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2004 DIGILAW 531 (PNJ)

Buggar Singh v. State of Punjab

2004-05-05

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - Buggar Singh son of Gurdev Singh and Hakam Singh son of Teja Singh stand convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (for brevity the Act) vide the impugned judgment dated 22.7.1992 of the learned Additional Sessions Judge, Barnala for keeping in their conscious possession 40 Kgs of opium. They have been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lac each, in default thereof to undergo further RI for one year each. 2. Davinder Singh alias Binda son of Dalip Singh, the truck driver, however, stands acquitted. No appeal has been filed by the State against his acquittal. 3. The prosecution story in brief is that on 18.8.1988 Shamsher Singh, SI/SHO of police station Sehna (PW-3) alongwith ASI Jarnail Singh, HC Bhinder Singh (PW-4) and other police officials was present at Bus Stand Bakhatgarh in connection with patrolling and checking of vehicles. They were in Government Matador bearing registration No. RC PAS-2622. Around 6-00 AM a truck without any number plate was seen coming from the Moga side, which was stopped by SI Shamsher Singh for checking. Davinder Singh (since acquitted) was on the streering of the truck whereas the present two appellants were found sitting in the cabin on the back seat of the driver. One bag each was lying under the feet of each appellant. They were apprised of their right of getting their search conducted in the presence of some Gazetted Officer/Magistrate. Both of them showed their desire to be searched in the presence of a Gazetted Officer. Consequently a wireless message was flashed to Mr. Sukhdev Singh Chhina, DSP, Barnala (PW-2). After he reached the spot, the appellants alongwith the two bags were produced before him. He interrogated them and directed SI Shamsher Singh to conduct the search of the two bags. The mouths of the bags were opened. Each bag was found to contain two raxin bags containing opium. There were thus four raxin bags, containing 10 Kgs opium each. In all there was 40 Kgs of opium. A sample of 20 grams each was separated from each of the raxin bags. Two raxin bags were then put in empty tin box (Ex.P1) and the other two raxin bags were put in another empty tin box (Ex.P2). There were thus four raxin bags, containing 10 Kgs opium each. In all there was 40 Kgs of opium. A sample of 20 grams each was separated from each of the raxin bags. Two raxin bags were then put in empty tin box (Ex.P1) and the other two raxin bags were put in another empty tin box (Ex.P2). The samples and the tin boxes were sealed separately with the seal bearing impression "SS." The sample seal (Ex.P3) was separately prepared. The entire case property was taken into possession vide recovery memo. Ex.PA, attested by ASI Jarnail Singh, HC Bhinder Singh and DSP SS Chhina. The grounds of arrest were disclosed to the appellants. They could not produce any permit or licence for keeping in their possession the said contraband. On the basis of ruqqa (Ex.PB), the formal FIR (Ex.PB/1) was recorded in the concerned police station. The special report was also received by the Illaqa Magistrate on 18.8.1988 itself at 9.00 PM. After receipt of report of the Chemical Examiner (Ex.PD), the present appellants alongwith their co-accused Davinder were challaned to face trial. They were charged under Section 18 of the Act by the learned trial Court. 4. After appreciating the entire evidence, the learned trial Court convicted the present two appellants, whereas Davinder Singh driver of the truck earned acquittal. Hence this appeal. 5. I have heard Mr. Bipan Ghai, learned counsel for the appellants and Mr. G.S. Bhandari, learned Deputy Advocate General representing the State of Punjab. With their assistance, I have also perused the entire record carefully. 6. To start with, Mr. Ghai contends that the prosecution has failed to establish that the contraband was in conscious possession of the present two appellants. Dwelling upon his arguments, he submits that simply because one bag each was lying under the feet of each of the appellants would not be a ground to presume conscious possession. 6. To start with, Mr. Ghai contends that the prosecution has failed to establish that the contraband was in conscious possession of the present two appellants. Dwelling upon his arguments, he submits that simply because one bag each was lying under the feet of each of the appellants would not be a ground to presume conscious possession. Advancing his arguments further, the learned counsel has taken me through the statement of Buggar Singh appellant recorded under Section 313 Criminal Procedure Code, in which he has stated that he had taken lift in the truck from Ramgarh and Hakam Singh had taken lift from Bhotna as the buses were not plying on account of the Bandh; that sand was being carried in the truck; that Davinder Singh was driving the said truck and its owner was sitting by his side; that the truck was stopped at the road-crossing of Pakho on 17.8.1988; that the owner was let off but he alongwith his co-accused was taken to the police station and falsely implicated in this case. Hakam Singh appellant has also toed the same line of defence. From this, the learned counsel has attempted to show that conscious possession of the appellants over the contraband is not proved to the hilt. 7. He then contends that the driver of the truck has since been acquitted by the trial Court and no appeal has been filed by the State against his acquittal; that the driver was the right person having knowledge about the contents of those two bags whereas the present appellants were just passengers in it and his acquittal would also be a ground to discard the prosecution qua the present appellants. In the same breath, Mr. Ghai contends that the prosecution agency has not taken any pains to book even owner of the truck under the Act, as the contraband was being carried in his truck. These infirmities, according to the learned counsel, knock at the bottom of the case and make it doubtful. 8. The learned counsel has also half-heartedly pointed out certain discrepancies in the statements of the official witnesses. 9. On the aforesaid submissions, the learned counsel prays for acquittal of the appellants. 10. These infirmities, according to the learned counsel, knock at the bottom of the case and make it doubtful. 8. The learned counsel has also half-heartedly pointed out certain discrepancies in the statements of the official witnesses. 9. On the aforesaid submissions, the learned counsel prays for acquittal of the appellants. 10. Refuting the arguments advanced on behalf of the appellants, the learned State counsel submits that conscious possession over the contraband qua both the appellants is proved in this case beyond any shadow of doubt, as both the appellants were putting their feet on one bag each carrying the contraband. He then contends that the presumption of conscious possession is against the appellants, which is not rebutted by them by any cogent evidence and as such they cannot escape their liability. He further submits that even if the driver has been acquitted, that by itself would not dent the prosecution. Similarly, even if no action has been taken against owner of the truck, that too would not be a ground to discard the prosecution story and the conviction of both the appellants as recorded by the learned trial Court deserves to be maintained. 11. After hearing the rival contentions of both the sides, I am of the considered view that the prosecution has been able to prove the charge against both the appellants beyond any shadow of reasonable doubt and as such their conviction as recorded by the trial Court deserves to be upheld. 12. So far as conscious possession is concerned, there cannot be any dispute in this case. From the evidence adduced by the prosecution, it is clear that each bag was lying under the feet of each appellant. A careful perusal of the statements of Shamsher Singh SI/SHO (PW3) and HC Bhinder Singh (PW4) shows that both of them have categorically deposed that each bag was lying underneath the feet of each of the appellants. This fact establishes the possession and once the possession is established, the person who claims that it was not in his possession has to establish it because how he came to be in possession is within his satisfactory knowledge and he alone can rebut it. In the instant case, the defence projected by the appellants as emerging from their statements under Section 313 Criminal Procedure Code, does not come to their rescue at all. It is most fragile and weak. In the instant case, the defence projected by the appellants as emerging from their statements under Section 313 Criminal Procedure Code, does not come to their rescue at all. It is most fragile and weak. What is conscious possession, has to be determined with reference to the factual backdrop as held in a latest judgment of Honble Apex Court in Madan Lal v. State of Himachal Pradesh, 2003(4) RCR(Criminal) 100 (SC), their Lordships have also dealt with Sections 35 and 54 of the Act. In the case in hand, the statement of Bhag Singh son of Bagga Singh (DW1) takes us nowhere. It rather demolishes the stand of Hakam Singh appellant. The contention of the learned counsel for the appellant in this regard is, thus, repelled. 13. Even if the driver has been acquitted in this case, this cannot be a ground to reject the prosecution case qua the appellants. I have perused the impugned judgment in this regard. In my considered view, acquittal of Davinder Singh is entirely on different footing. Assuming for the sake of arguments that acquittal of Davinder Singh driver is bad on facts, it would not be a ground to extend any benefit to the present appellants, from whom recovery of the contraband is effected. Similarly, even if no action has been taken against owner of the truck, that too would not be a ground to give clean chit to the present appellants. 14. The discrepancies pointed out by the learned counsel for the appellants are very immaterial and cannot uproot the case of the prosecution. DSP S.S. Chhina (PW 2) has deposed that his statement was not recorded on the day of recovery and was, in fact, recorded on 24.9.1988. From this the learned counsel made an attempt to show that the DSP was not present at the time of recovery and he had attested the recovery memos, subsequently at the instance of SI Shamsher Singh. This argument, in my view, carries no weight. The presence of DSP S.S. Chhina is recorded not only in the recovery memos but also in the ruqqa (Ex.PB), which is the basis of registration of the FIR. The FIR was recorded on the same day. The special report also reached the Illaqa Magistrate on the same day. Thus the presence of DSP S.S. Chhina (PW-2) cannot be doubted. The presence of DSP S.S. Chhina is recorded not only in the recovery memos but also in the ruqqa (Ex.PB), which is the basis of registration of the FIR. The FIR was recorded on the same day. The special report also reached the Illaqa Magistrate on the same day. Thus the presence of DSP S.S. Chhina (PW-2) cannot be doubted. At the same time, certain minor discrepancies with regard to timings etc. pointed out by the learned counsel for the appellants are out of zone of consideration, being immaterial. There is no reason to falsely implicate the appellants in this case where huge recovery of opium is effected. 15. No other point has been urged before me from the either side. 16. The sum total of the aforesaid discussion is that the prosecution has been able to establish the conscious possession of both the appellants over the contraband (40 Kgs of opium) and their conviction as recorded by the learned trial Court is, thus, upheld. Resultantly, the present appeal is dismissed. 17. Since the appellants are on bail as their sentence was suspended by this Court during pendency of the appeal, they shall now be taken into custody to serve out the remaining part of their substantive sentence. Necessary steps in this regard shall be taken up promptly. Appeal dismissed.