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2001 DIGILAW 128 (HP)

Devinder Singh v. State of H. P.

2001-06-29

M.R.VERMA, R.L.KHURANA

body2001
JUDGMENT R.L. Khurana, J. 1. By virtue of the present appeal, the Appellant Devinder Singh, hereinafter referred to as the accused, has assailed his conviction and sentence imposed upon him by the learned Special Judge, Chamba, vide judgment dated 31.8.1999 in Sessions Case No. 13 of 1998 for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short: N.D.P.S. Act). 2. Briefly, the prosecution story may be thus stated. On the night intervening 14/15.11.1997 Sub Inspector Partap Singh (PW 9), Station House Officer of Police Station,Chowari, alongwith Head-constable Pritam Singh and constable Kewal Krishan (PW 2), Bhagat Ram (PW 6), and Ravinder Singh, was present at "Sudhli Chowk" Chowari in connection with routine traffic checking. At about 5 a.m. a scooter bearing No. CHE 8220 was seen coming from Chamba side. It was signalled to stop. The accused was found driving the said scooter. One Khushal Singh was the pillion rider. After checking the papers, the accused and his pillion rider was asked by PW 9 Sub Inspector Partap Singh about the purpose of their visit to Chamba. The accused and his pillion rider became perplexed which raised a suspicion in the mind of PW 9 Sub Inspector Partap Singh. On such suspicion, PW 9 Sub Inspector Partap Singh expressed an intention to search the scooter. The dicky of the scooter was opened by the accused and "Charas" kept in a polythene bag was recovered therefrom. On weighment the "Charas" has found to be 1700 grams. The charas so recovered was seized and taken into possession after following the necessary procedure of sealing and sampling vide memo Ex. PA in the presence of PW 1 Mir Chand and one Jodha Ram. The accused and his pillion rider Khushal Singh were arrested for the offence under Section 20, NDPS Act. 3. A case came to be registered at Police Station, Chowari vide FIR Ex. PE on the basis of the report Ex. PG of PW 9 Sub Inspector Partap Singh. After necessary investigation the accused and abovenamed Khushal Singh were sent up for trial for the offence under Section 20, N.D.P.S. Act. They pleaded not guilty and claimed trial. 4. The prosecution in support of its case examined nine witnesses in all. PE on the basis of the report Ex. PG of PW 9 Sub Inspector Partap Singh. After necessary investigation the accused and abovenamed Khushal Singh were sent up for trial for the offence under Section 20, N.D.P.S. Act. They pleaded not guilty and claimed trial. 4. The prosecution in support of its case examined nine witnesses in all. The accused and the abovenamed Khushal Singh in their statements recorded under Section 313, Code of Criminal Procedure denied the prosecution case and pleaded false implication. In answer to question No. 14 of their statement, each of them has stated in the following terms: I am innocent. I and my co-accused did not know each other till the date of occurrence and we met each other for the first time at Tunuhatti and when we were taking tea at Tunuhatti, the police had arrested us. The police had searched both of us and the scooter and nothing was found and thereafter we were put in police vehicle and taken to Chowari and the present case was registered. Scooter belongs to me because it is in the name of my wife. 5. No defence was led either by the accused or by his co-accused Khushal Singh. 6. The learned Special Judge upon consideration of the evidence led before him acquitted Shri Khushal Singh of the offence under Section 20, N.D.P.S. Act. The accused was, however, convicted of the said offence and sentenced to undergo rigorous imprisonment for ten years and also to pay a fine of rupees one lac. In default of payment of fine, the accused was sentenced to undergo rigorous imprisonment for a further period of six months. 7. Be it stated that the acquittal of the co-accused Khushal Singh, as recorded by the learned Special Judge, has not been assailed by the State by way of an appeal under Section 378, Code of Criminal Procedure. Such acquittal has, thus, become final. 8. While assailing the conviction and sentence imposed upon the accused by the learned Special Judge, the learned Counsel for the accused raised the only ground that since two persons, namely the accused and his pillion rider Khushal Singh were jointly charged for the offence under Section 20, N.D.P.S., Act, the accused alone could not have been convicted and sentenced for such offence once his co-accused Khushal Singh was acquitted. In support of his contention, the learned Counsel for the accused placed reliance on the decision of a learned Single Judge of this Court in Jeevo alias Jeevan Kumar v. State of H.P, Cr. Appeal No. 408 of 1997 decided on 14.12.2000 and that of a Division Bench of this Court in Kanshi Ram v. State of H.P. Cr. Appeal No. 315 of 1999, decided on 7.6.2001. 9. The ratio relied upon by the learned Counsel for the accused is not applicable to the present case. In Jeevo alias Jeevan Kumar v. State of H.P. (supra), a charge under Section 307, Indian Penal Code read with Section 34, Indian Penal Code was framed against the Appellant therein and two other accused. The trial court acquitted the other two accused of the offence under Section 307 read with Section 34, Indian Penal Code, but convicted and sentenced the Appellant Jeevo for the substantive offence under Section 307, Indian Penal Code. 10. It was held that since the accused Appellant was never charged for the substantive offence under Section 307, Indian Penal Code, he could not have been convicted for such offence. In coming to the said conclusion, reliance was placed on the decision of the Hon'ble Supreme Court in Subran alias Subramanian and Ors. v. State of Kerala 1993 Cri. L.J. 1387. 11. Similarly, in Kanshi Ram v. State of H.P. (supra), the Appellant therein and his wife were charged for the offence under Section 302 read with Section 34, Indian Penal Code. No alternative charge under Section 302, Indian Penal Code, was framed against either of them. The learned trial court acquitted the wife of the offence under Section 302 read with Section 34, Indian Penal Code but convicted the husband-Appellant for the substantive offence under Section 302, Indian Penal Code. On appeal, a Division Bench of this Court (of which both of us were members) held that since the Appellant was not charged for the substantive offence under Section 302, Indian Penal Code, he could not have been convicted for such offence. 12. In the present case, the accused as well as his co-accused Khushal Singh were individually charged for the substantive offence under Section 20, N.D.P.S. Act. Therefore, the acquittal of the co-accused Khushal Singh will have no effect on the conviction and sentence of the accused. 13. In Om Parkash Bakshi v. The State 1989 Cri. 12. In the present case, the accused as well as his co-accused Khushal Singh were individually charged for the substantive offence under Section 20, N.D.P.S. Act. Therefore, the acquittal of the co-accused Khushal Singh will have no effect on the conviction and sentence of the accused. 13. In Om Parkash Bakshi v. The State 1989 Cri. L.J. 1207 a book containing morphine was being handled by two persons as they were trying to snatch the same from each other. It was held by the Delhi High Court that both were, prima facie, in possession of the book and were liable to be charged for the offence under Section 21, N.D.P.S. Act, since in view of Section 54 of the N.D.P.S. Act mere possession of the drug itself is an offence under the Act. 14. In Buben Joseph v. State 1993 Cri. L.J. 2138 four accused were charged under Section 21, N.D.P.S., Act and under Section 447 read with Section 34, Indian Penal Code on the allegations that they on 21.7.1990 at about 1,30 PM had committed criminal trespass into the University College compound in furtherance of their common intention to sell morphine, a narcotic drug. The learned trial Judge found accused Nos. 1 and 4 not guilty and they were acquitted of the offence charged against them. Accused Nos. 2 and 3 were found guilty of the offences punishable under Section 21, N.D.P.S. Act as well as under Section 447 read with Section 34, Indian Penal Code. They were accordingly convicted and sentenced. On appeal, the High Court of Kerala while maintaining the conviction and sentence of accused No. 2 acquitted the accused No. 3 of the offences charged against him. The High Court came to the conclusion that only accused No. 2 was proved to be in possession and control over the narcotic drug recovered. 15. In Duni Chand v. Emperor AIR 1940 Lah 36 seven persons were found sitting in a restaurant around two tables lying side by side, on four chairs and a cot lying near the table. They had their hands or elbows on the table on which there were four tumblers containing small quantities of liquor. Some empty tumblers were also found on the table. A bottle containing eight ounces of liquor of the same variety was also fovind on the table. They had their hands or elbows on the table on which there were four tumblers containing small quantities of liquor. Some empty tumblers were also found on the table. A bottle containing eight ounces of liquor of the same variety was also fovind on the table. The trial Magistrate convicted all the seven persons for the offence under Section 61(1)(a), Punjab Excise Act, on the ground of their being collectively responsible for possession of liquor on the table without trying to find out if any of these seven persons was in individual possession of any tumbler containing the liquor. On revision having been preferred by one of those seven persons, the High Court of Lahore set aside the conviction and sentence by holding that the conviction on the ground of collective responsibility was bad and the trial court ought to have enquired into if any of these persons was in individual possession of liquor. 16. The above ratio also shows that in case of two or more persons being tried for the offence under Punjab Excise Act together, one or more can be convicted for the offence if he/they are found in individual conscious possession of the liquor. The same principle can be made applicable to the offences under the N.D.P.S. Act. 17. The learned Special Judge while convicting and sentencing the accused for the offence under Section 20, N.D.P.S. Act, has recorded a specific findings that the accused was in possession of the "Charas" recovered. Such finding is duly supported by the evidence coming on the record. 18. The scooter, from the dicky of which the Charas was recovered belongs to PW 8 Smt. Prem Lata, the wife of the accused. She has categorically admitted that the scooter was purchased by her in 1995 for Rs. 7,500 from PW 3 Harbans Singh and that the same is being used by the accused, her husband. 19. It is also in evidence that the scooter was being driven by the accused. His co-accused Khushal Singh was only a pillion rider. On being required by PW 9 Sub Inspector Partap Singh, it was the accused who had produced the key of the dicky and had infact opened the dicky when charas was recovered. 20. 19. It is also in evidence that the scooter was being driven by the accused. His co-accused Khushal Singh was only a pillion rider. On being required by PW 9 Sub Inspector Partap Singh, it was the accused who had produced the key of the dicky and had infact opened the dicky when charas was recovered. 20. In Mahtabali Shah Hussain Shah v. Emperor AIR 1947 Sind 192, the Investigation Officer during the course of investigation of a case under Section 420, Indian Penal Code, happened to search the house of the accused therein. There were several locked boxes in the house. From one of such boxes, a sword, a sword-stick and a dagger were recovered. The accused was tried for the offence under the Arms Act. The evidence revealed that the accused had the key of the said box. It was held that the possession of the key of the box tended to show that the accused had the knowledge of the presence of the arms in the box and that such arms were in his possession. 21. In the present case as well, the accused had the key of the dicky. Therefore, it can be very well said that he had the knowledge of the presence of "Charas" in the dicky and as such the "Charas" was in his conscious possession. The learned Special Judge has thus rightly held the accused alone to be in conscious possession of the "Charas". 22. Once the accused is found to be in possession of the "Charas", for the possession of which he has failed to account for satisfactorily, vide Section 54, NDPS Act, the accused is presumed to be guilty of an offence under the Act. 23. Further under Section 35, NDPS Act, there is a presumption as to existence of culpable mental state. Therefore, once the possession of narcotic drug or psychotropic substance is established, the burden shifts on the accused to establish beyond reasonable doubt his defence that he had no such knowledge, conscious possession or mens rea. For the foregoing reasons, the conviction and sentence imposed upon the accused by the learned Special Judge do not call for any interference. Resultantly, the present appeal, being devoid of merit, is dismissed. The case property be dealt with as per directions of the learned trial Court.