Crl. Appeal No.495-DBA of 2008 1
Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.495-DBA of 2008
Date of Decision : 22.01.2009
State of Haryana ...Appellant
Versus
Sandeep Kumar ....Respondent
Crl. Appeal No.2409-SB of 2007
Kulbir Singh ...Appellant
Versus
State of Haryana ....Respondent
Crl. Appeal No.2469-SB of 2007
Babli @ Tarsem Singh ...Appellant
Versus
State of Haryana ....Respondent
CORAM:HON'BLE MR. JUSTICE K.S.GAREWAL
HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. S.S.Pattar, Senior Deputy Advocate General, Haryana,
for the appellant, in Criminal Appeal No.495-DBA of 2008.
Mr. Pankaj Midha, Advocate,
for Sandeep Kumar-respondent, in
Criminal appeal No.495-DB of 2008.
Mr. Satnam Singh Gill, Advocate,
for Kulbir Singh, appellant,
in Criminal Appeal No.2409-SB of 2007.
Mr. S.S.Siao, Advocate,
with Ms. Shweta Bawa, Advocate,
for Babli @ Tarsem Singh-appellant, in
Criminal Appeal No.2469-SB of 2007.
Crl. Appeal No.495-DBA of 2008 2
Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
Mr. S.S.Pattar, Senior Deputy Advocate General, Haryana,
for the respondent, in Criminal Appeal Nos.2409-SB of 2007 &
2469-SB of 2007.
SHAM SUNDER, J.
This judgment shall dispose of Criminal Appeal No.495-DBA
of 2008, filed by the State of Haryana, against the judgment of acquittal
dated 25.8.2007, of Sandeep Kumar, Criminal Appeal No.2409-SB of
2007, filed by Kulbir Singh, appellant, and Criminal Appeal No.2469-SB
of 2007, filed by Babli @ Tarsem Singh, appellant, against the judgment
of conviction dated 25.8.2007, and the order of sentence dated
27.8.2007, rendered by the Special Judge, Jind, vide which he convicted
Kulbir Singh and Babli @ Tarsem Singh, accused/appellants, for the
offence, punishable under Section 15 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 six months each, for having been found in possession of 280
kgs. poppy-husk, (falling within the ambit of commercial quantity),
without any permit or licence. As stated above, Sandeep Kumar, accused,
was acquitted vide the aforesaid judgment, by the trial Court.
2. The facts of the prosecution case, as summarized, proceeded in
the manner, that on 3.5.2006, a V.T.message was received in Police
Station Garhi, from the Deputy Superintendent of Police, Narwana. The
message was to the effect, that one Scorpio vehicle having 2/3 occupants,
was found moving under suspicious circumstances, and a picket be held,
Crl. Appeal No.495-DBA of 2008 3
Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
with a view to check the same. On receipt of this message, Dalbir Singh,
ASI, Police Station Garhi, alongwith other police officials reached Data
Singhwala, in Govt. Jeep, bearing No.HR-21 B-8395, driven by Suresh
Kumar, Constable. At that place, the other police officials met the police
party. Thereafter, Dalbir Singh, ASI, held a picket. One Scorpio vehicle
(silver coloured), bearing No.HR-37 B-4278, came from Narwana side.
On seeing the police party, the vehicle all of a sudden stopped. As soon
as it stopped, two persons alighted from the back side of the said vehicle.
The driver of the said vehicle got down from the driver’s seat. All of
them fled towards the fields. Dalbir Singh, ASI, and the other police
officials got suspicious, about the conduct of the occupants of the said
vehicle, who after getting down therefrom, started running. They were
asked to stop, but they did not do so. They were chased. While running
two of them put off their shoes. However, at a distance of about half
kilometer, all of them were apprehended. One of them, disclosed his
name as Sandeep Kumar, who was driving the vehicle, whereas, the
remaining two persons, disclosed their names as Babli @ Tarsem Singh
S/o Gurmel Singh and Kulbir Singh S/o Nikka Singh. Babli @ Tarsem
Singh and Kulbir Singh, who put off their shoes, while running, sustained
injuries, in the fields, where the wheat crop was lying. Thereafter, they
were brought near the aforesaid vehicle. The vehicle was checked. It
was found containing 06 gunny bags and 02 plastic bags. Dalbir Singh,
ASI, suspected that the bags aforesaid, contained contraband. Notice
under Section 50 of the Act, was served upon them, as to whether, they
wanted the search of the bags, to be conducted, in the presence of a
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Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
Gazetted Officer, or a Magistrate. They, however, opted that they wanted
the search to be conducted, in the presence of a Gazetted Officer.
Thereafter, Dalbir Singh, ASI, called the DSP, Narwana, to the spot, who
reached there. He directed Dalbir Singh, ASI, to conduct the search of
the gunny and plastic bags. The gunny and the plastic bags, were taken
out of the vehicle aforesaid. On search, each gunny bag, was found
containing 40 kgs. poppy-husk, whereas each plastic bag, was found
containing 20 kgs. poppy-husk. Two samples of 100 grams, from each of
the gunny and the plastic bags, were taken out, and the remaining poppy-
husk, was kept in the same gunny and plastic bags. The samples, gunny
and the plastic bags, containing the remaining poppy-husk, were
converted into parcels, duly sealed, and taken into possession, vide a
separate recovery memo, alongwith the Scorpio vehicle. Ruqa, Ex.PG,
was sent to the Police Station, on the basis whereof, formal FIR, Ex.PE,
was registered. Rough site plan, Ex.PA, of the place of recovery, was
prepared. The statements of the witnesses were recorded. The accused
were arrested. After the completion of investigation, the accused were
challaned.
3. On their appearance, in the Court, the copies of documents,
relied upon by the prosecution, were supplied to the accused. Charge
under Section 15 of the Act, against all the accused, as also under
Sections 467 and 471 of the Indian Penal Code, against Sandeep Kumar,
accused, was framed, to which they pleaded not guilty, and claimed trial.
4. The prosecution, in support of its case, examined Raghbir
Singh, SI (PW-1), before whom the case property, samples, witnesses,
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Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
and the accused, were produced, by Dalbir Singh, ASI, and who after
verification of the same, affixed his own seal, Kuldeep Gupta, Draftsman
(PW-2), who prepared the scaled site plan, Ex.PB, Ram Kumar,
Constable (PW-3), a formal witness, who tendered his affidavit, Ex.PC,
Raj Kumar, HC (PW-4), another formal witness, who tendered his
affidavit, Ex.PD, Krishan Kumar, EHC (PW-5), who delivered special
report, Ex.PE, to the Illaqa Magistrate, Krishan Kumar, Photographer
(PW-6), who took the photographs, Exs.P1 and P2, of Scorpio vehicle, as
also of the gunny bags, and of the plastic bags, and the negatives
whereof, are Exs.P3 and P4, Surender Singh Malik, DSP (PW-7), a
witness to the search and seizure, Dalbir Singh, SI (at the relevant time
ASI) (PW-8), the Investigating Officer, who deposed, with regard to the
search of the accused, and seizure of the contraband, Jagat Singh, SI
(PW-9), who submitted the report, under Section 173 Cr.P.C., after the
completion of investigation, and Rajinder Singh, ASI (PW-10), a witness
to the search and seizure. Thereafter, the Public Prosecutor for the State,
tendered report of the Forensic Science Laboratory, Ex.PM, and after
giving up Mahabir Singh, HC, he closed the prosecution evidence.
5. The statements of the accused, under Section 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.
6. Kulbir Singh, accused, in his statement, under Section 313
Cr.P.C. stated that the prosecution witnesses deposed falsely, against him.
Crl. Appeal No.495-DBA of 2008 6
Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
7. Babli @ Tarsem Singh and Sandeep Kumar, accused, also took
up the same plea, in their statements, under Section 313 Cr.P.C., as was
taken up by Kulbir Singh, accused.
8. Sandeep Kumar, accused, however, produced Harpal Kaur
(DW-1), Raj Kumar, (DW-2), and Hem Raj, (DW-3), in their defence.
Thereafter, the accused closed the defence evidence.
9. 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 Kulbir Singh and Babli @ Tarsem Singh,
accused, whereas, acquitted Sandeep Kumar, accused, as stated
hereinbefore.
10. Feeling aggrieved, against the judgment of conviction, and the
order of sentence, rendered by the trial Court, Criminal Appeal Nos.2409-
SB of 2007 and 2469-SB of 2007, were filed by Kulbir Singh and Babli
@ Tarsem Singh, appellants, respectively, and the State of Haryana, filed
Criminal Appeal No.495-DBA of 2008, against the acquittal of Sandeep
Kumar.
11. We have heard the Counsel for the parties, and have gone
through the evidence and record of the case, carefully.
12. The Counsel for appellants, Kulbir Singh and Babli @ Tarsem
Singh, at the very outset, submitted that the prosecution miserably failed
to prove the conscious possession of the accused, in relation to the
poppy-husk, allegedly recovered from the Scorpio vehicle, and, as such,
they did not commit any offence, punishable under Section 15 of the Act.
Crl. Appeal No.495-DBA of 2008 7
Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
The submission of the Counsel for the appellants, in this regard, does not
appear to be correct. Kulbir Singh and Babli @ Tarsem Singh, were
sitting on 06 gunny bags, and 02 plastic bags, containing poppy-husk,
which were lying in the said vehicle. It was not a small quantity of
poppy-husk, which was recovered from the said vehicle. It was a big
haul of poppy-husk, which was being transported, in the said vehicle. It
could not escape the notice of both these accused. It was within the
special means of knowledge of the accused, as to wherefrom these bags,
containing poppy-husk, were loaded, in the said vehicle, and to which
destination the same were being transported, for the purpose of sale, on
commercial basis, for minting money. They were required to explain the
circumstances, regarding the existence of the bags, containing poppy-
husk, in the said vehicle. They, however, failed to furnish any
explanation, in this regard. Under these circumstances, the possession of
the accused, and their control over the bags, containing poppy-husk,
stood proved. Once the possession of the accused, and their control over
the contraband was proved, then statutory presumption under Sections 54
and 35 of the Act, operated against them, that they were in conscious
possession thereof. Thereafter, it was for them, to rebut the presumption,
by leading cogent and convincing evidence. However, the appellants
failed to rebut that 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 :-
Crl. Appeal No.495-DBA of 2008 8
Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
“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 controlled 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.”
13. 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
Crl. Appeal No.495-DBA of 2008 9
Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007Court 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.”
14. 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 Vs. State of H. P. 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
Crl. Appeal No.495-DBA of 2008 10
Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
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.”
15. 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, 06 gunny bags and 02 plastic
bags, containing poppy-husk were found in the Scorpio vehicle, in which
they were travelling. 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, under Section 313
Cr.P.C., the accused/appellants took up the plea, only of false
Crl. Appeal No.495-DBA of 2008 11
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Crl. Appeal No.2469-SB of 2007
implication. They also failed to prove, as to how, they were found
travelling together in Scorpio, which was not a public vehicle. No plea
was taken up by Kulbir Singh and Babli @ Tarsem Singh, that they only
took a lift in the said vehicle, as no public transport, was available. They
also did not take up the plea that they were merely engaged as labourers,
for loading and unloading the bags, and, therefore, they did not know,
what was contained therein. No plea was also taken up, by them, that they
were friendly to the driver of the said vehicle, and with a view to provide
him company, they sat therein. As stated above, the accused 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.
16. It was next submitted by the Counsel for Kulbir Singh and
Babli @ Tarsem Singh, appellants, that no independent witness was
joined, despite availability, and, as such, the case of the prosecution
became doubtful. In the instant case, no specific information had been
received against the accused, that they were bringing contraband, in a
particular vehicle, and, in case, a picket was held, they could be
apprehanded and huge quantity of narcotics could be recovered from
them. Only a general information was received, by the DSP, who
conveyed the same through V.T.message to the Police Station. It was
only thereafter, keeping in view the urgency of the matter, that Dalbir
Singh, ASI of Police Station Garhi, accompanied by other police
officials, went in the area of village Data Singhwala, and held a picket. It
Crl. Appeal No.495-DBA of 2008 12
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Crl. Appeal No.2469-SB of 2007
was, per chance, that the aforesaid vehicle, the occupants whereof, were
the accused came. The place where the picket had been held, is at a
distance of about half kilometer from Village Data Singhwala, as is
evident from the statement of Dalbir Singh, ASI (PW-8), the
Investigating Officer. Dalbir Singh, ASI, during the course of his cross-
examination, stated that some persons had reached the spot of their own.
He further stated that an attempt was made to join those persons, in the
investigation, but they showed their inability. It means that an effort was
made by Dalbir Singh, ASI, the Investigating Officer, to join the
independent witnesses, but none was ready to join. Under these
circumstances, the conduct of the Investigating Officer, could not be said
to be blemished, in any manner. It is a matter of common experience that
independent witnesses, shun joining, a search or seizure with a view to
avoid wrath and displeasure of the accused, as also the complications,
which may arise later on, on account of their appearance in the Court,
from time to time, for their evidence. It has also become the general
tendency of the people to criticize the Police and the Courts, for their
failures, but when an occasion arises, to seek their assistance, at the time
of search or seizure of a contraband, or detection of crime, they show
their disinterest. The mere fact that no independent witness could be
joined, on account of the aforesaid reasons, in itself, could not be said to
be sufficient to disbelieve and distrust the evidence of the prosecution
witnesses. 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
Crl. Appeal No.495-DBA of 2008 13
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Crl. Appeal No.2469-SB of 2007
the evidence of the official witnesses, inspires confidence, and does not
suffer from any serious infirmity, then no formidible reason can be
coined, to disbelieve the same. 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. The evidence of the
prosecution witnesses, on such scrutiny, has been found to be cogent,
convincing, reliable and trustworthy. In Akmal Ahmed Vs. State of
Delhi, 1999(2) RCC 297 (S.C.), 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 Vs. Sunil (2000)I
S.C.C. 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.”
17. In Appa Bai and another Vs. State of Gujrat, AIR 1988 S.C.
696, 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
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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. The submission of
the Counsel for the appellants, in this regard, being without merit, must
fail, and the same stands rejected.
18. It was next submitted by the Counsel for Kulbir Singh and
Babli @ Tarsem Singh appellants, that the samples were deposited in the
office of the Forensic Science Laboratory, after a delay of 14 days,
without any explanation, and, as such, the possibility of tampering with
the same, until the same reached the Laboratory, 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 no explanation was furnished for
depositing the samples, in the Laboratory, after delay, in itself, is not
sufficient, to come to the conclusion, that the same were tampered with,
at any stage of the case. 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
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prosecution, has been subjected to indepth scrutiny. 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 Forensic
Science Laboratory. Above all, there is report of the Forensic Science
Laboratory, Ex.PM, which clearly proves that the seals on the parcels,
were found intact, and tallied with the specimen seals sent. The report of
the Forensic Science Laboratory, 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 Forensic Science Laboratory,
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
parcels, remained untampered with, until the same reached the office of
the Forensic Science Laboratory, the matter would have been different. In
State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.),
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 Vs. 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,
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laid down, in the aforesaid authorities, is fully applicable to the facts of
the instant case. Therefore, in the instant case, unexplained delay of 14
days, in sending the samples to the office of the Forensic Science
Laboratory, 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.
19. It was next submitted by the Counsel for Kulbir Singh and
Babli @ Tarsem Singh, appellants, that no written notice, under Section
50 of the Act, was served, upon the accused, as to whether, they wanted
the search of the vehicle, and the bags, in the presence of a Gazetted
Officer or a Magistrate. The submission of the Counsel for the
appellants, in this regard, does not appear to be correct. In the instant
case, joint notice, Ex.PF, in terms of Section 50 of the Act, was served
upon the accused, and their reply, Ex.PF/1, was obtained. However, it
may be stated here, that in the instant case, the provisions of Section 50
of the Act, were not applicable, as the recovery was not effected, from the
person of the accused, but from the aforesaid Scorpio vehicle, of which
they were the occupants. Had the recovery been effected from the person
of the accused, the provisions of Section 50 of the Act, would have been
attracted to this case. In State of Punjab Vs. Baldev Singh, 1999(6)
S.C.C. 172, a Constitution Bench of the Apex Court, settled beyond
doubt, that the language of Section 50, was implicitly clear, that the
search had to be, in relation to a person, and not in relation to the
premises, vehicles, or articles. Similar view was taken in Smt. Krishna
Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. In
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these circumstances, it can be said that the consistent, and particularly the
view of the larger Bench of the Supreme Court, appears to be that the
search, must relate to the person, and not vehicles, other luggage and
articles, and then alone the provisions of Section 50 would be attracted.
Since, in view of the principle of law, laid down, in the aforesaid
authorities, the provisions of Section 50 were not applicable, to the
search, in the instant case, the trial Court was right in recording
conviction and awarding sentence, to the accused. The submission of the
Counsel for the appellants, in this regard, being devoid of merit, is
rejected.
20. It was next submitted by the Counsel for Kulbir Singh and
Babli @ Tarsem Singh appellants, that the Scorpio vehicle, did not
belong to the accused. It was further submitted that no investigation was
conducted, by the Investigating Officer, as to whom the said vehicle
belonged, and as to what was the origin of the poppy-husk. They further
submitted that, on account of this reason, the case of the prosecution
became highly doubtful. It was further submitted that even the owner of
the vehicle, was not challaned. It is, no doubt, true that the Investigating
Officer, committed some irregularity by not ascertaining the name of the
owner of the vehicle. Even the owner of the vehicle was not joined,
during the course of investigation. However, the mere fact that the
Investigating Officer, committed some irregularity or illegality, during
the course of investigation, did not mean that the benefit thereof, must go
to the accused. If such irregularity or illegality of the Investigating
Officer is taken into consideration, and benefit thereof, is given to the
Crl. Appeal No.495-DBA of 2008 18
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accused, then every dishonest or negligent Investigating Officer, shall
leave a lacuna, in the prosecution case, so as to create an escape route for
the accused. On account of non-ascertaining the ownership of the
vehicle, and non-joining the owner thereof, during the course of
investigation, the liability of the accused was not at all affected. Kulbir
Singh and Babli @ Tarsem Singh, were found transporting the
contraband, in the aforesaid vehicle. Mere possession of the contraband,
is an offence, punishable under Section 15 of the Act. Both the accused,
namely Kulbir Singh and Babli @ Tarsem Singh, thus, committed, the
offence punishable under Section 15 of the Act. The trial Court was right
in coming to such a conclusion. In this view of the matter, The
submission of the Counsel for the appellants, being without merit, must
fail, and the same stands rejected.
21. It was next submitted by the Counsel for Kulbir Singh and
Babli @ Tarsem Singh, appellants, that, as soon as an information, was
received by the DSP, that a Scorpio vehicle was moving about, under
suspicious circumstances, he did not send the same to the superior
Officer. The submission of the Counsel for the appellants, in this regard,
is without merit. The DSP himself being a Gazetted Officer, as soon as,
he received the information, he sent the same to the Police Station, with a
view to alert the police officials, to hold a picket, to detect that vehicle,
and check the same, as to whether, the same was carrying some
contraband or not. Even otherwise, there was no specific information
against the accused, that they were coming in a particular vehicle, loaded
with the contraband, and could be apprehended, if a raid was conducted,
Crl. Appeal No.495-DBA of 2008 19
Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
or a picket was held, with huge quantity thereof. The DSP was not
required to send the said general information, received by him, to any
superior Officer. By not sending the same, to a superior Officer, he did
not commit violation of any of the provisions of law. In this view of the
matter, the submission of the Counsel for the appellants, in this regard,
being devoid of merit, is rejected.
22. It was next submitted by the Counsel for Kulbir Singh and
Babli @ Tarsem Singh, appellants, that the seal after use, remained with
the police officials, and, as such, the possibility of tampering with the
sample parcels, and changing the contents thereof, until the same reached
the office of the Forensic Science Laboratory, could not be ruled out. It
may be stated here, that no independent witness could be joined, in this
case, on account of the aforesaid reasons. Under these circumstances, the
seal after use was handed over to the police officials. The mere fact that
the seal after use, was handed over to the police officials, did not, in any
way, go to prove that the sample parcels, were tampered with, in any
manner. It may be stated here, that as soon as, Dalbir Singh, ASI,
reached the Police Station, he produced the case property before the
SHO, who after checking the same, affixed his own seal. Thereafter, the
case property, and the sample parcels, alongwith sample impression of
the seals, were entrusted to Dalbir Singh, ASI, by the SHO, and he
deposited the same, with the MHC. The seals remained with the other
officials. As soon as the case property, and the sample parcels, were
deposited with the MHC, it could not be said that the same remained with
those officials, who were in possession of the seals. Even otherwise,
Crl. Appeal No.495-DBA of 2008 20
Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
sufficient cogent, convincing, reliable, and trustworthy, evidence was
produced, by the prosecution, to prove that none tampered with the
sample parcels, until the same reached the office of the Forensic Science
Laboratory. There is no requirement of law, to hand over the seal, after
use, to an independent witness. The Investigating Officer is to investigate
a large number of cases. He cannot be expected to keep a number of
seals. Only if, he has one seal for use, the sanctity thereof, can be
maintained. In Piara Singh Vs. The State of Punjab 1982 C.L.R. (2)
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, later on, 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 trial, 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 upon 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, by the
Investigating Officer, 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
Crl. Appeal No.495-DBA of 2008 21
Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
this view of the matter, the submission of the Counsel for the appellants,
being without merit, must fail, and the same stands rejected.
23. It was next submitted by the Counsel for Kulbir Singh and
Babli @ Tarsem Singh, appellants, that though, according to the
prosecution case, 06 gunny bags and 02 plastic bags, containing poppy-
husk, were allegedly recovered from the accused, but only 5 seals were
affixed. They further submitted that, as such, the case of the prosecution,
became highly doubtful. The submission of the Counsel for the
appellants, in this regard, does not appear to be correct. Dalbir Singh,
ASI, in his statement, stated that the gunny bags and the plastic bags,
were sealed with his seal ‘DS’. He further stated that the samples were
also sealed with his seal ‘DS’. He further stated that he affixed 3 seals of
‘DS’ on each sample parcel, and 5 seals of ‘DS’ on each gunny and plastic
bag. He also stated that the DSP also affixed one seal, bearing
impression ‘SS’ on each sample parcel, and each gunny and plastic bag.
From the careful perusal of the statement of Dalbir Singh, ASI, it is
evident, that on each sample parcel, he affixed 3 seals, whereas, on each
gunny bag and plastic bag, he affixed 5 seals. It does not mean that he
only affixed 5 seals on 5 bags. In these circumstances, the submission of
the Counsel for the appellants, being without merit, must fail, and the
same stands rejected. The trial Court was, thus, right in recording
conviction and awarding sentence, for the offence, punishable under
Section 15 of the Act, to Kulbir Singh and Babli @ Tarsem Singh,
accused.
24. Now coming to the appeal, filed by the State of Haryana,
Crl. Appeal No.495-DBA of 2008 22
Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
against the acquittal of Sandeep Kumar, it may be stated here, that the
same is liable to be dismissed, for the reasons to be recorded hereinafter.
It is, no doubt, true that the Appellate Court has got wide powers, to
scrutinize the entire evidence produced by the prosecution, while hearing
the appeal, against acquittal. However, if the view taken by the trial
Court, was the one, which could be possible, on the basis of the evidence
on record, then the Appellate Court, is required to be very slow in
interfering with its finding. The entire evidence produced by the
prosecution, qua Sandeep Kumar, has been carefully scanned. The trial
Court was right, in holding that, in case, Sandeep Kumar, was present, at
the spot, and allegedly tried to flee, why was he not got medico-legally
examined, after he was arrested, alongwith other accused. The trial Court
was also right, in holding, that when the other accused namely Kulbir
Singh and Babli @ Tarsem Singh, after apprehension were got examined
from the Doctor, injuries were found on their person, and had Sandeep
Kumar been apprehended, in the manner, deposed to by the prosecution
witnesses, and got medico-legally examined, the injuries on his person
would have also been found, indicating that the case of the prosecution
was truthful. The trial Court was, thus, right in holding that in the
absence of such medical examination, the presence of Sandeep Kumar, at
the time of the alleged recovery, and his apprehension was highly
doubtful. The trial Court was also right in holding that since the very
presence of Sandeep Kumar, at the time of alleged recovery, was
doubtful, it could not be said that he was in conscious possession of the
contraband, allegedly recovered, from the vehicle. The trial Court was
Crl. Appeal No.495-DBA of 2008 23
Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
also right in holding that Sandeep Kumar, belonged to Ludhiana,
whereas, Kulbir Singh and Babli @ Tarsem Singh, accused, belonged to
Dhuri, District Sangrur, the places which were far away from each other,
and, as such, there was no nexus, between him and the other accused.
The trial Court was also right, in placing reliance on the evidence of
Harpal Kaur (DW-1), Raj Kumar, (DW-2), Social Workers, and Hem Raj,
(DW-3), to come to the conclusion, that the possibility of false
implication of Sandeep Kumar, could not be ruled out. The view taken
by the trial Court, that accused Sandeep Kumar, was not found in
conscious possession of the poppy-husk aforesaid, nor was he the driver
of Scorpio vehicle, wherefrom, the alleged recovery was effected, could
be said to be possible, on the basis of the evidence produced by the
prosecution. The judgment of the trial Court, recording acquittal of
Sandeep Kumar, accused, does not suffer from any factual infirmity,
illegality, perversity, or mis-reading of evidence. Therefore, no ground,
whatsoever, is made out to interfere with the finding of the trial Court,
acquitting Sandeep Kumar. The said appeal, therefore, is liable to be
dismissed.
25. No other point, was urged, by the Counsel for the parties.
26. In view of the above discussion, it is held that the judgment of
conviction, and the order of sentence, qua Kulbir Singh and Babli @
Tarsem Singh, appellants, and the judgment of acquittal qua Sandeep
Kumar, 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.
Crl. Appeal No.495-DBA of 2008 24
Crl. Appeal No.2409-SB of 2007 &
Crl. Appeal No.2469-SB of 2007
27. For the reasons recorded, hereinbefore, all the appeals, referred
to hereinbefore, are dismissed. The judgment of acquittal dated
25.8.2007, qua Sandeep Kumar, and the judgment of conviction dated
25.8.2007, and the order of sentence dated 27.8.2007, qua Kulbir Singh
and Babli @ Tarsem Singh, are upheld. If Kulbir Singh and Babli @
Tarsem Singh, appellants, are on bail, their bail bonds, shall stand
cancelled. The Chief Judicial Magistrate, Jind, shall take necessary steps,
to comply with the judgment, in accordance with the provisions of law,
with due promptitude, on receipt of a copy thereof.
(K.S.GAREWAL) (SHAM SUNDER)
JUDGE JUDGE
January 22, 2009
Vimal