Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 1935 (PNJ)

Nishan Singh v. State of Punjab

2008-11-18

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J. - This appeal is directed against the judgment of conviction, and the order of sentence dated 25.8.2000, rendered by the Special Judge, Ferozepur, vide which he convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as the Act only) and sentenced him, to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs. 1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of one year for having been found in possession of four bags each containing 40 kgs. poppy husk, without any permit or licence. 2. The facts, in brief, are that, on 10.7.1997, ASI Jagroop Singh, incharge of Police post jogewala, along with other Police officials, was going for patrol duty, from village jogewala to villages Dibwala, Amir Shah etc. and when the Police party reached ahead of bus stand of Jogewala and turned towards village Dibwala, accused Nishan Singh, was found sitting on the gunny bags, which were four in number, in the cluster of trees and wild growth(sarkandas). On seeing the policy party, he tried to run away, but was apprehended. The search of the bogs was conducted, in the presence of Deputy Superintendent of Police, Zira, who was called to the spot, by sending a message, as a result whereof, each bag was found containing 40 kgs. poppy husk. A sample of 250 grams, from each of the bags was separated and the remaining poppy husk was kept in the same bags. The samples, and the bags containing the remaining poppy husk were converted into parcels, duly sealed, 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 was 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 was challenged. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 4. The statements of the witnesses, were recorded. After the completion of investigation, the accused was challenged. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Constable Parvider Singh, PW1, SI Surinder Pal, PW2 HC Mehal Singh, PW3, DSP Nachhattar Singh, PW4 and ASI Jagroop Singh, PW5. Thereafter, the Additional Public Prosecutor of the State, Closed the prosecution evidence. 5. The statement of the accused under Section 313 Criminal Procedure Code was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. In defence, he examined LC Pargat Singh and thereafter closed the 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 trial Court, the instant, was filed by the accused/appellant. 8. None appeared, on behalf of the appellant, despite due notice, to his Counsel, that the appeal was fixed for regular hearing, on the board of this Bench. Under these circumstances, no alternative, was left with this Court, than to peruse the record, the trial Court judgment, the evidence, hear the arguments of the Counsel for the respondent, and decided the appeal, on merits as that would amount to due compliance of the provisions of Sections 385 and 386 of the Criminal Procedure Code as laid down, in Dharampal v. State of UP 2008(1) Law Herald (SC) 225. 9. I have heard the learned counsel for the respondent-State, and have gone through the evidence and record, of the case, carefully. 10. The first ground, taken up, in the memorandum of appeal, by the appellant, was to the effect, that no independent witness, despite availability was joined, as a result whereof, the case of the prosecution, became doubtful. It may be stated here, that it was a chance recovery. No secret information had been received against the accused, that he was sitting on the bags, containing poppy husk, in the cluster of trees and wild growth (Sarkandas). It may be stated here, that it was a chance recovery. No secret information had been received against the accused, that he was sitting on the bags, containing poppy husk, in the cluster of trees and wild growth (Sarkandas). There is also no evidence on record that any independent witness was present at the time of search, and seizure, but was not deliberately joined by the investigating Officer. However, Jagroop Singh, ASI during the Course of his Cross-examination, Stated that PHG Balwinder Singh was directed to bring some respectable from the village, who on return that none was ready to join the police party. It means that effort was made by the investigating officer to join the independent witness, though after the search and seizure, yet none was ready to join. the Police party and, therefore no independent witness, could be joined. The mere fact that the evidence of the official witnesses is not corroborated through an independent source, in itself, is not sufficient to disbelieve and distrust the same. 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, 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. In Akmal Ahmed v. State of Delhi, 1999(2) RCC 297(S.C.), 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 (2000)1 S.C.C. 748, It was held as under :- "It is an archaic notion that actions of the Police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the Legislature." 11. In Appa Bai and another v. State of Gujrat, 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, this ground being without substance, stands rejected. 12. The next ground, taken up, in the grounds of appeal, was to the effect, that the mandatory provisions of Section 50 of the Act, were not complied with in letter and spirit, inasmuch as, the consent memo was defective. it may be stated here, that the provisions of Section 50 of the Act were not applicable to the instant case. The recovery was not effected from the personal search of the accused. It was effected from the bags on which the accused was sitting. Since the mandatory provisions of Section 50 of the Act were not applicable to the facts of the instant case, whether the consent memo is defective or not, does not, in any way affect the merits of the case. It was effected from the bags on which the accused was sitting. Since the mandatory provisions of Section 50 of the Act were not applicable to the facts of the instant case, whether the consent memo is defective or not, does not, in any way affect the merits of the case. In State of Punjab v. Baldev Singh, 1999(6) S.C.C. 172, a Constitution Bench of 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. State of Rajasthan, JT 2004(1) S.C. 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 principle of law, laid down in the aforesaid authorities, the provisions of Section 50 were not applicable, to search, in the instant case, the ground taken by the appellant, being without substance, must fail and the same stands rejected. 13. The next ground, taken up, in the grounds of appeal, was to the effect that the appellant was not found in conscious possession of the bags containing poppy husk and, as such, he did not commit any offence punishable under Section 15 of the Act. It may be stated here, that the accused was found sitting on four bags, containing poppy husk. These bags were lying in a cluster of trees and wild growth (sarkandas). The bags were not lying at an open or accessible place. Once the accused was found sitting on the bags, it was for him, to explain, as to wherefrom those bags came to that place, and where the same were to be taken. The accused did not take up the plea that he was just passing that way and sat on the bags for the purpose of taking rest. He did not take up a plea, that the bags containing poppy husk did not belong to him, but had been kept by somebody else and he was only asked to keep a watch over the same. He did not take up a plea, that the bags containing poppy husk did not belong to him, but had been kept by somebody else and he was only asked to keep a watch over the same. It was within the special means of Knowledge of the accused, as to under what circumstances, the bags, containing poppy-husk, referred to above, were lying. The accused was, thus, in possession of, an 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 the 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 he was in conscious possession of the contraband. Sections 54 and 35 of the Act read 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 controller 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. 15. From the conjoint reading of the provisions of Section 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 has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act given 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. In Megh Singh v. State of Punjab, 2004(1) Apex Criminal 482 : (2003) 8 SCC 266, 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 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 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 was in conscious possession of bags, containing poppy-husk. As stated above, the accused, thus miserably failed to rebut the statutory presumption, referred to above. Thus, their conscious possession, in respect of the contraband, was proved, and, as such, the ground, being without merit, must fail, and the same stands rejected. 17. The next ground taken up, in the memorandum of appeal, by the appellant, was to the effect, that the case property was not deposited by SI Surinder pal in the Malkhana but was kept with him. It was also stated in the grounds of appeal, that there was a facility of Malkhana, in the Police Station, and no explanation was furnished by SI Surinder Pal, as to what prevented him, from depositing the case property, in the said Malkhana. It may be stated here, that SI Surinder pal Singh, was posted as SHO of Police Station Makhu, at the relevant time. Section 55 of the Act reads as under : "55. Police of take charge of articles seized and delivered. It may be stated here, that SI Surinder pal Singh, was posted as SHO of Police Station Makhu, at the relevant time. Section 55 of the Act reads as under : "55. Police of take charge of articles seized and delivered. - An officer-in-charge of a police station shall take charge of and keep in safe custody pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such article to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station." 18. A plain reading of the provisions of Section 55 of the Act, does not, in any way, go to disclose that it was obligatory upon the SHO of the Police Station, to deposit the case property, in the Malkhana, The provisions of the Section, only enjoin upon the incharge of the police Station, to keep the case property, in safe custody. In these circumstances, the SHO did not deposit the case property, in the Malkhana immediately. The recovery in this case, was effected on 10.7.1997. SI Surinder Pal, PW2, stated that on 11/7/197 the accused and the case property were produced by him, before the judicial Magistrate, Zira. He further stated that Ex. P4 and application was moved by him, regarding the custody of the case property, on which order Ex. P5 was passed by the judicial Magistrate. He further stated that, thereafter, he retained the case property, in his custody, in the Malkahana, and the accused was lodged in the police lock up. The SHO is the overall incharge of the Malkhana, if he kept the case property, in his safe custody, in the Malkhana, that did not mean that the same and the samples were tampered with, at any point of time. Not only this, on 16.7.1997, he sent four samples along with the sample seal Ex. P2 through Constable Parminder Singh for depositing the same, in the office of the Chemical Examiner, Bathinda for analysis, who deposited the same, with the Chemical Examiner with seals intact. The report of the Chemical Examiner Ex. Not only this, on 16.7.1997, he sent four samples along with the sample seal Ex. P2 through Constable Parminder Singh for depositing the same, in the office of the Chemical Examiner, Bathinda for analysis, who deposited the same, with the Chemical Examiner with seals intact. The report of the Chemical Examiner Ex. P6 is also very clear to the effect that the sample parcels were received in the laboratory with seals intact, and the same tallied with the specimen seals sent. It is further evident from the report Ex., P6 that the seals remained intact, until the analysis of the samples was conducted in the laboratory. The report of the Chemical Examiner, is admissible under Section 293 Criminal Procedure Code No challenge to the report was made. Under these circumstances, it was proved beyond doubt, that none tampered with the sample parcels until the same reached the office of the Chemical Examiner, The fact that the SHO kept the case property with him, in itself, was not sufficient to come to the conclusion, that the line evidence was incomplete. In this view of the matter, this ground, being without substance, must fail, and the same stands ejected. 18(A) The next ground, which was taken up, in the grounds of appeal, was to the effect, that the report Ex. P6 of the Chemical Examiner, is vague and no conviction on the basis thereof, could be recorded. It was also stated that the Court erred, in recording conviction, on the basis of the said report. The report Ex. P6 of the Chemical Examiner, has been carefully perused. It is evident, from the said report, that the contents of the sample parcels constituted poppy husk. The report is not ambiguous, in any manner, it is clear that the trial Court did not commit any error, in relying upon the said report, to come to the conclusion, that he accused was found in possession of poppy husk. This ground, being without merit, must fail and the same stands rejected. 18(B) No other ground was taken up, in the memorandum of appeal. 19. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trail 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. 20. 19. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trail 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. 20. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 28.5.2000, are upheld. If the accused/appellant is on bail, then his bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Ferozepur, 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 and compliance report be sent within three months, from the date of receipt of a copy thereof. Appeal dismissed.