Abas Ali vs The State of Punjab

Sham Sunder, J.—This appeal is directed against the judgment of conviction, and the order of sentence dated 21.5.1997, rendered by the Addl. Sessions Judge, Barnala, vide which it convicted the accused (now appellant), for the offence, punishable u/s 25 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as ''the Act'' only), for permitting the use of Canter No. UGA-9929, for transporting the contraband, and Dalwinder Singh, Gurbhej Singh, and Abdul Khalik, his co-accused, for the offence, punishable u/s 15 of the Act, and sentenced them, to undergo rigorous imprisonment for a period of ten years each, and to pay a fine of Rs. 1 lac each, and in default of payment of the same, to undergo rigorous imprisonment for another period of six months each.

The facts, in brief, are that on 22.4.1996, Nachhattar Singh, SI, alongwith other police officials, was present at the bridge of drain, in the area of Kurar, in connection with search of suspects. Karnail Singh, public witness, who came from the side of Kurar, on bicycle, was stopped. When Nachhattar Singh, SI, was talking to Karnail Singh, a canter, came from the side of village Kurar, which was stopped, by him. The canter bore No. UGA 9929, which was being driven by Gurbhej Singh, accused, while Abdul Khalik, accused, was sitting by his side, whereas, Dalwinder Singh, accused, was sitting in the back portion, on tarpaulin, under which something was covered. Nachhattar Singh, SI, enquired of the identity of all the accused. Thereafter, the search of the canter, in the presence of Pritpal Singh, DSP, who was called to the spot, by sending a message, in accordance with the provisions of law, was conducted, as a result whereof, 10 bags containing rice polish, and 37 bags, containing poppyhusk, were recovered therefrom. Each bag was having 38 Kgs. poppy-husk. Two samples of 250 grams each, were drawn, from each of the 37 bags, and the remaining poppy-husk was kept in the same bags. The samples and the bags, were converted into parcels, duly sealed with the seals, bearing impressions ''NS'' and ''PS'', and, thereafter, taken into possession, vide a separate recovery memo. 10 bags of rice polish, alongwith registration of canter, tarpaulin, and stepeny, were also taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, with correct marginal notes, was prepared. The accused, except Abas Ali, were arrested. Abas Ali, accused, being the owner of the Canter, was arrested later on. After the completion of investigation, the accused were challaned.

On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge u/s 15 of the Act, was framed against Dalwinder Singh, Gurbhej Singh, and Abdul Khalik, and charge u/s 25 of the Act, was framed against Abas Ali, accused, to which they pleaded not guilty and claimed judicial trial.

The prosecution, in support of its case, examined Pritpal Singh, DSP (PW-1), Nachhattar Singh, SI (PW-2), Balwinder Singh (PW-3), Ajaib Singh, Constable (PW-4), and Gurcharan Singh, SI (PW-5). Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence.

The statements of the accused, u/s 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication.

Abas Ali, accused, in his statement, recorded u/s 313 Cr.P.C., stated that he sent Gurbhej Singh, his driver, to get the canter repaired from Atiq Mohd. Mechanic of Muradabad, from where the police took the same, alongwith Gurbhej Singh, and his nephew Abdul Khalik. It was further stated by him, that nothing was recovered from them.

The accused, however, examined Ajaib Singh, HC (DW-1), Atiq (DW-2), Sadha Singh (DW-3), and Sukhwinder Singh (DW-4), in his defence. Thereafter, the accused closed the defence evidence.

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.

Feeling aggrieved, against the judgment of conviction and the order of sentence, rendered by the trial Court, the instant appeal, was filed by Abas Ali, accused/appellant.

Separate challan, against Abas Ali, accused (now appellant) was presented. Charge was framed, in that challan, against Abas Ali, u/s 25 of the Arms Act. Later on, that challan was ordered to be consolidated with the other challan, which had been presented against Dalwinder Singh, Gurbhej Singh and Abdul Khalik, accused, and it was further directed by the trial Court, that the evidence shall be recorded in the challan presented against these accused, and shall also be read for the decision of the case of Abas Ali.

When the arguments, in the appeal, which was filed by all the accused, were heard, it was not pointed out by the Counsel for the parties, that the trial Court record, relating to Abas Ali, appellant, had not been received. Accordingly, the arguments, on behalf of the Dalwinder Singh, Gurbhej Singh and Abdul Khalik, were heard, and the appeal of Abas Ali, appellant, was ordered to be seperated. It was also directed that the trial Court record be summoned, and thereafter, the said appeal of Abas Ali, appellant, be listed for arguments, as per the roster. The appeal of Dalwinder Singh, Gurbhej Singh and Abdul Khalik, was dismissed, vide judgment dated 13.5.2008.

I have heard the Counsel for the parties, and have gone through the evidence, on record, of the case, in the appeal, filed by Abas Ali, appellant.

The Counsel for the appellant, at the very outset, submitted that no evidence was produced by the prosecution, to prove that the appellant, knowingly permitted the use of the Canter, in question, for transporting the poppy-husk. He further submitted that Gurbhej Singh, driver, took the Canter for repairs, to a mechanic, and without his knowledge allegedly transported the poppy-husk, aforesaid. He further submitted that, under these circumstances, charge u/s 25 of the Act, was not proved against Abas Ali, appellant, and he was entitled to acquittal, but the trial Court, fell into a grave error, in recording conviction, and awarding sentence, to him.

On the other hand, the Counsel for the respondent submitted that since Gurbhej Singh, was the driver of Abas Ali, appellant, it could not be said that the vehicle, in question, was being used by him, for the purpose of transporting as many as 37 bags, containing poppy-husk, from UP to Punjab, without his (Abas Ali''s) permission. He further submitted that direct evidence could hardly be available, with regard to the factum, that Abas Ali, knowingly permitted the use of the Canter, in question, for transporting the contraband. He further submitted that circumstantial evidence was produced by the prosecution, to prove that the vehicle was knowingly permitted by Abas Ali, appellant, for being used sfor transporting the contraband aforesaid. He further submitted that the trial Court rightly convicted and sentenced Abas Ali, appellant, for the offence, punishable, u/s 25 of the Act.

The statement of Abas Ali, accused, was recorded on 7.5.1997, by the Court of Addl. Sessions Judge, Barnala. He admitted, in that statement, that he was the owner of Canter No. UGA-9929. He also admitted that on 22.4.1996, he too was the owner of the aforesaid Canter. In his statement, u/s 313 Cr.P.C., it was stated by him, that Gurbhej Singh, was his driver. He further stated that he sent Gurbhej Singh, his driver to get the Canter repaired, from Atiq Mohd. Mechanic, of Muradabad, from where the police took the Canter, alongwith Gurbhej Singh, and his nephew Abdul Khalik. He further stated that nothing was recovered from the Canter. Atiq Mohd. (DW-2), stated that about 13 months before 16.5.1997, Abdul Khalik, came to his workshop, with his vehicle No. UGA-9929, which belonged to Abas Ali. He further stated that Abdul Khalik, is the son of Abas Ali''s sister. He further stated that in the evening Punjab Police came to his workshop alongwith Gurbhej Singh, accused, and the vehicle was taken into possession. He also stated that Abdul Khalik, was too taken by the Punjab Police. During the course of cross-examination, it was stated by him that he did not report the matter to the local Police, that the Punjab Police had taken away Abdul Khalik and Gurbhej Singh, and the vehicle aforesaid. He further stated that he did not report the incident, even to the Local MLA or Municipal Councillor. He further stated that he had not maintained any bill book, in his workshop. Sadha Singh, (DW-3), stated that about 13 months before 16.5.1997, Gurbhej Singh, his covillager, was taken by the police. He further stated that the police informed him, that on account of some case, they wanted to interrogate him. He further stated that after 15/18 days, he was told by father of Gurbhej Singh, that he had been involved by the Police, in a false case. However, during the course of cross-examination, he stated that he did not lodge any report, with regard to the incident in the Police Station. He further stated, during the course of his crossexamination, that no resolution was passed by the Village Panchayat, with regard to this incident. It was also stated by him, that no application was moved by him, before any higher Police Officer, either at Muradabad, or in Punjab. The statements of Atiq Mohd. (DW-2) relation of Abas Ali, appellant and Sadha Singh (DW-3), a co-villager of Gurbhej Singh, accused, do not inspire confidence. In case any such incident as was deposed to by them, in their statements had taken place, they would have certainly raised hue and cry, and moved applications to the higher Police Authorities or higher Administrative Authorities, that Dalwinder Singh, Gurbhej Singh, and Abdul Khalik, had been illegally taken away by the police of Sangrur, though no recovery was effected from them. They could also move an application, that the aforesaid vehicle was illegally taken away. No such method was adopted by them. Their statements, therefore, are an afterthought. The trial Court was right in disbelieving and discarding the same. Their statements did not in any way, go to prove that Abas Ali, accused, did not permit the vehicle, in question, for being used, for the purpose of transporting the contraband. The accused, being resident of Muradabad (UP), he must be knowing, as to whether, his vehicle had gone to the State of Punjab, and for what purpose, the same had been sent. It was for him to explain, as to under what circumstances, the poppy-husk, was found in the Canter, in question, belonging to him. The mere fact that the Canter, was found within the jurisdiction of District Sangrur, with poppy-husk, in huge quantity, loaded therein, though the accused belonged to UP, in itself, was sufficient to come to the conclusion, that the same was being used with the knowledge of Abas Ali, accused, for transporting the contraband. Since, Abas Ali, was the owner of the Canter, in question, at the relevant time, legal presumption of existence of culpable mental state arose, against him, as soon as an offence was committed, under the Act, involving the Canter, aforesaid. It was for him to rebut the statutory presumption, through various modes including the material available, in the prosecution evidence, and also by production of defence evidence. He could not bring out any circumstance, during the course of cross-examination of the prosecution witnesses, that the Canter, was being used without his knowledge, for the purpose of transporting the contraband, referred to above. The defence evidence produced by him, to prove that the Canter was being used for transporting the contraband, was disbelieved by the trial Court, and on reappraisal thereof, this Court also comes to the same conclusion. In Sarabjit Singh v. State of Punjab 2001 (2) RCR (Cri) 775, a case decided by a Division Bench of this Court, in truck bearing No. PJC 3513, 100 bags of poppy-husk, were found, when it was being driven by Kashmir Singh, whereas, Karam Singh was sitting by his side, and Dhanna Singh and Darshan Singh, were sitting in the rear of the truck. They were apprehended. Sarabjit Singh was the owner of the truck, but was not present at the time of recovery. He could not produce cogent evidence to discharge the onus, cast upon him, u/s 35 of the Act. The appellants/accused were convicted and sentence. They filed an appeal, in this Court. In the aforesaid authority, a Division Bench of this Court, held that Sarabjit Singh, owner of the truck, though was not present, in the truck, at the time of recovery of poppy-husk, could be held liable, by invoking the provisions of Section 35 of the Act. Accordingly, the appeal of the appellants, was dismissed. Abas Ali, appellant, was, thus, unsuccessful in rebuting the statutory presumption operating against him, u/s 35 of the Act, beyond a reasonable doubt. He was, thus, rightly held liable, alongwith other accused, by the trial Court.

Not only this, even sub-section (3) of Section 60 of the Act, has been enacted primarily to stop illegal activities of transportation of narcotic drugs and psychotropic substances to provide relief to such owners, who were innocent in the matter, and an exception has been engrafted thereto. The exception must relate to the innocence, not only of the owner, but also of the agent and the person, who was put in incharge of the conveyance. With a view to bring his case within the purview of exception, referred to above, Abas Ali, was required to prove, not only his own innocence, but also that he had taken all possible precautions, against the wrongful user of the vehicle, by each person, or persons. His simple plea that he had not permitted the use of the vehicle, for transporting the contraband, could neither be here, nor there. This exception was enacted by the Legislature with some purpose. If the owner could save himself by merely saying that he never permitted the use of the vehicle, for transporting the contraband, then every owner, after, permitting the use of his vehicle for carrying the contraband, would come and take such a simple plea. He was required to prove that he took abundant precautions, that any person, who was in control of his vehicle, at any time, did not use the same for illegal purposes. Even if, the driver of Abas Ali, appellant, was transporting the contraband in the Canter, and he (Abas Ali) had not taken the requisite precautions, to prevent its misuse for carrying on the activities of transporting the contraband, then knowledge could be attributed to him, and he could be held liable for the offence punishable, u/s 25 of the Act.

The Counsel for the appellant, however, placed reliance on Balwinder Singh v. Asstt. Commissioner Customs and Central Excise, 2005 (4) SCC 146, a judgment rendered by a two Judge Bench of the Apex Court. In that case, recovery of heroine and opium from a truck was effected. ''B'' was the registered owner of the said vehicle. He had sold that vehicle to one ''S'' much prior to the occurrence, but the registration was not changed, in the name of ''S''. ''B'' was convicted solely for the reason that he was the registered owner of that vehicle, and, as such, he knowingly allowed another person to use the vehicle for illegal purposes. No evidence to prove the conspiracy set up by the prosecution, was led. Under these circumstances, the Apex Court held that since there was no evidence, to show that ''B'' had any control over the vehicle, having sold the same, in favour of a third person, to whom the delivery of vehicle had already been handed over, though technically in the registration certificate, the name of the previous owner, was still in existence, presumption u/s 35 of the Act, could not operate against him. It was, under these circumstances, that Balwinder Singh, was acquitted by the Apex Court, in the aforesaid case. In the instant case, as stated above, Abas Ali, was the owner of the Canter,on the relevant day. He was in control over the Canter, in question, on that very day. His version that he had sent his driver to the mechanic, for the purpose of repair, wherefrom, the police took him, and falsely planted the poppy-husk, stated to have been recovered from the said vehicle, has already been found to be false. The evidence produced by him, in support of his version has already been found to be unreliable and discarded. In these circumstances, the facts of the instant case, being distinguishable, from the facts of Balwinder Singh''s case (supra), no help can be drawn by the Counsel for the appellant, therefrom.

No other point, was urged, by the Counsel for the parties.

In view of the above, it is held that the judgment of conviction, and the order of sentence, rendered by the trial Court, against the appellant, is based on the correct appreciation, and law on the point, and need no interference. The same is liable to be upheld.

For the reasons recorded above, Crl. Appeal No. 440-SB of 1997, filed by Abas Ali, appellant, is dismissed. If, Abas Ali, appellant, is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate, Sangrur, 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 Cr.P.C. and submit the compliance report, within a period of two months, from the date of receipt of a certified copy of the judgment.

No specific order was passed by the trial Court, regarding the confiscation of the canter, in question. The trial Court, is directed to initiate proceedings, regarding the confiscation of the Canter, if already not initiated, complete the same, and submit compliance report, within a period of three months, from the date of receipt of a certified copy of the judgment.