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2008 DIGILAW 1629 (PNJ)

Bhagwan Dass 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 17.12.2007, rendered by the Judge, Special Court, Nawanshahr, vide which, he 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 a further period of one year each, for having been found in possession of three bags each containing 35 kgs poppy husk, without any permit or licence. 2. The facts, in brief, are that on 30.4.2005, SI Rakesh Kumar along-with other police officials was on partol duty in the area of village Jabbowal and when they reached near the cremation ground in village Jabbowal, they noticed one man accompanied by two ladies, in a room, sitting on three bags separately. Upon enquiry, the man sitting on one of the bags, disclosed his name, as Bhagwan Dass. One of the ladies, who was sitting on another bag, disclosed her name, as Banso, and the other lady sitting on the third bag disclosed her name as Bimla. Avtar Singh, Sarpanch, who came there, was associated with the police party. The Investigating Officer told the accused that he was having suspicion that the bags contained contraband, and he wanted to search the same. Accordingly, search of the bags was conducted. Each bag was found containing 35 kgs poppy husk. Two samples of 250 grams, from each of the bags, were taken out, and the remaining poppy husk was kept in the same bags. The samples and the bags, containing the remaining poppy husk were converted into separate parcels, duly sealed and taken into possession vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof FIR was registered. Site plan was prepared. The accused were arrested. The statements of the witnesses were recorded. After completion of the 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 statements of the witnesses were recorded. After completion of the 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 Paramjit Singh, PW1, HC Jagtar Singh, PW2, SI Surinder Pal Singh, PW3, HC Avtar Singh PW4, SI Rakesh Kumar, PW5, and DSP Navjot Singh PW6 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. It was stated by Bhagwan Dass, accused, that he was falsely implicated, since his father Biru Ram had filed an application against the police officials, on the basis of which ASI Raunki Dass of CIA Staff had been transferred. 5-A. Accused Banso also took up the plea, that she was falsely implicated being the daughter-in-law of Biru Ram. 5-B. Accused Bimla pleaded false implication, on the ground, that she resided in the house of Biru Ram and assisted them in agricultural operations. However, the accused did not lead any evidence, in their evidence and closed the same. 6. After hearing the 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, as stated hereinbefore. 7. 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. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. It was submitted by the Counsel for the appellants, that there was a delay of 5 days, in sending the samples, to the office of the Chemical Examiner, which remained unexplained, and, as such, the possibility of tampering with the same, could not be ruled out. The submission. of the Counsel for the appellants, in this regard, does not appear to be correct. The submission. of the Counsel for the appellants, in this regard, does not appear to be correct. The mere fact that delay, in sending the samples, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcels were tampered with, at any stage. In such a situation, 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, 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.PU, which clearly proves that the seals on the samples, were intact, and agreed with the specimen seal sent. The report of 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 appellants, being without merit, must fail, and the same stands rejected. 10. It was next submitted by the Counsel for the appellants, that Avtar Singh, Sarpanch, independent witness, was, no doubt, joined, at the time of alleged search, and seizure, yet he was not examined, as a result whereof, it could be said that the prosecution withheld the material evidence, in its possession. They further submitted that non-examination of Avtar Singh, independent witness, must prove fatal to the case of the prosecution. It may be stated here, that Avtar Singh, independent witness, joined hands with the accused, during the course of trial, of the case. Accordingly, he was given up as won over by the Public Prosecutor for the State, vide his statement dated 14.3.2006. Under these circumstances, in my considered opinion, the Public Prosecutor for the State, took a wise decision, in giving up, such a witness, as he very well knew that, in case, he was examined, he would damage the case of the prosecution. 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 panch 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 (DB), it was held that where the independent witness was won over by the accused, and only the official witnesses were examined, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. In Karnail Singh v. State of Punjab, 1983 Criminal Law Journal, 1218 (DB), it was held that where the independent witness was won over by the accused, and only the official witnesses were examined, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. Similarly 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 it. It was further held that 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 said authorities, is fully applicable to the facts of the present case. In this view of the matter, the trial Court was, thus, right in recording conviction and awarding sentence, to the accused. The submission of the Counsel for the appellants, in this regard, being without merit, must fail and the same stands rejected. 11. It was next submitted by the Counsel for the appellants that the affidavits of the witnesses were not specifically put to the accused, and, as such, they were deprived of furnishing their explanation, in regard thereto. They further submitted that, under these circumstances, these affidavits cannot be read against the accused. They further submitted that if these affidavits are taken off the record, the link evidence becomes incomplete. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The statements of the accused under Section 313 Criminal Procedure Code recorded, in this case, have been carefully perused. One of the questions put to the accused, in their statements, under Section 313 Criminal Procedure Code was to the effect that the samples were sent to the Chemical Examiner, and the contents thereof were found to be of poppy husk,as per the report Ex.PU.It means that the accused were made aware of the factum that the samples were sent to the Laboratory for the purpose of analysis. It was not necessary, on the part of the prosecution to put the affidavits specifically to he accused in their statements under Section 313 Criminal Procedure Code The accused were very well aware of the evidence,which was recorded in their presence duly assisted by a Counsel. In State of Punjab v. Naib Singh, 2001 Crl. Law Journal 4656 (SC), it was held that the conviction of the accused cannot be set aside, merely, on the ground that the affidavits of the formal witnesses were not specifically put to them, in their statements, under Section 313 Criminal Procedure Code 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, in this regard, being without merit, must fail and the same stands rejected. 12. It was next submitted by the Counsel for the appellants, that the lady Constable who was joined by the Investigating Officer, at the time of alleged search and seizure was not produced. They further submitted that the evidence of the lady Constable was most essential, for the purpose of proving the case, against the accused. They further submitted that the prosecution, thus, intentionally withheld the evidence of such a material witness, and, as such, an adverse inference can be drawn against it. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. In the instant case, the recovery was not effected from the personal search of the accused. It was effected from the search of the bags, on which they were sitting. Had the recovery been effected from the personal search of the lady accused, in the presence of lady Constable, her non-examination would have certainly affected the case of the prosecution. It is for the Public Prosecutor, for the State, to decide as to which witness he wanted to examine and as to which witness he did not want to examine. Since, the case of the prosecution was proved from the evidence of other witnesses, produced by the prosecution, the Public Prosecutor did not consider it necessary to examine the lady Constable. Non-examination of the lady Constable, in this case, did not make the case of the prosecution in any way, doubtful. Since, the case of the prosecution was proved from the evidence of other witnesses, produced by the prosecution, the Public Prosecutor did not consider it necessary to examine the lady Constable. Non-examination of the lady Constable, in this case, did not make the case of the prosecution in any way, doubtful. The submission of the Counsel for the appellants, in this regard, being without merit, must fail and the same stands rejected. 13. It was next submitted by the Counsel for the appellants, that the report Ex.PU was signed by the Assistant Chemical Examiner, but he was not examined as a witness in the Court. He further submitted that such a report was not per-se admissible in the evidence. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. According to Section 293Criminal Procedure Code (amended upto date), any report signed by the Chemical Examiner or Assistant Chemical Examiner to Government, is per-se admissible into evidence. Since the report Ex.PU is per-se admissible into evidence, there was no necessity of examination of the Assistant Chemical Examiner, as a witness by the prosecution. In case, the accused had any grouse against the report Ex.PU, then they could move an application for summoning the Assistant Chemical Examine for his cross-examination. 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. 14. It was next submitted by the Counsel for the appellants, that the appellants were not found in conscious possession of the bags containing poppy husk. They further submitted that the accused were allegedly found sitting on the bags containing poppy husk in a room, in the burial ground, which was an open and accessible place, and could be visited by all and sundry. They further submitted that the exclusive knowledge of the bags, containing poppy husk,therefore, could not be attributed to the accused. The submission of the appellants, in this regard, does not appear to be correct. It was not that the accused were found sitting near the bags, containing poppy husk. The accused were found sitting on the bags containing poppy husk, in a room, in the burial ground. The submission of the appellants, in this regard, does not appear to be correct. It was not that the accused were found sitting near the bags, containing poppy husk. The accused were found sitting on the bags containing poppy husk, in a room, in the burial ground. It was not a small quantity of poppy husk,which was lying there, in a corner of the room, which escaped their notice or that they were not aware of the same. Three bags containing poppy husk could be said to be a big haul of contraband. The mere fact that they were sitting on the bags, in itself, was sufficient to prove their possession and control over the contraband. How those bags containing poppy husk came there, and how they were found sitting on the same, were the circumstances, which were required to be explained by the accused. However, they failed to do so. Once the possession of the accused, in respect of the contraband, is proved, then the statutory presumption under Sections 54 and 35 of the Act, starts operating against them,, that they were in conscious possession of the contraband. Thereafter, it is for the accused, to rebut that statutory presumption. In the instant case, they (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." 15. 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." 16. 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 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. 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 was not aware of the bags, containing poppy-husk. 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 was not aware of the bags, containing poppy-husk. It was not a small quantity of poppy-husk. Keeping in view the principle of law, laid down, in the aforesaid case, 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 was in conscious possession of the bags, containing poppy husk. The submission of the Counsel for the appellants, in this regard, being without merit, must fail and the same stands rejected. 17. It was next submitted by the Counsel for the appellants, that the seals after use, were not handed over to the independent witness, though he was very much with the police party, as a result whereof, the possibility of tampering with the samples could not be ruled out. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The mere fact that the seals after use were not handed over to independent witness, in itself, was not sufficient to come to the conclusion that there was tampering with the case property, and the sample parcels, at any point of time. The Court is required to take into consideration, the entire evidence produced by the prosecution to reach a particular conclusion. In the instant case, as stated above, on reappraisal of the prosecution evidence, this Court has come to the conclusion that the link evidence is complete and there was no possibility of tampering with the case property or the sample parcels at any point of time. Even otherwise, there was no requirement of law to hand over the seals, to an independent witness or even to a third person. In Piara Singh v. The State of Punjab, 1982 C.L.R. (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 C.L.R. (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 trial, 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 evidence produced by the prosecution, is sufficient to establish that none tampered with the samples, until the same reached the office of the Chemical Examiner. The submission of the Counsel for the appellants,therefore, 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 Bimla, one of the accused,was only a helper, and was falsely implicated in the instant case. Such a plea, if taken by Bimla, was required to be proved by her. No evidence was led by the accused, to prove that she was not in possession of the bags, containing poppy husk, but was only helping the other accused. The statutory presumption that arises under the provisions of Sections 54 and 35 of the Act, is required to be rebutted by leading cogent and convincing evidence. Merely by raising a plea, that a particular accused was not in possession of the contraband, in itself, could not be taken as a gospel truth. Since no evidence was led that Bimla was only a helper, and was not in conscious possession of the bags, containing poppy husk, the submission of the Counsel for the appellants, being devoid of merit, is rejected. 19. No other point, was urged, by the Counsel for the parties. 20. Since no evidence was led that Bimla was only a helper, and was not in conscious possession of the bags, containing poppy husk, the submission of the Counsel for the appellants, being devoid of merit, is rejected. 19. No other point, was urged, by the Counsel for the parties. 20. 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. 21. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 17.12.2007, 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 Criminal Procedure Code Appeal dismissed.