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2002 DIGILAW 1011 (PNJ)

Poppy v. State Of Punjab

2002-10-03

RANJIT SINGH

body2002
Judgment Ranjit Singh, J. 1. Two separate appeals are filed by appellants Poppy and Balwant Singh impugning their conviction under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act") and award of ten years rigorous imprisonment coupled with fine of Rs. one lac each by a common judgment dated 2.2.2002. Both the appellants were further directed to undergo rigorous imprisonment for a period of two years in default of payment of fine. 2. The prosecution case leading to the trial of the appellants and their conviction runs like this :- 3. SI Ashok Mohan alongwith some other police officials was on patrol duty in the area of village Papra on 28.6.1996. He was in a vehicle Allwyh Nissan bearing registration No. PB-13B/1601, which was driven by Constable Nirmal Singh. One Balkar Singh came and joined the police party. A Jeep, make Mahindra, having registration No. PB-13E/0529 was seen coming from the side of village Ballran, which was signaled to stop. On enquiry, its driver disclosed his name as Balwant Singh son of Hardev Singh. Another person found sitting on gunny bags disclosed his name as Poppy son of Gahia. SI Ashok Mohan apprised both the appellants that he wanted to conduct the search of the bags seen in the Jeep and if the appellants so desired, the search could be conducted in the presence of Gazetted Officer or a Magistrate. The appellants reposed faith in the SHO and their statements in this regard were reduced into writing and were duly attested by ASI Chanan Singh and PW Balkar Singh, which were exhibited as Exhs. PB and PC. On search, the bags were found containing poppy-husk. Two sample weighing 250 grams each were taken out from each of the bag. Remaining contents of the bags, on weighment, were found to be 34 kgs. and 500 grams each. Samples and the bags containing poppy-husk were made into parcels and were sealed with seal of SI Ashok Mohan bearing impression "AM". Seal after use was handed over to PW Balkar Singh. Jeep alongwith its RC and the contraband, so recovered, were taken in possession vide memo Exh.PD. One country made pistol alongwith four live cartridges were recovered from appellant Poppy for which he is separately proceeded against. Formal FIR, Exh.PG/1, was registered on a ruqa sent by SI Ashok Mohan. Seal after use was handed over to PW Balkar Singh. Jeep alongwith its RC and the contraband, so recovered, were taken in possession vide memo Exh.PD. One country made pistol alongwith four live cartridges were recovered from appellant Poppy for which he is separately proceeded against. Formal FIR, Exh.PG/1, was registered on a ruqa sent by SI Ashok Mohan. Case property was deposited with MHC with the seal intact. Samples drawn were sent to laboratory for analysis and the report received from Chemical Examiner is on record as Exh.PK. On completion of investigation, the appellants were charged under Section 15 of the NDPS Act and after trial convicted and sentenced as already noticed. 4. The case of the prosecution is supported by the evidence given by ASI Chanan Singh (PW-2) and Inspector Ashok Mohan (PW-3). Constable Karnail Singh (PW-1) and ASI Surinder Singh (PW-5) tendered their affidavits proving the safe custody of the case property. Kesar Pal Singh (PW-4) working in the office of District Transport Officer, Sangrur was examined to prove the registration certificate, Exh.P2, of the Jeep, which was in the name of M/s Singla Soap Mills, Dhuri Road, Sangrur. Balkar Singh independent witness was not examined as having been won over. 5. The appellants pleaded innocence and their false implication when confronted with the evidence and the material on record brought by the prosecution evidence/witnesses. They examined Constable Chand Singh as DW-1 and Balkar Singh independent witness as DW-2 in support of their defence. The appellants have now filed the present separate appeals as already noted. 6. The learned counsel appearing for the appellants would first contend that Inspector Ashok Mohan statedly travelled in a private vehicle as his evidence would show, whereas in the FIR it is recorded that he was travelling in a Government vehicle. The counsel further contend that recovery memo/consent memo and other documents were prepared by ASI Surjit Singh, who was not examined, but the memos exhibited on record. It is also urged that the consent memo was found over written, which will make the case of prosecution and recovery doubtful. Contention further is that the property was sealed with one seal and SHO had not affixed his seal on the case property, which would cast doubt on the prosecution case. It is also urged that the consent memo was found over written, which will make the case of prosecution and recovery doubtful. Contention further is that the property was sealed with one seal and SHO had not affixed his seal on the case property, which would cast doubt on the prosecution case. A fact that independent witness statedly joined by the police did not support the prosecution case is also highlighted to urge that his examination to support the defence would render the prosecution story clearly unreliable and so the appellants deserve an acquittal by giving them benefit of doubt. This fact is further co-related by submitting that DW-2 Balkar Singh is a stock witness of police and has been appearing in number of cases as a police witness as can be seen from the copies of FIRs, which were exhibited on record as Exhs.D1 to D12. These exhibits were proved by Constable Chand Singh (DW-1). Grouse is also raised that the appellants were not given option to be searched in the presence of Gazetted Officer or a Magistrate and there is no evidence in this regard if such an option was given to the appellants. It is also urged that the prosecution was unable to prove the conscious possession of the appellants over the contraband recovered from the Jeep. In support of their submission, the counsel have also referred to a Division Bench judgment of this court in Raj Kumar v. State of Punjab, 2005(1) RCR(Criminal) 70 (P&H). 7. The learned State counsel, however, would submit that both the appellants were arrested with the contraband, a fact which stands fully established by reliable and cogent evidence and as such would say that the prosecution had established its case leading no interference in these appeals. In support of his submission, the State counsel would draw my attention to the case of Harbans Singh and another v. State of Punjab, 2006(2) RCR(Criminal) 424 (P&H) where two persons were arrested from a tractor-trolley leading to recovery of 30 bags from tractor trolley, one was driving the tractor and another was sitting on the bags. This court held that the plea of they not being in conscious possession is not tenable. To counter the submission relating to examination of independent witness as a defence witness, the State counsel has referred to the case of Faquiria v. State of Punjab, 2006(4) RCR(Criminal) 520 (P&H). This court held that the plea of they not being in conscious possession is not tenable. To counter the submission relating to examination of independent witness as a defence witness, the State counsel has referred to the case of Faquiria v. State of Punjab, 2006(4) RCR(Criminal) 520 (P&H). In this case, a Division Bench of this court held that testimony of an independent witness, who has been won over, appearing as a defence witness, would not have any bearing on the case when no complaint was made to any authority by the witness of he having not been joined by the police and his signatures having been obtained in blank etc. 8. The submission that Inspector Ashok Mohan was on a private vehicle and not on a Government vehicle when he intercepted the appellants, in my view, would not have any effect on the core of his testimony. Fact remains that the appellants were intercepted while coming in a Jeep. Whether Inspector Ashok Mohan (PW-3) had reached the place of interception in a private or a Government vehicle would be immaterial. I fail to understand as to what advantage can accrue to the appellants from this fact in isolation as is being pleaded. Equally untenable would be the plea raised by the appellants flowing from the non-examination of ASI Surjit Singh, who had allegedly prepared the recovery and consent memos. The consent memo may have been prepared by Surjit Singh, but the documents were prepared in the presence of ASI Chanan Singh (PW-2) and Inspector Ashok Mohan (PW-3). The evidence of PW-2 would clearly show that he alongwith ASI Surjit Singh and other police officials including SI Ashok Mohan had held a Nakabandi in the area of village Papra. The consent memos exhibited on record as Exhs. PB and PC were duly signed and thumb marked by appellants Balwant Singh and Poppy, respectively and were attested by ASI Chanan Singh (PW-2) alongwith independent witness Balkar Singh. Since the consent memos were prepared and written by ASI Surjit Singh in the presence of ASI Chanan Singh, who had also endorsed his signature as mark of attestation thereon. This witness would be fully competent to prove the contents of these consent memos. Non-examination of ASI Surjit Singh, who had prepared or written these consent memos is immaterial. Since the consent memos were prepared and written by ASI Surjit Singh in the presence of ASI Chanan Singh, who had also endorsed his signature as mark of attestation thereon. This witness would be fully competent to prove the contents of these consent memos. Non-examination of ASI Surjit Singh, who had prepared or written these consent memos is immaterial. Reference in this regard can be made to Section 47 of the Indian Evidence Act, which gives out one of the mode of proving the contents of a document or the preparation thereof. Section 47 of the Evidence Act says that when court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. The explanation under the section would make this position clear further. It says, a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received document purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. It is thus clear that any document, which is required to be established to be in the handwriting or containing signatures of an individual can be proved in the manner as laid down in Section 47. Since the consent memos were prepared and signed in the presence of PW-2 and PW-3, one of whom had attested the same as well, these could well have been and have rightly been so proved and validly taken on record for considering as evidence. Other memos for taking the Jeep in possession etc. were also prepared in the presence of PW-2 and could very well be proved through him, non-examination of ASI Surjit Singh notwithstanding. Incidentally, no question was addressed to PW-2 or to PW-3 in regard to non- preparation of memos or that these were not signed by the police in the presence of these witnesses. were also prepared in the presence of PW-2 and could very well be proved through him, non-examination of ASI Surjit Singh notwithstanding. Incidentally, no question was addressed to PW-2 or to PW-3 in regard to non- preparation of memos or that these were not signed by the police in the presence of these witnesses. PW-3 gave identical evidence in regard to the preparation and endorsement of thumb impression and signature on these consent memos by the respective appellants. In fact the evidence of PW-3 would show that the consent memos of appellants Balwant Singh and Poppy were recorded by him. The objection, thus, raised by the learned counsel for non-examination of ASI Surjit Singh would pale into insignificance. Some writing work appears to have been done by ASI Surjit Singh on the dictation given by PW-3, but ruqa and recovery memos were written by PW-3 as can be seen from his cross- examination. This evidence, thus, emerged from the cross-examination of PW-3. This aspect accordingly cannot help the case of the appellants in any manner. 9. The plea raised by the appellants that from the evidence as has been led by the prosecution, the conscious possession of the appellants is not proved, is also not clearly made out from the facts and circumstances on record. In the case of Raj Kumar (supra) relied upon by the appellants, opium was recovered while it was found lying in between the appellants on the seat of a Jeep and the court took a view that the prosecution has failed to prove the conscious possession of the same by the appellants. While so holding, the court in this case held that presumption of culpable mental state and presumption of possession can be raised against accused persons (obviously from the facts of the said case) but these presumptions were held to be rebuttable where the accused or appellant would have a right to rebut the presumption by pleading his defence. It is noticed that the appellant-accused can give a counter explanation and in this context it was observed that it is necessary for the trial court to frame a specific question regarding such presumption etc. while examining an accused under Section 313 Cr.P.C. The court further held that unless this is done, the presumption under Sections 35 and 54 cannot be used against an accused. while examining an accused under Section 313 Cr.P.C. The court further held that unless this is done, the presumption under Sections 35 and 54 cannot be used against an accused. It is in this context and finding that the prosecution was unable to establish possession of the accused therein, the order of acquittal was made. The facts in the present case are different. During the examination of the appellants, the court addressed a specific question regarding their possession over the contraband giving opportunity to them to explain the existence/presence of this contraband in the Jeep. Appellants were specifically asked that the bags carried by both of them are to be searched and if they so desired...........Thus, the question of bags being in the conscious possession of the appellants was specifically addressed. The ratio of law laid down in the case of Raj Kumar (supra) as such would not apply to the facts of the present case. Here the presumption under Sections 35 and 54 of the NDPS Act would clearly come into play. As per Section 35, the court would be in a competent position to presume the existence of a mental state to attribute intention, knowledge, motive, belief etc. Similarly, the contents of Section 54 would give rise to a presumption from the possession of illicit article that the appellants have committed an offence under this Act. This being a rebuttable presumption has not been rebutted in any manner by the appellants. Rather the facts in the present case would be more nearer to the ratio laid down in the case of Harbans Singh (supra). This court in the said case observed that no other articles in the vehicle were found. Except for the two appellants-accused, no one was present in the vehicle. In this background, the court held that the argument of the appellants not being in conscious possession would not be tenable. Similar is the situation in the present case. Here also, no other articles were found from the Jeep. Two appellants alone were the occupants thereof. Another fact of significance showing the conscious possession of the contraband by the appellants would be the recovery of arms and ammunition from their possession. It is not possible to falsely implant arms and ammunition, which would be a fact indicative to rule out the possibility of false implication of the appellants. Two appellants alone were the occupants thereof. Another fact of significance showing the conscious possession of the contraband by the appellants would be the recovery of arms and ammunition from their possession. It is not possible to falsely implant arms and ammunition, which would be a fact indicative to rule out the possibility of false implication of the appellants. The plea of offer being not given would not be of any consequences as this was not a case of personal search where the provisions of Section 50 would be applicable. Similarly the plea of independent witness being examined in support of the defence case would again be of no avail as his signatures concededly appear on the consent memos etc. DW-2, like the facts in the case of Faquiria, had alleged that his signatures were obtained on blank papers, cannot be given much credence as he had not filed any complaint in this regard prior to appearing before the court. Even otherwise, this witness cannot be considered credit worthy as it is seen from the record that he has appeared as a witness in number of FIRs. The plea by the counsel for the appellants that he is a stock witness, would cut against him rather than coming in his support as was attempted to project. Such a witness cannot be believed and he can easily switch sides to give favourable evidence. No advantage, thus, would accrue to the defence on this count. I do not find any infirmity in the case of prosecution. The prosecution case, as projected, is supported by evidence given by witnesses. Nothing has been pointed out or urged to show that the appellants could have been falsely implicated in this case. Bald assertion that this is a case of false implication of the appellants would not be enough to take them out of the rigors of law and the presumption that is to be drawn against them on the basis of evidence produced and proved on record. 10. There is no merit in the appeals and the same are accordingly dismissed. The appellants would surrender before the Chief Judicial Magistrate, Sangrur to undergo the sentence awarded to them.