Inderjit Singh vs The State of Punjab

Sham Sunder, J.—This appeal is directed against the judgment of conviction, and the order of sentence dated 6.12.2007, rendered by the

Judge, Special Court, Ludhiana, vide which he convicted the accused/appellant, for the offence, punishable u/s 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 six months, for

having been found in possession of 3 bags, each containing 35 kgs. Poppy-husk, without any permit or licence.

The facts, in brief, are that on 3.9.2002, Baldev Singh, SHO, alongwith other police officials, was going from Sabzi Mandi, Khanna, towards

Military ground, in connection with the search of bad elements, and near the park, the accused was seen sitting, on the three bags, who on seeing

the police party got perturbed. He was apprehended, and on enquiry, he told his name as Inderjit Singh S/o Nahar Singh. On search, each bag

was found containing 35 kgs. Poppy-husk. Two samples of 250 grams, from each of the bags, were taken out, and the remaining poppy-husk,

was kept into the same bags. The samples, and the bags, containing the remaining poppy husk, 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, formal FIR was registered. Rough site

plan of the place of recovery, was prepared. The accused was arrested. After the completion of investigation, the accused was 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 him, to which he pleaded not guilty, and claimed judicial trial.

The prosecution, in support of its case, examined Balwant Singh, HC (PW-1), Gurdeep Singh, C-I (PW-2), Harbans Singh, ASI, (PW-3), Om

Parkash, ASI, (PW- 4), Balbir Singh, DSP, (PW-5), Baldev Singh, retd. Inspector, the Investigating Officer, at the relevant time SHO, (PW-6),

and Ranjit Singh, ASI, (PW-7). Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence.

The statement of the accused, u/s 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the

prosecution evidence. He pleaded false implication. It was stated by him, that he was picked up, by the police, from his house on 1.9.2002, at

about 12.00 PM, in the presence of Sarpanch, and other villagers, and taken to the Police Station. It was further stated by him, that there he was

falsely involved, in this case. He, however, examined Amarjit Singh, Constable (DW-1), and Om Parkash, MMHC (DW-2). Thereafter, he

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/appellant, 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 the

accused/appellant.

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 appellant, at the very outset, submitted that since the accused was allegedly found sitting on the bags, in a park, a number of

independent witnesses, must be available, but none of them, was joined. He further submitted that Madho Ram, independent witness, who was

joined, was neither cited as a witness, nor examined. He further submitted that, on account of this reason, the case of the prosecution became

highly doubtful. The submission of the counsel for the appellant, in this regard, does not appear to be correct. It was a chance recovery. No secret

information had been received against the accused. The accused was all of a sudden found sitting on the bags, containing the poppy-husk, in a

park. There is no evidence, on the record, that at the time of search and seizure, any independent witness, was present. No doubt, it has come in

the evidence of Baldev Singh, the Investigating Officer, that after the recovery, he had sent Constable Paramjit Singh, to bring some respectables,

from the Mandi, who brought Madho Ram, an independent witness. Madho Ram, was neither cited as a witness, nor examined. It may be stated

here, that Madho Ram, arrived at the spot, after the recovery had already been effected. His examination, would not have mattered much, as he

could not be said to be a witness to the recovery. In these circumstances, if he was neither cited, as a witness, nor examined, it did not cast any

doubt, on the case of prosecution. In the absence of corroboration, through an independent source, to the evidence of the official witnesses, the

prosecution case cannot be distrusted and disbelieved. 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 indepth scrutiny, and

nothing came to the fore, which may go to discredit the same. In Akmal Ahmed v. State of Delhi, 1999( 2) RCR(Criminal) 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.

9-A. 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. In this view of the matter, the

submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.

It was next submitted by the Counsel for the appellant, that seal after use was not handed over by the Investigating Officer, to Madho Ram,

independent witness, as a result whereof, it could be said that the possibility of tampering with the sample parcels, could not be ruled out. The

submission of the Counsel for the appellant, in this regard, does not appear to be correct. It may be stated here, that, under these circumstances,

the Court is required to take into consideration the entire evidence, as also the facts and circumstances of the case, to come to the conclusion, as

to whether, any prejudice was caused to the accused, on account of non-handing over the seal used by the officials, for sealing the material,

recovered from him, to an independent witness. If after over-all consideration of the facts and circumstances, and evidence, on record, the Court

comes to the conclusion, that on account of this reason, no prejudice was caused to the accused, then certainly, it could not be said that the case of

the prosecution became doubtful. Even, otherwise, there is evidence, in abundance, in the shape of the statements of prosecution witnesses, that

none tampered with the case property, and the samples, till the same (samples) were deposited in the office of the Chemical Examiner. When from

the cogent, convincing, reliable, and trustworthy evidence, it is proved that none tampered with the sample parcels, and the case property

throughout, then the Court cannot act on conjectures and surmises or mere far-fetched possibilities, that the sample parcels, might have been

tampered with. In Piara Singh v. The State of Punjab, 1982 (2) CLR 447, a case decided by a Full Bench of this Court, the seal, on the sample of

illicit liquor recovered from the accused, was not entrusted to an independent person forthwith. Similarly, the independent person, though entrusted

with the seal by the Investigating Officer, was not produced as a witness. In these circumstances, it was held that this fact alone, was not sufficient

to affect the merits of the case, and the prosecution case could not be thrown out, on that score alone. It was further held, in this case, that it was

not incumbent upon the Police Officer, to hand over the seal to a third person forthwith, and even, in cases, where he had done so, it was not

obligatory for him, to produce such person, as a witness, during trial, as there was no statutory requirement, whatsoever, to this effect. The

principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. Non-entrustment of seal to an independent

witness, in view of the cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, regarding the completion of link

evidence, did not at all affect the merits of the case. In this view of the matter, the submission of the Counsel for the appellant, being without merit,

must fail, and the same stands rejected.

It was next submitted by the Counsel for the appellant, that the conscious possession of the accused, in respect of the bags, containing poppy

husk, was not proved. He further submitted that the bags, were allegedly lying in the park, an open and accessible place, to all and sundry, and the

mere fact that the accused was allegedly found sitting on the same, did not mean that he was in conscious possession thereof. Since, the bags,

containing poppy-husk, referred to above, were lying in the park, on which he was sitting, it was for him to explain, as to how, those bags,

containing poppy-husk, came to that place, and in his possession. He, however, failed to do so. Once the possession of the accused, and his

control, over the bags, containing poppy- husk, was proved, the statutory presumption, under Sections 54 and 35 of the Act, operated against

him, that he was in conscious possession thereof. Then the onus shifted on to him, to prove that he was not in conscious possession thereof. The

accused, however, failed to rebut the statutory presumption aforesaid. In Megh Singh v. State Punjab, 2003 (4) RCR Cri 319 : 2004 (1) Apex

Criminal 482, on 22.2.1993, three persons were found sitting, on the gunny bags, containing poppy husk. The appellant was arrested, while the

other two fled. 25 bags containing poppy husk, were found, at the spot, which were seized. The appellant was convicted and sentenced by the trial

Court, and the appeal filed by him, was also dismissed by the High Court. The Apex Court, upheld the conviction and sentence of the appellant,

observing that he was in conscious possession. The word `conscious'' means awareness about a particular fact. It is the state of mind, which is

deliberate or intended. It was further held that possession, in a given case, need not be physical possession, but can be constructive, having power

and control over the article, while the person whom physical possession is given holds it, subject to that power or control. It, therefore, could not

be said that the accused was not aware of the bags, containing poppy-husk. It was not a small quantity of poppy-husk, which was concealed, and,

as such, could escape the notice of the accused. Keeping in view the principle of law, laid down, in the aforesaid authority, the provisions of

Sections 54 and 35 of the Act, and the evidence produced, on record, the trial Court, in my opinion, was right in coming to the conclusion, that the

accused was in conscious possession of 3 bags, each containing 35 kgs. poppy-husk. In this view of the matter, the submission of the Counsel for

the appellant, being without merit, must fail, and the same stands rejected.

The Counsel for the appellant, however, placed reliance on State of Punjab v. Balkar Singh and another, 2004 SCC (Cri) 838, Ishwar Singh

v. State of Punjab, 2008 (2) RCR(Cri) 417 (P&H), and Raj Kumar v. State of Punjab, 2005 (1) RCR (Criminal) 70 (P&H), in support of his

contention. In Balkar Singh''s case (supra), decided by the Apex Court, from para No. 3 of the report, it is evident that the accused were found

near the place where the bags, were lying in the fields, which was open and accessible, to all and sundry. The accused belonged to different

villages. No investigation had been conducted, by the Investigating Officer, as to how, the bags, came there, and who brought the same. Under

these circumstances, the Apex Court held that the mere presence of the accused, near the bags, could not be taken as their possession. In Ishwar

Singh and Raj Kumar''s cases (supra), decided by this Court, it was held that the accused was not in conscious possession of the contraband. The

facts of the aforesaid authorities, are clearly distinguishable, from the facts of the instant case. In the instant case, as stated above, the accused was

sitting, on the bags. It was within his special means of knowledge, as to under what circumstances, he was sitting, on the bags containing poppy-

husk. He got perplexed, on seeing the police party. In case, he was not aware of the contents of the bags, there was no necessity, on his part, to

get perplexed. His conduct, therefore, showed that he was having a guilty conscious. Even otherwise, in view of the principle of law, laid down, in

Megh Singh''s case (supra), decided by the Apex Court, the facts whereof, are similar and identical to the facts of the instant case, the principle of

law, laid down, in Ishwar Singh and Raj Kumar''s cases (supra), decided by this Court, to the contrary, shall not hold the field. As stated above,

since the facts of State of Punjab''s case (supra), are distinguishable, from the facts of the present case, no help, therefore, can be drawn, by the

Counsel for the appellant, from the aforesaid authorities. The submission of the Counsel for the appellant, being without merit, must fail, and the

same stands rejected.

It was next submitted by the Counsel for the appellant, that though the alleged recovery was effected on 3.9.2002, yet the samples were sent

to the office of the Chemical Examiner, on 10.9.1996, and, thus, there was a delay of 7 days, in sending the same, to the office of the Chemical

Examiner, which remained unexplained, and, as such, the possibility of tampering with the samples, could not be ruled out. The submission of the

Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that 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 indepth 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.PX, which clearly

proves that the seals on the samples, were intact, and agreed with the specimen seals sent. The report of the Chemical Examiner is per-se

admissible into evidence, in its entirety, as per the provisions of Section 293 Cr.P.C. The delay in sending the sample, 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 untempered 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 (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 @ 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 appellant, being without merit, must fail, and the same stands rejected.

It was next submitted by the Counsel for the appellant, that the conduct of the Investigating Officer, in this case, was highly blameworthy, as he

did not deposit the case property, in the Judicial malkhana, as directed by the Judicial Magistrate Ist Class, vide order Ex.PD/1. He further

submitted that, on the other hand, he kept the same, with him. The submission of the Counsel, for the appellant, in this regard, seems to be correct.

It is to be seen, what is the effect of non-compliance of the order, Ex.PD/1, on the prosecution case. The mere irregularity of the Investigating

Officer, in not depositing the case property, in the Judicial malkhana, as directed by the Judicial Magistrate Ist Class, did not at all cause any dent,

in the prosecution case, as the evidence produced by the prosecution, in this case, as stated above, has been found to be cogent, convincing,

reliable, and trustworthy. Harbans Singh, ASI (PW-3) stated that on 4.9.2002, he obtained 3 bags, containing poppy-husk, alongwith six sample

parcels, sealed with the seal bearing impressions `BS'' and `OP'', and also obtained specimen impression of the seal, from Balwant Singh, MMHC.

He further stated that he produced the entire case property, alongwith the accused, before Sh. Gurmail Singh Dhillon, SDJM, Khanna, by moving

an application, Ex.PD, and the order of the SDJM, on the same was passed, as Ex.PD/1. He further stated that, on return to the Police Station, he

redeposited the entire case property with seals intact, with Balwant Singh, MMHC. This clearly goes to show that the Investigating Officer, did not

keep the case property with him, but, on the other hand, the same was deposited with the MMHC. Ex.PA, is the affidavit of Balwant Singh, HC

(PW-1). He also made a similar statement. From the evidence, it was proved that none tampered with the sample parcels, until the same reached

the office of the Chemical Examiner. If, Harbans Singh, ASI, and the MHC, did not carefully go through the order of the Judicial Magistrate Ist

Class, that did not create any doubt on the prosecution case. In this view of the matter, the submission of the counsel for the appellant, being

without merit, and the same stands rejected.

The defence evidence, produced by the accused, was duly discussed by the trial Court in para Nos. 13 and 14 of its judgment. The trial Court

gave valid reasons, for disbelieving and discarding the defence evidence, produced by the accused. On reappraisal of the defence evidence,

produced by the accused, this Court is also inclined to agree with the conclusion arrived at, by the trial Court. There is no reason to interfere with

the conclusion, arrived at, by the trial Court, that the defence evidence was unreliable. In this view of the matter, no help can be drawn, by the

appellant, from the defence evidence.

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, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 6.12.2007, are

upheld. If the accused/appellant is on bail, then his bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Ludhiana, 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 compliance report, to this Court, within a period of three months.

The S.S.P., Khanna, is directed to look into the matter, as to who was responsible, for not complying with the order, Ex.PD/1, passed by the

Judicial Magistrate Ist Class, Khanna, on 4.9.2002, for deposit of the case property, in Judicial malkhana, and instead depositing the same, in the

Police malkhana. The officials/officers who are found at fault, for not complying the order aforesaid, of the Judicial Magistrate Ist Class, be dealt

with, in accordance with the provisions of law, and action taken report be sent, to this Court.