Dalvinder Singh v. U. O. I. — 1997 DIGILAW 1230 (RAJ)

Honble KHAN, J. – Special Judge (N.D.P.S. Cases), Kota tried Dalvinder Singh, Kewal Krishna and Phugni Ram appellants for offences u/S. 8/15 & 8/18 and Balchand respondent in Cr.Appeal No.425 of 1995 for offence u/S. 8/25 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (the NDPS Act). By his impugned judgement and order dated 27.10.1994, passed in Sessions Case No.2 of 1994 State vs. Dalvinder Singh & Ors., the learned Judge convicted and sentenced the three appellants to 15 years R.I. and fine of Rs.1.5 lakhs each. Balchand respondent was, however, acquitted of the offence u/S. 8/25 NDPS Act. The three convicted persons preferred a joint appeal being Cr. Appeal No. 625 of 1994. Phungi Ram appellant preferred a jail appeal Cr. A.No. 103/95) also. Union of India challen- ged the order of acquittal of Balchand accused by preferring Cr.A.No.425 of 1995. All the three appeals were heard together and are disposed of by this common judgment. (2) Relevant facts are these : Under instructions from the Deputy Narcotics Commissioner Kota a preventive party consisting of PW 3 Rama Shankar Prasad, Superintendant (Executive), PW 4 Raja Ram, PW 5 Nand Lal, PW 8 Shiv Narain, Inspectors, PW 6 Bajrang Lal Sepoy and some others stationed itself on 2.12.92 at about 10.00 AM near Toll Tax Barrier on Kota-Bundi road to check suspected vehicular traffic. At about 10.30 AM Truck No. DL-1G-2932, loaded with onion-bags and being driven by its owner-driver, Dalvinder Singh appellant, reached the barrier and was stopped for checking by the members of the Checking party. Krishna Kumar appellant, as owner of the goods being transported in the vehicle and Phugni Ram, appellant, as conductor-cleaner of the vehicle were occupying seats in drivers cabin. On interrogation, the checking party suspected the bonafides of the occupants of and the nature of the goods being transported in the vehicle. The members of the checking party, there- fore, took the appellants with their loaded vehicle and the two Motabirs, PW 1 Manoj Kumar and PW 2 Dinesh Kumar, who were the servants of the contractor of the toll tax at the barrier, with them to the Control Room, Central Bureau of Narcotics, Kota for search of the vehicle. The members of the checking party, there- fore, took the appellants with their loaded vehicle and the two Motabirs, PW 1 Manoj Kumar and PW 2 Dinesh Kumar, who were the servants of the contractor of the toll tax at the barrier, with them to the Control Room, Central Bureau of Narcotics, Kota for search of the vehicle. After informing the appellants of their right to get themselves and their vehicle searched in presence of a gazetted officer, who PW 3 Ram Shankar Prasad was or before a Magistrate and on the appellants offering the search of their persons and their vehicle in presence of the gazetted officer, the vehicle was searched and unloaded. Beneath the 70 bags, containing onion, 151 gunny bags containing poppy straw were recovered. Yet from under those gunny bags two urea fertilizer polythene bags containing 11 raxine packets with semi-solid opium filled therein were recovered. Poppy straw weighed 6, 191.00 Kgs. The contraband opium weighed 51.100 gms. All were duly seized. Ten samples of the contraband opium, weighing 24 gms. each and eight samples of poppy straw, weighing 500 gms. each were prepared and duly sealed as per rules. The appellants were arrested. The goods, vehicle etc. were seized. The sample packets were taken by PW 7 Ramakant Tiwari to the Chemical Examiner at Govt. Opium & Alkaloid Works, Neemuch (M.P.) for examination. The chemical examiner, vide his reports Ex. P. 16 and Ex. P. 17, reported on qualitative and quantitative analysis that each of the samples of opium contained morphine and each of the two samples ``poppy straw as per definition in Sec. 2 (XV) and 2 (XVIII) of NDPS Act respectively. The reports of the Chief Chemical Examiner have not been challenged before me. (3) On being interrogated by the Superintendent, Dalvinder Singh and Kewal Krishna appellants are alleged to have given informations that the Poppy straw and the contraband opium had been loaded in the vehicle from the house of Balchand respondent at village Goghatpur, P/s. Manchalpur, Distt. Rajgarh (M.P.). A party hea- ded by PW 5 N.L. Rai, Inspector, made a search of the two rooms in the Nohra of Balchand respondent on 4.12.92 at 10.00 P.M. and seized a Special machinery used for grinding poppy straw and some empty polythene and gunny bags for filling the powder. The articles recorded were seized and Balchand respondent was arrested. A party hea- ded by PW 5 N.L. Rai, Inspector, made a search of the two rooms in the Nohra of Balchand respondent on 4.12.92 at 10.00 P.M. and seized a Special machinery used for grinding poppy straw and some empty polythene and gunny bags for filling the powder. The articles recorded were seized and Balchand respondent was arrested. On a complaint, containing such facts, the three appellants and Balchand were tried by the learned Special Judge and were finally dealwith in the manner stated above. (4) It was urged on behalf of the appellants that the search in the present case was not made in the presence of the witnesses of the locality and, therefore, the trial of the appellants got vitiated. I find no force in this argument. (5) It was not disputed before me that on the relevant day, time and place the Truck, loaded with gunny bags and other bags, was checked by the officers of the Narcotic Department and all the three appellants, in their different capacities, were found present in the drivers cabin of that vehicle. All the witnesses from the department have unanimously deposed that since sufficient number of labourers, required to unload the truck of its goods, were not available at the Barrier, the Truck and all the three appellants and two servants of the contractor at the Toll Tax Barrier, namely PW 1 Manoj Kumar and PW 2 Dinesh Kumar were taken to the Control Room premises of the Central Bureau of Narcotics, Rajasthan Unit, at Kota and then the search of the vehicle was made. In the facts and circumstances of this case wherein large quantity of poppy straw and opium was suspected as being trans- ported in a vehicle and unloading of the vehicle was necessary to detect the possession of narcotic drugs and required number of labourers were not available there the witnesses could have naturally acted in the way they did. In the facts and circumstances of this case wherein large quantity of poppy straw and opium was suspected as being trans- ported in a vehicle and unloading of the vehicle was necessary to detect the possession of narcotic drugs and required number of labourers were not available there the witnesses could have naturally acted in the way they did. Under such circumstances PW 1 Manoj Kumar and PW 2 Dinesh Kumar, who were present at the place where the vehicle carrying the poppy straw bags and the contraband was stopped and was to be searched but could not be searched due to non-availability of required number of labourers and was therefore taken to and was searched at the control room, not much far away from the Toll Tax Barrier, in the presence of the aforesaid two independent witnesses, did not cease to be the witnesses of the locality. There is, therefore, no force in this argument and it is accordingly rejected. (6) It was next urged by the learned counsel that since both the independent witnesses have turned hostile and have not supported the prosecution case, the witnesses from the department being interested witnesses be not relied upon. (7) It is true that PW 1 Manoj Kumar and PW 2 Dinesh Kumar, the two Motabirs in this case, were declared hostile as they had not supported the prosecution case. But I find that on being cross- examined both the witnesses admitted to have put their signatures on the seizure memo Ex. P. 1, Arrest memos of Dalvinder Singh, Kewal Krishna and Phugni Ram appellants Ex. P.2, Ex. P. 3, Ex. P. 4, the site map of the Toll Tax Barrier Ex. P.8, seizure memo of the vehicle Ex. P.5, Memo of Specimen seal used for preparing the sealed sample packets Ex. P.7 and the site map of the control room Ex. P.3 (doubly marked as Ex. P.3). Both the witnesses could not explain as to how they came to put their signatures on so many documents. Their version that they were made to sign blank sheets of paper was not at all satisfactory and inspired no confidence. The witnesses of the department were neither in a position to exercise under influence co-ersion or fraud upon them nor were they alleged to have done that. Their version that they were made to sign blank sheets of paper was not at all satisfactory and inspired no confidence. The witnesses of the department were neither in a position to exercise under influence co-ersion or fraud upon them nor were they alleged to have done that. I therefore hold that the hostile testimony of PW 1 Mukesh Kumar and PW 2 Dinesh Kumar does not at all adversely affected the worth and value of the witnesses from the department. (8) The requirement of law is that in conducting search and seizure proceed- ings either u/S. 100 and 102 Cr.P.C. or under any other law independent witnesses of the locality should normally be associated in such proceedings. That was done in the present case. There is no rule of law that the independent witnesses should necessarily support the prosecution case and only then an accused can be held guilty of committing the offence based on the evidence collected as a result of search and seizure proceedings which may have substantive or corroborative value. The evidence of a solitary witness, if trustworthy and reliable, may be sufficient to base the conviction of an accused. This argument too is rejected. (9) In so far as the question of reliability of PW 3 Rama Shankar Prasad, PW 5 Nand Lal Rai, PW 6 Bajrang Lal and PW 8 Shiv Narain, as witnesses to search, sei- zure and arrest is concerned on close scrutiny of their statements, as recorded by the learned trial Judge, I feel satisfied that they are quite truthful and reliable witnesses and their testimonies do not suffer from any material infirmity or improbability. They all have deposed the facts, narrated above in sufficient detail, and have neither self- contradicted themselves nor contradicted each other on any material point involved in the case. It was a part of their duty to make vehicular checking as a measure to check transportation of narcotic drugs and psychotropic substances and, therefore, they had all the reasons to be present at the Toll Tax Barrier. It was quite proper on their part to have stopped the vehicle being driven by Dalvinder Singh appellant, and enquired of the station of its departure and place of its destina- tion. It was quite proper on their part to have stopped the vehicle being driven by Dalvinder Singh appellant, and enquired of the station of its departure and place of its destina- tion. On coming to know that the vehicle had been loaded of its contents in an opium producing area of the adjoining State they had sufficient reasons to have suspected of there being the possibility of the presence of poppy straw bags amongst or beneath the bags containing onions in the vehicle. The testimony of these witnesses is, therefore, quite natural and in accordance with the normal mode and manner of discharging such nature of duties, the witnesses were entrusted with. Therefore, simply for the reason that they happen to be the witnesses from the Narcotic Department their testimonies, which inspires confidence in me, cannot be rejected. (10) It is also not correct to say that since these witnesses may be naturally in- terested in the success of the case they were directly associated with, hence they are interested and partial witnesses and, therefore, should not be believed discharging ones duty in the way and in the manner the rules of procedure governing the discharge of such duty (particularly when the discharge of such duty by a public servant makes part of his official duty) enjoins upon him to discharge that duty in that mode and manner, does not make one an interested or partial witness in that cause. Since I notice that all the witnesses from the department had followed the relevant provisions of the Act and the rules made thereunder particularly when I notice that they had duly informed the appellants of their right to be searched in the presence of a gazetted officer or before a Magistrate and on appellants readiness and preparedness to be searched in presence of PW 3 Rama Shankar Prasad, Superintendent (Executive), who was a gazetted officer, that they had duly associated two independent witnesses in search, seizure proceedings, that the incriminating articles found as a result of search conducted by them had been duly seized and required number of samples packet prepared and duly sealed on the spot, that they had, with no loss of time informed their higher officers of the search, seizure and arrests made in this case, that the samples were sent to the Chemical Rxaminer with no loss of time and after receipt of the report from the Chemical Examiner the complaint was filed promptly, I absolutely see no good reasons to reject their evi- dence. It is therefore held that the learned trial Judge has rightly believed and relied upon the testimony of the witnesses from the Department. (11) It was next urged that the appellants were not in ``conscious possession of the narcotic drugs and therefore they cannot be saddled with any criminal liability under the Act. (12) It was not disputed before me that on a search of the vehicle, beneath the 70 bags of onion 151 gunny bags containing poppy straw and two Raxine bags containing 11 packets of contraband opium concealed under these 151 bags were recovered from the said vehicle. All the three appellants were there inside Truck which was carrying the above goods and contraband and that they all were arrested at the relevant day, time and place. In their examinations, recorded u/S. 313 Cr.P.C., the appellants do not appear to have disputed their arrests on that day and at the relevant time and place. With these fully established facts the question to be considered is if the appellants may be said to be in conscious possession of the poppy straw bags and the contraband. In their examinations, recorded u/S. 313 Cr.P.C., the appellants do not appear to have disputed their arrests on that day and at the relevant time and place. With these fully established facts the question to be considered is if the appellants may be said to be in conscious possession of the poppy straw bags and the contraband. (13) The answer to the question posed above should not arrest my attention for long as the facts of the case and their sequence and prompt action taken by the officers of the department clearly take me to answer the question in the affirmative. But I would like to point out the position of ``conscious possession in relation to Phugni Ram appellant in particular and the other two appellants in general. (14) Whereas the case put forth by the prosecution was that on the relevant day, time and place and the three appellants were found transporting huge quantity of poppy straw and the opium in a truck and such a case was proved at the trial by cogent and reliable evidence, the defence version was that Dalvinder Singh appellant was the driver-cum-owner of the vehicle and Phungi Ram appellant was the conductor-cum-cleaner thereon. Regarding Kewal Krishna appellant the prosecution version was that he had been reported by the other two appellants to be the owner of the goods in the truck, including the poppy straw and the opium. That appellant, however, had taken the plea that he had boarded the truck at Jhalawar for Bundi and such a plea was also tried to be supported by the statement of DW3 Shiv Kumar. (15) In so far as Dalvinder Singh appellant is concerned, he was the owner-cum-driver of the vehicle. The vehicle could not have been loaded without his consent and permission. He was to charge the fare for the goods desired to be transported by the person hiring his vehicle. The evidence of the witnesses clearly suggests that his possession of the poppy straw bags and the opium bags was coupled with his knowledge of the contents of the bags. He has, therefore, been rightly held as a person in conscious possession of the poppy straw and the opium punishable u/S. 8 r.w. Sec. 15 and 18 of the Act. (16) However, in so far as the case against Phugni Ram appellant is concerned admittedly he was a conductor-cum-cleaner on the vehicle. He has, therefore, been rightly held as a person in conscious possession of the poppy straw and the opium punishable u/S. 8 r.w. Sec. 15 and 18 of the Act. (16) However, in so far as the case against Phugni Ram appellant is concerned admittedly he was a conductor-cum-cleaner on the vehicle. He was a servant of Dalvinder Singh. His duty included mainly to clean and maintain the vehicle. He had no interest either in the fare or in the goods to be transported through the vehicle. He was not responsible for any damage to or loss of the goods. He was not to be benefited or to suffer anyloss either by increase or by decrease in the fare. He was not required to know the nature of the goods to be transported. He had no authority to refuse to transport any goods which his master would to transport, transportation of consignment was no part of his duties. He may be having knowledge of the kind or nature of the goods to be transported but was not to receive any lawful possession of the goods in presence of Dalvinder Singh, the owner and driver of the vehicle. Thus in Phugni Rams case the essential element of conscious possession, actual or constructive, which makes the very essence of offence u/S. 8 punishable under either u/S. 15 or u/S. 18 of the Act was missing. (17) Possession is not purely a legal concept but also a matter of fact. It is a relationship between a man and a thing and implies a right as well as a fact. It involves power of control and intent to control which Phugni Ram in his position as a conductor and cleaner of the vehicle was not having in relation to Poppy straw bags and the opium bags. He could not have assumed, exercised or resumed manual control of the poppy straw and the opium at his pleasure and the gunny bags and the raxine bags containing poppy straw and the opium respectively were not under the protection of his personal presence as Dalvinder Singh & Kewal Krishna, appellants, were already there in the vehicle to protect the poppy straw and the contraband opium. On such facts, I am of the view, Phugni Ram cannot be said to be in ``possession with knowledge of the poppy straw and opium, which makes the essential ingredient of the offence u/S. 8 of the Act. Phugni Ram appellant is accordingly entitled to acquittal of the charges levelled against him. (18) Kewal Krishna appellant is stated to be the owner of the Poppy straw bags and the opium bags besides those containing onion. PW 3 Rama Shankar Prasad, the Superintendent (Ex.) had entrusted the investigation of the case to PW 5 Nand Lal Rai, Inspector. In the course of the investigation Dalvinder Singh and Kewal Krishna appellants led him to the two rooms in Balchand respondents Nohra in village Goghatpur (M.P.) and on search of those two rooms certain machinaries to grind poppy heads, weight and measures and certain number of gunny and plastic or raxine bags were found. Though Kewal Krishna had told that he was a resident of Haryana State yet he was found maintaining a residential room in Jhalawar and such room had also been searched during the investigation. (19) Kewal Krishna had informed PW. 5 Nand Lal Rai that he had been working for the liquor contractor, Chautala by name, carrying his business at Jhalawar. PW 5 Nand Lal Rai might have been vested with the powers u/S.53 of the Act to investigate the offences under the Act yet he was not a police officer for the purposes of Section 25 of the Evidence Act and, therefore, disclosure statements made by these two appellants to him were admissible in evidence as admissions of certain facts. That apart, since the information given by the two appellants had led to the discovery of certain material and relevant facts (machineries bags etc.) in the present case, the disclosures made by them would have been in that sense of the matter, admissible u/S. 27 Evidence Act, had Nand Lal Rai been considered to be a police officer, which he certainly was not for the purposes of Section 25 of the Evidence Act (See Raj Kumar Karwal vs. Union of India (1), Ramesh Chand Mehta vs. State of West Bengal (2), Kewal Krishna appellant thus stands proved to be in conscious possession of the Poppy straw bags and the bags containing opium. In view of the positive, affirmative reliable and convincing prosecution evidence on the point his defence plea that he was a casual passenger in the truck had no merits at all and has rightly been rejected by the learned trial Judge. (20) To sum up the above discussion, it is held that Dalvinder Singh and Kewal Krishna appellants have rightly been found guilty of the offences u/S. 8/15 and 8/18 of the Act and convicted as such. The charge against Phugni Ram under either of the offences does not stand proved and therefore his appeal deserves acceptance. (21) In so far as the state appeal against Balchands acquittal is concerned I have examined the evidence on record thoroughly and I agree with the learned trial Judge that no offence u/S. 8/20 stood proved beyond reasonable doubt against the said respondent. The rent note Ex.D.1 read with the statements of the attesting witnesses, Kanhaya Lal & Balwant Singh, both examined by defence, proved that the rooms wherefrom the machines, weight and measures and the gunny and polythene and/or rexine bags had been recovered, were let out by Balchand to one Satya Narain at monthly rent of Rs. 300/-. The said Satya Narain was reportedly the man or a false name given to a man by the liquor contractor at Jhalawar. The liquor contractor and Kewal Krishna appellant were in possession of the said two rooms used to visit and use that off and on, keep their belongings there and the articles found therein did belong to them and not to Balchand. On such facts the learned Judge was justified in law to have given benefit of doubt to Bal Chand and acquitted him of the offence he had been charged with. (22) This court, however, wishes to add that though the officer of the Department had conducted the investigation in this case in all sincerity and dedication yet they would have done better if they had directed their investigation towards the perpetrator of a heinous crime who the liquor contractor at Jhalawar at the relevant time prima facie appears to be and was carrying on anti- economy and anti-people business activities at a large scale through hired persons. Eradication of the evil itself is more important for the protection of the economy and the society than mere prosecutions of hired helpers in the commission of such ghastly and obnoxious crime. Eradication of the evil itself is more important for the protection of the economy and the society than mere prosecutions of hired helpers in the commission of such ghastly and obnoxious crime. (23) In the result, Dalvinder Singhs and Kewal Krishnas appeals fail and dismissed with this modification in the impugned judgment and order that their sentences of imprisonment of 15 years shall stand reduced to 10 years R.I. each and fine of Rs. 1.5 lakhs to Rs. one Lakh each, in default of the amount of fine they shall undergo Rigorous Imprisonment for four months each. (24) Phugni Rams conviction and sentence for offences u/Ss. 8/15 and 8/18 of the Act are hereby set aside. He shall be released forthwih, if not wanted in any other case. (25) State appeal against Balchand fails and is dismissed and his acquittal of offence u/S. 8/25 of the Act is hereby confirmed. (26) Hence, Criminal Appeal No. 625/94 is partly and Criminal (Jail) Appeal No. 103/95 is fully allowed. Criminal Appeal No. 425/95 is dismissed.