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2008 DIGILAW 163 (PNJ)

Harjit Kaur v. State Of Punjab

2008-01-23

SHAM SUNDER

body2008
Judgment Sham Sunder, J. 1. This judgment shall dispose of the aforesaid four appeals, arising out of the judgment dated 12.12.2000, rendered by the Judge, Special Court, Mansa, vide which it convicted all the accused/appellants, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter called as the Act only) and sentenced them to undergo rigorous imprisonment, for a period often years each, and to pay a fine of Rs. 1,00,000 each, and in default of payment of the same, to undergo further rigorous imprisonment for a period of two years each. 2. On 21.10.1996, the police party, headed by Hardam Singh, Asst. Sub-Inspector, was on patrol duty and general checking. The police party was going in Government Canter No. PB-03-6612 in connection with holding a picket (nakabandi). When the police party was present at Kanchia Chowk, Sardulgarh, a Maruti Van bearing No. PCX-6941, came from the side of village Khera Khurd. A signal was given to stop the van, as a result whereof, the said van stopped. It was noticed, that besides the driver, one more person, was sitting on the front seat, while on the back side, one male and two females were also sitting. In the back portion of the vehicle, four bags containing poppy-husk were found lying. The accused were told by Hardam Singh, Asst. Sub Inspector, that the police wanted to search the vehicle, and whether they wanted to get their search conducted, in the presence of a Gazetted Officer, or a Magistrate. Baljit Singh, Jasgir Singh, Sewak Singh, Rani Kaur and Harjit Kaur, gave their option that the search of the gunny bags be conducted before a Gazetted Officer. Thereafter, a wireless message was sent to the Deputy Superintendent of Police, namely Iqbal Singh, to come to the spot. In the meanwhile, Ram Lal, a public witness, passed that way on a cycle. He was joined with the police party. After sometime, the Deputy Superintendent of Police also reached the spot. In the presence of Iqbal Singh, Deputy Superintendent of Police, and, under his directions, the bags lying in the Maruti Van were searched, and the same were found containing poppy-husk. Each bag was found containing 35 kilogram of poppy-husk. The samples were taken. After sometime, the Deputy Superintendent of Police also reached the spot. In the presence of Iqbal Singh, Deputy Superintendent of Police, and, under his directions, the bags lying in the Maruti Van were searched, and the same were found containing poppy-husk. Each bag was found containing 35 kilogram of poppy-husk. The samples were taken. The samples, and the bags containing the remaining poppy-husk, were sealed with the seal bearing impression HS, and were taken into possession, vide recovery rnemo prepared on the spot. Inventory of the case property was also prepared. The site plan of the place of recovery was also prepared. The accused were arrested. On reaching the Police Station, the entire case property was deposited with the Station House Officer, on the same date, in intact condition. The samples were sent to the Chemical Examiner for test. The Chemical Examiner sent his report to the effect that the samples contained Chura Poppy heads. After the completion of investigation, the challan was presented. 3. On their appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Section 15 of the Act, was framed against them, to which they pleaded not guilty and claimed trial. 4. The prosecution, in support of its case, examined Raj Singh, CJ PW1, Iqbal Singh, DSP PW2, Hardam Singh, ASI, Investigating Officer PW3 and Bikram Singh, Inspector PW4. After tendering into evidence, the report of the Chemical Examiner, and giving up Ram Lal, public witness, as won over, the Addl. PP for the State closed the prosecution evidence. 5. The statements of the accused under Section 313 Cr.P.C, were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. In defence, Ram Lal, public witness, who was given up as won over, was examined as DW1 by the accused. Thereafter, the accused closed their defence evidence. 6. After hearing the Addl. Public Prosecutor for the State, the counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction and the order of sentence, rendered by the lower Court, the instant appeal was filed by the aforesaid accused appellants. 8. 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 lower Court, the instant appeal was filed by the aforesaid accused appellants. 8. I have heard the learned counsel for the parties, and have gone through the evidence and record of the case carefully. The counsel for the accused/appellants, at the very outset, contended that the prosecution miserably failed to prove, that the accused were found to be in conscious possession of 4 bags, containing 35kilogram poppy husk each. It was further contended by them, that it was the bounden duty of the prosecution, to prove the conscious possession of the accused, and only then, they could be said to have committed an offence punishable under Section 15 of the Act. The submission of the counsel for the accused appellants, in this regard, does not appear to be correct. From the cogent, convincing, creditworthy and reliable evidence of Hardam Singh, Assistant Sub-Inspector, and Iqbal Singh, DSP, it was proved that all the accused were found sitting in Maruti Van, referred to above, wherefrom 4 bags, containing 35 kilograms poppy-husk each, were recovered. According to Section 54 of the Act, once a person is found to be in possession of illicit articles, he may be presumed, until and unless, the contrary is proved, that he had committed an offence under the Act. For the purpose of properly appreciating the contention raised by the counsel for the appellants, with regard to the conscious possession of the accused, in respect of the poppy-husk aforesaid, the provisions of Section 54 are extracted hereunder: "54. For the purpose of properly appreciating the contention raised by the counsel for the appellants, with regard to the conscious possession of the accused, in respect of the poppy-husk aforesaid, the provisions of Section 54 are extracted hereunder: "54. Presumption from possession of illicit articlesIn trials under this Act, it may be presumed, unless arid 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." Similarly, Section 35 of the Act, raises a presumption on culpable mental state. According to Section 35, 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. According to the explanation, appended to this section, culpable mental state includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. 9. The conjoint reading of both these sections, clearly goes to reveal that the prosecution is only required to prove, that the accused were found to be in possession of a contraband, or a controlled substance. Once, it is proved by the prosecution, then the onus lies, on the accused, to prove that he was not in conscious possession of such a contraband or controlled article. Since, all the accused were found sitting in the Maruti Van aforesaid, wherein, 4 bags, containing 35 kilograms poppy husk each, were found lying, which was not a small thing, it could not be said that they had no knowledge about the same. Since, all the accused were found sitting in the Maruti Van aforesaid, wherein, 4 bags, containing 35 kilograms poppy husk each, were found lying, which was not a small thing, it could not be said that they had no knowledge about the same. The bags containing poppy husk, in the Maruti Van were visible to all the accused. No evidence was led by the accused, nor anything could be brought out during the course of the cross-examination of the prosecution witnesses, which could go to prove that they were not in conscious possession of 4 bags, containing poppy husk. Since, the accused failed to rebut the presumption operating under Sections 54 and 35 of the Act, their plea that they were not found in conscious possession of the poppy husk, could not be said to be valid. In this view of the matter, the submission of the counsel for the appellants, that the prosecution failed to prove that the accused were found in conscious possession of the poppy husk, aforesaid, being without merit, must fail, and the same stands rejected. 10. The counsel for the appellants, however, placed reliance on Kashmir Singh V/s. State of Punjab, 2006(2) RCR (Crl.) 477 (P&H). a case decided by a Full Bench of this Court, to contend that the accused were not found in conscious possession of the poppy husk. The principle of law laid down in the said authority was to the effect that the prosecution was not entitled to avail of all the presumptions contained in Sections 35 and 54 of the Act, unless and until, an opportunity to the accused had been given, to rebut the same by the trial Court. There is no dispute with the preposition of law, laid down in the said authority. In the instant case, the charge framed against the accused on 4.3.1997 was to the effect that they were found in possession of 140 kgs. 400 grams poppy husk, in Maruti Van No. PCX-6941 contained in 4 gunny bags, without any permit or licence. From the charge, it is evident that the accused were informed that they were found in possession of an illicit contraband or in other words a controlled substance. 400 grams poppy husk, in Maruti Van No. PCX-6941 contained in 4 gunny bags, without any permit or licence. From the charge, it is evident that the accused were informed that they were found in possession of an illicit contraband or in other words a controlled substance. When they were duly informed, vide charge framed on 4.3.1997, they could rebut the presumption, operating under Sections 35 and 54 of the Act, during the course of the cross-examination of the prosecution witnesses. Not only this, when their statements under Section 313 Cr.P.C. were recorded, they were put the incriminating circumstances that search of the van aforesaid, was conducted and from their possession 4 bags Exs. P2 to P5, containing poppy husk were recovered. In reply to those questions, they stated that it was incorrect. Even, the accused were given an opportunity to lead their defence evidence. They however, did not lead any defence evidence to rebut the presumption, operating against them under Sections 35 and 54 of the Act. This all goes to show that full opportunity was granted to the accused, to rebut the presumption, operating against them, under Sections 35 and 54 of the Act, but they miserably failed to satisfactory rebut the same. In these circumstances, no help, whatsoever, can be drawn, by the counsel for the appellants, from Kashmir Singhs case (supra). The submission of the counsel for the appellants, being without merit, must fail, and the same stands rejected. 11. It was next contended by the counsel for the appellants, that only the joint consent memo of the accused was prepared, which could not be said to be legal and valid. It may be stated here, that, in the instant case, the provisions of Section 50 of the Act, were not applicable, as the recovery was not effected from the search of the person of the accused, but from the search of the Maruti Van, referred to hereinbefore. Had the recovery been effected from the search of the person of the accused, it would have been said that there was some force in the argument advanced by the counsel for the accused. In State of Punjab V/s. Baldev Singh, 1999(6) SCC 172. Had the recovery been effected from the search of the person of the accused, it would have been said that there was some force in the argument advanced by the counsel for the accused. In State of Punjab V/s. Baldev Singh, 1999(6) SCC 172. a Constitution Bench of the Apex Court settled beyond doubt, that the language of Section 50, was implicitly clear that the search had to be in relation to a person, and not in relation to the premises, vehicles, or articles. Similar view, was taken in Smt. Krishna Kanwar Thakuraeen V/s. State of Rajasthan., JT 2004(1) SC 597. In these circumstances, it can be said that the consistent, and particularly the view of the larger Bench of the Supreme Court, appears to be that the search, must relate to the person, and not vehicles, other luggage and articles, and then alone the provisions of Section 50 would be attracted. Since, in view of the principles of law laid down in the aforesaid authorities, the provisions of Section 50 were not applicable, to the search in the instant case, whether it was a joint consent memo, or otherwise, hardly mattered. In this view of the matter, the submission of the counsel for the appellants, being without merit, must fail, and the same stands rejected. 12. It was next contended by the counsel for the appellants,that the link evidence, in the instant case was incomplete. It was further contended that the trial Court did not take into consideration, this fact, as a result whereof, miscarriage of justice occasioned. The submission of the counsel for the appellants, in this regard, does not appear to be correct. Hardam Singh, Assistant Sub-Inspector PW3 on reaching the Police Station, produced the accused alongwith the case property before Bikram Singh, Inspector, the then Station House Officer, Sardulgarh, who verified the facts of the case and affixed his seal on the case property bearing impression BS. The Station House Officer kept the case property with him in safe custody. Bikram Singh, Inspector PW4 in his statement, in clear cut terms, stated that he produced the accused and the case property before the concerned Magistrate. The concerned Magistrate ordered the deposit of the case property, in the Judicial Malkhana. He further stated that since there was no space, in the Malkhana, so he kept the case property, in his custody. Bikram Singh, Inspector PW4 in his statement, in clear cut terms, stated that he produced the accused and the case property before the concerned Magistrate. The concerned Magistrate ordered the deposit of the case property, in the Judicial Malkhana. He further stated that since there was no space, in the Malkhana, so he kept the case property, in his custody. Since, the case property with seals intact alongwith the Inventory Report was produced before the concerned Judicial Magistrate at Mansa, and the said Magistrate duly certified that the seals on the case property produced before him were intact, the mere fact that the same remained in the custody of the Inspector, as there was no space in the Malkhana, to keep the same, did not go to prove that he tampered with the same. Not only this, Bikram Singh, Inspector stated that on 23.10.1996, he sent the sample parcels alongwith the sample seal and form No. 29 through Constable Raj Singh, who deposited the same, in the office of the Chemical Examiner, on 24.10.1996 and produced the deposit receipt before him. He further stated, in clear cut terms, that so long as the case property remained in his custody, he did not tamper with the same nor anybody else was allowed to tamper with it. Raj Singh, CI PW1 tendered his affidavit Ex. PA to the effect that the samples of the case property, duly sealed with the seals, were handed over to him, by Bikram Singh, Inspector, who was the Station House Officer of Police Station Sardulgarh, at the relevant time, and he deposited the same with the Chemical Examiner. He further stated that after deposit of the same, he handed over the receipt, to the Inspector concerned. Above all, there is a report of the Chemical Examiner Ex. PJ to the effect that 4 sample packets, duly sealed with the seals, bearing impressions HS and BS in case FIR No. 105 dated 21.10.1996, were received from the office of the Senior Superintendent of Police, Mansa. It is further evident from the said report, that the seal/seals on the Exhibits, were intact and agreed with the sample seal sent. All these documents, therefore, clearly proved that none tampered with the samples till the same remained in the custody of Bikram Singh. Inspector and Raj Singh, C1 PW1. It is further evident from the said report, that the seal/seals on the Exhibits, were intact and agreed with the sample seal sent. All these documents, therefore, clearly proved that none tampered with the samples till the same remained in the custody of Bikram Singh. Inspector and Raj Singh, C1 PW1. The Court is required to act on the basis of the evidence produced, on record, and not on conjectures and surmises. In this view of the matter, the submission of the counsel for the appellants, to the effect that the possibility of tampering with the samples, till the same reached the office of the Chemical Examiner, could not ruled out, being without merit, must fail, and the same stands rejected. 13. The counsel for the appellants, however, placed reliance on Rajesh Jagdamba Avasthi V/s. State of Goa, 2005(1) Apex Criminal 240 (SC). to contend that when the samples remained in possession of the same person, the possibility of tampering with the same could not be ruled out, and, as such, the benefit of doubt, must go to the accused. The perusal of the facts of the aforesaid authority, goes to show, that the samples and the seal remained in the custody of the same person and even, the quantity of the sample sent to the Chemical Examiner, did not tally with the quantity of the sample, which was actually drawn, at the time of seizure of the case property. The facts of the aforesaid case are distinguishable from the facts of the present case. No help, therefore, can be drawn, by the counsel for the appellants, therefrom. In the instant case, the seals after use by Iqbal Singh, DSP PW2, and Hardam Singh, Asstt Sub-Inspector PW3, were handed over to Jugraj Singh, C-II. No doubt, Bikram Singh, Inspector PW4, when the case property and the samples were produced before him, sealed the same, with his own seal, bearing impression BS also. There is nothing on record that he handed over the seal after use to a third person. However, it may be stated here, that he produced the case property, and the samples, with seals intact, before the Illaqa Magistrate, vide application Ex. PL, on which the Illaqa Magistrate, passed the order Ex. PL/1 to the effect that the seals on the case property, as also on the samples, were intact. Even, it is evident from Ex. However, it may be stated here, that he produced the case property, and the samples, with seals intact, before the Illaqa Magistrate, vide application Ex. PL, on which the Illaqa Magistrate, passed the order Ex. PL/1 to the effect that the seals on the case property, as also on the samples, were intact. Even, it is evident from Ex. PJ, report of the Chemical Examiner, that the seals on the samples, were intact. It is further evident from the report of Chemical Examiner Ex. PJ that the quantity of the samples was the same, as was drawn by Hardam Singh, Asst. Sub-Inspector, from each bag of the poppy husk, recovered in this case. In these circumstances, no help, whatsoever, can be drawn by the counsel for the appellants, from the said authority. The submission of the counsel for the appellants, being without merit, must fail and the same stands rejected. 14. It was next contended by the counsel. for the appellants, that Ram Lal, independent witness, who was joined by the Investigating Officer, at the time of effecting the alleged recovery, was examined by the accused, in their defence, and he denied that any recovery of poppy husk, from the van, on the relevant date, was effected. It may be stated here, that Ram Lal was given up as won over by the Addl. PP, on the ground, that he was not going to support the case of the prosecution and on the other hand, was likely to help the accused. The mere fact that he appeared as DW1, on behalf of the accused, clearly showed that he was won over by the accused. He, however, admitted his signatures on Exs. PB, PC, PD, PE and PE, which were prepared simultaneously at the time of recovery. He further stated that his signatures were obtained on blank papers. Since, Ram Lal, could sign the documents, it means that he was literate may be to some extent. It, therefore, could not be expected of him to sign the blank documents. He did not make any report, to the higher police authorities, that his signatures were obtained on blank papers. In Roop Singh V/s. State of Punjab, 1996(1) RCR (Crl.) 146 (P&H). 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. In Roop Singh V/s. State of Punjab, 1996(1) RCR (Crl.) 146 (P&H). 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/s. 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 officials were examined, as witnesses for the prosecution, 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/s. State of Gujarat, AIR 1988 SC 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. Since, the evidence of Ram Lal DW1 was completely shattered, during the course of cross-examination, by the Addl. PP for the State, no help, can be drawn, by the counsel for the appellants from the same. In this view of the matter, the submission of the counsel for the appellants, being without merit, must fail, and the same stands rejected. 15. It was next submitted by the counsel for the appellants, that there was complete violation of the provisions of Section 50(4) of the Act, as the female accused were not searched by a female. In this view of the matter, the submission of the counsel for the appellants, being without merit, must fail, and the same stands rejected. 15. It was next submitted by the counsel for the appellants, that there was complete violation of the provisions of Section 50(4) of the Act, as the female accused were not searched by a female. It has been held above, that the provisions of Section 50 of the Act, were not applicable to the facts of the instant case, inasmuch as, the recovery in this case, was not effected from the person of the accused, but from a vehicle. Had the search been effected from the person of the female accused, non-compliance with the provisions of Section 50(4) of the Act, would have certainly proved fatal, to the case of the prosecution. The submission of the counsel for the appellants, in this regard, being without merit, must fail and the same stands rejected. 16. No other point was urged, by the counsel for the parties. 17. 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. The same are liable to be upheld. 18. For the reasons recorded, hereinbefore, appeal Nos. 1261-SB of 2000,35-SB of 2001, 237-SB of 2001 and 641-SB of 2004, are dismissed. The judgment of conviction and the order of sentence dated 12.12.2000, are upheld. The accused appellants are directed to surrender to their bail bonds, for undergoing the remaining part of their sentence.