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2008 DIGILAW 543 (PNJ)

Ranjit Singh v. State Of Punjab

2008-02-27

SHAM SUNDER

body2008
Judgment Sham Sunder, J. 1. This appeal is directed against the judgment of conviction, and the order of sentence dated 7.12.1998, rendered by the Judge, Special Court, Barnala, vide which it convicted the accused/appellant Ranjit Singh, for the offence punishable under Section 18 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 two years. 2. The facts, in brief, are that, on 23.6.1997, Daya Singh, Inspector, accompanied by Nazir Singh, ASI, Palvinder Singh, ASI, and other police officials, was going from Mehal Kalan to village Dhaner, on the katcha path, and when the police party reached near the drain bridge, in the area of Dhaner, Ranjit Singh, accused, came from the side of village Dhaner. He had a bag (jhola) in his right hand. On seeing the police party, he tried to slip away, but was apprehended on suspicion. In the meanwhile, Natha Singh, public witness arrived, who was joined with the police party. Search of the bag, being carried by the accused, was conducted, in accordance with the provisions of law. It was found containing 1 kg. 500 grams opium. Two samples of 20 grams each, were taken out, from the recovered opium. The samples, and the remaining opium, were converted into 3 parcels, and sealed with the seal bearing impression `DS belonging to Daya Singh, Inspector. The parcels were also sealed with the seal bearing impression DS belonging to Devinder Singh Garcha, S.P. (O), who had come to the spot, on receipt of the message. Thereafter, the case property was taken into possession. The accused was arrested. Ruqa was sent to the Police Station, on the basis whereof, the FIR was registered. After the completion of investigation, the accused was challaned. 3. On his 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 18 of the Act, was framed against the accused. The charge was read over and explained to the accused, to which he pleaded not guilty, and claimed Judicial trial. 4. After the case was received by commitment, in the Court of Sessions, charge under Section 18 of the Act, was framed against the accused. The charge was read over and explained to the accused, to which he pleaded not guilty, and claimed Judicial trial. 4. The prosecution, in support of its case, examined Karnail Singh, Constable (PW-1), Nazir Singh, ASI (PW-2), Daya Singh, Inspector (PW-3), Devinder Singh Garcha, Asstt. Commandant 7th Batallian, PAP, Jallandhar (PW- 4), and Ajaib Singh, MHC (PW-5). Thereafter, the Addl. PP for the State, closed the prosecution evidence, after tendering into evidence Ex.PI, report of the Chemical Examiner. 5. The statement of the accused under Section 313 Cr.P.C., was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, examined Surjit Singh, Constable, DW-1, and Bachan Lal, SI, (DW-2), Incharge Wireless, H.Q.Barnala. He also tendered into evidence copies of the reports under Section 173 Cr.P.C., in cases State v. Natha Singh, and State v. Ramesh Kumar, Ex.DC, Ex.DD, Ex.DE, and Ex.DF. Thereafter, he 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, 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 Ranjit 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 though Natha Singh, public witness, was joined by the Investigating Officer, at the time of the alleged recovery, yet he was not examined, and given up as won over, by the accused. He further contended that, in case, Natha Singh was not going to support the case of the prosecution, even then he was required to be produced in the Court, and examined. Had he resiled from his statement, with the permission of the Court, he could be put such questions, by the Addl. PP for the State, as was put during the course of cross-examination. Had he resiled from his statement, with the permission of the Court, he could be put such questions, by the Addl. PP for the State, as was put during the course of cross-examination. Since, Natha Singh, public witness, though joined by the Investigating Officer, was not going to support the case of the prosecution, he was rightly given up as won over, by the accused. The Public Prosecutor is to decide, as to whether, he wanted to examine a particular witness, or not. Since, the Public Prosecutor came to the conclusion, that Natha Singh, public witness, had sided with the accused, during the course of the trial, and, in case, he was examined, he would damage the case of the prosecution, he took a wise decision to give him up as won over. In my opinion, he rightly gave him up as won over. The evidence of the Investigating Officer, and other prosecution witnesses, has been reappraised, and nothing could be found, during the course of their cross-examination, which may go to discredit their evidence. The evidence of the prosecution witnesses, is creditworthy, and inspires confidence, in the mind of the Court. 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 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. State of Gujrat 1988 S.C. 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. Similarly in Appa Bai and another v. State of Gujrat 1988 S.C. 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 submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 10. It was next contended by the Counsel for the appellant, that the prosecution miserably failed to prove that the accused was found in conscious possession of opium. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The accused was found carrying a bag (jhola), which contained opium. It means that the possession of the accused, in respect of 1 Kg. 500 grams opium, was proved. Once the possession of accused, in relation to a contraband, was proved, presumption under Sections 35 and 54 of the Act operated against him, that he was in conscious possession thereof. It was for him, to rebut the presumption, that he was not in conscious possession of the said opium. 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. 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, 1 Kg 500 grams of opium, was found in the bag (jhola), which was being carried by him. The principle of law, laid down, in Madan Lals case (supra) is fully applicable to the facts of the present case. 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. The Counsel for the appellant, however, placed reliance on Som Nath etc. v. State of Punjab, 2006(4) RCR (Criminal) 707, Avtar Singh v. State of Punjab, 2002(4) RCR (Criminal) 180, and Sukhdev Singh and another v. State of Punjab, 2006(4) RCR (Criminal) 263, to contend that the conscious possession of the accused, in respect of opium, aforesaid, was not proved. The facts of the aforesaid authorities, are clearly distinguishable, from the facts of the present case. In Som Naths case (supra) recovery of 23 bags of poppy-husk, from a truck, was effected. The driver thereof fled. The facts of the aforesaid authorities, are clearly distinguishable, from the facts of the present case. In Som Naths case (supra) recovery of 23 bags of poppy-husk, from a truck, was effected. The driver thereof fled. The accused, who were sitting on the bags, were taken into custody. The trial Court acquitted the driver on the ground, that the conscious possession of the driver, in relation to the contraband, was not proved. It was, thus, held that presumption under Sections 35 and 54, could operate. In Avtar Singhs case (supra), 16 bags of poppy-husk, were recovered, from a truck. Two accused were sitting on the bags, and one accused was driving the truck. It was not proved that the accused had custody and control of the bags. The conscious possession of the accused was not proved. In Sukhdev Singhs case (supra), 125 bags of poppy- husk, were recovered, from a truck. During examination under Section 313 Cr.P.C. no question was put to them, that they were in conscious possession. It was held that the conscious possession was not proved. In the instant case, the recovery was not effected from the truck. The recovery was effected, from a bag (jhola), being carried by the accused. The accused, therefore, very well knew as to what was contained in the said bag (jhola). The possession of the accused, in respect of opium, therefore, stood duly proved. Even a specific question, was put, to the accused, that on search of the bag (jhola) held by him, in his right hand, opium was recovered. Though inadvertently, the correct quantity of opium recovered, was not mentioned therein. Since, the opium was recovered from the bag (jhola), being carried by the accused, statutory presumption under Sections 35 and 54 of the Act, operated against him, that he was in conscious possession of the same. In statement under Section 313 Cr.P.C. only the incriminating circumstances, appearing against the accused in the prosecution evidence, were required to be put, and not the presumption of law, operating against him, under relevant provisions of the Act. In this view of the matter, no help can be drawn, by the Counsel for the appellant, from the aforesaid authorities. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. No other point, was urged, by the Counsel for the parties. 14. In this view of the matter, no help can be drawn, by the Counsel for the appellant, from the aforesaid authorities. The submission of the Counsel for the appellant, 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 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. 15. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 7.12.1998, are upheld. The accused/appellant is directed to surrender to his bail bonds, to undergo the remaining part of the sentence.