Punjab-Haryana High Court
Bhajan Singh Son Of Sher Singh vs The State Of Haryana on 19 September, 2008
Crl. Appeal No. 1047-SB of 2005
1
IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Crl. Appeal No. 1047-SB of 2005
Date of decision. 19.09.2008
Bhajan Singh son of Sher Singh, resident of village Malwani,
District Hanumangarh ( Rajasthan ).
....... Appellant
Versus
The State of Haryana
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. B.A. Sheoran, Advocate
for the appellant.
Mr. A.K. Jindal, AAG, Haryana
for the respondent.
****
Sham Sunder, J.
This appeal is directed against the judgment of conviction dated 07.05.2005 and the order of sentence dated 11.05.2005, rendered by the Court of Additional Sessions Judge, Sirsa, vide which it convicted the accused (now appellant), for the offence, punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 Crl. Appeal No. 1047-SB of 2005 2 (hereinafter referred to be as the 'Act' only) and sentenced him to undergo RI for a period of 10 years and to pay a fine of Rs. 1 lac, in default of payment of fine to undergo further rigorous imprisonment, for a period of two year, for having been found in possession of one bag containing 5 Kgs opium, without any permit or licence.
2. The facts, in brief, are that on 02.09.2003 SI Manveer Singh along with other police officials, was present at T Point, from Ottu Head to Maujdeen, on the metalled road, in connection with holding a picket. In the meantime, one jeep was seen coming from the side of village Maujdeen and, on seeing the police party, the driver of the jeep started turning back, but, in that process, it got stopped. The driver of the jeep succeeded in running away, from the spot. He was of the age of 30/40 years male, well built and was wearing pant and shirt. One person, who was sitting by the side of the driver, in the said jeep, was apprehended at the spot. On inquiry, he disclosed his name as Bhajan Singh son of Sher Singh, resident of village Malwani, District Hanumangarh. The jeep bore registration No. HR22-B/2268. Bhajan Singh disclosed the identity of the driver of the jeep, as Prithvi Singh, resident of village Bhakharwas, District Jhunjhunu ( Rajasthan ). Manveer Singh, Sub Inspector, conducted the search of the jeep, in the presence of Kuldeep Singh, Deputy Superintendent of Police, Ellenabad, who was Crl. Appeal No. 1047-SB of 2005 3 called to the spot, by sending a message. One plastic bag having a glazed paper containing opium was recovered from underneath the front seat of the jeep. On weighment, the opium came to be 5 Kgs. Two samples of 100 grams of opium, were taken out, from the recovered contraband. Thereafter, the samples were put into small cloth packets, and the remaining opium, was kept in the same bag. The bag, and the samples, were converted into parcels, duly sealed, and taken into possession, along with the jeep, vide a separate recovery memo. The ruqa was sent to the Police Station, on the basis whereof, the FIR was recorded. The site plan was prepared. The accused was arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned.
3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 18 of the Act, was framed against the accused, to which he pleaded not guilty and claimed judicial trial.
4. The prosecution, in support of its case, examined Rajbir Singh, ASI, (PW-1), who recorded formal FIR on receipt of ruqa, Budh Singh, S.I., (PW-2), who prepared the report under Section 173 Cr.P.C., Satbir Singh, Constable, (PW-3), and Satbir Singh, H.C. ( PW-4 ), the formal witnesses, Rameshwar Dass, Constable ( PW-5), who Crl. Appeal No. 1047-SB of 2005 4 took the special report from the MHC and delivered the same to the Illaqa Magistrate, and the other higher officers, Kuldip Singh, DSP ( PW-6 ), a witness to the recovery, Manveer Singh, SI ( PW-7 ), the investigating Officer and Hans Raj, ASI ( PW-8 ), another witness to the recovery. Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence.
5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, stated that on 1.9.2003 he was standing at Jiwan Nagar Chowk, when Pirthi Singh came there in a jeep and he boarded his jeep for coming to Sirsa. It was further stated by him that when the jeep reached the bus stand of village Bharoliawali at about 8.00 PM , the said jeep was intercepted by the police, and they took the same to the Police Station Rania, and he was separated from Pirthi Singh. It was further stated by him that Manveer Singh, SI, and accused Pirthi Singh talked to each other, at some distance, but he could not hear their conversation. It was further stated by him that Pirthi Singh was allowed to go by the Police, and, on the next day, he was falsely implicated in this Crl. Appeal No. 1047-SB of 2005 5 case. It was further stated by him, that nothing was recovered from him. It was further stated by him that neither he was owner, nor the driver of the jeep and he was falsely implicated in the case by the police.
5-A In his defence, the accused examined Rajinder Singh, Constable, DW1, Sunder Pal, Constable, DW-2, Rajbir Singh, Constable, DW-3, Om Parkash, DW-4, Jagdish Chander, DW-5, Onkar Singh, DW-6 and Mohan Lal, DW-7. Thereafter, the accused closed the 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 the accused, as stated hereinbefore.
7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellant.
8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. The Counsel for the appellant, at the very outset, vehemently, contended that though the alleged recovery was effected, in this case, on 02.09.2003, yet the samples were sent to the office of Forensic Science Crl. Appeal No. 1047-SB of 2005 6 Laboratory on 01.10.2003 i.e. after the delay of 30 days. He further submitted that there was no explanation, with regard to delay, in sending the samples, to the office of the Laboratory. He further submitted that, under these circumstances, the possibility of tampering with the samples, until the same reached the office of the Laboratory, could not be ruled out, especially when the seals after use, remained with the police officials. It is, no doubt, true that there is no explanation, with regard to delay. However, mere delay, in itself, is not sufficient to come to the conclusion, that the sample parcels were tampered with, until the same reached the office of the Forensic Science Laboratory. The evidence, produced by the prosecution, on scrutiny has been found to be cogent, convincing, reliable and trustworthy. From the other evidence, it was proved that none tampered with the samples until the same reached the office of the Laboratory. Even there is report of the Chemical Examiner Ex.PG, which clearly proves that the seals on the exhibits were intact, on arrival, till the time of their analysis and agreed with the specimen impression of the seals. The report Ex.PG of the Forensic Science Laboratory, is per-se admissible, in toto, under Section 293 of the Code of Criminal Procedure. There is no challenge, to the report of the Laboratory, in this case.
Crl. Appeal No. 1047-SB of 2005 7 In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the samples to the Laboratory, is not fatal, where there is evidence that the seized articles remained in safe custody. Since, it was proved that none tampered with the samples, until the same were received, in the office of the Forensic Science Laboratory, the submission of the Counsel for the appellant, merely based on conjectures, does not hold good. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. Since it was proved that none tampered with the samples, until the same reached the office of the Forensic Science Laboratory, the submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected.
10. It was next submitted by the Counsel for the appellant, that the seal after use, was handed over to a police official and not to any independent witness, as a result whereof, the chances of tampering with the samples until the same reached the office of the Forensic Science Laboratory, could not be ruled out. There was no independent witness with the Police party and as such the question of handing over the seal to him, after use, did not at all arise. Even otherwise, it was not necessary, on the part of the Investigating Officer, Crl. Appeal No. 1047-SB of 2005 8 to hand over the seal to an independent witness. An 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 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 authority, is fully applicable to the facts of the present case. In view of the cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, produced in this case, regarding the completion of link evidence, Crl. Appeal No. 1047-SB of 2005 9 handing over the seal, after use, to a police official, did not cast doubt on the prosecution case. The submission of the Counsel for the appellant, thus, being devoid of merit, is rejected.
11. It was next submitted by the Counsel for the appellant, that it was not proved by the prosecution, as to where the second sample had gone. The submission of the Counsel for the appellant, in this regard does not appear to be correct. Ex.PC is the affidavit of Satnam Singh, MHC. According to this affidavit on 02.09.2003 when he was posted as MHC, Manveer Singh, SI/SHO deposited with him the case property of this case, as also two samples, each containing 100 grams opium, duly sealed with the seal bearing impressions MS and KS along with the sample seal. The affidavit Ex.PC of Satbir Singh,MHC, referred to above, therefore, does not support the contention of the Counsel for the appellant. Had one sample been deposited with the MHC by the Investigating Officer, he would have stated so, in his affidavit Ex.PC. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
Crl. Appeal No. 1047-SB of 2005 10
12. It was next submitted by the Counsel for the appellant that CFSL form, was not prepared, at the spot by the investigating officer and, as such, the link in the chain of the prosecution evidence became incomplete. Manveer Singh, SI/SHO , who is the Investigating Officer, while appearing in the witness box as PW-7, in clear cut terms stated that the specimen seal impression was prepared by him. He also stated that DSP Kuldeep Singh after affixing his seal, prepared the specimen seal impression thereof. Since it was proved from the statements of both these witnesses, that the specimen impression of the seals, was prepared at the spot, the submission of the Counsel for the appellant to the effect, that the same was not prepared at the spot, does not appear to be correct. Even it is evident from the report of the Forensic Science Laboratory, Ex.PG, that one sealed cloth parcel duly sealed with four seals of MS and one seal of KS enclosing a plastic container containing the exhibit was received. It is further evident, from the report of the Laboratory Ex.PG, that the seals were intact and tallied with the specimen seal, as per the forwarding letter. The statement of Manveer Singh, SI and report Ex.PG, therefore, belies the contention of the Counsel for the appellant. Therefore, the submission of the Counsel for the appellant, is rejected.
Crl. Appeal No. 1047-SB of 2005 11
13. It was next submitted by the Counsel for the appellant, that the statement of Kuldeep Singh, DSP, was not recorded under Section 161 Cr.P.C., as a result whereof, a prejudice was caused to the accused. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. When Kuldeep Singh, DSP, appeared as a witness, he stated during the course of his cross-examination, that he did not remember, as to whether, his statement under Section 161 Cr.P.C. was recorded by the Investigating Officer or not. At the same time, he denied the suggestion that his statement under Section 161 Cr.P.C. was not recorded by the Investigating Officer. However, Manveer Singh, SI, while appearing in the witness box as PW-7, stated, during the course of cross-examination that he did not record the statement of Kuldeep Singh, DSP, under Section 161 Cr.P.C. It is to be seen, as to whether, on account of non-recording of the statement of Kuldeep Singh, DSP, under Section 161 Cr.P.C., any prejudice was caused to the accused. It may be stated here, that even, if, Manveer Singh, SI, the Investigating Officer, during the course of investigation, committed any irregularity, or illegality, the benefit thereof, could not go to the accused. If, on account of such illegality or irregularity, Crl. Appeal No. 1047-SB of 2005 12 having been committed by the Investigating Officer, during the course of investigation, the benefit of doubt is given to the accused, then every negligent or dishonest Investigating Officer, shall leave some loopholes, during the course of investigation, so as to create an escape route for the accused. It is evident from the statement of Kuldeep Singh, DSP, that he was thoroughly cross-examined by the Counsel for the accused. His cross-examination runs into three typed pages, which is in itself clearly goes to prove that no prejudice was shown to have been caused to the accused, on account of the omission of the Investigation Officer. In view of the peculiar facts and circumstances of the case, relating to the heavy recovery of opium, non-recording of the statement of Kuldeep Singh, DSP, under Section 161 Cr.P.C. by Manveer Singh, SI, did not at all create any dent, in the prosecution story. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
14. It was next submitted by the Counsel for the appellant, that the appellant, was falsely implicated in this case. He further submitted that, in his statement, the accused, took up the plea, that he boarded the jeep, being driven by Pirthi Singh and when the same reached the bus stand of village Bharoliwali at about 8.00 PM, it was intercepted. He Crl. Appeal No. 1047-SB of 2005 13 further submitted that the accused also took up the plea that Pirthi Singh was left by the Investigating Officer, but he was falsely implicated in the instant case. The plea taken up by the Counsel, in his statement, under Section 313 Cr.P.C., without proof thereof, through cogent evidence, could not be taken as a gospel truth. There is nothing, on the record, that the accused was knowing Pirthi Singh earlier. There is also nothing, on the record, that he was related to Pirthi Singh and, thus, sat in the jeep. He has not taken up the plea, that he was a passenger and sat in the jeep for reaching the bus stand, after paying the charges to Pirthi Singh. He examined Om Parkash, DW-4, Onkar Singh, DW-6, and Mohan Lal, DW-7, in support of his plea, that he sat in the jeep of Pirthi Singh to reach the bus stand. However, it may be stated here that none of these defence witnesses, was present, at the time, the accused boarded the jeep. Om Parkash, DW-4, during the course of cross-examination, stated that when the accused had gone to village Kherwala, he did not meet him. He further stated that he was present in his village. Onkar Singh, DW-6 , in examination-in-chief, stated that on 01.09.2003 family members of the accused, told him that on that day, when the accused was coming back from village Keharwala to Sirsa via Jiwan Nagar in a jeep, he was falsely Crl. Appeal No. 1047-SB of 2005 14 implicated. This witness was also not present, at the time, the accused allegedly took lift and was apprehended with contraband. Mohan Lal , DW-7 , in examination-in-chief, stated that on the third day, he came to know, that the accused had been arrested, by the Police. He further stated that he also came to know that the accused boarded the jeep, for his village, wherefrom, the opium was recovered. In the first instance, neither any witness was present, at the time, when the accused, allegedly took lift, in the jeep, nor at the time of effecting the recovery of opium from the said jeep. Secondly when they came to know that the accused was falsely implicated, in the instant case, they did not move any application, to the higher authorities, in this regard. In case, they were sure that the accused was falsely implicated, what minimum was expected of them was to move an application before the higher authorities, detailing therein the facts and circumstances in which the accused was allegedly arrested. The mere fact, that they did not move any application, regarding the alleged false implication of the accused, in itself, was sufficient to come to the conclusion, that their evidence was nothing but a concoction of lies. The jeep was not a public transport, for the purpose of carrying passengers, in which the accused could take lift, to reach the bus stand.
Crl. Appeal No. 1047-SB of 2005 15 Had he taken a lift, in the public vehicle, meant for carrying passengers, the matter would have been different. Under these circumstances, the plea taken up by the accused, under Section 313 Cr.P.C. , referred to above, and the defence evidence produced by him, in regard thereto, could not prove that he was falsely implicated in this case. The plea set up by the accused under Section 313 Cr.P.C., and the evidence produced in regard thereto, do not carry any weight and stand rejected.
15. It was next submitted by the Counsel for the appellant that the accused, as per the prosecution witnesses, was found sitting on the front seat, by the side of the driver's seat, in the jeep. It was from underneath the seat, on which he was sitting, that a plastic bag containing opium, weighing 5 Kgs, wrapped in a glazed paper, was recovered. It, therefore, could not be said that he was not in possession of the same. It was within the special means of knowledge of the accused, as to how, the opium was found in the jeep and where the same was being carried. No doubt, he furnished explanation, in his statement, recorded under Section 313 Cr.P.C. and produced defence evidence, in that regard, but the same has been disbelieved. Once the possession of the accused, and his control over the contraband, was proved, Crl. Appeal No. 1047-SB of 2005 16 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 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 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 Crl. Appeal No. 1047-SB of 2005 17
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.
Crl. Appeal No. 1047-SB of 2005 18 (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 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, they are 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."
Crl. Appeal No. 1047-SB of 2005 19 15-C. 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 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 plastic bag containing opium, referred to above, was found in the jeep, which was being driven by one of them. 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. As stated above, the accused, thus, Crl. Appeal No. 1047-SB of 2005 20 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.
16. The Counsel for the appellant, however, placed reliance on Kashmir Singh vs. State of Punjab 2006 (2) RCR ( Criminal) 477, Surjan Singh alias Kala v. State of Punjab 2005(4) RCR ( Criminal) 897 and Baldev Singh v. State of Punjab 2005(1) RCR (Criminal )
823. to contend that the accused was not found in conscious possession of opium. referred to above.
16-A. In Kashmir Singh's case ( supra ), decided by a Full Bench of this Court, it was held that once the recovery of contraband from the possession of the accused, was proved, the presumption that he was in conscious possession thereof, would arise. It was, however, held that this presumption will not apply, unless an opportunity was given to the accused to rebut the same.
16-B. In Surjan Singh alias Kala's case ( supra ) , decided by a Single Bench of this Court, it was held that the mere fact that a person was sitting in trolley, did not prove that he was in possession of the contraband contained Crl. Appeal No. 1047-SB of 2005 21 therein and as such, presumtion under Sections 54 and 35 of the Act, did not operate against him.
16-C. In Baldev Singh's case ( supra ) , decided by a Single Bench of this Court, it was held that the accused would be guilty of the offence, under the Act, if it is established that he was in conscious and intelligent possession. It was further held that merely the physical presence of the accused in proximity or even in close proximity of the object, would not make him liable for any offence under the Act. The facts of the aforesaid authorities, are clearly distinguishable, from the facts of the instant case. In the instant case, full opportunity was given to the accused, during the course of trial. Charge was framed against him. He participated in the trial. He cross-examined the prosecution witnesses. Thereafter, his statement under Section 313 Cr.P.C. was recorded. He was made aware of the fact that he was found in possession of the contraband. He was given an opportunity to lead defence evidence. He led defence evidence. He, however, failed to rebut the presumption, aforesaid. As stated above, in the instant case, the conscious possession of the appellant, in respect of the contraband, was proved. Even otherwise, in view of the principle of law, laid down in Madan Lal's case ( supra ), decided by the Apex Court, on the same point, any Crl. Appeal No. 1047-SB of 2005 22 contrary principle of law, laid down, in Kashmir Singh's, Surjan Singh alias Kala's and Baldev Singh's cases ( supra ), shall not hold the field. No help, therefore, can be drawn by the Counsel for the appellant, from the ratio of law, laid down, in the authorities cited by them, and referred to above. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
17. No other point, was urged, by the Counsel for the parties.
18. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference. The same are liable to be upheld.
19. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction dated 07.05.2005 and the order of sentence, dated 11.05.2005, are upheld. If the appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with Crl. Appeal No. 1047-SB of 2005 23 the judgment, within two months, from the date of receipt of a certified copy of the same, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure.
(SHAM SUNDER) JUDGE September 19, 2008 dinesh