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2008 DIGILAW 1628 (PNJ)

Satnam Singh v. State of Punjab

2008-09-19

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J. - This appeal is directed against the judgment of conviction, and the order of sentence dated 18.9.1999, rendered by the Court of Addl. Sessions Judge, Patiala, 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 one year each, for having been found in possession of four bags, each containing 31 Kgs. poppy-husk, without any permit or licence. 2. The facts, in brief, are that, on 27.6.1997, ASI Gulab Singh along with other Police officials was going in connection with the patrol duty and checking of bad elements from village Shergarh towards Village Dhabi Gujjran and when at about 6 P.M, the Police party reached a little ahead of Dera of Kapur Singh, parallel to the motor of Ludhan Singh, resident of village Dhabi Gujjran from the side of village Dhabi Gujjran, a tractor make Mohindera International with trolly attached to it came, which was being driven by one youth and the other youth was sitting by his side. On suspicion the tractor- trolly was stopped. On enquiry, the tractor driver disclosed his name as Jaswant Singh and the person sitting in the trolly disclosed his name as Satnam Singh. On search of the trolly four bags, containing poppy husk were recovered. Each bag was found containing 31 kgs. Poppy husk. Two samples of 250 grams from each of the bags were taken out 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 seals, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. The accused were arrested. Rough site plan of the place of the recovery, was prepared. The statements of the witnesses, were recorded. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. The accused were arrested. Rough site plan of the place of the recovery, was prepared. The statements of the witnesses, were recorded. After the completion of investigation, the accused were challaned. 3. On their 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. The prosecution, in support of its case, examined ASI Gulab Singh, PW1, Constable Bant Singh, PW2, Balbir Singh, Clerk, SDM Office Samana PW3 (wrongly mentioned (PW2), ASI Gurcharan Singh, PW4, (wrongly mentioned as PW3), HC Swaranjit Singh, PW5 (wrongly mentioned as PW4), and S.S. Srivastava, S.P.(Hq.) PW6 (wrongly mentioned as PW5). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. 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 Satnam Singh, accused, that the police had asked them to send their tractor- trolly for filling the earth, in the Police Station. He further stated that he refused to do so, as a result whereof, this false case was planted against him. 6. Jaswant Singh, accused in his statement under Section 313 Criminal Procedure Code also took up the same plea. 7. The accused in their defence examined Ajaib Singh, Patwari Halqa Shergarh as DW1, Shekhar Sharma, DW2 and Pishora Singh, DW3. Thereafter they closed their defence evidence. 8. After hearing the Additional 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 appeal, was filed by the 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 no independent witness was joined, despite availability, and, as such, the case of the prosecution became doubtful. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. 11. The Counsel for the appellants, at the very outset, submitted that no independent witness was joined, despite availability, and, as such, the case of the prosecution became doubtful. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. ASI Gulab Singh, during the course of cross-examination, stated that at the time of recovery, no independent witness was present, in the nearby fields. It may be stated here that, it was a chance recovery. No secret information had been received against the accused, that they were coming in a tractor-trolly, with a big haul of poppy husk. Since no independent witness was present, at the time of effecting recovery, the question of joining him did not at all arise. No doubt, Gulab Singh, ASI, the Investigating Officer during the course of cross-examination stated that 5-6 persons, passed that way during their stay at the place of recovery. Joining of an independent witness, after the search and seizure, would have been of no significance, as he would not have been said to be a witness to the search and seizure. Under these circumstances, it is to be seen, as to whether, non-joining of an independent witness, in itself, was sufficient to throw away the case of the prosecution over-board. In the absence of joining of an independent witness, the evidence of the official witnesses, cannot be distrusted and disbelieved. In the face of the evidence of the official witnesses only, the Court is required to scrutinize the same, carefully and cautiously. After careful and cautious scrutiny of the evidence of the official witnesses, if the Court comes to the conclusion, that the same does not suffer from any serious infirmity, the same can be believed. The evidence of the official witnesses, in the instant case, has been subjected to indepth scrutiny, and nothing came to the fore, which may go to discredit the same. The evidence of the official witnesses, was rightly found to be cogent, convincing, reliable and trustworthy, by the trial Court. The trial Court was right in placing reliance on the same, in coming to the conclusion, that the accused committed the offence, punishable, under Section 15 of the Act. This Court after reappraisal of the evidence of the prosecution witnesses, also comes to the same conclusion. The trial Court was right in placing reliance on the same, in coming to the conclusion, that the accused committed the offence, punishable, under Section 15 of the Act. This Court after reappraisal of the evidence of the prosecution witnesses, also comes to the same conclusion. In Akmal Ahmed v. State of Delhi, 1999(2) RCC 297 (SC), it was held that, it is now well-settled, that the evidence of search or 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. Sunil, 2001 (1) SCC 652, 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. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature." 12. In Appa Bai and another v. State of Gujarat, AIR 1988 Supreme Court 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined, by the prosecution. 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 an 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 appellant, being without merit, must fail, and the same stands rejected. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. It was next submitted by the Counsel for the appellants, that the conscious possession of the accused, in relation to the poppy-husk, allegedly recovered from the tractor-trolly, was not proved, and, as such, no offence punishable under Section 15 of the Act, was constituted. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. It was a big haul of poppy husk, which was being carried in the tractor-trolly. It was not a small quantity of poppy husk which was being carried in the tractor trolly. Under these circumstances, it could not be said that the accused were not aware of the same. It was for the accused to explain as to how four bags containing poppy husk came in the tractor-trolly and to which destination the same, were being taken. The accused, however, failed to furnish any explanation, in respect of the aforesaid circumstances. The accused were, thus, in possession of, and in control over the bags, containing poppy-husk. Once the possession of the accused, in respect of the contraband, is proved, then statutory presumption under Sections 54 and 35 of the Act, starts operating against them. Thereafter, it is for the accused, to rebut that statutory presumption. In the instant case, the accused, miserably failed to rebut the said presumption. In these circumstances, the trial Court, was right, in holding that they were in conscious possession of the contraband. Thereafter, it is for the accused, to rebut that statutory presumption. In the instant case, the accused, miserably failed to rebut the said presumption. 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." 14. 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." 15. 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. 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." 16. 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 the instant case, the accused failed to explain, as to how, 4 bags, containing poppy-husk were found in the tractor trolly, which was being driven by one of them. The facts of Madan Lals case (supra) are similar and identical to the facts of the present case. The Apex Court upheld the conviction and sentence awarded to the accused. In the instant case, the accused failed to explain, as to how, 4 bags, containing poppy-husk were found in the tractor trolly, which was being driven by one of them. The facts of Madan Lals case (supra) are similar and identical to the facts of the present case. In Megh Singh v. State of Punjab, 2004(1) Apex Criminal 482 (SC), 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 of the contraband. 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 a 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. It, therefore, could not be said that the accused were not aware of the bags, containing poppy-husk. It was not a small quantity of poppy-husk, which was concealed, and, as such, could escape the notice of the accused. Keeping in view the principle of law, laid down, in the aforesaid cases, the provisions of Sections 35 and 54 of the Act, and the evidence produced, on record, the trial Court, in my opinion, was right in coming to the conclusion, that the accused were in conscious possession of 4 bags, each containing 31 kgs. Poppy-husk. As stated above, the accused miserably failed to rebut the statutory presumption, referred to above. 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, relied upon Avtar Singh and others v. State of Punjab, 2002 SCC(Crl.) 1769 to contend that the accused were not found in conscious possession of the poppy husk. The facts of the aforesaid case, are clearly distinguishable, from the facts of the instant case. 17. The Counsel for the appellants, however, relied upon Avtar Singh and others v. State of Punjab, 2002 SCC(Crl.) 1769 to contend that the accused were not found in conscious possession of the poppy husk. The facts of the aforesaid case, are clearly distinguishable, from the facts of the instant case. In that case, it was held that the accused were not in conscious possession of poppy husk. However, at the same time, the Apex Court held that they, at the most they could be said to be the abettors. Since no charge for abetment had been framed against the accused, their conviction for that offence could not be recorded. Under these circumstances, it could be said that the Apex Court did not hold that the accused were not guilty of any offence under the Act. Not only this, Avtar Singh and others case (supra) was duly discussed and distinguished in Megh Singhs case (supra) on factual matrix. In view of the principle of law, laid down, in Madan Lals and Megh Singhs cases (supra), decided by the Apex Court, no help can be drawn by the Counsel for the appellants, from Avtrar Singh and others case (supra), the facts thereof, being distinguishable. The submission of the Counsel for the appellants, in this regard, being without merit, must fail and the same stands rejected. 18. It was next submitted by the Counsel for the appellants that the seal after use was given to ASI Gurcharan Singh by ASI Gulab Singh, who returned the same, on the same day. He further submitted that, under these circumstances, the possibility of tampering with the sample parcels, which were sent to the Chemical Examiner, after the delay of six days, could not be ruled out. The submission of the Counsel for the appellants, in this regard, does not appear to be correct.There is no requirement of law that the seal after use should be given to a third person. Even otherwise, sufficient evidence was produced by the prosecution, to prove that non tampered with the sample parcels, until the same reached the office of the Chemical Examiner. In Piara Singh v. The State of Punjab, 1982 CLR (2) 447, 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. In Piara Singh v. The State of Punjab, 1982 CLR (2) 447, 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, later on, 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 submission of the Counsel for the appellants, being devoid of merit, is rejected. 19. It was next submitted by the Counsel for the appellants, that ASI Gulab Singh, PW1, made a statement contrary to the contents of ruqa, in as much as, he stated that Satnam Singh, accused, was driving the tractor whereas Jaswant Singh, accused was sitting by his side. He further submitted that this clearly proved that the case of the prosecution was doubtful. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. No doubt, in the first instance, in his examination-in-chief, Gulab Singh, PW1, made such a statement, He was, however, put questions as are put during the course of cross-examination by the Additional Public Prosecutor, for the State, with the permission of the Court. He then clarified that he mentioned in all the documents prepared by him, at the spot, that the tractor was being driven by Jaswant Singh, accused and Satnam Singh was sitting in the trolly. He further stated that, in his examination-in-chief, he wrongly deposed, per chance, that the tractor was being driven by Satnam Singh. Gulab Singh, PW1, no doubt, committed mistake in his examination-in-chief, yet he corrected the same, when he was cross-examined, by the Addl. Public Prosecutor, with the permission of the Court. He further stated that, in his examination-in-chief, he wrongly deposed, per chance, that the tractor was being driven by Satnam Singh. Gulab Singh, PW1, no doubt, committed mistake in his examination-in-chief, yet he corrected the same, when he was cross-examined, by the Addl. Public Prosecutor, with the permission of the Court. Under these circumstances, it could not be said that there was any variation, in the statement of Gulab Singh, PW1, vis-a-vis the contents of the ruqa. The submission of the Counsel for the appellants, in this regard, being without merit, must fail and the same stands rejected. 20. It was next submitted by the Counsel for the appellants that the link evidence, in this case was incomplete. He invited my attention to Ex.PJ, the affidavit of Swaranjit Singh, MHC. MHC Swaranjit Singh, in his affidavit stated that Gulab Singh, ASI took the case property along with sample parcels for production before the IIaqua Magistrate. He further submitted that Swarnjit Singh, HC, stated that after production of the same before the IIaqa Magistrate, Makhan Singh, CII redeposited the case property with him. The Counsel for the appellants, submitted that in the absence of either the statement of Makhan Singh or his affidavit, the link evidence was incomplete. The submission of the Counsel for the appellants in this regard does not appear to be correct. After producing the case property and the sample parcels, before the Ilaqa Magistrate, the same were redeposited by Makhan Singh. The Ilaga Magistrate certified that the seals on the sample parcels and the case property were intact. There is nothing, on the record, that the sample parcels were tampered with, either by Makhan Singh or ASI Gulab Singh after they took the same from the MHC and produced the same before the Ilaqa Magistrate. In these circumstances, there was no necessity of examination of Makhan Singh as a witness. Even, in the absence of the statement of Makhan Singh, link evidence was complete. Above all, there is report Ex.PG, of the Chemical Examiner to the effect that the seals on the sample parcels, were intact, and tallied with the sample impression of the seals sent. No challenge was made to the report Ex.PG. 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. 21. No challenge was made to the report Ex.PG. 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. 21. It was next submitted by the Counsel for the appellants that in the statements of accused under Section 313 Criminal Procedure Code, a question put was that it was Satnam Singh, who was driving the tractor-trolly whereas Jaswant Singh was sitting therein. It was further submitted that on the other hand, it was Jaswant Singh, who was driving the tractor-trolly, and Satnam Singh, was sitting therein. It was further submitted that the accused were, thus, prejudiced on account of this reason. It is no doubt, true that in statements under Section 313 Criminal Procedure Code it was not put to the accused that it was Jaswant Singh who was driving the tractor-trolly and Satnam Singh was sitting therein. Wrong question was put to the accused. However, it is to be seen, as to whether, any prejudice was caused to the accused, on account of this reason or not. A perusal of the evidence shows that no prejudice, whatsoever, was shown to have been caused to the accused on account of putting of this wrong question to them under Section 313 Criminal Procedure Code The evidence in this case was recorded, in the presence of the accused, duly assisted by their Counsel. They were very well aware that the case against them was that Jaswant Singh was driving the tractor-trolly and Satnam Singh was sitting therein, in which the bags containing poppy husk were lying. Since the accused were aware of the case throughout, no prejudice, whatsoever was caused to them, on account of such a mistake on the part of the Court. The submission for the Counsel for the appellants, in this regard, being without merit, must fail and the same stands rejected. 22. Coming to the defence evidence, it may be stated here that no reliance thereon could be placed for the reasons to the recorded hereinafter. The Counsel for the appellants, from the defence evidence, wanted to prove that no dera of Luddan Singh was in existence at the place of alleged recovery and as such the prosecution case was completely doubtful. Coming to the defence evidence, it may be stated here that no reliance thereon could be placed for the reasons to the recorded hereinafter. The Counsel for the appellants, from the defence evidence, wanted to prove that no dera of Luddan Singh was in existence at the place of alleged recovery and as such the prosecution case was completely doubtful. Ajaib Singh, Patwari, while appearing as, DW1 stated that as per the revenue record, no person in the name of Luddan Singh was recorded to be the owner of any of the fields. Shekhar Sharma, DW2, also stated that there was no dera known as Luddhan Singh alias Luddan. He further stated that he did not make inquiries from PWD, CPWD or the revenue authorities. He further stated that he did not consult any Lambardar of the village to ascertain about the dera, which had been shown in the site plan Ex.DB. In these circumstances, the evidence of Shekhar Sharma, DW2, could not be said to be of any consequence, to prove as to whether there was dera of Luddan Singh or not. Pishora Singh, DW3, stated that Luddan Singh had no land on the road and had no dera. The fact remains that the accused were arrested, at the spot, which is shown as vacant field, and the words Luddan Singh were also written in the site plan. Whether the Investigating Officer made inquiries from the revenue authorities, or from any other person, as to whether it was a motor of Luddan Singh or not hardly matted. Even if, it is assumed, that on account of some mis-information, given to the Investigating Officer, that the place where the tractor-trolly was seen and the recovery therefrom was effected was the vacant field of Luddan Singh or near the motor of Luddan Singh that hardly mattered. Cogent and convincing evidence was produced by the prosecution, in the shape of the statements of ASI Gulab Singh, PW1, ASI Gurcharan Singh PW3, and S.S. Srivastava S.P.(Hq.) PW5 that the recovery, at that place, from the tractor-trolly was effected. Mere writing of wrong name of the owner of the field or the owner of the motor did not make the recovery, in any way doubtful. The defence version being, thus, not reliable is disbelieved. 23. No other point was urged by the Counsel for the parties. 24. Mere writing of wrong name of the owner of the field or the owner of the motor did not make the recovery, in any way doubtful. The defence version being, thus, not reliable is disbelieved. 23. No other point was urged by the Counsel for the parties. 24. 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. 25. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 18.9.1999, are upheld. If the appellants are on bail, their bail bonds shall stand cancelled. The Chief Judicial Magistrate, Patiala, 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. Appeal dismissed.