Sukhpal Singh and Others vs State of Punjab

Inderjit Singh, J.—The present appeal has been filed by the appellants against the judgment of conviction dated 07.04.2009 and order of sentence dated 08.04.2009, passed by the learned Special Judge, Ferozepur, whereby, they were held guilty and convicted and sentenced to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs. 1,00,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year each u/s 18(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The brief facts of the prosecution case are that on 23.06.2006 Major Singh, Incharge CIA Staff, Abohar along with other police officials was present in the area of Waryam Khera in connection with naka bandi. At about 4.00 P.M., one jeep bearing registration No. GUD-4712 was seen coming from the side of village Pati Sadiq. It was signalled to stop. The driver of the jeep did not stop it. The said jeep was followed and stopped. The person who was driving the jeep told his name as Makhan Singh. Gurtej Singh was sitting with him on the front seat and the person sitting with Gurtej Singh told his name as Sukhpal Singh. The Investigating Officer told them that he suspect some intoxicant material in their jeep and the search was to be conducted and whether they wanted to get the search of the jeep from him or from some Gazetted Officer or Magistrate. They opted to get the search conducted in the presence of some Gazetted Officer. Then, information was sent and DSP Parampal Singh reached at the spot at 6.00 P.M. He also disclosed his identity and also told the accused about their legal right as to whether they wanted the search from him or from some other Gazetted Officer or Magistrate. Accused reposed confidence in DSP. Thereafter, as per directions of DSP Parampal Singh, Investigating Officer conducted search of the jeep, as a result of which, opium was recovered from the tool box under the seat of the driver. Two samples of 10 grams each were separated and separate sample parcels were prepared. The remaining bulk, on weighment, came to be 9.980 kgs., which was put in a plastic box and its parcel was prepared. Both the sample parcels and bulk parcel were sealed with the seal of Investigating Officer bearing impression "MS" and with the seal of DSP bearing impression "PS". Sample seals were prepared. The entire case property along with jeep were taken into police possession vide recovery memo Ex. P8. One pistol of .12 bore loaded and in working condition was also recovered from accused Gurtej Singh from the left side of the pant worn by the him. Accused were arrested. Rough site plan was prepared. Statements of witnesses were recorded. On return to the police station, Investigating Officer produced all the accused along with case property before ASI Ram Sarup, who was officiating SHO, who verified the facts of this case and interrogated all these accused and fixed his seal bearing impression "RS" on both the sample parcels. He took entire case property in his possession vide memo Ex. P18. After necessary investigation challan was presented against the accused-appellants.

On presentation of challan against accused-appellants, copies of challan and other documents were supplied to them u/s 207 Cr.P.C. Finding prima facie case, the accused-appellants were charge-sheeted u/s 18(b) of the NDPS Act, 1985, to which they pleaded not guilty and claimed trial.

In support of its case, prosecution examined PW-1 SHO Major Singh, Incharge CIA Staff, who is the Investigating Officer. He mainly deposed regarding investigation conducted by him in the present case and also deposed regarding recovery effected from the appellants. PW-2 DSP Parampal Singh, who was called at the spot and also sealed the parcels with his seal bearing impression "PS", also deposed regarding recovery from the appellants. PW-3 Constable Harjinder Singh, is a formal witness, who tendered into evidence his affidavit Ex. P12. PW-4 ASI Ram Sarup, who was officiating SHO deposed as per prosecution version and also regarding the fact that case property, accused etc. were produced before him and he verified the investigation and also sealed the parcels with his seal. PW-5 SI Chhinder Singh mainly deposed that on 23.06.2006, he joined the police party headed by SI Major Singh. He has also deposed regarding recovery from the accused-appellants as per prosecution version.

At the close of prosecution evidence, the accused-appellants were examined u/s 313 Cr.P.C. and they denied the correctness of the evidence and pleaded themselves as innocent. Accused-appellant Sukhpal Singh further pleaded that he got love marriage with the daughter of Constable Gurdip Singh namely Sandeep Kaur. Constable Gurdip Singh was not happy with the marriage and due to this reason Constable Gurdip Singh got him involved in a false case and later on, he was acquitted in the said case on 03.06.2006. He further pleaded that on 20.06.2006, he along with Gurtej Singh and Makhan Singh went to Malout on the jeep of Makhan Singh for getting effected compromise with Gurdip Singh regarding his marriage but they were arrested from Malout at the instance of Gurdip Singh and thereafter, they have been falsely implicated in this case. Accused-appellants Makhan Singh and Gurtej Singh have taken the same plea.

In defence, accused-appellants examined DW-1 Head Constable Rashpal Singh, who brought register No. 19 and register daily diary for the period 23.06.2006 to 27.06.2006. He deposed that SHO remained in the police station from 24.06.2006 to 27.06.2006.

On the basis of the evidence produced by the prosecution, accused-appellants were convicted and sentenced as stated above by the learned Special Judge, Ferozepur.

At the time of arguments, learned counsel for the appellants argued that the prosecution has failed to prove conscious possession of the accused specially of appellant Sukhpal and Gurtej Singh. Learned counsel for the appellant further argued that it is a road side recovery and no independent witness was joined. He next argued that when the case property was produced in the Court, the seal of bulk parcel was found broken. Learned counsel for the appellant further argued that there was no compliance of Section 57 of the NDPS Act in the present case. He next argued that CFSL form was not prepared at the spot. Learned counsel for the appellants further argued that appellants have been falsely implicated in the present case at the instance of Constable Gurdip Singh as appellant Sukhpal Singh had married with daughter of Constable Gurdip Singh without his consent. He next argued that defence version is more probable. Learned counsel for the appellants, therefore, argued that there being merit in the appeal, it should be accepted and appellants should be acquitted.

On the other hand, learned Asstt. Advocate General, Punjab argued that the prosecution has duly proved its case by leading cogent evidence. Recovery was sudden and by chance.

There was no time for the Investigating Officer to join independent witness. Conscious possession of the accused-appellants has been duly proved. He further argued that seals of the samples were intact and tallied while giving report by the Chemical Examiner and all the mandatory provisions of the NDPS Act have been duly complied with. There are no material improvements in the statements of PWs. Defence version is false. Learned State counsel, therefore, argued that there being no merit in the appeal, the same should be dismissed.

I have gone through the evidence on record minutely and very carefully and have heard learned counsel for the appellants and learned Asstt. Advocate General, Punjab for the respondent-State.

From the evidence on record, I find that there is no merit in the arguments of learned counsel for the appellants. First of all, as per prosecution version, recovery from the accused-appellants is sudden and by chance. There was no opportunity to join independent witness at that time with the police. Otherwise also, it is settled law that testimony of police official is as good as of any other witness unless some enmity or motive is alleged and proved against him. In the present case, no such enmity or motive of the police officials has been proved by leading cogent evidence. The Investigating Officer is Sub-Inspector Major Singh and DSP Parampal Singh was called at the spot and the search was made in his presence. Even, if it is taken that appellant Sukhpal Singh had married with daughter of Constable Gurdip Singh, there is no cogent evidence on record to show that Constable Gurdip Singh has any influence over all the police party including DSP Parampal Singh. There is no evidence on record that where Constable Gurdip Singh was posted. There is also no evidence on record to show that appellant Sukhpal Singh had married with daughter of Constable Gurdip Singh or that Constable Gurdip Singh was unhappy. In the statements u/s 313 Cr.P.C., accused have admitted that they were going on the jeep driven by appellant Makhan Singh. Therefore, they admitted that they all were travelling in the jeep at the same time and were apprehended by the police.

As regarding, false implication, I find that 10 kgs. of opium was recovered from the tool box of the jeep. Such a huge recovery cannot be falsely planted. Otherwise also, Constable Gurdip Singh was not accompanying the police party. He was not posted in the police station at that time nor there is any evidence that he was posted in the same district. Therefore, why all these police officials (PWs) will falsely implicate the accused-appellants. Hence, defence version is not believable. There is no reason or ground to disbelieve the statements of Investigating Officer, recovery witnesses, PW-2 DSP Parampal Singh and officiating SHO. The PWs have consistently deposed regarding the prosecution version and recovery of opium from the accused-appellants. There are no material improvements or material contradictions in the statements of the PWs, which may go to the root of the case. Non joining of independent witness does not create any reasonable doubt in the prosecution version.

As regarding the argument that seal was found broken on the bulk parcel when it was produced in the Court, I find that bulk parcel was produced in the Court after more than 21/2 years of the recovery. The samples were sent in intact condition and the seals on the parcels were found tallied by the Chemical Examiner. PWs have deposed that neither they tampered with nor they allowed anybody to tamper with the case property, especially the sample parcels. Moreover, the production of the case property before the Court is the corroborative piece of evidence. Even, non production of the case property is not fatal to the prosecution case. The mere fact that CFSL form No. 29 was not prepared at the spot, also does not show that there was any tampering in the samples. The case property was produced before the Illaqa/Duty Magistrate, Fazilka on 24.06.2006 and the Court directed the Investigating Officer to keep the sample parcels in the safe custody. The inventory was also produced before the Court. The sample parcel was handed over to Constable Rajinder Singh for depositing the same in the office of Chemical Examiner, Amritsar on 27.06.2006 i.e. without any unnecessary delay.

As regarding report u/s 57 of the NDPS Act, I find that provisions of Section 57 of the NDPS Act are directory in nature and not mandatory, Non compliance of Section 57 of the NDPS Act will also not create any doubt in the prosecution version. Otherwise also, PW-2 DSP Parampal Singh, who is senior officer, was present at time of recovery.

As regarding conscious possession, I find that Hon''ble Supreme Court has laid down law in Madan Lal and Another Vs. State of Himachal Pradesh, in which it is held as under:--

Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record is that all the accused persons were travelling in a vehicle and as noted by the Trial Court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.

Section 20(b) makes possession of contraband articles an offence. Section 20 appears in chapter IV of the Act which relates to offence for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.

It is highlighted that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.

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, as was observed in Superintendent & Remembrancer of Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes.

The word ''conscious'' means awareness about a particular fact. It is a state of mind which is deliberate or intended.

As noted in Gunwantlal Vs. The State of Madhya Pradesh, possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power.

The word ''possession'' means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother''s flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD).

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 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.

I have gone through the above-said judgment. This judgment fully applies to the facts of the present case. It is the case of the accused-appellants that they were travelling in a jeep and were going to meet Constable Gurdip Singh, which shows that they were known to each other. Therefore, it is for them to show how they came to be in possession of contraband. It is for the appellants to establish as to how they were not in conscious possession. It is specifically held by the Hon''ble Supreme Court that once possession is established, a 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. Therefore, conscious possession of accused-appellants has been duly proved.

Learned counsel for the appellants has placed reliance on judgments passed in Paramjit Singh Vs. State of Punjab 2008 (2) RCR (Crl.) 514 and Gurdip Singh Vs. State of Punjab 2003 (4) RCR (Crl.) 407. I have gone through the facts of above-said two judgments.

These judgments will not apply in the present case, in view of law laid down by Hon''ble Supreme Court in Madan Lal and another''s case (supra).

In view of the above, I do not find merit in the arguments of the learned counsel for the appellants. The prosecution has duly proved its case by leading cogent evidence beyond reasonable doubt against the appellants. PWs are trustworthy, truthful and reliable witnesses. There are no material contradictions or material improvements in their statements, which may go to the root of the case. Mandatory provisions of NDPS Act have been complied with. Defence version is not believable.

Therefore, I find that appellants have rightly been convicted and sentenced the appellants and judgment of conviction and order of sentence passed learned Special Judge, Ferozepur are upheld.

Resultantly, the appeal stands dismissed. As appellants Sukhpal Singh and Makhan Singh are on bail, their bail bond stand annulled and they are directed to surrender themselves before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against them in accordance with law.