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2008 DIGILAW 1052 (PNJ)

Piara & Etc. v. State Of Punjab

2008-05-19

SHAM SUNDER

body2008
Judgment 1. This judgment shall dispose of Criminal Appeal No.615-SB of 2004, filed by Piara, Criminal Appeal No.1215-SB of 2004, filed by Narpinder Singh, and Criminal Appeal No.2224-SB of 2005, filed by Tirath Singh, arising out of the judgment of conviction, and the order of sentence dated 23.2.2004, rendered by the Judge, Special Court, Nawanshahr, vide which it convicted the accused/appellants, for the offence, punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as the Act only) and sentenced them, to undergo rigorous imprisonment, for a period of ten years each, and to pay a fine of Rs. 1 lac each, and in default of payment of the same, to undergo rigorous imprisonment for another period of six months each, for having been found in possession of 595 kgs. poppy-husk, without any permit or licence. 2. The facts, in brief, are that on 11.9.2001, Ranjit Singh, SI, along with other police officials, was present, on the bridge of canal, in the area of village Bakhlor, in connection with a special picket, in Govt. Gypsy NO.PB07-1226, when, at about 1.30 a.m, one vehicle Tata 407, came from the side of village Moro, and was going towards Bakhlor side. A signal was given to stop, as a result whereof, the said vehicle stopped. The driver, and one more person, were sitting in the cabin, and two persons, were sitting in the body of the vehicle, over the tarpaulin. On seeing the police party, they tried to escape, but were apprehended. On enquiry, the driver told his name as Tirath Singh, whereas, the person, who was sitting by his side, in the cabin, told his name as Piara. The other two persons, who were sitting on the Tarpaulin, told their names as Darbara Ram, and Narpinder Singh. The search of the vehicle, was conducted, in accordance with the provisions of law, in the presence of Navjot Singh, DSP, who was called to the spot, as a result whereof, 17 bags, each containing 35 kgs. poppy-husk, were recovered. A sample of 250 grams, was taken out from each of the bags, and the remaining poppy-husk, was kept into the same bags. The samples, and the bags, containing remaining poppy-husk, were converted into parcels, duly sealed, with the seals, bearing impressions RS, belonging to Ranjit Singh, SI, and NS, belonging to Navjot Singh, DSP. poppy-husk, were recovered. A sample of 250 grams, was taken out from each of the bags, and the remaining poppy-husk, was kept into the same bags. The samples, and the bags, containing remaining poppy-husk, were converted into parcels, duly sealed, with the seals, bearing impressions RS, belonging to Ranjit Singh, SI, and NS, belonging to Navjot Singh, DSP. Thereafter, the samples, and the case property, were taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, with correct marginal notes, was prepared. The statements of the witnesses were recorded. The accused were arrested. After the completion of investigation, the accused were challaned. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against them, to which they pleaded not guilty and claimed judicial trial. 4. Thereafter, Darbara Ram, accused, absconded, and could not be arrested. He was, ultimately, declared Proclaimed Offender, vide order dated 24.12.2003. 5. The prosecution, in support of its case, examined Baldev Singh, Constable (PW-1), Ranjit Singh, SI (PW-2), Naresh Kumar, Inspector (PW-3), Bhupinder Singh, HC (PW-4), Lakhbir Singh, ASI (PW-5), and Sham Lal, Clerk, DTO Office, Jalandhar, (PW-6). Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence. 5-A. The statements of the accused, under Section 313 Cr.P.C, were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. 6. Piara, accused, however, took up the plea, that he was picked up from village Pal, at about 10.30 a.m., on 10.9.2001, and was falsely implicated, in the instant case. He further stated that Joga Ram, was also with the police party, at that time. He further stated that, no recovery was effected from him. It was further stated by him, that he was also arrested, in some other case of theft, and ultimately, that case was found to be false, and he was discharged, on 3.12.2001. It was further stated by him, that he was falsely implicated, in this case, at the instance of Joga Ram, with whom, he had a dispute of money. It was further stated by him, that he was also arrested, in some other case of theft, and ultimately, that case was found to be false, and he was discharged, on 3.12.2001. It was further stated by him, that he was falsely implicated, in this case, at the instance of Joga Ram, with whom, he had a dispute of money. He further stated that Joga Ram, has a criminal background, and his son, is also engaged in the business of narcotics. 6-A. Accused Narpinder Singh and Tirath Singh, in their statements, under Section 313 Cr.P.C, stated that, they were falsely implicated, in this case. 7. The accused, however, examined Sardool Singh (DW-1), and Bhinda (DW-2), in their defence. Thereafter, they closed their defence evidence. 8. After hearing the Addl. Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused/appellants, as stated hereinbefore. 9. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, were filed by the accused/appellants. 10. I have heard the learned Counsel for the parties, and have gone through the evidence and record, of the case, carefully. 11. The Counsel for the appellants, at the very outset, submitted that the prosecution miserably failed, to prove that the accused were found in conscious possession of 17 bags, each containing 35 kgs. poppy-husk. They further submitted that the mere fact that Tirath Singh, accused, was driving the vehicle, whereas, Piara, accused, was sitting by his side, and two other persons, were sitting on the tarpaulin, in the body of the vehicle, did not mean that they were in conscious possession of poppy-husk. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Tirath Singh, accused was driving the said vehicle. Piara, accused, was sitting by his side, in the cabin, and other two persons, were sitting, on the tarpaulin, in the body of the said vehicle. 17 bags, containing poppy-husk, were lying in the vehicle aforesaid. It was a big haul of poppy-husk, and could not be said that the same escaped the notice of the accused. They were, thus, in physical possession, and in control over the bags, containing poppy-husk. 17 bags, containing poppy-husk, were lying in the vehicle aforesaid. It was a big haul of poppy-husk, and could not be said that the same escaped the notice of the accused. They were, thus, in physical possession, and in control over the bags, containing poppy-husk. Once the physical possession of the accused, in respect of 17 bags, containing poppy-husk, was proved, presumption under Sections 35 and 54 of the Act, operated against them, that they were in conscious possession thereof. It was for them, to rebut the presumption, by leading cogent and convincing evidence. However, the appellants failed to rebut that presumption, either during the course of cross-examination of the prosecution witnesses, or by leading defence evidence. In these circumstances, the trial Court was right, in holding that they were in conscious possession of the contraband. Section 54 of the Act ibid reads as under :- "Presumption from possession of illicit articles:- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act, in respect of:- a) any narcotic drug or psychotropic substance or controlled substance; b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily." 11-A. Section 35 which relates to the presumption of culpable mental state, is extracted as under :- "Presumption of culpable mental state:- (1) In any prosecution for an offence under this Act, which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation:- In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact. Explanation:- In this section "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability." 11-B. From the conjoint reading of the provisions of Sections 54 and 35, referred to hereinbefore, it becomes abundantly clear, that once an accused, is found to be in possession of a contraband, he is presumed to have committed the offence, under the relevant provisions of the Act, until the contrary is proved. According to Section 35 of the Act ibid, the Court shall presume the existence of mental state, for the commission of an offence, and it is for the accused to prove otherwise. In Madan Lal and another V/s. State of H. P. 2003 SCC (Crl.) 1664 : (2003 Cri LJ 3868) it was held as under:- "The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended. Once possession is established, the person who claims that it was not a, conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles." 12 The facts of Madan Lals case (supra) in brief, were that accused Manjit Singh was driving the car and the remaining four accused, were sitting therein. One steel container (dolu) in a black coloured bag, was recovered from the said car, which contained 820 gms. charas. All the accused were convicted and sentenced by the trial Court, holding that they were found in conscious possession of charas, despite the fact, that one of the accused admitted his conscious possession, of the contraband. The Apex Court held that the trial Court was right in coming to the conclusion, that the accused were found in conscious possession of charas, as they had failed to explain as to how they were travelling in a car together, which was not a public vehicle. The Apex Court held that the trial Court was right in coming to the conclusion, that the accused were found in conscious possession of charas, as they had failed to explain as to how they were travelling in a car together, which was not a public vehicle. The Apex Court upheld the conviction and sentence awarded to the accused. In the instant case, the accused failed to explain, as to how, 17 bags of poppy-husk were found in the said vehicle, which was being driven by one of them. They failed to explain, as to how, they were found travelling in the truck, together, which was not a public vehicle, especially, when they belonged to different villages, falling within the jurisdiction of different districts. The facts of Madan Lals case (2003 Cri LJ 3868) (supra) are similar and identical to the facts of the present case. The principle of law, laid down, in Madan Lals case (supra) is fully applicable to the facts of the present case. In the instant case, in their statements, under Section 313 Cr.P.C., the accused/ appellants took up the plea only of false implication. No other defence was set up by them. Since, the accused/appellants failed to rebut the presumption, referred to above, their conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 13. The Counsel for the appellants, however, placed reliance on Avtar Singh V/s. State of Punjab 2002(4) RCR (Criminal) 180 (SC): (2002 Cri LJ 4330) and Kashmir Singh V/s. State of Punjab, 2006(2) RCR (Criminal) 477, to support his contention, that the accused were not found in conscious possession of the poppy-husk. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. In Avtar Singhs case (supra), decided by the Apex Court, it was held that, at the most, the accused, who were found sitting in the truck, which was carrying the bags, containing poppy-husk, could be said to be the abettors, but they were not convicted, on the ground, that no charge was framed against them, for abetment. The Hon ble Apex Court, thus, came to the conclusion, that the accused were the abettors. The act of abetment, is punishable, under Section 29 of the Act. The Hon ble Apex Court, thus, came to the conclusion, that the accused were the abettors. The act of abetment, is punishable, under Section 29 of the Act. It is settled principle of law, that if a charge for the major offence, is framed, whereas, from the evidence, on record, minor offence is proved, then the accused can be convicted, for the minor offence, even if, no charge for such minor offence has been framed. In Avtar Singhs case (supra), it was held that the accused were guilty, though for a different offence, under the Act. They were found guilty as abettors, no matter, that they were not convicted, on the ground, that no charge was framed against them. In Kashmir Singhs case (supra), decided by a Full Bench of this Court, it was held that once the possession of the accused, in respect of the contraband is proved, then there is presumption under Sections 35 and 54 of the Act, that they were in conscious possession thereof, but this presumption, will not apply unless an opportunity was given to the accused, to rebut and explain the presumption by putting the questions under Section 313 Cr.P.C, and by affording them, an opportunity to lead their evidence. In the instant case, the questions were put to the accused, during the course of their statements, under Section 313 Cr.P.C, that they were found travelling in vehicle Tata 407, in which 17 bags, containing poppy-husk, were lying. It means, that they were made aware of the fact, that they were in possession of the bags, containing poppy-husk. Once, they were made aware that they were in conscious possession of the bags, containing poppy-husk, then the statutory presumption under Sections 35 and 54 of the Act, arose that they were in conscious possession thereof. It was for them to rebut that presumption, but they failed to rebut the same. Charge was framed against the accused. They were made aware of the factum that they were in possession of the poppy-husk. They cross-examined the witnesses. Their statements, under Section 313 Cr.P.C, were recorded. They were afforded an opportunity to lead their defence evidence. It means that complete opportunity was granted to the accused, to rebut the presumption, operating against them, under Sections 35 and 54 of the Act. They cross-examined the witnesses. Their statements, under Section 313 Cr.P.C, were recorded. They were afforded an opportunity to lead their defence evidence. It means that complete opportunity was granted to the accused, to rebut the presumption, operating against them, under Sections 35 and 54 of the Act. If, despite that, they failed to rebut the said presumption, then it does not lie in their mouth, to say that they were not in conscious possession of the poppy-husk. Even otherwise, in the statements, under Section 313 Cr.P.C, only the incriminating circumstances, appearing against the accused, in the prosecution evidence, are required to be put, and not the provisions of law, or the statutory presumptions, obtaining under the provisions of law. In these circumstances, no help, whatsoever, can be drawn, by the Counsel for the appellants, from these authorities. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellants, that the case of Madan Lal and another V/s. State of H. P. 2003 SCC (Crl.) 1664 : (2003 Cri LJ 3868), decided by the Apex Court, was duly considered in Kashmir Singhs case (supra), by this Court, and, thus, the same cannot be taken into consideration, for the purpose of coming to the conclusion, that the accused were found in conscious possession, of the contraband. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. In Kashmir Singhs case (supra), decided by this Court, Madan Lals case (supra), decided by the Apex Court, was referred to, but was not dissented. Even otherwise, the principle of law, laid down, on the same point, by the Apex Court, would hold the field, in face of the contrary, principle of law, laid down, by this Court. Under these circumstances, the principle of law, laid down, in Madan Lals case (supra), is required to be taken into consideration, for arriving at a proper conclusion. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 15. It was next submitted by the Counsel for the appellants, that the link evidence, in this case, was incomplete, in as much as Sham Lal, PW, who brought the case property to the Police Station, was not examined. 15. It was next submitted by the Counsel for the appellants, that the link evidence, in this case, was incomplete, in as much as Sham Lal, PW, who brought the case property to the Police Station, was not examined. It may be stated here, that Sham Lal, PW, along with other police officials, brought the case property to the Police Station, under the supervision of the Investigating Officer. The Investigating Officer, was himself with them. In these circumstances, non-examination of Sham Lal, PW, did not at all go to prove, that the link evidence, was incomplete. Had the case property, and the sample parcels been not brought, in the presence, and under the supervision of the Investigating Officer, by Sham Lal, and other police officials, the matter would have been different. The other evidence produced by the prosecution, also clearly goes to prove, that none tampered with the sample parcels, until the same were deposited in the office of the Chemical Examiner. The Counsel for the appellants, however, placed reliance on Gian Singh V/s. State of Punjab 2006(2) RCR (Criminal) 611, in this regard. The facts of the aforesaid authority are clearly distinguishable, from the facts of the instant case. In that case, the Police Constables, through whom the case property was sent to the office of the Chemical Examiner, had tendered their affidavits, but they were not offered for cross-examination. Under these circumstances, it was held that their affidavits, could not be read, and, as such, the link evidence was incomplete. The facts of the aforesaid authority, being distinguishable, no help, can be drawn, by the Counsel for the appellants, therefrom. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 16. It was next submitted by the Counsel for the appellants, that the seals remained with the police officials, throughout, and, as such, the possibility of tampering with the samples, until the same reached the office of the Chemical Examiner, could not be ruled out. It may be stated here, that the Court is required to take into consideration the entire evidence, to come to the conclusion, as to whether, any prejudice was caused to the accused, on account of non-handing over the seal used by the official/ officer, for sealing the material, recovered from him, to an independent witness. It may be stated here, that the Court is required to take into consideration the entire evidence, to come to the conclusion, as to whether, any prejudice was caused to the accused, on account of non-handing over the seal used by the official/ officer, for sealing the material, recovered from him, to an independent witness. If, after over-all consideration of the facts, and circumstances, as also the evidence, on record, the Court comes to the conclusion, that on account of this reason, no prejudice was caused to the accused, then certainly, it could not be said that the case of the prosecution became doubtful. Even, otherwise, there is evidence, in abundance, in the shape of the statements of the prosecution witnesses, that none tampered with the case property, and the samples, till the same (samples) were deposited in the office of the Chemical Examiner. When from the cogent, convincing, reliable, and trustworthy evidence, it is proved, that none tampered with the sample parcels, and the case property throughout, then the Court cannot act on mere conjectures and surmises or farfetched possibilities, that the sample parcels, might have been tampered with. In Piara Singh V/s. The State of Punjab 1982 C.L.R. (2) 447 : (1982 Cri LJ 1176), a case decided by a Full Bench of this Court, the seal, on the sample of illicit liquor, recovered from the accused, was not entrusted to an independent person forthwith. Similarly, the independent person, though entrusted with the seal, by the Investigating Officer, was not produced as a witness. In these circumstances, it was held that this fact alone, was not sufficient to affect the merits of the case, and the prosecution case could not be thrown out, on that score alone. It was further held, in this case, that it was not incumbent upon the Police Officer, to hand over the seal to a third person forthwith, and even, in cases, where he had done so, it was not obligatory for him, to produce such person, as a witness, during trial, as there was no statutory requirement, whatsoever, to this effect. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. Non-entrustment of seal to an independent witness, in view of the cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, regarding the completion of link evidence, did not at all affect the merits of the case. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 17. The Counsel for the appellants, however, placed reliance on Ramji Singh V/s. State of Haryana, 2007(3) RCR (Criminal) 452 and Ram Sarup V/s. State of Haryana, 2006(1) RCR (Criminal) 52, in support of their contention, that on account of non-handing over the seals to an independent witness, the possibility of tampering with the sample parcels, could not be ruled out. In view of the principle of law, laid down, in Piara Singhs case (1982 Cri LJ 1176) (supra), by a Full Bench of this Court, the principle of law, laid dawn, to the contrary in Ramji Singhs and Ram Sarups cases (supra), decided by the Single Benches of this Court, shall not hold the field. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 18. It was next submitted by the Counsel for the appellants, that the mandatory provisions of Section 42 of the Act, were violated, as the alleged recovery was effected after sunset, and before sun-rise, resulting into the vitiation of trial. It may be stated here, that the provisions of Section 42 of the Act, were not applicable to the instant case, as the recovery of bags, containing poppy-husk, was effected from the vehicle, at a public place, and not from an enclosed place, or from a vehicle in the enclosed place. With a view to properly deal with this contention, it would be appropriate to notice the provisions of Sections 42 and 43 of the Act, which read as under :- "42. With a view to properly deal with this contention, it would be appropriate to notice the provisions of Sections 42 and 43 of the Act, which read as under :- "42. Power of entry, search, seizure and arrest without warrant or authorization - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government, if he has reasons to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, (a) enter into a search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any which any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of offence under Chapter IV relating to such drug or substance : and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an offence takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior." "43. Power of seizure and arrest in public place. - Any officer of any of the department mentioned in Section 42 may - (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance article liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be useful, arrest him and any other person in his company. 18-A. A conjoint reading of Sections 42 and 43 of the Act, shows that these sections are independent of each other. Section 43 authorises any Officer of the departments, mentioned in Section 42, for search, seizure, arrest and detention in any public place, or a vehicle in transit, in respect of any narcotic drug or psychotropic substance, in respect of which, he has reason to believe that an offence punishable under Chapter IV has been committed, whereas, Section 42 of the Act empowers the Officer for search, seizure and arrest in a building, conveyance or enclosed place. When the information is with regard to concealment of some narcotic, in a vehicle, in transit, then the provisions of Section 43 of the Act are applicable. The word public place has been explained for the purpose of Section 43 of the Act, which includes any public conveyance, hotel, shop or other places intended for use or accessible to the public. 19. The word public place has been explained for the purpose of Section 43 of the Act, which includes any public conveyance, hotel, shop or other places intended for use or accessible to the public. 19. A Division Bench of this Court in Dharminder Kumar V/s. State of Punjab, 2002 (4) RCR (Crl.) 278 has held as under :- "Thus it is evident that if seizure is made from any animal, conveyance or article in a public place or in transit then Section 43 of the Act would be applicable. Section 43 and Section 42 of the Act operate in different spheres. Since the conveyance has been specifically included in Section 43 of the Act also, therefore, the conveyance which is found in a public place or in transit would be covered under the provisions of Section 43 of the Act whereas conveyance used in Section 42 of the Act has to be read as conveyance which is other than a public place. This interpretation is the only harmonious interpretation of Sections 42 and 43 of the Act." It is well settled principle of law, that the provisions of a Statute, are to be construed, in a harmonious manner, so that none of the same is rendered nugatory. By harmonious construing the provisions of Sections 42 and 43 of the Act, it can be safely concluded, that if a conveyance is intercepted or apprehended at a public place, or in transit, then the provisions of Section 42 of the Act, would not be applicable. 20. It was held in State of Haryana V/s. Jarnail Singh and others 2004 (2) RCR (Crl.) 960 (SC) : (2004 Cri LJ 2541) as under :- "7. Section 43 of the NDPS Act provides that any officer of any of the departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public. 8. Explanation to Section 43 lays down that for the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public. 8. Sections 42 and 43, therefore, contemplate two difference situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise." 21. In the instant case, Ranjit Singh, SI, was present on the bridge of canal, in the area of village Bakhlor, in connection with a special picket, when at about 1.30 a.m., one vehicle Tata 407 came there, from the side of village Moro, which was going towards Bakhlor side. It was, at that time, that the appellants were found travelling in the said vehicles Tirath Singh, accused, was driving the same, Piara, accused; was sitting by his side, in the eabin, and Darbara Ram and Narpinder Singh, accused were sitting on the tarpaulin in the body of the vehicle, in which bags, containing poppy-husk were lying. The recovery was effected from a vehicle, at a public place. Thus, the provisions of Section 43 were applicable, and not the provisions of Section 42. In this view of the matter, the trial Court, was right, in holding that the question of compliance of the provisions of Section, 42, did not at all arise, as the same were inapplicable. In. this view of the matter, the submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 22. It was next submitted by the Counsel for the appellants, that no alternative charge under Section 8 of the Act, was framed against the accused, as a result whereof, the case of the prosecution became doubtful. There was no necessity of framing an alternative charge, under Section 8. 22. It was next submitted by the Counsel for the appellants, that no alternative charge under Section 8 of the Act, was framed against the accused, as a result whereof, the case of the prosecution became doubtful. There was no necessity of framing an alternative charge, under Section 8. Charge under Section 15 of the Act, against the accused was framed, as they were found in conscious possession of the poppy-husk. On account of non-framing of an alternative charge, under Section 8 of the Act, no prejudice, whatsoever, was caused to the accused. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 23. It was next submitted by the Counsel for the appellants, that no independent witness, was joined, by the Investigating Officer, at the time of alleged search and recovery, in this case, as a result whereof, the case of the prosecution became doubtful. The submission of the Counsel for the appellants, in this regard, also does not appear to be correct. It may be stated here, that the recovery, in the instant case, was effected at mid-night, when the people were sleeping, and, as such, the question of availability of an independent witness, at that odd hour, did not at all arise. The evidence of the official witnesses, cannot be distrusted and disbelieved, merely on account of their official status. In Akmal Ahmed V/s. State of Delhi, 1999 (2) RCC 297 (SC) : (1999 Cri LJ 2041), it was held that, it is now well-settled that the evidence of search and seizure, made by the police will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi V/s. Sunil (2000) 1 SCC 748 : (2001 Cri LJ 504, Para 21), it was held as under:- "It is an archaic notion that actions of the Police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature." 23-A. In Appa Bai and another V/s. State of Gujarat, AIR 1988 SC 696 : (1988 Cri LJ 848), it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined. It was further held, in the said authority, that the civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victims side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals, and do not involve themselves in it. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In these circumstances, mere non-joining of a independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part, to falsely implicate, the accused, no doubt, is cast on the prosecution story. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 24. In defence, the accused examined Sardool Singh (DW-1), and Bhinda (DW-2). Both of them, stated that Piara, accused, was falsely implicated, at the instance of Joga Ram. Sardool Singh (DW-1), during his cross-examination, stated that he did not make any complaint to higher Officers, regarding the false implication of Piara, accused. He further stated that Piara was already known to him. It was further stated by him, that the father-in-law of Piara, accused, was also known to him. Since, DW-1 was, on good terms, with the accused, and his father-in-law, he was expected to depose, in his favour, to save him, from the dragnet of law. He further stated that Piara was already known to him. It was further stated by him, that the father-in-law of Piara, accused, was also known to him. Since, DW-1 was, on good terms, with the accused, and his father-in-law, he was expected to depose, in his favour, to save him, from the dragnet of law. Bhinda (DW-2), during the course of his cross-examination, stated that they moved complaints to Human Rights Commission, and other authorities, after the registration of the case. He is the brother of Piara, accused. Being the brother of Piara, accused, he was expected to depose, in his favour to save him, from the dragnet of law. The trial Court was, thus, right in not relying upon the defence evidence, holding the same to be unbelievable. The trial Court was right, in doing so, in the face of the cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution. 25. No other point, was urged, by the Counsel for the parties. 26. In view of the above discussion, it is held that the judgment of conviction, and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld. 27. For the reasons recorded, hereinbefore, all the three appeals are dismissed. The judgment of conviction, and the order of sentence dated 23.2.2004, are upheld. If the accused/appellants are on bail, their bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Nawanshahr, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure. 28. No specific order was passed by the trial Court, for the confiscation of Tata 407 vehicle, bearing No.PB08-J-1075, in which the contraband, was being carried. The trial Court is directed to initiate the proceedings, regarding the confiscation of the aforesaid vehicle, by resorting to the provisions of Sections 60(3) and 63 of the Act, and complete the same, within 3 months, from the date of receipt of a certified copy of the judgment, under intimation to this Court.