Gaba Ram vs State of Punjab

Surinder Gupta, J.—The appellants faced trial and were convicted and sentenced for the offence punishable u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''NDPS Act'').

The prosecution case, in brief, is that on 04.11.1999, a police party headed by SI Nachhattar Singh of Police Station Barnala was going on patrolling and reached T-point in the area of village Khuddi Kalan, where a tractor-trolley was found parked and the appellants were sitting in it. On seeing the police party, they tried to escape by jumping from the trolley but were apprehended. Surjit Singh, Ex-sarpanch of Patti Sekhwan along with one Jarnail Singh came to the spot on a scooter and was associated in the police party. On checking the trolley, some bags under the tarpaulin were found. SI Nachhatter Singh informed the appellants of his intention to make search of the trolley and informed the appellants that if they so desired, can call any Magistrate or Gazetted Officer. Vide memos Ex. PA, Ex. PB and Ex. PC, the appellants opted for the search to be conducted in the presence of a Gazetted Officer. DSP Sukhwant Singh Gill was called to the spot by giving a wireless message, who on arrival, was apprised of the facts of the case. He gave his introduction to the appellants. The appellants reposed confidence in him for the search of the bags in the trolley. Five bags containing 35 kg 500 gms each of poppy-husk were found in the tractor-trolley, out of which two samples of 250 gms from each bag were separated. Separate parcels of the samples were prepared. The samples and the bags with remaining poppy-husk were sealed with the seal of SI Nachhattar Singh bearing impression ''NS'' and DSP Sukhwant Singh Gill bearing impression ''SSG''. The specimen of seals Ex. PG was prepared. After use, DSP Sukhwant Singh Gill retained his seal with him while the Investigating Officer handed over his seal to Ex-Sarpanch Surjit Singh. The bags and parcels containing contraband along with sample seal were taken into possession vide recovery memo Ex. PD. The tractor bearing registration No. RRC-3148 along with the trolley and tarpaulin was also taken into possession vide recovery memo Ex. PE. Ruqa Ex. PF was sent to the police station, whereupon formal FIR Ex. PF/1 was recorded. After completing the required formalities at the spot, SI Nachhattar Singh brought the case property and the appellants to the police station where they were produced before Inspector Harbans Singh, SHO who after verifying the contents, put his seal bearing impression ''HS'' on the samples, bags containing poppy husk and the specimen seal.

After completion of investigation, challan against the appellants was presented in the court. They were charge-sheeted for the offence punishable u/s 15 NDPS Act to which they pleaded not guilty and claimed trial.

In support of its case, the prosecution examined MHC Darshan Singh as PW1, Investigating Officer SI Nachhattar Singh as PW2, ASI Manjit Singh, recovery witness as PW3, Inspector Harbans Singh SHO as PW4, DSP Sukhwant Singh Gill as PW5, Constable Shankar Lal as PW6 and Head Constable Bashir Mohammad as PW7.

After completion of prosecution evidence, statements of appellants u/s 313 Code of Criminal Procedure were recorded, wherein they denied the allegations levelled against them and pleaded their false implication. They have stated in their defence as follows:-

We are labourers. We were employed by Surjit Singh for doing the labour work. We had a dispute with him over the payment of wages. He is very thick with SI Nachattar Singh and DSP Sukhwant Singh. At his instance, we have been falsely implicated in this case. Because Surjit Singh did not want to pay the wages to us. A tractor was caught by the police and that Tractor was falsely connected with us in this case.

The appellants did not examine any witness in their defence and only produced the report u/s 173 Cr.P.C. (Ex. DA).

The trial Court convicted the appellants for the offence punishable u/s 15 of NDPS Act and awarded sentence to undergo rigorous imprisonment for ten years each and to pay a fine of Rs. 1 lac each.

I have heard learned Amicus Curiae for the appellants and learned State counsel and have gone through the case file with their assistance.

It has been argued by learned Amicus Curiae for the appellants that it is a case where the prosecution has failed to prove the conscious possession of the appellants over the contraband. It is specific case of the appellants that they were engaged as labourers by Surjit Singh, who has got them involved in this case due to dispute of wages. They were not the owners of the tractor-trolley. Tulsi Devi, owner of the tractor was not associated in this case. Surjit Singh, the alleged independent witness joined by the police was a stock witness. The presence of DSP Sukhwant Singh Gill at the spot is doubtful as he had signed memo Ex. PD, Ex. PE, Ex. PH, Ex. PJ and Ex. PK prepared at the spot with a different ink than the ink used for signatures of other witnesses. Independent witness to whom the seal after use was handed over was not examined. There is unexplained delay of 25 days in sending the samples to the Chemical Examiner. All these facts taken up together go a long way to prove the false implication of the appellants in this case.

Learned State counsel has argued that the appellants belong to Rajasthan. Their defence version is not supported by any evidence or even is probable. There is nothing on file to connect Surjit Singh named by the appellants with the present case. The prosecution has examined the Investigating Officer, the recovery witness and the DSP called at the spot in whose presence the recovery was effected and their testimony is without any aspersion or motive of false implication. SHO Harbans Singh has also appeared as PW4 and fully supported the prosecution case. He has stated that after recovery, the appellants and the case property was produced before him. He after verifying the investigation, put his own seal on the samples, bags of poppy-husk and sample seal. As per the report of Chemical Examiner, the samples were found intact when it reached the office of Chemical Examiner. As such, the delay of 25 days in sending the samples, is not material. Initially, the samples were sent on 15.11.1999 but certain objections were raised by the Chemical Examiner and samples were again deposited there on 30.11.1999.

The submissions made by learned Amicus Curiae and learned State counsel call for determination of following points in this appeal:-

(i) Whether the recovery of poppy-husk was effected from the conscious possession of the appellants;

(ii) Effect of delay in sending the samples to the Chemical Examiner;

(iii) Effect of non-examination of independent witness and whether the testimony of prosecution witnesses is reliable.

Now, I proceed to discuss the above contentions raised by learned Amicus Curiae for the appellants as follows:-

(i) Whether the recovery of poppy-husk was effected from the conscious possession of the appellants;

The appellants belong to Rajasthan. The recovery was effected in this case at Barnala, which is about 250 kms from the place of residence of appellants. The police party which apprehended the appellants was on routine patrolling. On witnessing the police party, the appellants jumped from the trolley and tried to run away. The question which arise for consideration is if the appellants were not conscious of the contraband in the trolley, what was the necessity for them to jump from the trolley and try to escape.

Learned Amicus Curiae has relied upon the observations of Hon''ble Supreme Court in case of Avtar Singh and Others Vs. State of Punjab and has argued that the mere fact that there was contraband below the tarpaulin in the trolley in which the appellants were sitting do not reflect their conscious possession. In the aforesaid case, the police had apprehended a truck carrying 640 kgs of poppy-husk and apprehended the driver of the vehicle and two persons sitting on the back side on the bags. It was observed that the persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of goods.

In this case, the appellants were sitting in a static trolley and on witnessing the police party, they have become active and tried to escape by jumping from the trolley, this reflect their conscious possession over the contraband lying in the trolley. The question as to whether in such circumstances the narcotic was recovered from conscious possession of person sitting on bags was dealt with by the Hon''ble Supreme Court in the case of State of Punjab Vs. Lakhwinder Singh and Another, and it was observed as follows:-

In the backdrop of the aforesaid settled position of law we have to examine the facts of the present case in order to hold as to whether or not the respondents could be said to have been in conscious possession of the contraband goods. Evidence was led by the prosecution to establish that the respondents were found sitting on the aforesaid bags of poppy husk. It was also stated by the Sub Inspector as also the Assistant Sub Inspector that the presence of the respondent-accused at such an early hour i.e. 8.00 a.m. near a religious place with such large number of bags and their sitting on them and on seeing the police party their conduct of trying to hide themselves behind the bags prove and establish that they were in possession of the aforesaid bags. The very fact that they tried to hide themselves behind the bags made the police party suspicious about the contents of the bags which led to a search of the said bags and on search being carried out in accordance with law, the aforesaid suspicion that the bags contained contraband was confirmed.

The respondents, during the trial, could not give any satisfactory reply as to how and why they came from Haryana and were found sitting on bags of poppy husk. Their subsequent conduct of hiding behind the bags also shows their guilty mind.

In the case of State of Punjab Vs. Hari Singh and Others, the accused were sitting on the bags lying in the sugarcane field and heap of earth, the contraband in the bags was held to be in their conscious possession. In the case of State of Gujarat and Others Vs. Essar Oil Limited and Another, the recovery of contraband from the canter was held as recovery effected from the conscious possession of driver of the canter.

The facts and circumstances of this case clearly reflect that the appellants were in conscious possession of the bags containing the contraband. The argument of learned Amicus Curiae for the appellants in this regard, as such, is repelled.

(ii) Effect of delay in sending the samples to the Chemical Examiner;

Initially there was delay of about 11 days in sending the samples to the Chemical Examiner but due to some objections, the samples finally reached the office of Chemical Examiner on 30.11.1999 i.e. with a delay of about 25 days. The seals of the samples were intact on its arrival in the office of Chemical Examined with the specimen seal. There is nothing on the file to suggest that samples were tampered at any point of time. Hon''ble Supreme Court in case of Jarnail Singh Vs. State of Punjab, did not find delay of 12 days in sending the samples as fatal to the case of the prosecution.

In Hardip Singh V State of Punjab 2008 (8) SCC 557, it was held that when the seals are intact even in delay in sending the seals to the Laboratory is not in fatal to the prosecution case.

The Hon''ble Supreme Court in the case of State of Punjab Vs. Lakhwinder Singh and another (supra) did not find the delay of seven days in sending the samples to Chemical Examiner as relevant when it is proved that the seals were intact when the samples reached the office of Chemical Examiner.

In view of the above circumstances the delay in sending the samples to the chemical examiner pales into insignificance and the argument of learned Amicus Curiae for the appellants in this respect is rejected.

(iii) Effect of non-examination of independent witness and whether the testimony of prosecution witnesses is reliable.

Learned Amicus Curiae has argued that Surjit Singh Ex-Sarpanch to whom the seal was entrusted after use, has not been examined by the prosecution for the reasons best known to it. In fact, the petitioners were working as labourers with this Surjit Singh and due to wages dispute, he got the appellants implicated in this case as he is a stock witness of the police as is reflected from the final report (Ex. DA) submitted by the police in case bearing FIR No. 190 dated 17.07.2001 of Police Station Barnala.

Firstly, I take the defence version taken by the appellants that they were working as labourers with Surjit Singh. This fact is not substantiated from any evidence on file. The mere suggestion to this effect to the Investigating Officer or any other witness do not prove that the appellants were engaged as labourers by Surjit Singh. The recovery was effected in the evening hours when the appellants were sitting in a trolley parked at a remote place. In case, they were labourers and sitting in the trolley, as such, there was no occasion for them to jump from the trolley and try to run away. They are residents of Ganga Nagar (Rajasthan) which is a place far away from Barnala. There is no evidence to connect tractor-trolley in which the contraband was lying with Surjit Singh. This tractor-trolley was also registered at District Hanumangarh in the name of Tulsi Devi and having a registration number of Rajasthan. The fact that the prosecution has not associated the owner of the tractor trolley in this case in no manner either prejudice the case of the appellants or provide any support to their defence version. As such, the defence plea of appellants has no substance.

The prosecution witnesses have fully supported the prosecution case and the appellants have not been able to bring out any animus or reason for drawing the inference of their false implication in this case.

The mere fact that Surjit Singh was also cited as a witness in case registered by the police of Police Station Barnala after about 20 months of the present case, does not mean that he can be termed as a stock witness. Surjit Singh, as per the prosecution version, was an Ex-Sarpnach and it is quite natural for the police to call and rely upon such witness. He has not appeared in this case to support the prosecution case. As is usually seen that the independent witnesses firstly avoid to join the police investigation and even if they join, they avoid appearing as witness.

Now the question is as to whether any adverse inference is to be drawn against the prosecution due to non-examination of independent witness.

The Hon''ble Division Bench of this Court in the case of Surender Vs. State of Haryana and Others, has observed that the testimony of official witnesses cannot be discarded until it is proved that they have any animus or hostility against the accused for his false implication. While discussing the question of non-joining of the independent witnesses, it was observed that they are averse to join the police and depose in favour of prosecution as they are afraid of the fact that joining the police and deposing in favour of the prosecution may expose them to serious consequences.

It was held by the Hon''ble Supreme Court of India in Ajmer Singh Vs. State of Haryana, though in cases like the case in hand, independent evidence is required, but accused cannot be acquitted merely because no independent witness produced. In the case of Sumit Tomar Vs. The State of Punjab, Hon''ble Supreme Court on the point of non-examination of independence witness joined by the police, has observed as follows:

In view of the above discussion, we hold that though it is desirable to examine independent witness, however, in the absence of any such witness, if the statements of police officers are reliable and when there is no animosity established against them by the accused, conviction based on their statement cannot be faulted with. On the other hand, the procedure adopted by the prosecution is acceptable and permissible, particularly, in respect of the offences under the Narcotic Drugs and Psychotropic Substances Act.

In view of the above observations and keeping in view the fact that testimonies of recovery witnesses and supervisory officer are reliable, unshattered and without any animus, this argument of learned Amicus Curiae for the appellant is repelled.

Conclusion:

As a sequel to my discussion above, this appeal has no merits and is dismissed. The conviction of the appellants for offence punishable u/s 15 NDPS Act and sentence awarded by the trial court is affirmed. Copy of this judgment be sent to the trial Court and the Chief Judicial Magistrate, Barnala to initiate further steps to take the appellants into custody and send them to Jail for receiving the remaining part of sentence.