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2007 DIGILAW 146 (PNJ)

Mohan Singh v. State Of Punjab

2007-01-25

ARVIND KUMAR, MEHTAB S.GILL

body2007
Judgment Arvind Kumar, J. 1. This judgment shall dispose of Criminal Appeals No. 244-DB of 2004 and 296-DB of 2004, filed by accused Mohan Singh and Suraj Bhan respectively. 2. These two appeals are directed against judgment and order dated 20.1.2004 passed by the Judge, Special Court, Mansa, whereby in case FIR No. 41 dated 6.8.2000 at Police Station Joga, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (Hereinafter referred to as the Act), the accused -appellants Mohan Singh and Suraj Bhan along with accused Binder Singh have been convicted under Section 15 of the Act and sentenced to undergo rigorous imprisonment for a period of 12 years and also to pay a fine of Rs. 1.50 lacs each and in default of payment of fine, to further undergo imprisonment for 1-1/2 years. Mohan Singh has also been convicted under Section 25 of the Act ibid, being owner and in control of truck No. MP-09D/1503 as he himself was also apprehended at the spot in the truck along with the afore-stated two accused and sentenced to rigorous imprisonment for a period of 12 years and also to pay a fine of Rs. 1.50 lacs each and in default of payment of fine, to further undergo imprisonment for 1-1/2 years. However, both the substantive sentences awarded were ordered to run concurrently. 3. In brief, the facts of the case are that three persons, namely, Binder Singh, Suraj Bhan and Mohan Singh were charged under Section 15 of the Act for having conscious possession of 900 Kgs of poppy straw on 6.8.2000 without valid permit or licence. According to the prosecution case, they were all travelling in truck bearing No. MP-09D/1503 driven by Binder Singh accused. The Truck was got stopped by Inspector Chuhar Singh lncharge CIA Staff, Mansa, who along with ASI Raghbir Singh 611, Constable Bant Singh 474, Constable Jasbir Singh 364, P.H.G. Major Singh 21860 was on patrol duty in government canter No. PB-31/9968 at about 9 A.M. on the link road leading to village Bhupan from main Mansa-Barnala road. The vehicle was found to be carrying 30 gunny bags. Inspector Chuhar Singh (IO) Informed the accused that he suspected something suspicious in the bags which were required to be searched. He also told the accused that, if they desired, search could be conducted before a Magistrate or a Gazetted Officer. The vehicle was found to be carrying 30 gunny bags. Inspector Chuhar Singh (IO) Informed the accused that he suspected something suspicious in the bags which were required to be searched. He also told the accused that, if they desired, search could be conducted before a Magistrate or a Gazetted Officer. The accused separately consented to their search before a Gazetted Office and their separate statements were recorded which were signed by them, which were attested by witness Pritam Singh and ASI Raghbir Singh. Accordingly, through a wireless message, Shri Balwinder Singh Romana, DSP Sub Division Mansa, was requested to reach the spot. Shri Balwinder Singh Romana, DSP, on receipt of the message, reached at the spot and in his presence, the bags were searched and found to contain 30 bags of poppy straw weighing 30 kgs. each. From each bag, two samples of 100 grams each were taken out separately. Thereafter, all of the samples and all of the bags were separately made into parcels and sealed with the seal of letters CS. Then, truck No. MP-09D/1503 including tarpaulin, registration certificate, samples and the bags of poppy straw duly sealed along with sample seal were taken into possession of the police vide separate recovery memo. Exhibit PG which were attested by the witness Pritam Singh and ASI Raghbir Singh and were verified by DSP Balwinder Singh Romana. The accused persons were then subjected to their personal search and later were arrested according to law. Accused and the case property were taken to the police station and produced before SI Cheta Singh SHO Police Station Joga, who signed the samples and the bags. He then sealed the case property with his seal bearing impression of letters CS by keeping the seal of IO in an intact condition. Later, all the three accused were produced in Court along with the case property and samples thereof. The samples were then sent to the Forensic Science Laboratory, Punjab, Chandigarh, for the purpose of analysis. As per report of the FSL Punjab, Exhibit PS, the contents of the sample were of poppy straw (Bhukki Posht Chura). After completion of investigation, challan was presented against the accused whereafter charge under Section 15 of the Act was framed to which they pleaded not guilty and claimed trial. 4. The prosecution thereafter examined PW-1 Constable Rajbir Singh and PW-2 Balwinder Singh Romana, DSP. After completion of investigation, challan was presented against the accused whereafter charge under Section 15 of the Act was framed to which they pleaded not guilty and claimed trial. 4. The prosecution thereafter examined PW-1 Constable Rajbir Singh and PW-2 Balwinder Singh Romana, DSP. Later, an amended charge was framed in which there was an amendment only in regard to the original charge for addition of charge under Section 25 of the Act ibid against Mohan Singh being owner and in control of Truck No. MP-09D/1503 who himself was also apprehended at the spot in the truck along with the aforestated two accused. 5. The prosecution then examined PW-1 Girdhari Lal Pamar, Clerk, RTO, Indore, who produced registration papers of the truck in which the accused were traveling with the contraband. PW-2, Inspector Chuhar Singh, IO, has deposed in regard to having conducted the investigation. SI Cheta Singh SHO Police Station Joga, who appeared as PW-3 deposed in regard to having signed the samples and the bags besides sealing the case property. ASI Raghbir Singh appeared as PW-4 to depose that he was a member of the police party that nabbed the accused with contraband and further attested the statements given by the accused. HC Rajbir Singh appeared as PW-5 and formally tendered into evidence affidavit Ex.PT. PW-6 Rajpreet Singh, AC.III, DPO, Mansa, stated in regard to receipt of special report from DSP Balwinder Singh Romana in the office of SSP and also identified the signatures of Balwinder Singh Romana DSP and Yurinder Singh, SSP on the same. 6. Thereafter, statements of the accused under Section 313 Cr.P.C. were recorded by putting them incriminating evidence qua them to which they pleaded innocence and false implication. They also pleaded alibi. In defence evidence, the accused-appellants examined as DW-1 Baldev Singh who deposed that accused Mohan Singh was not apprehanded, at the place of occurrence alongwith the contraband. DW-2 Dr. Ashok Arora deposed in regard to treatment given to accused Suraj Bhan, DW-3 Ashok Kumar also deposed in regard to plea of alibi taken by accused Suraj Bhan. Jarnail Singh appeared as DW-4. AMHC Boota Singh appeared as DW-5 and produced copy of FIR No. 29 dated 23.6.1991. Sambhu Singh deposed as DW-6. Shamsher Singh appeared as DW-7 and HC Amritpal appeared as DW-8 and produced copy of FIR No. 51 dated 6.9.1997. 7. Jarnail Singh appeared as DW-4. AMHC Boota Singh appeared as DW-5 and produced copy of FIR No. 29 dated 23.6.1991. Sambhu Singh deposed as DW-6. Shamsher Singh appeared as DW-7 and HC Amritpal appeared as DW-8 and produced copy of FIR No. 51 dated 6.9.1997. 7. The learned Judge, Special Court, Mansa, upon appreciation of evidence adduced on record, vide the impugned judgment and order held the accused guilty and convicted and sentenced all the accused in the manner indicated above. Hence, the present appeal by the accused. 8. It may be apt to mention that during the pendency of the appeal, namely, Crl. Appeal No. 296-DB of 2004, accused-appellant Suraj Bhan expired and accordingly, on an application made by his legal heirs, they have been permitted to pursue the appeal on his behalf. 9. We have heard the learned Counsel for the parties. 10. Counsel for the appellants has argued that the prosecution has failed to establish that the accused-appellants were in the conscious possession of poppy straw. In support of his argument, he has referred to judgments of this Honble Supreme Court in Raj Kumar V/s. State of Punjab 2005(1) R.C.R. (Criminal) 70 and Avtar Singh V/s. State of Punjab 2002(4) R.C.R. (Criminal) 180. The contention is meritless. The word "possession" no doubt has different shades of meaning and it is elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. In other words, not only possession but conscious possession has to be established. However, the same would depend upon its own facts. Therefore, no hard and fast rule can be laid down to define as to what is or what is not "possession" of a narcotic substance. In the instant case, there, is recovery of 30 bags of poppy straw, containing 30 kgs. in each bag. The entire quantity was lying in truck No. MP-09D/1503 not only driven by Mohan Singh, the present appellant, but also owned by him. Suraj Bhan, appellant, (since deceased) and Binder Singh, non-appellant, were sitting on the tarpaulin covering those bags. It is not the case of the accused-appellants that they were transporting some articles under documentation and were not aware that the bags of poppy straw had been loaded along with those articles. Suraj Bhan, appellant, (since deceased) and Binder Singh, non-appellant, were sitting on the tarpaulin covering those bags. It is not the case of the accused-appellants that they were transporting some articles under documentation and were not aware that the bags of poppy straw had been loaded along with those articles. Rather, all three were travelling in a vehicle which was not a public vehicle. Appellants instead of submitting any explanation in regard to conscious possession of contraband, denied their presence at the time of recovery taking the plea of alibi, while examining DW-1 Baldev Singh, DW-3 Ashok Kumar and DW-6 Shambu Singh but they miserably failed to prove it in view of the evidence of heavy recovery of poppy straw, given by PW-2 Inspector Chuhar Singh and DSP Balwinder Singh Romana, a gazetted Officer, before him they (accused) signed/ thumb-marked the documents in compliance with Section 50 of the Act and the said documents at no point of time could be rebutted by the accused-appellants that the same do not bear their signatures/thumb-impressions. In the factual scenario of the present case, not only possession but conscious possession has been established. 11. Counsel for the accused-appellants has next argued that after effecting recovery of the contraband vide recovery memo Ex.PG, Ruqa Ex.PH was sent to the police station for registration of the case and in the meantime, PW-2 Inspector Chuhar Singh prepared the rough site plan Ex.PK and Jama-talasi Memos. Ex.PL, PM and PN, and all the said exhibits, namely, Exhibits PG, PK, PL, PM and PN contain FIR numbers and it gives an inference that the FIR was registered prior to the alleged recovery, which creates doubt about the veracity of the, prosecution. The contention is again meritless in view of the dicta of the Honble Supreme Court in Radhey Shyam V/s. State of Haryana, wherein similar argument was advanced and it was held that the same would not vitiate recording of the FIR and the conviction of the accused. Apart from this, a bare perusal of the memos. Exhibits PG, PK, PL, PM and PN reveals that FIR number was initially not filled appearing against those columns and the space was left blank and that FIR number was subsequently added after coming to know of the FIR number, which if seen with a naked eye, is with a different ink. Exhibits PG, PK, PL, PM and PN reveals that FIR number was initially not filled appearing against those columns and the space was left blank and that FIR number was subsequently added after coming to know of the FIR number, which if seen with a naked eye, is with a different ink. Therefore, the defence cannot derive any benefit from the same. 12. Counsel for the appellants has next argued that the provisions mandate for taking of two samples from each bag but only one sample of 100 gm. of poppy straw (husk) was taken by PW-2 Inspector Chuhar Singh. He in support of his argument has referred to judgment in Gurcharan Singh V/s. State of Punjab 2005(4) R.C.R. (Criminal) 681. It seems that the counsel for the appellant has misread the evidence. PW-2 Inspector Chuhar Singh in his statement has very categorically stated that two samples of 100-100 gms. each were taken out of each bag and were made into sealed parcels. Similarly, it was stated by PW-4 ASI Rabhbir Singh, attesting witness, and PW-2 DSP Balwinder Singh Romana, a gazetted Officer, in whose presence the recoveries were effected, that from each bag, two samples of 100-100 gms. each were drawn. Remaining bags on weighing were found to contain 30 kgs. each. 60 sample parcels and bags weighing 30 kgs. each of the samples were with the description of seal "CS". Further, PW-3 Cheta Singh moved an application, Exhibit PQ to the Magistrate for depositing the case property in the judicial Malkhana and in the application, there is a clear cut reference to 60 samples of 100-100 gms. each. Therefore, there is sufficient evidence that two samples of 100-100 gms each were taken out from each bag and thus, it does not violative any provision of the Act ibid. 13. Counsel for the appellants-accused has addressed multi-fold arguments urging that the Panch witness Pritam Singh to whom seal after use was handed over by PW-2 Inspector Chuhar Singh has not been examined by the prosecution. It has also been urged that the case property till its dispatch to FSL, Chandigarh, remained with the Investigating Agency and the possibility of seal being tampered with and substance being changed, cannot be ruled out. It has also been urged that the case property till its dispatch to FSL, Chandigarh, remained with the Investigating Agency and the possibility of seal being tampered with and substance being changed, cannot be ruled out. It has also been urged that the samples were sent to FSL, Chandigarh after a considerable delay of 10 days without there being any explanation which is again fatal to the case of the prosecution. In support of his arguments, he has referred to judgments in Baldev Singh V/s. State of Punjab 2005(1) R.C.R. (Criminal) 823; Hakam Singh V/s. State of Haryana 2006(2) R.C.R. 880; Desh Raj V/s. State of Punjab 2005(3) R.C.R. 334 and Bhola Singh V/. State of Punjab 2005(2) R.C.R. 520. The arguments again do not convince us in any manner. In P.P. Fatima V/s. State of Kerala (2003)8 S.C.C. 726, the Panch witness did not support the case of the prosecution and it was held that such omission by itself would not be fatal to the case of the prosecution. Similarly, in the instant case, Pritam Singh could not be examined as evidence of the prosecution was closed by order of the Court and only on this account, the case of the prosecution cannot be held to be doubtful in view of the dicta of P.P. Fatimas case (supra), when the Court is satisfied from the material on record and from the evidence of seizing Authority that such seizure was genuinely made. In the instant case, seizure had been made by PW-2 Chuhar Singh in the presence of DSP Balwinder Singh Romana, a gazetted officer, in whose presence not only recovery had been effected but he also attested the recovery memo. PW-2 Inspector Chuhar Singh had sealed the samples as well as remaining contraband with his seal of "CS". The same were also produced before PW-3 Cheta Singh who was SHO of the concerned police station which is required under the law, who took the same into possession and again affixed his seal of "CS" on the samples and the bags and kept the samples as well as case property in safe custody. The same were also produced before PW-3 Cheta Singh who was SHO of the concerned police station which is required under the law, who took the same into possession and again affixed his seal of "CS" on the samples and the bags and kept the samples as well as case property in safe custody. Application, Ex.PP, and another application, Ex.PQ, for depositing the case property as well as samples in the judicial Malkhana and the orders passed thereon show that inventory prepared corresponds case property and the samples with intact and untempered seals bearing impression "CS" and "CS" (Inspector Chuhar Singh and SI Cheta Singh) be deposited in the judicial Malkhana. No doubt, despite order, the same were not deposited in the judicial malkhana but there is an explanation submitted by PW-3 Cheta Singh that since there was no space in the judicial Malkhana he had kept the case property in safe custody. No suggestion had been put that during the period the samples and the case property remained with him, any tampering was done. When samples were sent to FSL, Chandigarh, Form No. 29, Exhibit RR, and the report of the FSL, Chandigarh, also suggest that samples were bearing impression "CS-CS" which were intact without there being any tampering. No doubt, samples were sent to the FSL, Chandigarh after about 10 days but as held by the Honble Supreme Court in State of Orissa V/s. Kanduri Sahoo, that mere delay in sending the same to the Laboratory is not fatal where there is evidence that the seized articles were kept in proper and safe custody. No doubt, it has come in evidence of PW-2 Inspector Chuhar Singh that in some of the bags, samples are not legible and there are some cracks in the seals but again, it does not affect the merits of the case. Report of the F.S.L. Chandigarh shows that the articles examined were the articles connected with the instant case. Accused-Appellants have not challenged the report of the FSL nor any application was moved for examination of the Chemical Examiner as a witness. Report of the F.S.L. Chandigarh shows that the articles examined were the articles connected with the instant case. Accused-Appellants have not challenged the report of the FSL nor any application was moved for examination of the Chemical Examiner as a witness. In similar situation, in Ashok Kumar V/s. State of Haryana, wherein faint seals on the packets were produced in Court and in absence of any challenge to the report of the Chemical Analyst and not summoning him as a witness, it was held that the doubts raised by the accused as to whether samples were the same as examined by the Chemical Examiner, were found not sustainable. 14. Counsel for the accused-appellant has further contended that though PW-2 Inspector Chuhar Singh has admitted that the place of recovery is a public thoroughfare and many persons had been passing through but still no independent witness had been associated merely on the ground that they showed inability and admittedly, no action had been taken against them and as such, explanation put forth by him is not at all convincing. This argument has been raised with reference to judgment in Fateh Singh V/s. State of Haryana 2006(2) R.C.R. 762. The argument again is not convincing keeping in view the facts of the present case. In the instant case, one Pritam Singh had been associated and for this reason, no necessity had been felt to associate any other person. However, said Pritam Singh could not be examined as evidence of the prosecution was closed by order of the Court and as such, the same cannot be proved fatal to the case of the prosecution. There is no principle of law that without corroboration by independent witnesses, testimony of the official witness cannot be relied upon. The testimony of the official witnesses should be treated in the same manner as the testimony of any other witness. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. The testimony of the official witnesses should be treated in the same manner as the testimony of any other witness. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. In the instant case, as discussed above, apart from the evidence of PW-2 Inspector Chuhar Singh and PW-4 ASI Raghbir Singh, the entire proceedings in search and seizure were carried out in the presence of DSP Balwinder Singh Romana, a gazetted Officer, who had appeared as PW-2 prior to the amendment of the charge and supported the search and seizure from the accused-appellants. Further, there is nothing to suggest that these official witnesses were in any way inimical towards the accused-appellants for making out their false implication in a false case. Besides, huge quantity of contraband like poppy straw (husk) could not possibly be planted by the police falsely. 15. It has also been contended that DSP Balwinder Singh Romana has not been examined after the amendment of the charge and as such, his previous statement cannot be looked into in evidence. The contention is meritless. It is not that the prosecution has deliberately withheld Balwinder Singh Romana DSP but he could not be examined as he along with his family had gone to Canada and his whereabouts were not known. The amendment was formal in nature as only Section 25 of the Act had been added qua Mohan Singh, being owner and in control of truck No. MP-09D/1503, in his charge-sheet. DSP Balwinder Singh Romana was not a witness to ownership of the truck owned by Mohan Singh. Therefore, his non-examination has not caused any prejudice to the accused-appellant Mohan Singh. Even counsel for accused-appellant Mohan Singh, during the course of his arguments, has not been able to pinpoint any prejudice having been caused to accused Mohan Singh on account of non-examination of DSP Balwinder Singh Romana after the formal amendment in the charge, 16. No doubt, accused-appellant Suraj Bhan (since deceased) had a plastered leg on the date of search and seizure. The statement of DW2-Dr. No doubt, accused-appellant Suraj Bhan (since deceased) had a plastered leg on the date of search and seizure. The statement of DW2-Dr. Ashok Arora suggests that accused Suraj Bhan had been discharged much earlier, i.e. on 18.5.2000, though he had again examined him on 2.8.2000 and advised bed rest but admitted in cross -examination that he could sit in a vehicle. Thus, his evidence suggests that on 6.8.2000, he was not admitted in the hospital nor so disabled to travel in the said truck. No application had been moved either by him or DW3-Ashok Kumar who claims that Suraj Bhan was arrested from his house, to the higher Authorities about the said stand. Thus, this defence does not convince us to believe the prosecution version with regard to his presence at the time of search and seizure. In view of the discussion above, both the appeals, namely, Criminal Appeal No. 244-DB and 296-DB of 2004, being without any merit are dismissed.