused-appellant and investigation conducted by him in the present case. PW-5 ASI Major Singh deposed that on 30.07.2004, he was posted at P.S. Makhu. On that day he was officiating as SHO. At about 11.30 P.M., ASI Gurmail Singh produced before him five parcels of poppy straw, each Gulati Vineet 2013.08.07 14:28 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-678-SB of 2006 -4- containing 34 kgs. 500 gms. and ten parcels of poppy straw each containing 250 gms. All the parcels were bearing seals of "GS" and "RK". He also produced the accused before him. He further stated that he also sealed all the parcels with his seal "MS" and took into possession entire case property by preparing handing over memo Ex.P9. He also deposed that on the next day, he also produced the case property and accused before the learned Magistrate by submitting inventory report. Learned Magistrate authenticated the recovery and case property was brought back and handed over to SHO Ravi Kumar. He also deposed that so long as the case property remained in his possession, neither he nor he allowed anybody to tamper with the same. Learned Addl. Public Prosecutor closed the evidence after tendering into evidence report of Chemical Examiner Ex.P12.
At the close of prosecution evidence, the accused- appellant was examined under Section 313 Cr.P.C. and he denied the correctness of the evidence and pleaded himself as innocent. He further pleaded that he has filed a writ petition against the police officials on account of which, he was falsely implicated in this case by showing a false recovery. Copy of the certified order of Hon'ble High Court is Ex.DX.
No witness was examined in defence.
On the basis of the evidence produced by the prosecution, accused-appellant was convicted and sentenced as stated above by the Special Judge, Ferozepur.
Gulati Vineet2013.08.07 14:28 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-678-SB of 2006 -5-
At the time of arguments, learned counsel for the appellant argued that the police officials were on private scooters, which fact creates reasonable doubt in the prosecution version. He further argued that no proper and complete offer has been given under Section 50 of the NDPS Act, therefore, it amounts to non-compliance of Section 50 of the Act. He next argued that no independent witness has been joined, though, it is in the evidence that weight and scale were brought from a shop near the bridge. Learned counsel for the appellant further argued that there is delay of four days in sending the samples, which further creates doubt in the prosecution case. He also argued that there is defect in investigation and origin of the poppy straw has not been proved. He further argued that defence version is probable and shows motive to falsely implicate the accused-appellant. He next argued that prosecution has failed to prove conscious possession of the accused-appellant in the present case. Learned counsel for the appellant further argued that link evidence is missing in this case as the case property was stated to be handed over to PW- 1 SI Ravi Kumar on 31.07.2004 by PW-5 ASI Major Singh and the same remained in possession of ASI Major Singh and was not deposited in the malkhana. Therefore, he argued that appeal should be accepted and the accused-appellant should be acquitted.
On the other hand, learned Asstt. Advocate General, Punjab for the respondent-State argued that case of the prosecution has been duly proved. PWs have consistently deposed regarding the recovery from the accused. Conscious possession has also been Gulati Vineet 2013.08.07 14:28 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-678-SB of 2006 -6- proved. He further argued that defence has not been put to the Investigating Officer and the SHO. Link evidence is complete. The recovery from the accused-appellant is a chance recovery and there was no opportunity to join independent witness. Learned State counsel further argued that there was no need of compliance of Section 50 of the NDPS Act. Therefore, he argued that, there being no merit in the appeal, the same should be dismissed.
I have gone through the evidence on record minutely and very carefully and have heard learned counsel for the appellant 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 appellant. The mere fact that police party was on private scooters, does not create any reasonable doubt in the prosecution case. Learned counsel for the appellant has placed reliance on judgment passed in Surinder Singh Vs. State of Punjab 1997 (1) RCR (Crl.) 340 on this point. I have gone through the same and I find that this judgment having distinguished facts will not apply in the present case. In that case, police party was on patrol duty on private car when the recovery was effected and the police party could not give registration number of the car and name of the driver but in the present case, the police party was on private scooters and there is no cross-examination to the PWs regarding the ownership of the scooter or its registration number etc. The Investigating Officer has stated that they were on their private scooters, which means, scooters were owned by them and not hired Gulati Vineet 2013.08.07 14:28 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-678-SB of 2006 -7- from any person.
As regarding the next argument that partial offer was given by the Investigating Officer, I find that the recovery has been effected from five bags covered with tarpaulin and the recovery was not made from the personal search of appellant. Only in the case of personal search, compliance of Section 50 of the NDPS Act is necessary. Therefore, in the present case, even there was no need to give offer to the accused-appellant. Therefore, this argument of learned counsel for the appellant has no merit. The police party was on private scooters on patrolling duty and the recovery effected was sudden and by chance. There was no opportunity with the police party to join independent witness before the recovery. The appellant was stated to be sitting in the sarkanda on the bags and tried to run away on seeing the police party. Otherwise also, it is settled law that testimony of police official is as good as of any other witness, unless some enmity or motive of the police official to falsely implicate the accused is alleged and proved. In the present case, even there is no suggestion to the Investigating Officer or to the SHO regarding the defence version that a Civil Writ Petition was filed against Balbir Singh and Rachhpal Singh. Only suggestion was given to PW-3 Head Constable Gurmit Singh. Otherwise also, both these police officials were not among the police party in the present case. Why these police officials (PWs) will falsely implicate the appellant in this case. A huge quantity of poppy straw i.e. five bags containing 35 kgs. each were recovered. Such a huge quantity cannot be falsely planted upon Gulati Vineet 2013.08.07 14:28 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-678-SB of 2006 -8- the appellant without any enmity or motive of these police officials against the appellant. Therefore, defence version is not believable.
As regarding the fact that weight and scale were brought from a shop near the bridge, I find that there is nothing on record as to how many persons were there on the shop or whether any independent witness other than shopkeeper was available in the shop. As per evidence on record, the case property was produced before the Judicial Magistrate on 31.07.2004 and the Court has passed the order Ex.P11 which is on record. As per this order, the Court separated 100 gms. each from the samples and again the samples were sealed with the seal of Court bearing impression "HPS". The case property was also produced before the Court. The seals were found intact and it was ordered that case property be destroyed under Section 52-A of the NDPS Act. The mere fact that case property, in the present case, has not been produced at the time of evidence, in no way will create any reasonable doubt. Otherwise also, the case property was produced before the Judicial Magistrate and the Magistrate passed the order Ex.P11 to destroy the same as per Section 52-A of the NDPS Act. Further, I find that the case property is a corroborative piece of evidence and non-production of case property cannot be held fatal to the prosecution case. The samples were sent on 04.08.2004 i.e. just within four days after producing the case property before the Judicial Magistrate and it cannot be held as unnecessary delay in sending the samples. The mere fact that origin has not been proved regarding poppy straw, also does not create any Gulati Vineet 2013.08.07 14:28 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-678-SB of 2006 -9- reasonable doubt.
As regarding the argument that link evidence is missing, I find that ASI Major Singh has appeared in the present case as PW-5 and he has deposed regarding case property in his possession. The case property was handed over to him by the Investigating Officer by preparing handing over memo Ex.P9. He has also deposed that till the case property remained in his possession, neither he nor he allowed anybody to tamper with the same. There is nothing on the record to show that the seals were tampered with by anybody. Further, as per Chemical Examiner's report, the seals were tallied with the sample seal slips and found intact. Therefore, link evidence is complete in the present case.
As regarding conscious possession, I find that the appellant was sitting on the bags and he tried to run way on seeing the police party. The facts and circumstance of the present case shows that accused-appellant was in conscious possession of the incriminating articles and he was knowing the incriminating articles i.e. poppy straw in the bags on which he was sitting. There is no reason or ground that why he was sitting in the sarkanda on the bags and why he tried to run away from the spot on seeing the police party, when no other incriminating article was recovered from him except this poppy straw. Therefore, conscious possession is also duly proved by the police by bringing cogent evidence. Learned counsel for the appellant cited judgment passed in State of Punjab vs. Balkar Singh 2004(3) SCC 582 on this point. I have gone through the same and Gulati Vineet 2013.08.07 14:28 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-678-SB of 2006 -10- having distinguished facts, it will not apply in the present case as in that case 100 bags of poppy husk were recovered and accused were belonging to different villages and police made no investigation as to how 100 bags were transported to the place of incident. There are no such facts in the present case. He has also placed reliance on another judgment passed in Baldev Singh vs. State of Punjab 2005 (1) RCR (Crl.) 823. This judgment is also on the same point, which has already been discussed. The above two judgments having distinguished facts from the present case, will not apply in the present case.
On the point of 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 which assumes different colours in different contexts. It may carry different meanings in contextually different Gulati Vineet backgrounds. It is impossible, as was observed in 2013.08.07 14:28 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-678-SB of 2006 -11- 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 the above citation, conscious possession of the appellant is duly proved. There is no explanation from the accused side to explain his possession over the gunny bags. Therefore, this argument of learned counsel for the appellant has also no merit.
Therefore, I find that PWs are consistent on material facts. There are no material contradictions or material improvements in the statements of the PWs. PWs are trustworthy, truthful and reliable witnesses. Link evidence is complete. The conscious possession of Gulati Vineet 2013.08.07 14:28 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-678-SB of 2006 -12- the appellant is duly proved. The defence version is not believable. The appellant has been rightly convicted and sentenced by the trial Court and the judgment of conviction and order of sentence passed by Special Judge, Ferozepur are upheld.
Resultantly, finding no merit, the appeal is dismissed.
(INDERJIT SINGH)
July 10, 2013 JUDGE
Vgulati
Gulati Vineet
2013.08.07 14:28
I attest to the accuracy and
integrity of this document
Chandigarh