Punjab-Haryana High Court
Makhan Singh @ Kala S/O Gulab Singh vs The State Of Punjab on 21 October, 2008
Crl. Appeal No.956-SB of 2000 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.956-SB of 2000
Date of Decision : 21.10.2008
Makhan Singh @ Kala S/o Gulab Singh, ...Appellant
R/o Village Kulgehna.
Versus
The State of Punjab ....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: Ms. Monika Jalota, Advocate,
Amicus Curiae, for the appellant.
Mr. T.S.Salana, DAG, Punjab,
for the respondent-State.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction, and the order of sentence dated 13.9.2000, rendered by the Court of Addl. Sessions Judge, Ludhiana, vide which it convicted the accused/appellant, for the offence, punishable under Section 15 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 one year, for having been found in possession of 47 bags, each containing 40 kgs. poppy-husk, without any permit or licence.
Crl. Appeal No.956-SB of 2000 2
2. The facts, in brief, are that on 25.7.1994, at about 7.30 AM, Ajit Singh, Inspector, CIA Staff, Jagraon, alongwith other police officials, was going towards village Bharowal, in connection with patrol duty, when he (Ajit Singh, Inspector), received a secret information that Makhan Singh @ Kala, S/o Gulab Singh, was indulging in the sale of poppy-husk, and, in case, a raid was conducted, recovery could be effected. On receipt of the secret information, Ajit Singh, Inspector, recorded ruqa, embodying therein, the details thereof, and sent the same to the Police Station, on the basis whereof, formal FIR was registered. Thereafter, the investigation of the case was handed over to Mohan Singh, SI.
3. On 10.8.1994, the police party headed by Mohan Singh, SI, CIA Staff, Jagraon, and other police officials, was present at Canal bridge, in the area of village Bharowal Kalan. Santokh Singh, a Member Panchayat, of village Bharowal, came there, who was joined with the police party. At that time, Makhan Singh, accused, came from the side of village Bharowal Kalan, who on seeing the police party, tried to turn back. It aroused suspicion, in the mind of Mohan Singh, SI. The accused was arrested, and interrogated. He made a disclosure statement, that he had concealed 47 bags, of poppy-husk, in an unpopulated dune of sand, in the area of village Bharowal, near the land of major Singh, Sarpanch, by wrapping them, in a glazed paper, and buried the same, under the sand. He further disclosed that he only knew about the same, and could get the same recovered, by pointing out. His disclosure statement was reduced into writing, which was signed by him, and attested by the witnesses. Thereafter, the accused led the police party to the pre- Crl. Appeal No.956-SB of 2000 3 disclosed place, and got recovered 47 bags, each containing 40 Kgs. Poppy-husk. Two samples of 250 grams, from each of the bags, were taken out, and the remaining poppy-husk, was kept in the same bags. The samples, and the bags, containing the remaining poppy-husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Rough site plan of the place of recovery, was prepared. Personal search of the accused, was conducted. The statements of the witnesses, were recorded. The accused was arrested. On reaching the Police Station, the case property, the accused, and the witnesses, were produced before Jaspal Singh, Superintendent of Police, who was present there, who verified the same. He affixed his seal, on the case property, and the sample parcels. After the completion of investigation, the accused was challaned.
3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial.
4. The prosecution, in support of its case, examined Ajit Singh, Inspector, (PW-1), Baljit Singh, MHC, (PW-2), Charanjit Singh, (PW-3), Mohan Singh, SI, (PW-4), the Investigating Officer, Jaspal Singh, SP, (PW-5), and Jiwan Lal (PW-6). Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence.
5. The statement of the accused, under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that he and his brother-in-law, Jarnail Singh, were Crl. Appeal No.956-SB of 2000 4 taken by the CIA Staff, Jagraon. It was further stated by him, that there is enmity in the village, and he was a witness of the prosecution, in a murder case against Lachhman Singh and others. It was further stated by him, that Lachhman Singh, is a tout of the police. It was further stated by him, that at the instance of Lachhman Singh, he was falsely implicated, in this case. He, however, examined Lekh Raj, Constable (DW-1), in his defence.
6. After hearing the Addl. 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 learned 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, submitted that when the disclosure statement was allegedly made by the accused, he had not been arrested, and, as such, the said statement was not admissible into evidence. He also placed reliance on Sarabjit Singh @ Sarba Vs. State of Punjab 1998 (1) RCR (Criminal) 348, in this regard. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Mohan Singh, SI, when appeared as, (PW-4), stated that Makhan Singh, accused, came from the side of village Bharowal Kalan, and tried to turn back, on seeing the police party. He was apprehended, on suspicion. He further stated that before arresting the accused, he was Crl. Appeal No.956-SB of 2000 5 explained the reasons of such arrest. It was further stated by him, that after formally arresting the accused, in this case, he was interrogated, and, thereafter, he made a disclosure statement. In this view of the matter, from the statement of Mohan Singh, SI, it was proved beyond a reasonable doubt, that the accused was arrested, in the first instance, and, thereafter, he was interrogated, resulting into making the disclosure statement by him, regarding the concealment of bags, containing poppy- husk, and, in pursuance of that disclosure statement, he got recovered the same. Since the accused was formally arrested, before he was interrogated, and made a disclosure statement, no help can be drawn by the Counsel for the appellant, from Sarabjit Singh's case (supra), relied upon by her. 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 though an independent witness, was joined by the Investigating Officer, yet he was not examined, by the prosecution. No doubt, Santokh Singh, Member Panchayat, was joined, as an independent witness, in this case, by the Investigating Officer, yet he was not examined, on account of the reason, that he died during the pendency of trial. Copy of the death certificate, showing that Santokh Singh died on 2.12.1998, is attached with the summons, sent for his service for 31.3.2000. Since, he had died, the question of his examination, did not at all arise. It was, under these circumstances, that he could not be examined. The other evidence produced by the prosecution, has been subjected to thorough scrutiny, and the same has been found to be cogent, convincing, reliable, and trustworthy. The trial Court was, thus, right in relying upon the Crl. Appeal No.956-SB of 2000 6 trustworthy evidence of the prosecution witnesses, to come to the conclusion, that the accused was found in possession of 47 bags, each containing 40 Kgs. Poppy-husk. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
11. It was next submitted by the Counsel for the appellant, that from Exs.D-1 and D-2, FIR Nos.80 and 81, it was proved that almost the same quantity of poppy-husk was recovered from Resham Singh and Jarnail Singh @ Panditi, on the same day. She further submitted that, how it was possible that the same quantity of poppy-husk, could be recovered from some other accused, on the same day. The submission of the Counsel for the appellant, in this regard, also does not appear to be correct. It is evident from Ex.D-1, copy of the FIR, that the recovery was effected from the accused, in that case on 17.8.1994. It is evident from Ex.D-2, copy of the FIR that the recovery was effected from the accused, in that case on 11.8.1194. In the instant case, the recovery was effected on 10.8.1994. In these circumstances, Exs. D-1 and D-2, copies of the FIRs, have got no relevance, with the present recovery. In this view of the matter, the submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected.
12. It was next submitted by the Counsel for the appellant, that the sand dunes, wherefrom, the recovery was allegedly got effected, by the accused, did not belong to him, and, as such, he could not be said to be in conscious possession thereof. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It was not that, on account of general search of the dunes, that the recovery of poppy-husk, Crl. Appeal No.956-SB of 2000 7 was effected therefrom. The recovery was got effected, by the accused, in pursuance of the disclosure statement, made by him. The accused had exclusive knowledge, with regard to the concealment of bags, containing poppy-husk. Nobody else knew, as to whether, he had concealed the poppy-husk aforesaid. Under these circumstances, he could be said to be in possession thereof. It was for him, to explain, as to under what circumstances, he came into possession of the said poppy-husk. Once the possession of the accused, in relation of the bags, containing poppy-husk was proved, the statutory presumption under Sections 54 and 35 of the Act, operated against him, that he was in conscious possession thereof. It was for the accused, to rebut the statutory presumption, operating against him. He only took up the plea, that he was falsely implicated. The accused, however, failed to rebut the statutory presumption, aforesaid. 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."
The word 'conscious' means awareness about a particular fact. It is the state of mind, which is deliberate or intended. The possession Crl. Appeal No.956-SB of 2000 8 need not be physical possession, but can be constructive, having power and control over the article, while the person whom physical possession is given holds it subject to that power or control. The accused was in exclusive knowledge and possession of the bags, containing poppy-husk. Keeping in view the principle of law, laid down, in the aforesaid case, the provisions of Sections 54 and 35 of the Act, and the evidence produced, on record, the trial Court, in my opinion, was right in coming to the conclusion, that the accused was in conscious possession of the bags, containing poppy-husk. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
13. No other point, was urged, by the Counsel for the parties.
14. 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, and are liable to be upheld.
15. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 13.9.2000, are upheld. If the appellant is on bail, his bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Ludhiana, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Cr.P.C., and submit compliance report, to this Court, within a period of two months, from the date of receipt of a copy thereof.
16. The District & Sessions Judge, Ludhiana, is directed to ensure that the directions are complied with strictly by the Court of Chief Crl. Appeal No.956-SB of 2000 9 Judicial Magistrate, Ludhiana, and the compliance report is sent within the time-frame.
17. The Registry shall keep track that the compliance report is received within the time-frame. Whether the compliance report is received within the time-frame or not, the papers shall be put up after two days of the expiry of the same, for further action.
21.10.2008 (SHAM SUNDER) Vimal JUDGE