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2011 DIGILAW 1480 (RAJ)

Mewa Singh v. State of Rajasthan

2011-07-25

PRASHANT KUMAR AGARWAL

body2011
Hon'ble AGARWAL, J.—The accused-appellant has preferred this appeal under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 19.8.2008 passed by Special Judge (NDPS Cases) Jaipur in Sessions Case No. 37/2005 whereby the appellant has been convicted for offence under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as "the Act") and has been sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 1 lac and in default thereof to further undergo rigorous imprisonment for one year. 2. The brief relevant facts for the disposal of this appeal are that the appellant was charge-sheeted for the above offence on the premise that on 30.7.2005 when a truck bearing registration No. HR-37-A-6847 was searched by SHO Police Station Transport Nagar, Jaipur in presence of independent witnesses narcotic drug `Doda Post Chura' (poppy husk) weighing 1989.500 kgs. contained in 49 bags was recovered from the above truck and at the time of recovery the above bags containing contraband were loaded in the above truck concealed below 88 bags of turmeric (Haldi). At the time of recovery the appellant was sitting on the driver seat of the truck. FIR No. 162/2005 for the offence under Section 8/15 of the Act was registered at Police Station Transport Nagar, Jaipur in this regard. To prove the charge the prosecution produced oral as well as documentary evidence, whereas in his statement under Section 313 Cr.P.C. the appellant denied the allegation and the evidence of the prosecution and stated that he is innocent and he has been involved in a false case. The appellant also stated that he is earning his livelihood as driver of a truck. Opportunity to produce defence evidence was afforded, but the appellant did not produce any evidence. The prosecution case is that on 30.7.2005 at 4.00 p.m. the SHO Police Station Transport Nagar, Jaipur through an informer received secret information to the effect that the above truck is parked opposite Vijay Roadlines, Transport Nagar, Jaipur and in it along with bags of turmeric bags of poppy husk are loaded in a concealed condition and the driver and Khalasi of the truck are sitting in the truck and they are planning to transport the contraband at any time. The prosecution case further is that the SHO after recording the information alongwith the police party and two independent witnesses reached at the spot at 5.00 p.m. and two persons including the present appellant were found sitting in the aforesaid truck and upon search being made recovery of contraband was made as aforesaid. 3. The trial Court after evaluating the statements of prosecution witnesses and documents and hearing both the parties arrived at the conclusion that the recovered substance is a contraband as the FSL report reveals that the sample on microchemical examination gave positive tests for the presence of chief constituents of opium and hence the sample is of dried crushed capsule of opium poppy. The trial Court also arrived to the conclusion that the recovered contraband is more than the commercial quantity as provided in the provisions of the Act and the compliance of every mandatory provisions of the Act was made by the Recovery Officer during investigation. Therefore, on the basis of conclusion arrived at by the learned trial Court the appellant was convicted and sentenced by the impugned judgment and order dated 19.8.2008 in the manner as has been stated hereinabove. Hence, the instant appeal. It is to be mentioned that the other person Indrajeet Singh alias Babbu Singh, who was found sitting alongwith the appellant was a juvenile and his case was transferred to the Juvenile Justice Board for further action. 4. Heard learned counsel for the appellant as well as the learned Public Prosecutor. 5. Learned counsel for the appellant at the very outset submitted that the prosecution has miserably failed to prove that the accused at the time of alleged recovery was driver of the aforesaid truck and he was found in conscious possession of contraband. It was also submitted that even if it is held that at the time of recovery the appellant was sitting on the driver seat of the above truck even then it does not mean that he was having knowledge of the fact that in the truck apart from bags of turmeric some contraband is also loaded and thus, in absence of such evidence the appellant cannot be said to be in the possession and control of the recovered contraband. It was also submitted that the prosecution failed to produce evidence to the effect that the bags of contraband were loaded in the presence of the appellant or the appellant was in any way responsible for loading of the bags of contraband in the above truck. The learned counsel for the appellant urged that Section 15 of the Act provides punishment for possessing a contraband without any valid licence or permit, but a person cannot be said to possess a contraband unless he consciously have knowledge about it or control over it. Mere custody of an article does not mean possession of it. It was further contended that the learned trial Court without considering the above fact in right perspective has come to a conclusion that at the time of recovery the contraband was in the conscious possession of the appellant. 6. On the other hand the learned Public Prosecutor controverting the above submissions contended that the evidence available on record beyond reasonable doubt proves that the appellant was driver of the above truck and at the time of recovery he was sitting on the driver seat and it was in his knowledge that apart from bags of turmeric bags of contraband poppy husk are loaded in the above truck. It was also submitted that once possession of a contraband is proved to the satisfaction of the court then it is for the accused to prove beyond reasonable doubt that the contraband was not in his conscious possession, but in the present case the appellant has failed to discharge his obligation. It was further submitted that the prosecution was not obliged to produce evidence to the effect that the bags of contraband were loaded in the presence of appellant or he was in any manner responsible for loading of the bags in the above truck. 7. I have considered the submissions made on behalf of the respective parties, gone through the record made available for my perusal, relevant legal provisions and the case law. 8. Section 15 of the Act, apart from other things, provides punishment for possessing poppy straw. Section 35 of the Act is as follows: "35. 7. I have considered the submissions made on behalf of the respective parties, gone through the record made available for my perusal, relevant legal provisions and the case law. 8. Section 15 of the Act, apart from other things, provides punishment for possessing poppy straw. Section 35 of the Act is as follows: "35. 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." Section 54 of the Act is as follows: "54. 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 manufactured 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." 9. In the case of Madan Lal and another vs. State of Himachal Pradesh, reported in 2003 Cr.L.J. 3868 the Hon'ble Supreme Court has held that:- "The expression `possession' is a polymorphous, term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. In the case of Madan Lal and another vs. State of Himachal Pradesh, reported in 2003 Cr.L.J. 3868 the Hon'ble Supreme Court has held that:- "The expression `possession' is a polymorphous, term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible to work out a completely logical and precise, definition of "possession" uniformly applicable to all situations in the context of all statutes." The Hon'ble Supreme Court has also observed that: "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 in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles." 10. The Hon'ble Apex Court in the case of Megh Singh vs. State of Punjab reported in 2003 Cri. L.J. 4329 also has similarly observed. In the case of Noor Aga vs. State of Punjab and another reported in (2008) 16 SCC, 417 the Hon'ble Supreme Court has recently held thus: "Sections 35 and 54 of the Act, no doubt, raise presumption with regard to culpable mental state on the part of accused as also place the burden of proof in this behalf on the accused; but presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is "beyond all reasonable doubt" but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigorous of Section 35, the actus reus which is possession of contraband by the accused cannot be said to have been established." 11. The well settled legal position appears to be that firstly it is for the prosecution to prove that the recovered contraband was in the possession of the accused. The well settled legal position appears to be that firstly it is for the prosecution to prove that the recovered contraband was in the possession of the accused. Once that burden is discharged by the prosecution, then the burden shifts on the accused to prove beyond reasonable doubt that although the recovered contraband was found in his possession, but infact he was not in conscious possession of the contraband i.e. it was not in his knowledge that the vehicle or the container from which the recovery has been made is containing some contraband article. In the present case it was for the prosecution to prove that poppy husk contained in 49 bags was recovered from the above truck and at the time of recovery the appellant was sitting in the truck as a driver, whereas it was for the appellant to prove beyond reasonable doubt that he was not knowing the fact that in the truck, apart from bags of turmeric, bags of some contraband in a concealed condition are also loaded. If the evidence available on record is considered, following facts clearly emerges: (i) On 30.7.2005 at 4.00 p.m. SHO Police Station Transport Nagar, Jaipur through an informer received a secret information to the effect that a truck bearing registration No. HR-37-A-6847 is parked opposite Vijay Roadlines, Transport, Jaipur and in that truck alongwith bags of turmeric, bags of contraband poppy husk are also loaded and the driver and khalasi of the truck are sitting in the truck and they are planning to transport the contraband. (ii) The SHO recorded the information in writing in the form of Ex. P. 12 and ex. P. 19 and sent a copy of the information immediately through a constable to his superior police officers; (iii) The SHO Shri Ramdev Singh PW.5 in pursuance of the information received alongwith policy party and two independent witnesses reached on the spot at 5.00 p.m. on the same day and two persons including the present appellant was found sitting in the above truck. (iv) The appellant and the other person sitting in the truck on seeing the police party unsuccessfully tried to run away from there. (iv) The appellant and the other person sitting in the truck on seeing the police party unsuccessfully tried to run away from there. At that time the appellant was sitting on the driver's seat, (v) The SHO apprised the appellant regarding the secret information but the appellant could not reply satisfactorily, (vi) When search was made 188 bags of turmeric were found loaded in the truck and below these bags 49 bags of poppy husk were also found concealed, (vii) PW-Shri Radheyshyam has deposed during trial that he is owner of Glob Transport Company located at Chandi Ki Taksal, Jaipur having a branch office at Ludhiyana (Punjab) and he on the request of the Manager of Branch Office paid Rs. 4,000/- to the Driver-Mewa Singh of a truck bearing registration No. HR-37-A-6847 and in this regard receipt Ex. P.2 was obtained which bears signature of Shri Mewa Singh. The witness has also stated that he paid that amount to Shri Mewa Singh after verifying his identity on the basis of papers of above truck; (viii) During investigation from the possession of the appellant certain toll receipts relating to above truck were recovered; (ix) The appellant is the resident of Ludhiyana (Punjab and in his statement under Section 313 Cr.P.C. he has stated that he is a driver by profession, but he has not explained that he is not driver of the above truck but on any other truck. The appellant has also not denied the fact that he was arrested on 30.7.2005 at Transport Nagar Jaipur. He has also not explanation for which purpose he came to Jaipur on the date of arrest and in what circumstances he was arrested by the police. 12. If considered in the light of the evidence available on record it is clear that the prosecution has been able to prove beyond reasonable doubt that on 30.7.2005 the appellant was driver of the above truck and upon search being made contraband poppy husk was found loaded in a concealed condition alongwith bags of turmeric in the above truck. Thus, it can be concluded that at the time of recovery the contraband was in the possession of the appellant. Thus, it can be concluded that at the time of recovery the contraband was in the possession of the appellant. Then, it was for the appellant to prove to the satisfaction of the Court that infact he was not in his knowledge that bags of contraband were loaded in the above truck, but the appellant has failed to discharge his burden. The appellant did not produce evidence in defence and in his examination under Section 313 Cr.P.C. also, he failed to give any explanation in what circumstances bags of contraband were found loaded in the truck of which he was driver. Although, the appellant is legally entitled to rebut the presumption provided under Section 35 and 54 of the Act even on the basis of the material and evidence brought on record by the prosecution, but the learned counsel for the appellant failed to show any circumstance available on record upon which it can be held that the appellant has been able to discharge his burden. In absence of it, the presumption under Section 35 and 54 of the Act has to be taken to the effect that the recovered substance was in the conscious possession of the appellant and it was in his knowledge that alongwith the bags of turmeric contraband poppy husk contained in bags is loaded in the truck in a concealed condition. The learned trial court by considering the evidence available on record has rightly come to a conclusion that prosecution has been able to prove that contraband was recovered from the possession of the appellant, whereas the appellant failed to discharge his burden. Thus, the submissions made on behalf of the appellant being not tenable are liable to be rejected. The learned counsel for the appellant next contended that it is an admitted fact that from each and every 49 bags, a sample of 200 gms. was taken and all the taken out samples were mixed together and two samples each of 4.900 Kgs. were prepared and they were sealed separately and one of the sample's was sent to FSL for analysis. It was contended that it was necessary for the Recovery Officer to take out two samples of prescribed quantity from each and every bag and then separately seal each of them and sent all 49 samples for analysis. were prepared and they were sealed separately and one of the sample's was sent to FSL for analysis. It was contended that it was necessary for the Recovery Officer to take out two samples of prescribed quantity from each and every bag and then separately seal each of them and sent all 49 samples for analysis. It was further submitted that in absence of this, it cannot be held that each and every bag contained poppy husk or any narcotic drug. It was also contended that the Recovery Officer in a strange way mixed all the samples taken out as there is no such procedure in the Act or the rules made under the Act. In support of his submissions, the learned counsel for the appellant relied upon the decision of Kuldeep Singh vs. State of Punjab, reported in (2010) 10 SCC, 219. 13. On the other hand, the learned Public Prosecutor submitted that although sample taken out from each of the bags was not separately sealed and sent for analysis, but overall evidence available on record in clear terms indicates that each and every bag recovered from the above truck contained substance which was similar in nature and thus, it can be presumed that each and every bag contained contraband poppy husk. 14. I have considered the submissions made on behalf of the respective parties, gone through the evidence available on record and the case law cited on behalf of the appellant. 15. From a close perusal of evidence both oral as well as documentary available on record following clear facts emerges: (i) On search being made, apart from 188 bags of turmeric, 49 bags of some other substance of identical nature were also recovered from the above truck; (ii) On being smelt the substance contained in each and every 49 bags gave the smell of poppy husk. The appellant on being asked also admitted that the substance contained in these 49 bags is contraband poppy husk. It is to be noted that statements made by the prosecution witnesses in this regard have remained unrebutted as no cross examination controverting this fact was conducted. (iii) Each and every bag of the recovered substance was separately weighed and was marked A1 to A 49. In the memo of recovery Ex. P. 4 weight of each bag is clearly indicated. (iii) Each and every bag of the recovered substance was separately weighed and was marked A1 to A 49. In the memo of recovery Ex. P. 4 weight of each bag is clearly indicated. Bags of turmeric were also separately weighed and each bag was found containing 80 Kg. turmeric. (iv) From each and every bag of the substance recovered, a sample of 200 gms. was taken out and whole of the substance weighing 9.800 Kg. was mixed together and it was divided into two parts and each sample weighing 4.900 Kg. was separately sealed and packet of one of the samples marked "B" was sent for analysis to the FSL. The substance taken out as a sample from each of the bag was of an identical appearance. (v) On being analysed, the sample sent to FSL Jaipur was found to give positive tests for the presence of chief constitutions of opium and it was opined to be sample of dried crushed capsule of opium poppy. (vi) During investigation from the above said truck apart from other documents, form of way bill Ex. P.21 dated 18.7.2005, Tax Invoice Ex. P. 36 dated 18.7.2005, Billty Ex. P. 37 dated 18.7.2005, Insurance Cover Note Ex. P.38 dated 18.7.2005 were also recovered and all these documents reveal that only 188 bags of turmeric weighing 150 quintel 40 Kg. were loaded in the above truck so as to transport them from Andhra Pradesh to Amritsar (Punjab). In none of these documents mention of any other bags or goods is found. (vii) During trial all 49 bags of the recovered substance were produced before the court below but no prayer was made on behalf of the appellant that the bags may be opened so as to ascertain whether they contain substance of a similar nature. 16. Although ideal option for the recovery officer was that two samples from each of the bags should have been taken out and after sealing each of them separably, one sample taken out from each of the bags should have been sent for analysis to FSL but even in absence of this, in the light of the evidence available on record and the facts emerging from that as narrated above, it cannot be held that each bag did not contain poppy husk and at the most it can be concluded that only one bag out of them contained poppy husk. The evidence available on record reveals that when the substance taken out from each of the bag was smelt it gave the smell of poppy husk and all the samples taken out were of similar nature. As the appellant during trial failed to make a prayer to the effect that sample from each bag may now be taken and sent for analysis to the FSL, he cannot be allowed to contend for the first time in this appeal that there is no evidence available on record to prove that each and every bag recovered contained poppy husk or any other narcotic drug. So far as the decision cited on behalf of the appellant is concerned, it is of no help to the appellant by the reason that it is based on different facts. In that case the facts appear to be that at the time of recovery samples were not taken at the place of occurrence and the Recovery Officer after sealing the recovered bags took them to the police station where the SHO broke upon the seals and mixed contents of all four bags together and took samples from the mixture and re-sealed bags with his seal. In this fact situation, the Hon'ble Apex Court held that non collection of samples at initial stage of seizure was an incurable defect and by that reason the accused of that case was acquitted. In the present case the contents of all the bags were not mixed together but the sample taken out from each and every bag was mixed at the spot itself and the mixture was divided into two parts and one of the samples was sent for analysis to the FSL. In the case relied upon on behalf of the appellant, the Hon'ble Supreme Court has not held that if more than one bag of contraband is recovered, then it is necessary that from each and every bag separate sample may be taken out and sample so taken out from each bag is to be sent to FSL for analysis and only then it can be held that each bag contained a contraband. Thus, the submissions made on behalf of the appellant being not tenable are liable to be rejected. Thus, the submissions made on behalf of the appellant being not tenable are liable to be rejected. In the last it was also submitted that when on the prayer of prosecution during trial bags of recovered substance were produced before the trial Court, it was found that signed paper chits allegedly pasted on the bags by the Recovery Officer at the time of sealing were not found pasted on the bags and the bags were also not in a proper sealed condition and in this fact situation it cannot be said that the bags produced during trial were the same bags which were allegedly recovered from the truck. 17. It is true that on the prayer made by the prosecution and in pursuance of the order of the trial Court, when bags of the recovered substance were produced for inspection of the court below, signed paper chits allegedly pasted by the Recovery Officer on the bags at the time of sealing were not found pasted on the bags produced and it was also found that except two or three bags remaining bags were not having proper seal upon them, but if considered in the light of explanation given by the Recovery Officer and overall evidence available on record, it cannot be held that the bags produced before the court below were not the same bags which were allegedly recovered from the possession of the appellant. It is to be noted that recovery was effected on 30.7.2005 whereas the bags were produced before the trial Court on 6.5.2008. It is also to be noted that the bags recovered remained loaded in the above truck and during trial also the bags were produced before the court below in a loaded condition. During the intervening period the possibility of signed paper chits being torned out cannot be ruled out and similarly it is possible that the seal also got broker. In my view the recovery cannot be doubted only by the reason that when after a period of three years from the date of recovery, when the bags were produced before the trial court they were not found in a proper sealed condition. The evidence available on record clearly shows that the samples taken out of the bags were sealed in a proper manner and sample marked "B" was sent to the FSL in an intact and proper sealed condition. The evidence available on record clearly shows that the samples taken out of the bags were sealed in a proper manner and sample marked "B" was sent to the FSL in an intact and proper sealed condition. Thus, the last submission made on behalf of the appellant being not tenable is also liable to be rejected. 18. In view of the above reasons, the trial court was fully justified in holding the appellant guilty of committing the offence referred above for which he has been charged. Looking to the nature of the offence, I too am in full agreement with the minimum sentence awarded to the appellant is also just and proper. There is no scope for taking any further lenient view in the matter. 19. Consequently, there is no merit in this appeal and the same is hereby dismissed.