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2008 DIGILAW 1412 (PNJ)

Piar Kaur v. State of Punjab

2008-08-19

SHAM SUNDER

body2008
JUDGMENT Sham Sunder J. - This judgment shall dispose of Criminal Appeal No. 117-SB of 2006, filed by Piar Kaur, and Criminal Appeal No. 883-SB of 2007, filed by Makhan Singh, accused (now appellants), arising out of the judgment of conviction dated 17.11.2005, rendered by the Judge, Special Court, Jalandhar, vide which he convicted Piar Kaur and Makhan Singh, 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 1-1/2 years each, for having been found in possession of 50 bags, containing 35 Kgs. poppy-husk each, without any permit or licence. 2. The facts, in brief, are that on 22.7.2000, Sarabjit Rai, SI, alongwith other police officials, was present atY- point picket, at Jandu Singha, where he received a secret information, that in village Haripur, near Sehkari Bank, some persons, were unloading bags, from truck, and if a raid was conducted, heavy recovery of contraband, could be effected, from them. Finding the information to be credible, he sent wireless message. to Jatinder Singh, DSP (R), with a request to reach the spot. In the meanwhile, Manohar Lal, an independent witness, came to the spot, who was joined with the police party. A lady Constable was also summoned. Thereafter, the raid was conducted at village Haripur. On seeing the police party, one person Sital Singh, managed to escape, alongwith truck bearing No. DL-IG-4619. Sital Singh, accused, was already known to Sarabjit Rai, SI. He was chased by Balwinder Singh, ASI, and other police officials, but he succeeded in escaping, with truck bearing No. DL-IG-4619. Thereafter, he apprehended one lady Piar Kaur, and Makhan Singh, who were sitting on the bags. In the meanwhile, Jatinder Singh, DSP(R), reached the spot. On his directions, Sarabjit Rai, SI, searched 50 bags, found in possession of Piar Kaur and Makhan Singh, who were found sitting thereon. Each bag, was found containing 35 gs. poppy-husk. A sample of 250 grams of poppy husk, was taken out, from each of this, and the remaining poppy-husk, was put into the same bags. On his directions, Sarabjit Rai, SI, searched 50 bags, found in possession of Piar Kaur and Makhan Singh, who were found sitting thereon. Each bag, was found containing 35 gs. poppy-husk. A sample of 250 grams of poppy husk, was taken out, from each of this, and the remaining poppy-husk, was put into the same bags. The samples, and the bags, containing the remaining poppy-husk, were converted into parcels, duly sealed, with the seal, and 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. Both Piar Kaur, and Makhan Singh, accused, were arrested. The statements of the witnesses, were recorded. 3. Thereafter, Sarabjit Singh, SI, alongwith other police official, conducted raid at village Akalpur, where Sital Singh, accused, was residing, and he was apprehended from his house, and arrested, on the same day i.e. 22.7.2000. 4. Ownership of truck, bearing No. DL-IG-4619, was verified from the office of Delhi Transport Authority, New Delhi, which was found in the name of Dalbir Singh. On 21.9.2000, the truck aforesaid was taken into possession, alongwith photocopy of the Registration Certificate, from Dalbir Singh, vide recovery memo, Ex.PM. After the completion of investigation, the accused were challaned. 5. 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. 6. The prosecution, in support of its case, examined Joginder Singh, HC (PW- 1), Sarabjit Rai, SI (PW-2), the Investigating Officer, Parminder Lal, HC (PW-3), and Jatinder Singh, DSP (PW-4). The Addl. Public Prosecutor for the State, gave up Manohar Lal, independent witness, as won over, on the request of the police. Thereafter, he closed the prosecution evidence : 7. The statements of the accused, under Section 313 Criminal Procedure Code, were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was stated by Makhan Singh, accused, in his statement, recorded under Section 313 Criminal Procedure Code, that he and his co-accused Piaro, met with an accident, and were admitted in Ashirwad Hospital, Rama Mandi Chowk, Jalandhar, with injuries, in the morning on 21.7.2000. They pleaded false implication. It was stated by Makhan Singh, accused, in his statement, recorded under Section 313 Criminal Procedure Code, that he and his co-accused Piaro, met with an accident, and were admitted in Ashirwad Hospital, Rama Mandi Chowk, Jalandhar, with injuries, in the morning on 21.7.2000. It was further stated by him, that they had been taking medical aid since morning, in the said hospital, till night. He further stated that, he and Piar Kaur, were got discharged from the hospital, by the Police, against their wishes as they were not recovered from the injuries. They were removed from the hospital, and this false case was planted against him, and his co-accused Piar Kaur. He further stated that nothing was recovered from him, and his co-accused. He further stated that the truck, did not belong to him. He further stated that a bail application was filed in this Court, wherein, it was stated that he was falsely implicated. He further stated that he was granted bail, by this Court. He further stated that he was also got treated from Civil Hospital, Adampur, and an injury, report was also, given by the Doctor, on the request of Sarabjit Rai, SI, who is the Investigating Officer, in the present case. Piar Kaur accused, in her statement, recorded under Section 313 Criminal Procedure Code also took up the same pleas, as were taken up by Makhan Singh, accused. 8. The accused, however, examined Dr. Gurdeep Kumar Sharma, Orthopadic Surgeon, Ashirwad Hospital, Hoshiarpur. Road, Rama Mandi, Jalandhar (DW-1), in their defence. Thereafter, they closed their defence evidence. 9. During the pendency of the trial, Sital Singh, accused, absented, and did not appear. He was, ultimately, declared Proclaimed Offendor, vide order dated 17.1.2004. 10. After hearing the Addl, Public Prosecutor for the State. the Counsel for the accused, and, on going through the evidence, on record, the trail Court, convicted and sentenced Piar Kaur, and Makhan Singh, accused/appellants, as stated hereinbefore. 11. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, were filed by Piar Kaur and Makhan Singh, appellants. 12. I have heard the learned Counsel for the parties, and have gone through the evidence and record, of the case, carefully. 13. 11. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, were filed by Piar Kaur and Makhan Singh, appellants. 12. I have heard the learned Counsel for the parties, and have gone through the evidence and record, of the case, carefully. 13. The Counsel for appellant-Makhan Singh, submitted that though a secret information was received, against the appellants, yet the same was neither reduced into writing, nor sent to the superior Officer, and, as such, there was violation of the mandatory provisions of Section 42 of the Act, resulting into vitiation of trial, conviction, and sentence. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Sarabjit Rai, SI, alongwith other police officials, was present at Y-point picket, at Jandu Singha, when he received a secret information that in the area of village Haripur, near Sehkari Bank, some persons, were unloading bags, from a truck, and if a raid was conducted, heavy recovery of contraband, could be effected from them. In the first instance, it may be stated here, that the information was not specific. It was only a vague information, which was received. Even the names of the persons, who were unloading the bags, from the track, were not intimated to Sarabjit Rai, SI, nor the number of the truck, was communicated to him. In these circumstances, there was no necessity of reducing the secret, information into writing, and sending the same to the Officer superior. Even otherwise, the provisions of Section 42 of the Act, were not applicable to the instant case, as the recovery was not effected, either from a building, or from an enclosed place, or from a vehicle parked in the enclosed place. In the instant case, the recovery, from the truck, at public place, wherein the appellant, was found sitting on the bags, containing poppy-husk, was effected. Thus, the provisions of Section 43 of the Act, were applicable, to this case. With a view to properly deal with this plea, taken up by the Counsel for Makhan Singh, appellant, it would be appropriate to notice the provisions of Sections 42 and 43 of the Act, which read as under :- "42. Thus, the provisions of Section 43 of the Act, were applicable, to this case. With a view to properly deal with this plea, taken up by the Counsel for Makhan Singh, appellant, 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 an 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 (sic) 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 : (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 taken superor or down any information in writing under Sub-section (1) or records grounds for his belief under the proviso there shall forthwith send a copy thereof to his immediate officer. "43. Power of seizure and arrest in public place. - Any officer of any of the department mentioned in Section 42 may - (a) seize at 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. 13-A. A conjoint reading of Sections 42 and 43 of the Act, shows that these sections are independent of each other. 13-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 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. 14. A Division Bench of this Court in Dharminder Kumar v. 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". 14-A. It is well settled principle of law, that the provisions of a Statute, are to be construed, in 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. 15. It was held in State of Haryana v. Jarnail Singh and others, 2004(3) Apex Criminal 163 (SC) as under : "7. 15. It was held in State of Haryana v. Jarnail Singh and others, 2004(3) Apex Criminal 163 (SC) 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. 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." 16. In the instant case, Sarabjit Rai, SI, alongwith other police officials, was present at Y-point picket, at Jandu Singha, when he received a secret information, that in village Haripur, near Sehkari Bank, some persons, were unloading bags, from a truck and if a raid was conducted, heavy recovery of contraband, could be effected, from them. It was also informed that, if a raid was conducted, heavy recovery of contraband, could be effected, from them. He sent an information, through wireless to Jatinder Singh, DSP, and, thereafter, reached the said place. It at that time, that appellant Makhan Singh was found sitting on the bags containing poppy-husk. The recovery was effected from a public place. Thus, as stated above, the provisions of Section 43 were applicable, and not the provision of Section 42. He sent an information, through wireless to Jatinder Singh, DSP, and, thereafter, reached the said place. It at that time, that appellant Makhan Singh was found sitting on the bags containing poppy-husk. The recovery was effected from a public place. Thus, as stated above, the provisions of Section 43 were applicable, and not the provision of Section 42. In this view of the matter, the trial Court was right in holding that the question of compliance of the provision of Section 42, did not at all arise, as the same were inapplicable. The trial Court was thus, right in recording conviction, and awarding sentence to Makhan Singh, accused. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 17. It was next submitted by the Counsel for Makhan Singh, appellant, that the prosecution miserably failed to prove, beyond a reasonable doubt, that the appellant, was in conscious possession of the poppy-husk. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Makhan Singh, appellant, was found sitting on the bags, containing poppy-husk, lying in the truck, the driver, whereof, was Sital Singh (since Proclaimed Offender). As many as 50 bags, each containing 35 kgs. poppy-husk, were lying in the body of the truck. It was not a small quantity of poppy-husk, which was lying in the truck, which could escape notice of the occupant thereof. Had it been a small quantity of poppy-husk, lying in the truck, the matter would have been different. It was within the special means of knowledge of Makhan Singh, appellant, as to, under what circumstances, he was sitting on the bags, containing poppy-husk, and to which place the same were being transported, in the said truck. He was, thus, required to explain, the said circumstances, but he failed to do so. The possession of, and control over the bags, containing poppy-husk of Makhan Singh, appellant, was, thus, proved beyond doubt, from the evidence, on record. Once the possession of, and control over the bags, containing poppy-husk, in relation to Makhan Singh, accused, was proved, then statutory presumption under Sections 54 and 35 of the Act, operated that he was in conscious possession thereof. Thereafter, the onus shifted on to him, to rebut that presumption. In the instant case, the appellant, failed to rebut the statutory presumption, referred to above. Thereafter, the onus shifted on to him, to rebut that presumption. In the instant case, the appellant, failed to rebut the statutory presumption, referred to above. In these circumstances, the trial Court was right, in holding that he was 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 apparatns specially designed or any group of utensils special 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." 17-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. (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." 17-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. State of H.P., 2004(1) Apex Criminal 426 : 2003 SCC(Crl.) 1664 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." 18. 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 upheld the, conviction and sentence awarded to the accused. In Megh Singh v. State of Punjab, 2004(1) Apex Criminal 482, on 22.2.1993, three persons were found sitting, on the gunny bags, containing poppy husk. The appellant was arrested, while the other two fled. 25 bags containing poppy husk, were found, at the spot, which were seized. The appellant was convicted and sentenced by the trial Court, and the appeal filed by him, was also dismissed by the High Court. The Apex Court, upheld the conviction and sentence of the appellant, observing that he was in conscious possession. The word conscious means awareness about a particular fact. It is the state of mind, which is deliberate or intended. The Apex Court, upheld the conviction and sentence of the appellant, observing that he was in conscious possession. The word conscious means awareness about a particular fact. It is the state of mind, which is deliberate or intended. It was further held that possession, in given case, need not be physical possession, but can be constructive, having power and control over the article, while the person whom physical possession is given holds it subject to that power or control. In the instant case, the accused, failed to explain, as to how, 50 bags, containing poppy-husk were found in the truck, which was being driven by Sital Singh, (since Proclaimed Offender). The facts of Madan Lals and Megh Singhs cases (supra) are similar and identical to the facts of the present case. The principle of law, laid down, in Madan Lals and Megh Singhs cases (supra) is fully applicable to the facts of the present case. In the instant case, in his statement, under Section 313 Criminal Procedure Code, Makhan Singh, appellant, took up the plea, only of false implication. As stated above, the accused, thus, miserably failed to rebut the statutory presumption, referred to above. Thus, his conscious possession, in respect of the contraband, was proved and as such, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 18-A. The Counsel for Makhan Singh, appellant, however, placed reliance on Avtar Singh v. State of Punjab, 2002(4) RCR(Criminal) 180, Baldev Singh v. State of Punjab 2005(1) RCR(Criminal) 823 and State of Punjab v. Balkar Singh and Another, 2004 Supreme Court Cases (Criminal) 838 to contend that the accused was not found in conscious possession of the contraband, referred to above, and, as such, he did not commit any offence, punishable under Section 15 of the Act. In Avtar Singhs case (supra), one of the accused was driving the vehicle, loaded with the bags, of poppy-husk, and the two accused were sitting on the bags. Two more persons, who were the occupants of the truck, succeeded in running away. In these circumstances, it was held that the conscious possession of the accused, was not proved. However, at the same time, the Apex Court held, in that case, that at, the most, the occupants of the truck, could be said to be abettors. Two more persons, who were the occupants of the truck, succeeded in running away. In these circumstances, it was held that the conscious possession of the accused, was not proved. However, at the same time, the Apex Court held, in that case, that at, the most, the occupants of the truck, could be said to be abettors. However, they were neither convicted, nor sentence was awarded to them, for the offence of abetment, which is punishable, under Section, 29 of the Act, on the ground, that no charge for this offence, had been framed, against them. In Avtar Singhs case (supra), the Apex Court did not hold that the accused did not commit any offence, but, on the other hand, held that they committed the offence, being abettors, punishable under Section 29 of the Act. Avtar Singhs case (supra was distinguished, on factual matrix, in Megh Singh v. State of Punjab, 2003(4) RCR(Crl.) 319 (SC), by the Apex Court. The facts of Avtar Singhs, Baldev Singhs and State of Puniabs cases (supra), are clearly distinguishable, from the facts of the instant case. The principle of law, laid down, in Madan Lals and Megh Singhs cases (supra), decided by the Apex Court, the facts whereof, are completely identical to the facts of the instant case, is applicable to the case of Makhan Singh, appellant. Under these circumstances, no help can be drawn, by the Counsel for appellant, from the aforesaid authorities. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 19. It was next submitted by the Counsel for Makhan Singh, appellant, that there was delay of 5 days, in sending the samples to the office of the Chemical Examiner. He further submitted that the delay of 5 days, in sending the samples, remained unexplained, as a result whereof, it could not be said that the samples were not tampered with, until the same reached the office of the Chemical Examiner. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that delay, in sending the sample, to the office of the Chemical Examiner, was explained, in itself, was not sufficient, to come to the conclusion, that the sample parcel tampered with, at any stage. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that delay, in sending the sample, to the office of the Chemical Examiner, was explained, in itself, was not sufficient, to come to the conclusion, that the sample parcel tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the prosecution, to complete the link evidence. The other evidence, produced by the prosecution, has been subjected to indepth scrutiny, and as stated above it has been found to be cogent convincing, reliable and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcels, until the same reached the office of the Chemical Examiner. Above all, there is report of the Chemical Examiner, Ex.PO, which clearly proves that the seals on the samples, were intact, and agreed with the specimen seal sent. The report the Chemical Examiner is per-se admissible into evidence, in its entirety, as per the provisions of Section 293 Criminal Procedure Code The delay in sending the samples, to the office of the Chemical Examiner, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the Chemical Examiner, the matter would have been different. In State of Orissa v. Kanduri Sahoo 2004(2) Apex Criminal 110 (SC), it was held that mere delay in sending the sample to the Laboratory is not fatal, where there is evidence that the seized articles remained in safe custody. In Narinder Singh @ Nindi v. State of Punjab, 2005(3) RCR(Criminal) 343, which was a case, relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the samples were intact. In these circumstances, it was held that, in the face of the other cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of tampering with the samples, could not be ruled out. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 5 days, in sending the samples to the office of the Chemical Examiner, did not at all matter much. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 20. It was next submitted by the Counsel for Makhan Singh, appellant, that some of the bags, containing poppy-husk, when produced, in the Court, the seals thereon, were not legible, and the same were also in torn condition. He further submitted that, under these circumstances, it could not be said that the case property, produced in the Court, was the same, as was allegedly recovered from the accused. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It may be stated here, that the recovery, in this case, was effected on 22.7.2000, whereas, Sarabjit Rai, SI (PW-2), the Investigating Officer, during the course of whose evidence the case property was produced, was examined on 6.5.2005. It means that Sarabjit Rai SI, was examined after about 5 years of the recovery. During this period, the bags, containing poppy-husk, bearing the seals of wax, and paper chits, containing the particulars of the case, remained lying in the malkhana. It is a matter of common experience, that in the malkhana, the case properties of a number of cases, are kept. On account of shortage of space, in the malkhana, the case properties, are not properly stacked. The wax seals, affixed on the bags, containing poppy-husk, and the paper chits, attached to the same, containing the particulars of the case, were bound to undergo natural decay, during the period of 5 years. Even, on account of irresponsible handling by the police officials, while taking the case property from the malkhana, or during the course of transit, said wax seals, and the paper chits, could get damaged. The bags, containing poppy-husk, also underwent natural decay, on account of free access of rats therein. It was, under these circumstances, that the same were found to be torn. The bags, containing poppy-husk, also underwent natural decay, on account of free access of rats therein. It was, under these circumstances, that the same were found to be torn. The only obligation, upon the prosecution, was to produce the case property, in the Court, and to get it identified from the prosecution witnesses, as the same, as was recovered from the accused. In the instant case, when the case property, was produced, in the Court, it was identified by Sarabjit Rai, SI, Investigating Officer, as the same, as was recovered from Makhan Singh, accused. Under these circumstances, the case property, produced in the Court, stood duly connected with the instant case. The case property is only a corroborative piece of evidence. The direct evidence of the prosecution witnesses, with regard to the recovery, is required to be given primacy, over the physical production of the case property. However, it does not mean, that the case property, recovered from the accused, should not at all be produced, in the Court. In Ashok Kumar v. State of Haryana, 2000(1) RCR(Criminal) 567 (SC), the packets of the case property, with faint seals, were produced, and in the absence of any challenge to the report of the Laboratory, and, on account of non-summoning of the Chemical Examiner, for cross-examination, the Apex Court held that the doubt raised by the accused, as to whether, the samples were the same, as were drawn in the case, and examined by the Chemical Examiner, was not sustainable. In State of Rajasthan v. Udai Lal, 2008(3) RAJ 443, as many as 119 bags, containing poppy-husk, were recovered, from the accused. At the time of trial only 5 bags, out of 119 bags, of poppy husk, were produced, in the Court. The trial Court, convicted and sentenced the accused, for the offence, punishable under Section 15 of the Act, whereas, in appeal, the High Court acquitted the appellant/accused. However, the Apex Court, in the appeal, set aside the judgment of the High Court, and restored that of the trial Court. As stated above, the case property, stood duly connected with the instant case. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 21. However, the Apex Court, in the appeal, set aside the judgment of the High Court, and restored that of the trial Court. As stated above, the case property, stood duly connected with the instant case. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 21. It was next submitted by the Counsel for Makhan Singh, appellant, that no question was put to him, in his statement, recorded under Section 313 Criminal Procedure Code, that he was in conscious possession of the poppy-husk. It may be stated here, that in the statement, under Section 313 Criminal Procedure Code, only the incriminating circumstances, appearing against the accused, in the evidence, are required to be put. The provisions of law, and the presumption obtaining, under the provisions of law, are not required to be put to the accused, in his statement, under Section 313 Criminal Procedure Code Makhan Singh, accused, was put a specific question, that he was found sitting on the bags, containing poppy-husk, lying in the body of the truck. It means that he was made aware that he was found in possession of 50 bags, each containing 35 kgs. Poppy-husk. Once he was made aware that he was in possession of the poppy-husk, referred to above, then presumption under Sections 54 and 35 of the Act, operated against him, that he was in conscious possession thereof. As stated above, he failed to rebut the presumption. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 22. It was next submitted by the Counsel for Makhan Singh, appellant, that all the witnesses to the memos, prepared at the spot, were not examined, as a result whereof, the case of the prosecution became highly doubtful. The submission of the Counsel for the appellant in this regard, does not appear to be correct. It is not necessary for the Public Prosecutor for the State, to examine every witness, to prove a particular. It is not necessary for the Public Prosecutor for the State, to multiply the number of witnesses, to prove a particular fact. The Public Prosecutor for the State, is the master of the case. It is for him, to decide as to how many witnesses, he wanted to examine, to prove his case. It is not necessary for the Public Prosecutor for the State, to multiply the number of witnesses, to prove a particular fact. The Public Prosecutor for the State, is the master of the case. It is for him, to decide as to how many witnesses, he wanted to examine, to prove his case. If, he is satisfied that the examination of a single witness, to prove a particular fact, was sufficient, on the ground, that his evidence carries a ring of truth, and implicit reliance thereon, could be placed, then he need not examine other witnesses. Since, the Investigating Officer, the recovery witness, and the DSP, were examined to prove the search and seizure, the Public Prosecutor for the State, did not think it necessary, to examine the remaining witnesses of the memos. Non-examination of all the witnesses of the memos, therefore, did not at all affect the merits of the case, in the instant case. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 23. It was next submitted by the Counsel for Makhan Singh, appellant, that Manohar Lal, independent witness, though joined, at the time of alleged search and seizure, yet he was not examined by the Addl. Public Prosecutor for the State, as a result whereof, it could be said that the prosecution withheld the material evidence, in its possession. He further submitted that an adverse inference, could also be drawn, against the prosecution, that had he been examined, he would not have supported its case. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. No doubt, Manohar Lal, independent witness, was joined, at the time of search and seizure, yet he was given up, as won over, by the accused, on the request of the police, by the Addl. Public Prosecutor for the State, vide his statement dated 21.2.2005. The Addl. Public Prosecutor for the State, exercised the discretion vested in him, in giving up Manohar Lal, independent witness, as won over by the accused, as he joined hands with him (accused), during the trial of the case, in a bonafide manner. It could not be said that he exercised the discretion vested in him, in giving up Manohar Lal, independent witness, as won over, arbitrarily, or capriciously. It could not be said that he exercised the discretion vested in him, in giving up Manohar Lal, independent witness, as won over, arbitrarily, or capriciously. The evidence of the Investigating Officer, and other prosecution witnesses, has been reappraised, and nothing could be found, during the course of their cross-examination, which may go to discredit the same. The evidence end of the prosecution witnesses, is creditworthy, and inspires confidence, in the mind of the Court. In Masalti v. State of Uttar Pradesh, AIR 1965 Supreme Court 202, it was held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material or, even if, it is known that he has been won over or terrorized. In Roop Singh v. State of Punjab, 1996(1) RCR 146, a Division Bench of this Court, held that no adverse inference can be drawn, when the only independent witness, was given up by the prosecution, as won over by the accused. It was further held, in the said authority, that the parnch witnesses, being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements and giving up of the public witnesses, as won over, is fully justified, in the present day situation, prevailing in the society. In Karnail Singh v. State of Punjab 1983 Criminal Law Journal 1218, a Division Bench this Court, held that where the independent witness, was won over by the accused, and only the officials witnesses, were examined, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. The principle of law, laid down, in the said authorities, is fully applicable to the facts of of the present case. In this view of the matter, the submission of the Counsel appellant, being without merit, must fail, and the same stand rejected. 24. It was next submitted by the Counsel for Makhan Singh, appellant, that in fact,Makhan Singh, was not apprehended, with poppy-husk, but was later on, falsely implicated, in the instant case. He placed reliance on the statement of Dr. 24. It was next submitted by the Counsel for Makhan Singh, appellant, that in fact,Makhan Singh, was not apprehended, with poppy-husk, but was later on, falsely implicated, in the instant case. He placed reliance on the statement of Dr. Gurdeep Kumar Sharma, Orthopadic Surgeon, Ashirwad Hospital, Hoshiarpur Road, Rama Mandi, Jalandhar, in this regard. Dr. Gurdeep Kumar Sharma, Orthopadic Surgeon, while appearing as, DW-1, stated that he was the Incharge of Ashirwad Hospital, Rama Mandi, Jalandhar. He brought record dated 21.7.2000. It was stated by him, that Makhan Singh, was admitted, in his hospital, on 21.7.2000, at 8.00 AM, with the following injury :- Headache. No other evidence of head injury. The C.T. scan was normal, for any evidence of head injury. 24-A. It was further stated by him, that in the evening of 21.7.2000, Makhan Singh @ Billa, was discharged. From the evidence of Dr. Gurdeep Kumar, it was proved that there was no injury, whatsoever, on the person of Makhan Singh. It was, under these circumstances, that he was discharged on 21.7.2000, in the evening by the concerned Doctor. The recovery, in this case, was effected on 22.7.2000, at about 10.00 AM, in the area of Haripur, within the jurisdiction of Jalandhar. Since, there was no injury, on the person of Makhan Singh, he could freely move about. Under these circumstances, he was found sitting on the bags, containing poppy-husk, lying in the aforesaid truck. Had there been serious injuries, on the person of Makhan Singh, completely immobilizing him, some doubt might have been entertained, that he might not have been present, at the time of search and seizure, but was falsely implicated. As stated above, since, there was no injury, what to speak serious, on the person of Makhan Singh, appeallant, his presence, at the time of search and seizure, and his possession, in respect of the poppy-husk, referred to above, stood proved, beyond a reasonable doubt, from the cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution. The evidence of Dr. Gurdeep Kumar (DW-1), does, not help the case of Makhan Singh, appellant, in any manner. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 25. The evidence of Dr. Gurdeep Kumar (DW-1), does, not help the case of Makhan Singh, appellant, in any manner. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 25. It was next submitted by the Counsel for Makhan Singh, appellant, that Sarabjit Rai, SI, himself sent the ruqa, to the Police Station, and became the complainant. He further submitted that he himself, was the Investigating Officer. He further submitted that such a course, adopted by Sarabjit Rai, SI, was contrary to the provisions of law. However, it may be stated here, that in S. Jeevanantham v. State through Inspector of Police T.N., 2004(3) Apex Criminal 209 : (2004)5 Supreme Court Cases 230, that if the Police Officer, who is the complainant, also conducts the investigation of the case, and it is not proved that any prejudice was caused to the accused, on account of the adoption of such a course, the accused cannot be acquitted. In this case, no evidence was led by the accused, that a prejudice was caused to him, on account of adoption of the aforesaid course, by the Investigating Officer. In S. Jeevananthams case (supra) the recovery of contraband was effected from the accused, by a Police Officer, who sent the ruqa, and, thus, became the complainant. The same very Police Officer conducted the investigation. Under these circumstances, it was held that since no prejudice or bias was shown to have been caused, to the accused, on account of the adoption, of such a practice, by the Police Officer, the investigation, and subsequent, proceedings, did not become invalid. In view of the principle of law, laid down, in S. Jeevananthams case (supra) the facts whereof, are similar to the facts of the instant case, no help can be drawn by the Counsel for the appellant, from Megh Singh v. State of Haryana, AIR 1995 Supreme Court 2339, as the facts thereof, are distinguishable from the facts of this case. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 26. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 26. Now coming to the case of Piar Kaur, appellant, it may be stated here that the Counsel, for this appellant, submitted that since, she was admitted in Ashirwad Hospital, with serious injuries on 21.7.2000, and on the next day, i.e. 22.7.2000, was discharged at about 10/11.00 AM, on the request of the Police officials, and they had taken her custody, from the hospital itself, her presence at the time of alleged search and seizure was highly improbable, and unnatural. To properly appreciate the contention of the Counsel for the Piar Kaur, appellant, we have to refer to the statement of Dr. Gurdeep Kumar (DW-1), again. Dr. Gurdeep Kumar, (DW-1), Incharge of Ashirwad Hospital, brought the record dated 21.7.2000, and stated that Piar Kaur, was admitted in his hospital, on 21.7.2000, at about 8.00 AM, with regard to the treatment of accident injuries. He further stated that Piar Kaur was suffering from the following injuries "1. Compound fractuie left maxilla. 2. Laceration left supa orbital region extending to left eyebrow and left upper eyelid. Subcotaneious tissue deep. Fresh bleading present. Patient was managed conservatively." 26-A. Dr. Gurdeep Kumar (DW-1), in clear-cut terms stated in his statement that in the morning of 22.7.2000, the Police came to take the custody of Piar Kaur. He further stated that one police man was deputed as guard for Piar Kaur. He further stated that on 22.7.2000, at about 10/11.00 AM, again the police officials came present, and look the custody of accused Piar Kaur. He further stated that he also discharged Piar Kaur, from his hospital, at that time. He further stated that his statement dated 3.4.2001, was recorded, by this Court. He identified Piar Kaur, when he appeared as DW-1. No doubt, during the course of cross-examination, this witness stated that he did not make any entry in MLR Register. The mere fact that he did not make any entry in the MLR Register, in itself, did not mean that he made a false statement. From the statement of Dr. Gurdeep Kumar (DW-1), it was proved beyond doubt that Piar Kaur, could not be present, at the place of search and seizure, at 10/11.00 AM, when she was admitted, at that time, in the hospital, with compound fracture left maxilla. From the statement of Dr. Gurdeep Kumar (DW-1), it was proved beyond doubt that Piar Kaur, could not be present, at the place of search and seizure, at 10/11.00 AM, when she was admitted, at that time, in the hospital, with compound fracture left maxilla. She had suffered a serious injury, though in the accident. A person having suffered compound fracture, could not be expected to properly manage her. Since, she was already admitted in Ashirwad Hospital, at the timewhen the search and seizure, was effected, from Makhan Singh, the question of her presence, at the place of search and seizure, at that time, did not at all arise. No doubt, the prosecution placed reliance on Exs.DA and DB, two medical reports of the Medical Officer, Primary Health Centre, Adampur, dated 22.7.2000. The time given is 1.45 PM in Ex.DA. Ex.DB, medical report relates to Piar Kaur. The time given therein, is 1.55 PM, dated 22.7.2000. The injuries were found on her person by the Doctor. However, the Doctor, was not examined by the prosecution, to prove both these reports. In the absence of production of the Doctor, in the Court, as a prosecution witness, Piar Kaur, was deprived of subjecting him to cross-examination. The mere fact that the document, Ex.DB, was exhibited, without the production of the Doctor, who gave the medical opinion, in respect of Piar Kaur, appellant, did not make it admissible. In the face of Ex.DB, there is cogent and convincing evidence of Dr. Gurdeep Kumar (DW-1), which made the presence of Piar kaur, at the place of search, and recovery, on 21.7.2000, at 10.00 AM, highly doubtful. No reliance, therefore, could be placed on Ex.DB, in the face of the evidence given by Dr. Gurdeep Kumar (DW-1), It was, thus, proved that the recovery of poppy-husk, from Piar Kaur, was highly doubtful. The possibility of her false implication, in the instant case, therefore, could not be ruled out. The submission of the Counsel for the appellant, in this regard, carries substance, and stands accepted. 27. No other point, was urged, by the Counsel for the parties. 28. In view of the above discussion, it is held that the judgment of conviction, and the order of sentence, rendered by the trial Court, qua Makhan Singh, accused, are based on the correct appreciation of evidence, and law, on the point, and warrant no interference. 29. 27. No other point, was urged, by the Counsel for the parties. 28. In view of the above discussion, it is held that the judgment of conviction, and the order of sentence, rendered by the trial Court, qua Makhan Singh, accused, are based on the correct appreciation of evidence, and law, on the point, and warrant no interference. 29. The judgment of conviction, and the order of sentence, rendered by the trial Court, qua Piar Kaur, accused, are not based on the correct appreciation of evidence, and law, on the point. Thus, the same warrant interference, and are liable to be set aside. 30. For the reasons recorded above, Criminal Appeal No. 883-SB of 2007, filed by Makhan Singh, appellant, is dismissed. The judgment of conviction, and the order of sentence, rendered by the trial Court, qua him, are upheld. If, Makhan Singh, appellant, is on bail, his bail bonds, shall stand cancelled. 31. Criminal Appeal No. 117-SB of 2006, filed by Piar Kaur, appellant, is accepted. The judgment of conviction, and the order of sentence, qua her, are set aside. In case, Piar Kaur, appellant, is on bail, she shall stand discharged of her bail bonds. If, she is in custody, she will be set at liberty, at once, if not required, in any other case. 32. The Chief Judicial Magistrate, Jalandhar, shall comply with the judgment, in accordance with the provisions of law, and submit the compliance report, within a period of two months, from the date of receipt of a copy thereof. 33. The trial Court, vide order dated 18.11.2005, directed the confiscation of the case property. The trial Court is directed to submit a report, within 1 month, as to whether, the truck, in question, has already been confiscated or not. Appeal allowed.