Aroor Singh vs State of Punjab

Sham Sunder, J.—This judgment shall dispose of Criminal Appeal No. 49-SB of 2000 filed by Aroor Singh, accused (now appellant) and

Criminal Appeal No. 1604-SB of 2002 filed by Nishan Singh, accused (now appellant), arising out of the judgment of conviction and the order of

sentence dated 7.12.1999, rendered by the Special Judge, Sonepat, vide which, he convicted the accused (now appellants) for the offence,

punishable u/s 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as `the Act'' only) 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 one year each, for having been found in possession of 10 kgs of opium, without any permit or

licence.

The facts, in brief, are that on 11.2.1991, Inspector Bishan Dass, while posted in C.I.A. Staff, Faridkot, along with other police officials, as also

DSP Bachan Singh Randhawa, was going from village Mehna towards village Takhanwadh via link road, in connection with the search of terrorists

and recovery of illicit arms and when the Police party was still at a distance of 30-35 karams, from the canal minor bridge, in the area of village

Nathuwala Jadid, both the accused came, on a motor cycle, from the opposite side. On noticing the Police party, they tried to retreat, but were

apprehended. Aroor Singh, accused, was driving the motor cycle and Nishan Singh accused, was sitting on the pillion. They were apprehended by

Inspector Bishan Dass, with the help of other Police officials,. The gunny bag, being held by Nishan Singh, in his hand, was searched in the

presence of DSP Bachan Singh Randhawa, as a result whereof 10 kg opium was recovered therefrom. A sample of 20 grams was separated. The

sample and the remaining opium were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was

sent to the Police Station, on the basis whereof, FIR was registered. The accused were arrested. Site plan was prepared. The statements of the

witnesses were recorded. After the completion of investigation, the accused were challaned.

On their appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge u/s 18 of the

Act, was framed against them, to which they pleaded not guilty, and claimed judicial trial.

The prosecution, in support of its case, examined MHC Baljinder Singh, PW1, SI Tehal Singh, PW2, HC Mukha Singh, PW3, and DSP

Bachan Singh Randhawa, PW4. PWs Inspectors Harcharan Singh and Bishan Dass were reported to have died, during the course of trial and

could not be examined. Thereafter the 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. It was stated by Aroor Singh that he was having a dispute with SI Tehal Singh, at the

time of recovery. He further stated that one Sukhwant Kaur, relation of SI Tehal Singh was also having a dispute with Nishan Singh. He further

stated that on account of this reason, they were falsely implicated. He further stated that telegrams were sent to the higher authorities, regarding

their false implication.

Accused Nishan Singh also took up the same pleas, as were taken up, by Aroor Singh, accused, in his statement u/s 313 Cr.P.C.

In defence, the accused examined Amarjit Kaur, DW1, wife of Aroor Singh, accused. Thereafter, the accused closed their defence evidence.

After hearing the 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 above.

Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, were filed by

the appellants.

I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully.

The Counsel for the appellants, at the very outset, submitted that no independent witness was joined, despite availability. They further

submitted that even no effort was made to join an independent witness. The submission of the Counsel for the appellants, in this regard, does not

appear to be correct. No secret information had been received by the Investigating Officer, against the accused, that they were coming with some

contraband, and could be apprehended, if a picket was held, or a raid was conducted. The police party was present, in connection with the search

of terrorist and recovery of illicit arms, when all of a sudden, the accused came, on a motor cycle. The motor cycle was stopped and they were

apprehended. On search of the bag, being carried by them, on the motor cycle, 10 kgs of opium was recovered. Since, it was a chance recovery,

and there is no evidence, on record, that any independent witness was present, at the time thereof, the question of joining him, did not at all arise.

If, any independent witness, had been joined, after the search and recovery, then his evidence would have been of no avail. On account of the

mere fact that no independent witness could be joined on account of non-availability, at the time of recovery, the evidence of the official witnesses,

cannot be distrusted and disbelieved, due to their official status. Their evidence is as good, as that of any other independent witness. In the face of

the evidence of the official witnesses only, the Court is required to scrutinize the same, carefully and cautiously. After careful and cautious scrutiny,

if the Court comes to the conclusion, that the same does not suffer from any serious infirmity, the same can be believed. The evidence of the official

witnesses, in the instant case, has been subjected to in depth scrutiny, and nothing came to the fore, which may go to discredit the same. In Akmal

Ahmed v. State of Delhi, 1999 (2) RCR (Cri) 265 : 1999 (2) RCC 297 (SC), 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 v. Sunil, 2000 (1) SCC 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.

In Appabhai and Another Vs. State of Gujarat, 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 witness, 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, in this regard, being without merit, must fail and the same stands

rejected.

It was next submitted by the Counsel for the appellants, that there was a delay of seven days in sending the sample to the office of the

Chemical Examiner, which remained unexplained, as a result whereof the possibility of tampering with the sample parcel could not be ruled out.

The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The mere fact that the delay, in sending the

samples, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcel

was tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the prosecution,

to complete the link evidence. The other evidence, produced by the prosecution, has been subjected to in-depth scrutiny, and, it has been found to

be cogent, convincing, reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the

sample parcels, until the same reached the office of the Chemical Examiner. Above all, there is report of the Chemical Examiner Ex.PG, which

clearly proves that the seals on the samples, were intact, and agreed with the specimen seals sent. The report of the Chemical Examiner Ex.PG, is

per-se admissible into evidence, in its entirety, as per the provisions of Section 293 Cr.P.C. The delay in sending the samples, to the office of the

Chemical Examiner, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to

prove that the sample parcel, remained untampered with, until the same reached the office of the Chemical Examiner, the matter would have been

different. In State of Orissa v. Kanduri Sahoo, 2004 (1) RCR (Criminal) 196 : 2004 (2) Apex Criminal 110 (SC), it was held that mere delay in

sending the sample to the Laboratory is not fatal, where there is evidence that the seized articles remained in safe custody. In Narinder Singh a

Nindi v. State of Punjab, 2005(3) RCR(Criminal) 343, which was a case, relating to the recovery of 4 Kgs. of opium, the samples were sent to

the office of the Chemical Examiner, after 23 days. All the samples were intact. In these circumstances, it was held that, in the face of the other

cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, to prove the completion of link evidence, it could not be held

that the possibility of tampering with the samples, could not be ruled out. The principle of law, laid down, in the aforesaid authorities, is fully

applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 7 days, in sending the samples, to the office of the

Chemical Examiner, did not at all matter much. In this view of the matter, the submission of the Counsel for the appellants, being without merit,

must fail, and the same stands rejected.

It was next submitted by the Counsel for the appellants, that there was no corroboration to the evidence of Tehal Singh, PW2, through any

source. They further submitted that Tehal Singh was having grudge against the accused, as alleged by them, in their statements u/s 313 Cr.P.C.,

and, as such, they were falsely implicated. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Even the

evidence of a single witness, if carries a ring of truth, can be implicitly relied upon. It is the quality of evidence and not the quantity, which is

required to be taken into consideration. The evidence of a sole witness, if found to be reliable, conviction can be based thereon. The evidence of

Tehal Singh, SI, PW2, and Bachan Singh Randhawa, the then DSP, PW4, who were also with the Police party at the time of search and seizure

has been subjected to in-depth scrutiny. The same has been found to be cogent and trust-worthy. Nothing could be brought out, during the course

of their cross-examination, which may go to suggest that the accused were falsely implicated. They had no ill-will, grudge or enmity against the

accused to falsely implicate them in the instant case. Harcharan Singh, Inspector and Bishan Dass, Investigating Officer could not be examined as

they died during the trial of the Case. No doubt, the accused alleged in their statements that Tehal Singh was inimical towards them, and telegram

Ex.D4 in this regard was sent. It may be stated here that the statement of Amarjit Kaur, DW1, wife of Aroor Singh, accused is not at all reliable.

She stated that her husband Aroor Singh and Nihan Singh, accused, were present in their house and nothing was recovered from them. She further

stated that they were falsely implicated. She further stated that after 10 days they gave a telegram Ex.D4 to the Chief Justice regarding the false

implication of the accused. The telegram was given, much after the recovey, and it could be said to be an after-thought move to save the accused

from the clutches of law. In the face of cogent and convincing evidence of the prosecution witnesses, the plea of the accused of false implication

taken by them, in their statement 313 Cr.P.C., and the evidence of Amarjit Kaur, DW1, pale into insignificance. Amarjit Kaur, DW1 being the

wife of accused, Aroor Singh, was out and out to help him and that is why she stated that he was falsely implicated. The trial Court was right in

placing reliance on the evidence of SI Tehal Singh, PW2 and DSP Bachan Singh Randhawa, PW4, to come to the conclusion, that the accused

committed the offence. The submission of the Counsel for the appellants, in this regard, being without merit, must fail and the same stands rejected.

It was next submitted by the Counsel for the appellants, that no investigation was conducted by the Investigating Officer as to what was the

origin of the contraband. They further submitted, that in the absence of such an investigation, the accused could not be said to be in conscious

possession of the opium. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The accused were found

in possession of a bag containing 10 kgs opium. Both of them were the riders of the motor- cycle, on which a jute bag was kept. They were having

special means of knowledge, as to how the said bag containing opium, came on the motor cycle and how they were in possession thereof. They

also have special means of knowledge, as to where the bag containing opium was being taken. They, however, failed to furnish any explanation,

with regard to the possession of the bag, containing opium. Once the possession of the accused, in respect of the contraband, is proved, then

statutory presumption under Sections 54 and 35 of the Act, starts operating against them. Thereafter, it is for the accused, to rebut that statutory

presumption. In the instant case, the accused, miserably failed to rebut the said 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 they were in conscious

possession of the contraband. Section 54 of the Act ibid reads as under:-

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 manufacture of any narcotic drug or psychotropic substance

or controller 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.

Section 35 which relates to the presumption of culpable mental state, is extracted as under:

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.

From the conjoint reading of the provisions of Sections 54 and 35, referred to hereinbefore, it becomes abundantly clear, that once an

accused, is found to be in possession of a contraband, he is presumed to have committed the offence, under the relevant provisions of the Act, until

the contrary is proved. According to Section 35 of the Act ibid, the Court shall presume the existence of mental state, for the commission of an

offence, and it is for the accused to prove otherwise. In Madan Lal and another v. State of H.P., 2003 (4) RCR (Criminal) 100: 2004 (1) Apex

Criminal 426 : 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.

The facts of Madan Lal''s 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. All the

accused were convicted and sentenced by the trial Court, holding that they were found in conscious possession of charas, despite the fact, that one

of the accused admitted his conscious possession, of the contraband. 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, 10 Kgs opium was found on the motor-cycle, of which they were the riders. The facts of Madan Lal''s case

(supra) are similar and identical to the facts of the present case. The principle of law, laid down, in Madan Lal''s case (supra) is fully applicable to

the facts of the present case. In the instant case, in their statements, u/s 313 Cr.P.C., the accused took up the plea, only of false implication. As

stated above, the accused, thus, miserably failed to rebut the statutory presumption, referred to above. Thus, their conscious possession, in respect

of the contraband, was proved, and, as such, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands

rejected.

It was next submitted by the Counsel for the appellants, that by no stretch of imagination, the bulk which was allegedly recovered from the bag,

being carried by the accused, could be taken, as opium recovered from the accused. They further submitted, that if the morphine content existing,

in the sample parcel, sent to the Chemical Examiner, is taken into consideration, then only 200 grams opium was allegedly recovered from the

accused, which falls within the ambit of non-commercial quantity. They also placed reliance on Ansar Ahmed v. State (Govt. of NCT of Delhi),

2005 (4) RCR(Crl.) 393, in support of their contention. The submission of the Counsel for the appellants, in this regard, does not appear to be

correct. The facts of the aforesaid case, clearly go to show that the same related to the recovery of heroin. As per entry No. 56, of the notification,

against heroin, diacetylmorphine has been recorded. According to this entry 5 grams heroin falls within the ambit of small quantity whereas, 250

grams or above heroin falls within the ambit of commercial quantity. It is diacetylmorphine content, which can be taken into consideration, to

determine as to how much heroin was recovered from a particular accused. In these circumstances, in Ansar Ahmed''s case (supra), a Single

Bench of the Delhi High Court held that diacetylmorphine (heroin) was 2.5% in one kg of brown powder, recovered, and, as such, the actual

weight of the recovered heroin came to be 2.5 grams, which was less than small quantity (5 grams). In the instant case, it was not heroin but

opium, which was recovered from the accused. The definition of opium is given in Section 2(xv). According to Section 2 (xv) of the Act opium

means (a) the coagulated juice of the opium poppy and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium

poppy. Under the definition of opium derivative, in Section 2(xvi) any preparation containing more than 0.2 percent of morphine has been

described as such. From the definition, it is evident, that any mixture,with or without any neutral material of the coagulated juice, is to be taken as

opium and not only the morphine content, contained in the bulk, is required to be taken as opium. According to entry No. 92 of the notification,

aforesaid, 25 grams opium has been described as small quantity and 2.5 kgs opium and above has been described as commercial quantity. From

the, definition of opium referred to above, and from entry 92 of the notification, it, thus, becomes clear that it is the entire bulk, including the neutral

material, containing more than 0.2 percent morphine, which is required to be taken into consideration, for coming to the conclusion, as to whether

commercial or non-commercial quantity of opium was recovered. It is not only the content of morphine, which is required to be taken into

consideration, for coming to the conclusion, as to whether, commercial or non-commercial quantity of opium was recovered from the accused. In

these circumstances, no help can be drawn, by the Counsel for the appellants, from Ansar Ahmed''s case (supra). In the instant case, 10 kgs

opium was recovered from the accused and not 200 grams as submitted by the Counsel for the appellants. Even the report of the Chemical

Examiner, was not challenged by the appellants, by summoning him, for the purpose of cross-examination. The report of the Chemical Examiner is

admissible in toto, u/s 293 Cr.P.C. Until and unless the same is challenged, by summoning him, as a witness, for the purpose of cross-examination,

no doubt can be raised against the same. The facts of the aforesaid authority, are distinguishable. The ratio of law laid down therein is, thus, not

applicable to the instant case. The submission of the Counsel for the appellants, in this regard, being without merit, must fail and the same stands

rejected.

It was next submitted by the Counsel for the appellants that no question was put to the accused, in their statements, u/s 313 Cr.P.C. that they

were in conscious possession of the bag, containing opium. They further submitted that under the circumstances, the accused did not commit any

offence. It may be stated here, that in the statements u/s 313 Cr.P.C., the accused are only required to be put up the incriminating circumstances

appearing against them, in the prosecution evidence. They were not required to be put either the provisions of law, or the presumption of law,

operating against them, under the provisions of law in their statements, u/s 313 Cr.P.C. In the instant case, the accused were put specific questions

that they were found riding the motor-cycle, on which a bag containing opium was lying. They were, thus, made aware of the factum that they were

in possession of the bag containing opium. Once the possession of the accused, in respect of the contraband is proved, then statutory presumption

under Sections 54 and 35 of the Act, starts operating against them. Thereafter, it is for the accused, to rebut that statutory presumption. In the

instant case, the accused, miserably failed to rebut the said presumption. Under these circumstances, the submission of the Counsel for the

appellants, in this regard, being without merit, must fail and the same stands rejected.

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

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.

For the reasons recorded, hereinbefore, Criminal appeals No. 49-SB of 2000 and 1604-B of 2000 are dismissed. The judgment of conviction

and the order of sentence dated 7.12.1999, are upheld. If the accused/appellants are on bail, their bail bonds, shall stand cancelled. The Chief

Judicial Magistrate, Moga, 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.

No specific order was passed, by the trial Court, regarding the confiscation or otherwise of the Motor Cycle, in question. The trial Court is

directed to initiate proceedings, regarding the confiscation or otherwise of the Motor Cycle, in question which was being used for transporting

opium, in accordance with the provisions of law, complete the same, and submit report within three months, from the date of receipt of a copy of

the judgment.