Punjab-Haryana High Court
Resham Kaur Wife Of Chamkaur Singh Son Of ... vs The State Of Punjab on 4 October, 2008
Crl. Appeal No. 505-SB of 2007
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IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Crl. Appeal No. 505-SB of 2007
Date of decision.04.10.2008
Resham Kaur wife of Chamkaur Singh son of Narain Singh,
resident of village Rattian, Tehsil and District Moga.
....... Appellant
Versus
The State of Punjab
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Vivek Goel, Advocate
for the appellant.
Mr.S.S. Bhullar, DAG, Punjab
for the respondent.
****
Sham Sunder, J.
This appeal is directed against the judgment of conviction dated 01.02.2007 and the order of sentence dated 05.02.2007, rendered by the Special Judge, Moga, vide which he convicted the accused (now appellant), for the offence, punishable under Section 15(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be Crl. Appeal No. 505-SB of 2007 -2- as the 'Act' only) and sentenced her 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 one year, for having been found in possession of four bags each containing 25 Kgs and 250 grams poppy straw, without any permit or licence.
2. The facts, in brief, are that on 30.09.2005 ASI Sham Lal along with other police officials, was on patrol duty on the link road, leading from Mehna to village Chugawan, in a Government vehicle. When the police party reached near the drain, in the area of village Chugawan, one lady, was found sitting on four bags, lying in a dried drain. On seeing the police party, she tried to slip away, but on suspicion, she was apprehended. She disclosed her identity. Search of the bags, in accordance with the provisions of law, in the presence of DSP Bhulla Singh, who was called to the spot, by sending a message, was conducted. Each bag was found containing 25 Kgs and 250 grams poppy husk. One sample of 250 grams of poppy husk, was taken out, from each bag. The contents of the samples were put into separate containers, and the remaining poppy husk, was kept in the same bags. The bags, and the samples, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa Crl. Appeal No. 505-SB of 2007 -3- 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 her appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 15(c) of the Act, was framed against the accused, to which she pleaded not guilty and claimed judicial trial.
4. The prosecution, in support of its case, examined Sham Lal, ASI, (PW-1), Ashok Kumar, Photographer, (PW-2), Ramesh Kumar, C., (PW-3), Balbir Singh, HC, ( PW-4 ), Bhulla Singh, DSP, ( PW-5 ), Avtar Singh, ASI, ( PW-6 ), Kesar Singh, SI, ( PW-7 ), Amar Singh, ASI, ( PW-8 ) and Kulwant Singh, HC, ( PW-9 ). 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. She was put all the incriminating circumstances, appearing against her, in the prosecution evidence. She pleaded false implication. She, however, stated that she was not the owner of the bags, containing poppy husk. She further stated that she Crl. Appeal No. 505-SB of 2007 -4- did not possess the same. She further stated that she was neither the owner , nor in possession of the place of recovery. She further stated that a false case was planted against her, by the police. She further stated that on 30.09.2005, she was illegally taken by the police, in the presence of Raju and Maghar Singh. The police searched her house, but no incriminating article was recovered. She further stated that, in fact, her son Lal Singh,who was residing separately from her, was absconder in a criminal case and in order to pressurize her to produce him, she was falsely implicated in the instant case. She further stated that her husband also moved an application, regarding her false implication. She further stated that Tata Sumo, which was in the name of her son Lal Singh, was also illegally taken into possession, by the police, but the same was not returned to her. She further stated that a telegram was also sent to the Senior authorities in this regard. Later on, Harjit Singh and the driver were left by the police.
5-A In her defence, the accused examined Jagsir Singh, C., DW1, Raju son of Gulzar Singh, DW-2, and Chamkaur Singh, DW-3. Thereafter, the accused closed the defence evidence.
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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 30.09.2005, yet the samples were sent to the office of Chemical Examiner on 11.10.2005 i.e. after the delay of 11 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. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Mere delay, in itself, is not sufficient to come to the conclusion, that the sample Crl. Appeal No. 505-SB of 2007 -6- parcels were tampered with, until the same reached the office of the Chemical Examiner. In the absence of any explanation, the Court is required to take into consideration the other evidence, produced by the prosecution, to come to the conclusion whether the link evidence is complete on not. In the instant case, the other evidence produced by the prosecution has been subjected to in-depth scrutiny, and the same 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.P25, 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.25 of the Chemical Examiner, 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. 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 Chemical Crl. Appeal No. 505-SB of 2007 -7- Examiner, 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 Chemical Examiner, the submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected.
10. The Counsel for the appellant, however, placed reliance on Jagmohan Singh alias Jago v. State of Punjab 2007(3) RCR ( Criminal ) 900, decided by a Single Bench of this Court, to contend that non-furnishing of an explanation for sending the samples to the office of the Chemical Examiner, after delay, clearly proved that the possibility of the tampering with the same, could not be ruled out. The perusal of the facts of Jagmohan Singh alias Jago's case ( supra) reveals that the appellant was acquitted therein, on so many grounds. One of the major grounds, for the acquittal of the appellant, was to the effect, that the accused was not found in conscious possession of the poppy husk. No other evidence produced, in that case, that none tampered with the sample, until the same reached the office of Crl. Appeal No. 505-SB of 2007 -8- the Chemical Examiner, as there was delay of 12 days, in sending the same, to the Laboratory. In the instant case, the evidence was produced, by the prosecution, as stated above, to prove that none tampered with the samples, until the same reached the Laboratory. That evidence as stated above, has been found cogent, convincing, reliable and trustworthy. As would be discussed, in the succeeding paragraphs, the accused was also found in conscious possession of poppy husk. The facts of Jagmohan Singh alias Jago's case ( supra ) are distinguishable, from the facts of the present case. No help, therefore, can be drawn, by the Counsel for the appellant, from the authority, cited by him, 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.
11. It was next submitted by the Counsel for the appellant, that the appellant was not found in conscious possession of the bags, containing poppy husk. He further submitted that the mere fact that the appellant was allegedly found sitting on the bags, at a place, which was neither her ownership nor in her possession, did not prove that she was in possession of the said bags, containing poppy husk. He further submitted that the prosecution miserably failed to Crl. Appeal No. 505-SB of 2007 -9- prove the conscious possession of the appellant, in respect of the contraband and, as such, no offence, whatsoever, was committed by her, under Section 15 of the Act. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The accused was found sitting on four bags, containing poppy husk. Since she was found sitting on four bags containing poppy husk, it was within her special means of knowledge, as to how the bags containing poppy husk came there. It was also within her special means of knowledge, as to how, she was sitting on those bags. It was also within her special means of knowledge as to where those bags were to be transported. The accused, however, failed to furnish any explanation in regard to the aforesaid questions. It is not the case of the accused that she was just passing by that side, and with a view to take rest, she sat on those bags. It was also not the case of the accused that somebody else kept the bags, containing poppy husk there in her presence, told her, to keep a watch over the same and she was, thus, not in conscious possession thereof. It was also not the case of the accused, during the course of trial, that the bags containing poppy husk were the ownership of somebody else, but she was only asked, to keep the same, in her possession temporarily. Since the accused, was found sitting Crl. Appeal No. 505-SB of 2007 -10- on four bags, containing poppy husk, her possession in relation thereto and control over the same was proved. Once the possession of and control over the bags, containing poppy husk, in relation to the accused, was established, then statutory presumption under Sections 54 and 35 of the Act, operated against her, that she was in conscious possession thereof. Thereafter, the onus shifted, on to her, to prove that she was not in conscious possession thereof. Thereafter, it was for her, 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 the accused 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;
Crl. Appeal No. 505-SB of 2007 -11-
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
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."
11-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.
Crl. Appeal No. 505-SB of 2007 -12- 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 beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability."
11-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.
Crl. Appeal No. 505-SB of 2007 -13- Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles."
11-C In Megh Singh Vs. State of Punjab, (2003) 4 RCR(Criminal) 319, on 22.2.1993, three persons were found sitting on the gunny bags, containing poppy husk. The appellant was arrested, while the other two fled. 25 bags containing poppy husk, were found, at the spot, which were seized. The appellant was convicted and sentenced by the trial Court, and the appeal filed by him, was also dismissed by the High Court. The Apex Court, upheld the conviction and sentence of the appellant, observing that he was in conscious possession of the contraband. The word 'conscious' means awareness about a particular fact. It is the state of mind, which is deliberate or intended. It was further held that possession in a given case, 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. In the instant case, it therefore, could not be said that the accused was not aware of the contraband.
It was not a small quantity of contraband, which was concealed, and, as such, could escape the notice of the accused. Keeping in view the principle of law, laid down, in the Crl. Appeal No. 505-SB of 2007 -14- aforesaid cases, the provisions of Sections 35 and 54 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 found in conscious possession of poppy husk. 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. The Counsel for the appellant,however, placed reliance on Baldev Singh v. State of Punjab 2005(1) RCR (Criminal) 823, and Sukhdev Singh alias Sukha v. State of Punjab 2006(1) RCR ( Criminal ) 4 , in support of his contention, that the accused was not found in conscious possession of the contraband. These cases were decided by this Court. The perusal of the facts of the aforesaid authorities, clearly goes to show that the same are distinguishable, from the facts of the instant case. In the aforesaid cases, relied upon by the Counsel for the appellant, the accused were acquitted on a number of grounds. Even the accused were not found in conscious possession of the contraband. In the instant case, the conscious possession of the contraband of the accused and her control over the same, stood proved. Even otherwise, in view of the principle of law laid down, in Megh Singh's case ( supra ), decided by the Apex Court, any principle of law, to Crl. Appeal No. 505-SB of 2007 -15- the contrary, laid down, on the same point, in the aforesaid authorities, relied upon by the Counsel for the appellant, shall not hold the field. No help, therefore, can be drawn, by the Counsel for the appellant, from these authorities. 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. It was next submitted by the Counsel for the appellant that no question in statement under Section 313 Cr.P.C., was put to the accused, that she was in conscious possession of the contraband and as such, she could not be held guilty for the offence punishable under Section 15 of the Act. The submission of the Counsel for the appellant, in this regard, also does not appear to be correct. It may be stated here that in statement under Section 313 Cr.P.C., only the incriminating circumstances, appearing against the accused, in the prosecution evidence are required to be put to him/her. The provisions of law, or the presumption operating under the provisions of law, are not required to be put to her/him in the statement under Section 313 Cr.P.C.. In the instant case, in the statement under Section 313 Cr.P.C., the accused was put a specific question, that she was found sitting on four bags, containing poppy husk. She was, thus, made aware of the factum that she was found in possession of and in control over Crl. Appeal No. 505-SB of 2007 -16- the bags, containing poppy husk. As stated above, once the possession of the contraband was proved, in relation to the accused, statutory presumption of law under Sections 54 and 35 of the Act, started operating against him/her that he/she was in conscious possession thereof. In these circumstances, it could not be said that the statement under Section 313 Cr.P.C., of the accused was not properly recorded. The submission of the Counsel for the appellant, thus, being devoid of merit, is rejected.
14. The Counsel for the appellant, however, placed reliance on Bhola Singh v. State of Punjab 2005(2) RCR ( Criminal ) 520, decided by a Single Bench of this Court, in support of his contention that once the question regarding conscious possession of the contraband was not put to the accused, in her statement, under Section 313 Cr.P.C., she cannot be convicted for the offence under the Act. In Bhola Singh's case ( supra ) no question was put to the accused, that he was in possession of those bags. In these circumstances, it was held that the conscious possession of the contraband, was not proved, in relation to him. The facts of the aforesaid authority, are distinguishable, from the facts of the instant case. No help, therefore, can be drawn, by the Counsel for the appellant, from the authority, cited by him, and referred to Crl. Appeal No. 505-SB of 2007 -17- 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.
15. It was next submitted by the Counsel for the appellant, that the affidavit of Balbir Singh, Head Constable, being contrary to the provisions of Section 297(2) Cr.P.C., and, therefore, no reliance, thereon, could be placed. He further submitted that once the affidavit of Balbir Singh,HC, is taken off the record, then the link evidence becomes incomplete. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Balbir Singh, HC, who tendered his affidavit Ex.P-18, appeared in the witness box as PW-4. He was duly cross-examined by the Counsel for the accused. In case, there was any defect, in the affidavit of Balbir Singh, HC, PW-4, regarding verification the matter could be got clarified from him. However, no question, was put to this witness, in this regard. Had this witness been not examined, the matter would have been different. Under these circumstances, whether there was any technical defect, in the affidavit or not, that hardly mattered. In Balwinder Singh v. State of Haryana 1998(1) RCR ( Criminal ) 191 ( DB ) (P&H), a contention was raised by the Counsel for the accused, that the affidavits of the police officials, were not Crl. Appeal No. 505-SB of 2007 -18- verified, as per the provisions of law, and, as such, a prejudice was caused to the accused, on account of that reason. In that case, both the formal witnesses, were tendered for cross- examination, by the prosecution, and they were cross- examined. In these circumstances, it was held by a Division Bench of this Court, that since both the formal witnesses were tendered for cross-examination, whether there was any defects in the verification of the affidavit or not, hardly mattered and it did not cause any prejudice to the accused. The principle of law laid down in Balwinder Singh's case ( supra ) is fully applicable to the facts of the instant case. It, therefore, does not lie, in the mouth of the appellant, to say, that the verification of the affidavits was defective. The submission of the Counsel for the appellant, thus, being devoid of merit, is rejected.
16. The Counsel for the appellant, however, placed reliance on Santokh Singh @ Sokha v. The State of Punjab 2003(1) RCR ( Criminal ) 613, a case decided by a Single Bench of this Court. In that case, the verification of the affidavit was defective. It was, thus, held by this Court that the link evidence was incomplete. The facts of the aforesaid authority are distinguishable, from the facts of the present case. Even otherwise, in view of the principle of law, laid down, in Balwinder Singh's case ( supra ), decided by a Crl. Appeal No. 505-SB of 2007 -19- Division Bench of this Court, any contrary principle of law, laid down, on the same point in Santokh Singh @ Sokha's case ( 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 authority cited by him, 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. It was next submitted by the Counsel for the appellant that when the case property was produced before the Illaqa Magistrate, he passed order Ex.P20/A, stating therein that the samples of poppy husk were produced before him. He further submitted that this order is dated 06.12.2005. He further submitted that by that time, the samples had already been sent to the Chemical Examiner and how the same could be produced and photographs thereof, could be taken before the Illaqa Magistrate. He further submitted that, under these circumstances, the entire case of the prosecution, was false. The submission of the Counsel for the appellant, on the face of it, appears to be very attractive, but when scrutinized, in the face of the evidence, pales into insignificance. No doubt, in the order dated 06.12.2005, there is mention of production of sample parcels, for taking photographs thereof. However, it is Crl. Appeal No. 505-SB of 2007 -20- evident from the inventory Ex.P-20, that there was no mention of the production of the sample parcels. On account of inadvertence, it was typed that sample parcels were also produced. However, lateron, an application was moved for correction of the order. The Judicial Magistrate Ist Class, Moga, on 14.12.2005 passed the following order, Ex.P20/B:-
"At this stage, SHO P.S. Mehna has given an application for the correction of inventory to the extent that 4 samples have already been drawn from the case property. I have perused the inventory report already made by the Court and 4 samples in small cloth parcels produced has been made inadvertently. So, necessary correction be made to that extent."
It was only a typographical mistake, which occurred in Ex.P-20/A. It could be corrected by the concerned Magistrate, at any time. The same was corrected. Under these circumstances, no help can be drawn, by the Counsel for the appellant, from such a typographical mistake. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
18. No other point, was urged, by the Counsel for the parties.
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19. 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.
20. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction dated 01.02.2007 and the order of sentence, dated 05.02.2007, are upheld. If the appellant is on bail, her bail bonds shall stand cancelled. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with 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 October 04, 2008 dinesh