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2008 DIGILAW 564 (PNJ)

Karnail Singh v. State of Punjab

2008-02-27

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J.:-This appeal is directed against the judgment of conviction, and the order of sentence dated 09.09.1995, rendered by the Court of Addl. Sessions Judge, Ludhiana, vide which it convicted the accused/appellant Karnail 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 two years. 2. The facts, in brief are that, on 30.11.1993, Ram Murti, Inspector, then posted as Incharge CIA Staff, Samrala, alongwith other police officials was going in connection with patrol duty, and when the policy party was at some distance from the seepage drain of Budha in the area of village Labangarh, the accused was found sitting, on the right side of the road, near the heap of fodder (parali) under-neath the trees. On seeing the police party, he tried to slip away. On suspicion, he was apprehended. Ram Murti, Inspector, interrogated him, who on interrogation disclosed that he had concealed four bags of poppy-husk under neath the heap of fodder (parali), and was setting right the fodder (parali). Thereafter, the search of fodder (parali) was conducted, in accordance with the provisions of law. 4 bags, containing 35 kgs poppy-husk each, were recovered from under-neath the heap of the fodder (parali). Two samples of 250 grams from each bag, were separated. The remaining poppy-husk was put into the same bags. The samples, and the bags of the remaining poppy-husk, were converted into parcels, duly sealed with the seal bearing impression ‘RM’, and taken into possession vide a separate memo. On personal search of the accused, currency note of Rs.27/-, were recovered. Ruqa was sent to the Police Station, on the basis whereof, the FIR was recorded. Visual site plan of the place of recovery, was prepared. The accused was arrested. The statements of the witnesses were recorded. 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. Visual site plan of the place of recovery, was prepared. The accused was arrested. The statements of the witnesses were recorded. 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 15 of the Act, was framed against the accused, to which he pleaded not guilty, and claimed Judicial trial. 4. The prosecution, in support of its case, examined Sohan Singh, Sub Inspector (PW-1), Ram Murti, Inspector (PW-2), Sarup Singh, AMHC (PW-3), and Sudagar Singh, Constable (PW-4). Thereafter, the Addl. PP for the State, tendered into evidence report of the Assistant Chemical Examiner Ex.PU, and closed the same. 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. However, he did not examine any witness, in his defence. 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 Karnail Singh, 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 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 prove the conscious possession of the accused, in respect of four bags, containing 35 kgs poppy-husk each, especially, when the alleged recovery was effected from the open place. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The bags, containing poppy-husk, had been concealed under fodder(parali). The accused was setting right the fodder (parali), when he was apprehended. In case, he had not concealed the bags, containing poppy-husk aforesaid, under the fodder (parali), then there was no necessity, on his part, to set right the same (fodder). It means that the accused was found in possession of four bags, containing poppy-husk, referred to above. The accused was setting right the fodder (parali), when he was apprehended. In case, he had not concealed the bags, containing poppy-husk aforesaid, under the fodder (parali), then there was no necessity, on his part, to set right the same (fodder). It means that the accused was found in possession of four bags, containing poppy-husk, referred to above. The mere fact that the poppy-husk had been concealed under fodder (parali), in an open place, did not mean that the accused was not in possession thereof. Once the possession of the accused, in respect of the contraband aforesaid, was proved from the cogent, convincing, and creditworthy evidence of Sohan Singh, Sub Inspector (PW-1), the recovery witness, and Ram Murti, Inspector (PW2), the Investigating Officer, statutory presumption under Sections 35 and 54 of the Act, operated against him, that he was in conscious possession thereof. Thereafter, it was for the accused, to rebut the statutory presumption, operating against him, under the aforesaid provisions of law. It was for the accused to explain, as to how, he came into possession of those bags of poppy-husk. The Counsel for the appellant, placed reliance on State of Punjab Vs. Balkar Singh and another, (2004) 3 SCC 582, in support of his contention, that the accused was not found in conscious possession of poppy-husk. The facts of the aforesaid authority, are clearly distinguishable from the facts of the present case. In the aforesaid case, the accused was merely found to be present, at the place, where the poppy bags were found. In these circumstances, it was held that his failure to give any satisfactory explanation, for being so present, did not prove that they were in possession of the said poppy bags. It was further held that the Police, should have conducted further investigation, to prove that the accused were really in possession of the said article. In the instant case, the accused was not merely sitting on the fodder (parali) under-neath whereof, the bags, containing poppyhusk, were concealed. He was setting right the fodder (parali) under-neath which the bags, containing poppy-husk, had been concealed. It means that the accused was aware of the bags, and the contents thereof, which had been concealed under-neath the fodder (parali), and on account of this reason, he was setting right the same. He was setting right the fodder (parali) under-neath which the bags, containing poppy-husk, had been concealed. It means that the accused was aware of the bags, and the contents thereof, which had been concealed under-neath the fodder (parali), and on account of this reason, he was setting right the same. Had he been not aware of the bags, containing poppy-husk, he would have been the last person to set right the fodder (parali). This single circumstance of setting right the fodder (parali) by the accused, under-neath whereof, the bags containing poppy-husk, were concealed, in itself, was sufficient to prove his conscious possession. The accused, however, failed to produce any cogent and convincing evidence, to rebut the presumption, operating against him, under Sections 35 and 54 of the Act. The facts of the aforesaid authority, being distinguishable, no help could be drawn by the Counsel for the appellant, therefrom. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 10. The Counsel for the appellant next submitted that no question was put to the accused/appellant, in his statement recorded under Section 313 Cr.P.C., that he was found in conscious possession of the bags, containing poppy-husk, and, as such, the evidence, in that regard, could not be read against him. The submission of the Counsel for the appellant, in this regard, also does not appear to be correct. A specific question, was put to the accused, in his statement recorded under Section 313 Cr.P.C., that Ram Murti, Inspector, alongwith other police officials, recovered from him, four bags of poppy-husk each weighing 35 kgs, which he had concealed under the heap of parali, on which he was sitting in the area of village Labangarh. In my opinion, this question was sufficient to make aware the accused that he was found in possession of four bags, containing poppy-husk, concealed by him under the heap of fodder (parali). He was not required to be put the question that he was found in conscious possession. As stated above, once the possession of accused in respect of the contraband, was proved, then presumption under Sections 35 and 54 of the Act, that he was in conscious possession thereof, operated against him. He was not required to be put the question that he was found in conscious possession. As stated above, once the possession of accused in respect of the contraband, was proved, then presumption under Sections 35 and 54 of the Act, that he was in conscious possession thereof, operated against him. The presumption of law, operating against the accused, under the relevant provisions of the Act, was not required to be put to him, in his statement recorded under Section 313 Cr.P.C. He was only required to be put the incriminating circumstances, appearing against him, in the prosecution evidence. He was put the incriminating circumstances, appearing against him, in the prosecution evidence. The Counsel for the appellant, however, placed reliance on Sukhdev Singh and another Vs. State of Punjab, [2006(3) LAW HERALD (P&H) 1832] : 2006(4) RCR (Criminal) 263, to support his contention. The facts of the aforesaid authority are clearly distinguishable, from the facts of the present case. In that case, poppy-husk was recovered, from the truck, which was being driven by one, and the other two were sitting therein. In these circumstances, it was held that it was not proved that the accused was found in conscious possession. The facts of the aforesaid authority are distinguishable from the facts of the present case. In this view of the matter, the submission of the Counsel for the appellant, stands rejected. 11. It was next submitted by the Counsel for the appellant, that no independent witness was joined, though the place of recovery was near the main road, and even the village was situated near-by. It is, no doubt, true that no independent witness was joined, at the time of recovery. The evidence of the official witnesses, cannot be distrusted and disbelieved, merely on account of their official status. In Akmal Ahmed Vs. 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 Vs. Sunil (2000)I 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. In State of NCT of Delhi Vs. Sunil (2000)I 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. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature.” 11-A. In Appa Bai and another Vs. 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 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 witnesses, 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, the submission of the Counsel for the appellants, stands rejected. 12. It was next contended by the Counsel for the appellant, that the case property was not produced before the S.H.O., and as such, there was violation of Section 55 of the Act, the benefit whereof, must go to the appellant. It is settled principle of law, that the provisions of Section 55 are directory in nature. The appellant was required to prove that non-compliance with the provisions of Section 55 of the Act, caused prejudice to him. It is settled principle of law, that the provisions of Section 55 are directory in nature. The appellant was required to prove that non-compliance with the provisions of Section 55 of the Act, caused prejudice to him. Nothing was brought out, during the cross-examination of the prosecution witnesses, that prejudice was caused to him, on account of non-compliance of the provisions of Section 55 of the Act. Even, no defence evidence was led by him, in that regard. It is evident from the evidence of Ram Murti, Inspector (PW-2) that on reaching the Police Station, he deposited the case property, with seals intact with Sarup Singh, MHC. He further stated that on the next day of recovery, he obtained the case property, samples, and sample seal, from him (Sarup Singh, MHC), for taking and producing the same, before the Judicial Magistrate Ist Class, Samrala. He further stated that the case property, and samples were produced before Shri Gurnam Singh, Judicial Magistrate Ist Class, Samrala. The accused was also produced before him. He further stated that after verifying the case property, the Judicial Magistrate Ist Class, affixed his seal on the said case property, sample, and the sample seal. It means that the case property was produced before the Judicial Magistrate Ist Class, Samrala, an Officer much superior than the S.H.O. In these circumstances, the question of occasioning any prejudice to the accused, on account of nonproduction of the case property before the S.H.O., did not at all arise. In this view of the matter, 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 9.9.1995, are upheld. The accused/appellant is directed to surrender to his bail bonds, to undergo the remaining part of the sentence.