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2008 DIGILAW 408 (PNJ)

Chanan Singh v. State Of Haryana

2008-02-14

SHAM SUNDER

body2008
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment of conviction dated 10.12.1996, and the order of sentence dated 12.12.1996, rendered by the Court of Addl. Sessions Judge, Sirsa, vide which it convicted the accused/appellant Chanan Singh, 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. Bikar Singh @ Bukan Singh, accused, was, however, acquitted by the Court. 2. The facts, in brief are that, on 4.8.1991, at about 8.30 PM, Om Parkash, Inspector, posted in CIA Staff, alongwith Ram Mehar Singh, HC, and other police officials, went to village Musabwala in Government Gypsy, for checking the activities of extremists. First of all, the police party went to Rori, and thereafter, it was coming to village Suba Khera, and when it reached at a distance of 2 Kms. one Maruti car was seen coming from the side of Suba Khera. The policy party tried to stop the Maruti car, but it did not stop there.One truck was coming behind the said car. It was at about 12.15 AM (night) on 5.8.1991, and the police party tried to stop the said truck, but the driver thereof, did not stop. Om Parkash, Inspector, ordered one of the Constables, to fire a shot towards the tyres of the said truck. On his direction, Same Singh, Constable, fired a shot from his stane-gun, in the tyres of the said truck, as a result whereof, one tyre got punctured. The truck stopped at a distance of 250 yards. The number of the truck was HNH- 3722. Two persons alighted from the same, and ran away, leaving the same (truck) behind at the spot, under the cover of darkness. The police party then checked the said truck, and found it carrying 85 bags of poppy-husk. Each bag contained 40 Kgs. of poppy-husk. A sample of 100 grams of poppy-husk, was taken out of each bag. The remaining poppy-husk was kept in the same bags. The police party then checked the said truck, and found it carrying 85 bags of poppy-husk. Each bag contained 40 Kgs. of poppy-husk. A sample of 100 grams of poppy-husk, was taken out of each bag. The remaining poppy-husk was kept in the same bags. The samples of poppy-husk, and the bags, containing the remaining poppy-husk, were converted into parcels, and sealed with the seal bearing impression `OP, belonging to Om Parkash, Inspector. Thereafter, the case property was taken into possession vide a separate memo. One registration certificate, and driving licence, in the name of Chanan Singh, accused, one tape recorder, and Rs. 2000/- were also recovered from the cabin of the truck. These were taken into possession, vide separate memos, attested by the witnesses. Ruqa was also sent to the Police Station, on the basis whereof, the FIR was registered. Rameshwar Lal, Sarpanch of village Bhadra, came to the spot. He disclosed the names of two accused, who ran away, from the spot, after leaving the truck. The statement of Rameshwar Lal, Sarpanch, was recorded under Section 161 Cr.P.C., by the Police. Rough site plan of the place of recovery, was prepared, and the statements of the witnesses were recorded. On reaching the Police Station, on the same night, the case property was deposited with the Moharir Head Constable, in intact condition. Later on, accused Bikar Singh @ Bukan Singh was arrested, in this case on 9.8.1991, in village Kungeranwali, when he was produced before Om Parkash, Inspector, by Gajjan Singh. Chanan Singh, accused, was arrested on 16.8.1991, in a Dhani, near village Kungeranwali. Grounds of arrest, were disclosed to the accused. After the completion of investigation, the accused were challaned. 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 the accused, to which they pleaded not guilty, and claimed Judicial trial. 4. The prosecution, in support of its case, examined Ram Mehar Singh, HC (PW-1), a recovery witness, Karamjit Singh, HC (PW-2), Krishan Chand, HC (PW- 3), Randhir Singh, Constable (PW-4), Ruldu Ram (PW-5), the ex-owner of the said truck, Rameshwar Lal, Sarpanch (PW-6), and Om Parkash, DSP (PW-7), at the relevant time Inspector. Thereafter, the Addl. 4. The prosecution, in support of its case, examined Ram Mehar Singh, HC (PW-1), a recovery witness, Karamjit Singh, HC (PW-2), Krishan Chand, HC (PW- 3), Randhir Singh, Constable (PW-4), Ruldu Ram (PW-5), the ex-owner of the said truck, Rameshwar Lal, Sarpanch (PW-6), and Om Parkash, DSP (PW-7), at the relevant time Inspector. Thereafter, the Addl. PP for the State, closed the prosecution evidence. 5. The statements of the accused under Section 313 Cr.P.C., were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was, however, stated by them that Shivraj Singh S/o Partap, also filed an application that both the accused, were falsely implicated, by the Police, and the actual culprit was Gurmel Singh. The accused also examined Bhagwan Dass, complaint Clerk, office of the Superintendent of Police, Sirsa as, DW-1, and thereafter, they 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 accused Chanan Singh, as stated hereinbefore, and acquitted Bikar Singh @ Bukan Singh. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by Chanan Singh accused/appellant. 8. I have heard the learned counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, contended that the prosecution miserably failed to establish the identity of the accused, and, as such, he was not connected with the present case, in any manner. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. No doubt, the accused/appellant, alongwith his co-accused, succeeded in running away. Rameshwar Lal, Sarpanch, disclosed to the police party that Chanan Singh, appellant, and Bikar Singh were the persons, who ran away from the truck, at the relevant time. Rameshwar Lal, however, did not support the case of the prosecution, when he appeared in the Court as prosecution witness. From the truck, driving licence, in the name of Chanan Singh, appellant, was recovered. Registration Certificate, in the names of Ruldu Ram and Banti Devi, was also recovered, from the said truck. Ruldu Ram, appeared as PW-5. Rameshwar Lal, however, did not support the case of the prosecution, when he appeared in the Court as prosecution witness. From the truck, driving licence, in the name of Chanan Singh, appellant, was recovered. Registration Certificate, in the names of Ruldu Ram and Banti Devi, was also recovered, from the said truck. Ruldu Ram, appeared as PW-5. He stated that he was the owner of truck No. HNH- 3722, alongwith Banti Devi W/o Wazir Chand, in equal shares. He further stated that they sold this truck to Ram Singh and Chanan Singh sons of Dalip Singh, residents of Danewal. He also identified Chanan Singh, as one of the persons, to whom the truck, in question, was sold on 13.2.1990, against payment of full consideration. He further stated that the possession of the truck was given to them on 13.2.1990. Affidavit regarding the transfer of ownership of the truck was taken by the vendees on 1.7.1991. It was further stated by him that they had no connection with the truck, whatsoever, w.e.f. 13.2.1990. During the course of cross-examination, no question, was put to him, that the truck, in question, was not sold by him, and Banti Devi, in favour of Chanan Singh, accused, and Ram Singh sons of Dalip Singh. No question was also put to him that the possession of the truck was not given to Ram Singh and Chanan Singh, accused, after obtaining the full consideration. It means that whatever was stated by Ruldu Ram, in his examination-in-chief, was accepted as correct, by the accused. Since, the licence of Chanan Singh, accused/appellant, was found in the truck, and it was also proved from the statement of Ruldu Ram that he was one of the co-owners of the truck, after the sale thereof on 13.2.1990 in his favour, and in favour of Ram Singh, his brother, presumption under Section 35 of the Act, operated against him. It was for him, to rebut that presumption, by leading cogent, and convincing evidence, as to who was driving the truck, at the relevant time, and carrying 85 bags, containing poppy-husk therein. He did not lead any evidence, in this regard. It was for him, to rebut that presumption, by leading cogent, and convincing evidence, as to who was driving the truck, at the relevant time, and carrying 85 bags, containing poppy-husk therein. He did not lead any evidence, in this regard. No doubt, the accused succeeded in running away, under the cover of darkness, yet the evidence of Ruldu Ram, discussed above, and the recovery of driving licence, and the Registration certificate, from the truck, were sufficient to prove the identity of Chanan Singh, as an accused, who was driver-cum-owner of the truck, and carrying the gunny bags, containing poppy-husk. The trial Court was, thus, right in holding that it was Chanan Singh, who was the driver-cum- owner of the truck, in which gunny bags, containing poppy-husk, were being carried. The submission of the Counsel for the appellant, that the identity of the appellant, was not proved, being without merit, must fail, and the same stands rejected. 10. The next contention of the Counsel for the accused/appellant, was to the effect, that the prosecution miserably failed to prove that the appellant was in conscious possession of poppy-husk. The identity of the accused, as stated above, was proved, through cogent and convincing evidence. It was also proved from the cogent and convincing evidence of Om Parkash, at the relevant time Inspector (PW-7), and Ram Mehar Singh, HC (PW-1), a recovery witness, that on search of the truck 85 bags, each containing 40 Kgs. poppy-husk, were recovered. Since, the accused was driver-cum-owner of the truck, at the relevant time, from which the bags containing poppy husk were recovered, he could be safely held to be in conscious possession of the same. It was not a small quantity of poppy-husk, which was recovered, from the body of the truck. Such a large quantity of poppy-husk, could not be planted, against the accused. Once the physical possession of the accused, in respect of 85 bags, containing poppy-husk, was proved, presumption under Sections 35 and 54 of the Act, operated against him. It was for him, to rebut the presumption by leading cogent and convincing evidence. However, the appellant failed to rebut that presumption, either during the course of cross-examination of the prosecution witnesses, or by leading defence evidence. In these circumstances, the trial Court was right, in holding that he was in conscious possession of the contraband. It was for him, to rebut the presumption by leading cogent and convincing evidence. However, the appellant failed to rebut that presumption, either during the course of cross-examination of the prosecution witnesses, or by leading defence evidence. In these circumstances, the trial Court was right, in holding that he was in conscious possession of the contraband. In Madan Lal and another v. State of H. P. 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." 11 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. The accused were convicted and sentenced by the trial Court, holding that they were found in conscious possession of charas. 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, 85 bags of poppy-husk were found in the truck, which was being driven by him, in the capacity of owner-cum-driver. The facts of Madan Lals case (supra) are similar and identical to the facts of the present case. The principle of law, laid down, in Madan Lals case (supra) is fully applicable to the facts of the present case. In the instant case, in his statement under Section 313 Cr.P.C., the accused/appellant took up the plea, that he was falsely implicated. No other defence was set up by him. The principle of law, laid down, in Madan Lals case (supra) is fully applicable to the facts of the present case. In the instant case, in his statement under Section 313 Cr.P.C., the accused/appellant took up the plea, that he was falsely implicated. No other defence was set up by him. Since, the accused/appellant failed to rebut the presumption, referred to above, his conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. It was next contended by the Counsel for the appellant that sample in this case was sent to the office of the Chemical Examiner on 28.8.1991 i.e. after a delay of about 24 days, from the date of alleged recovery. He further contended that since, the sample was sent after considerable delay, to the Office of the Forensic Science Laboratory, the possibility of tampering with the same, could not be ruled out. No doubt, the sample was sent to the Office of the Forensic Science Laboratory, after a delay of 24 days. However, mere delay in sending the samples, did not give rise to the presumption that there was tampering with the same, until the same reached the Office of the Forensic Science Laboratory. Om Parkash, Inspector, in his statement, in clear-cut terms stated that he had deposited the case property, the samples with seals intact, and sample seal, with Moharir Head Constable. Karamjit Singh, HC (PW- 2), tendered his affidavit Ex.PE, that on 5.8.1991, he was posted as MHC in- charge Malkhana in the Police Station, when Om Parkash, Inspector, CIA Staff, deposited with him, 85 bags, containing poppy-husk, duly sealed with the seal alongwith sample parcels, duly sealed, and the sample seal. He further stated that on his transfer, he handed over the aforesaid bags, containing poppy- husk, the sample parcels, and the sample seal to Krishan Chand, MHC, and none tampered with the same, till the same remained in his custody. Krishan Chand, HC, vide affidavit Ex.PF, testified that on 28.8.1991, he was posted as MHC in Police Station Baragudha, when Karamjit Singh, handed over to him, the case property of this case, alongwith 85 sample parcels, duly sealed with the seal bearing impression `OP. Krishan Chand, HC, vide affidavit Ex.PF, testified that on 28.8.1991, he was posted as MHC in Police Station Baragudha, when Karamjit Singh, handed over to him, the case property of this case, alongwith 85 sample parcels, duly sealed with the seal bearing impression `OP. He further testified that, on that date, he sent the sample parcels, duly sealed through Randhir Singh, Constable, for depositing the same in the Office of the Forensic Science Laboratory, Madhuban. He further testified that none tampered with the same, till the same remained in his custody. Randhir Singh, Constable, when appeared as, PW-4, stated that on 28.8.1991, Krishan Chand, handed over to him, 85 parcels sealed with the seal bearing impression `OP, for depositing the same in the office of the Forensic Science Laboratory, Madhuban. The seals were intact. He further stated that he deposited the same in the Office of the Forensic Science Laboratory, Madhuban, and none tampered with the same, till the same remained in his custody. Above all there is the report Ex.PG of the Forensic Science Laboratory, Madhuban, according to which the seals, on the parcels, were found intact, and tallied with the specimen seal, as per the forwarding authority. The link evidence, therefore, was complete, in this case. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 13. No other point, was urged, by the Counsel for the parties. 14. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the lower 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. 15. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction dated 10.12.1996, and the order of sentence dated 12.12.1996, are upheld. The accused/appellant is directed to surrender to his bail bonds, to undergo the remaining part of the sentence.