Crl. Appeal No.506-SB of 1999 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.506-SB of 1999
Date of Decision : 8.9.2008
Jaggu Singh S/o Nazir Singh, ....Appellant
resident of Ghanauri Kalan,
P.S.Sherpur.
Versus
The State of Punjab ....Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Deepak Arora, Advocate,
for the appellant.
Mr. S.S.Bhullar, DAG, Punjab,
for the respondent.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction, and the
order of sentence dated 9.3.1999, rendered by the Court of Addl. Sessions
Judge, Sangrur, vide which it convicted the accused/appellant, for the offence,
punishable under Section 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 one year, for having been found in possession of four bags,
each containing 35 Kgs. Poppy-husk, without any permit or licence.
2. The facts, in brief, are that, on 12.5.1993, Sukhdev Singh, ASI,
Crl. Appeal No.506-SB of 1999 2
alongwith other police officials, was going from village Jharon to village
Longowal, on a metalled road, in connection with patrol duty, and when the
police party reached the metalled road of village Longowal, Mithu Singh,
independent witness, met it, who was joined. Thereafter, the police party
started towards village Longowal. When the police party reached near a
deserted brick-kiln, in the area of Jharon, Jaggu Singh, accused, was seen sitting
on four bags, lying in that brick-kiln, who was apprehended. On search of the
bags, in accordance with the provisions of law, each gunny 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 in 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.
3. On his 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, was framed against him, to which he pleaded not guilty, and
claimed judicial trial.
4. The prosecution, in support of its case, examined Sukhdev Singh,
ASI (PW-1), the Investigating Officer, Ranjit Singh, SI, (PW-2), Mela Singh,
Constable (PW-3), Nirmal Singh, HC (PW-4), Gurdev Singh, SI (PW-5), and
Karanjit Singh, HC (PW-6). Thereafter, the Addl. Public Prosecutor for the
State, closed the prosecution evidence.
5. The statement of the accused, under Section 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
Crl. Appeal No.506-SB of 1999 3
him, that he was taken away by the police, in connection with some alleged theft
and later on, was falsely implicated, in this case. He, however, examined Ajit
Singh, HC (DW-1), in his defence. Thereafter, he closed his defence evidence.
6. 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, as stated hereinbefore.
7. 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.
8. I have heard the learned Counsel for the parties, and have gone
through the evidence and record, of the case, carefully.
9. The Counsel for the appellant, at the very outset, submitted that
though Mithu Singh, independent witness, was joined, yet he was not examined
by the prosecution, as a result whereof, it could be said that the prosecution
withheld the best evidence, in its possession. He further submitted that, an
adverse inference could be drawn, that had he been examined, he would not
have supported its case. The submission of the Counsel for the appellant, in this
regard, does not appear to be correct. No doubt, Mithu Singh, independent
witness, was joined, by the Investigating Officer, at the time of effecting the
recovery, yet he joined hands with the accused, during the trial of the case, and,
as such, was given up as won over by the Addl. Public Prosecutor for the State.
Under these circumstances, in my considered opinion, the Addl. Public
Prosecutor for the State, took a wise decision in giving up, such a witness, as he
very well knew that, in case, he was examined, he would damage the case of the
prosecution. In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it
was held that it is, undoubtedly, the duty of the prosecution to lay before the
Court, all material witnesses, available to it, whose evidence is necessary for
unfolding its case, but it would be unsound to lay down it, as a general rule, that
Crl. Appeal No.506-SB of 1999 4
every witness, must be examined, even though his evidence, may not be very
material or, even if, it is known that he has been won over or terrorized. In
Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this
Court, held that no adverse inference can be drawn, when the only independent
witness, was given up by the prosecution, as won over by the accused. It was
further held, in the said authority, that the panch witnesses, being human beings,
are quite exposed and vulnerable to human feelings of yielding, browbeating,
threats and inducements and giving up of the public witnesses, as won over, is
fully justified, in the present day situation prevailing in the society. In Karnail
Singh Vs. State of Punjab 1983 Criminal Law Journal, 1218 (DB), it was held
that where the independent witness was won over by the accused, and only the
officials witnesses were examined, who were considered to be not interested
persons, their evidence cannot be doubted, on the ground of their official status.
The principle of law, laid down, in the said authorities, is fully applicable to the
facts of the present case. In this view of the matter, the trial Court was, thus,
right in recording conviction and awarding sentence, to the accused. The
submission of the Counsel for the appellant, being without merit, must fail, and
the same stands rejected.
10. It was next submitted by the Counsel for the appellant,that though
the recovery was effected after sunset and before sunrise, yet the mandatory
provisions of Section 42 of the Act, were not complied with. It may be stated
here that there was no secret information, in this case. The recovery, in this
case, was effected per chance, when the accused was found sitting on 4 bags,
each containing 35 Kgs. poppy-husk, in a deserted brick kiln. Under these
circumstances, the provisions of Section 42 of the Act, were not at all applicable
to the instant case. On the other hand, the provisions of Section 43 of the Act,
were applicable to the instant case. With a view to properly deal with this plea,
it would be appropriate to notice the provisions of Sections 42 and 43 of the
Crl. Appeal No.506-SB of 1999 5
Act, which read as under :-
“42. Power of entry, search, seizure and arrest without warrant
or authorization – (1) Any such officer (being an officer superior
in rank to a peon, sepoy or constable) of the departments of
central excise, narcotics, customs, revenue, intelligence or any
other department of the Central Government or of the Border
Security Force as is empowered in this behalf by general or
special order by the Central Government or any such officer
(being an officer superior in rank to a peon, sepoy or constable)
of the revenue, drugs control, excise, olice or any other
department of a State Government, if he has reasons to believe
from personal knowledge or information given by any person
and taken down in writing, that any narcotic drug, or
psychotropic substance, in respect of which an offence
punishable under Chapter IV has been committed or any
document or other article which may furnish evidence of the
commission of such offence is kept or concealed in any building,
conveyance or enclosed place, may, between sunrise and sunset,
(a) enter into an search any such building,
conveyance or place;
(b) in case of resistance, break open any
door and remove any which any obstacle to such
entry;
(c) seize such drug or substance and all
materials used in the manufacture thereof and any
other article and any animal or conveyance which
has reason to believe to be liable to confiscation
under this Act and any document or other article
Crl. Appeal No.506-SB of 1999 6which he has reason to believe may furnish
evidence of the commission of offence under
Chapter IV relating to such drug or substance :
and
(d) detain and search, and, if he thinks
proper, arrest any person whom he has reason to
believe to have committed any offence punishable
under Chapter IV relating to such drug or
substance:
Provided that if such officer has reason to believe that
a search warrant or authorization cannot be obtained without
affording opportunity for the concealment of evidence or facility
for the escape of an offender, he may enter and search such
building, conveyance or enclosed place at any time between
sunset and sunrise after recording the grounds of his belief.
(2) Where an offence takes down any information in
writing under sub-Section (1) or records grounds for his belief
under the proviso thereto he shall forthwith send a copy thereof
to his immediate official superior.”
“43. Power of seizure and arrest in public place. — Any
officer of any of the department mentioned in Section 42 may —
(a) seize, in any public place or in transit,
any narcotic drug or psychotropic substance in
respect of which he has reason to believe an
offence punishable under Chapter IV has been
committed, and, along with such drug or substance,
any animal or conveyance article liable to
confiscation under this Act and any document or
Crl. Appeal No.506-SB of 1999 7other article which he has reason to believe may
furnish evidence of the commission of an offence
punishable under Chapter IV relating to such drug
or substance;
(b) detain and search any person whom he
has reason to believe to have committed an offence
punishable under Chapter IV, and if such person
has any narcotic drug or psychotropic substance in
his possession and such possession appears to him
to be useful, arrest him and any other person in his
company.
10-A. A conjoint reading of Sections 42 and 43 of the Act, shows that these
sections are independent of each other. Section 43 authorises any Officer of the
departments, mentioned in Section 42, for search, seizure, arrest and detention
in any public place, or in transit, in respect of any narcotic drug or psychotropic
substance, in respect of which, he has reason to believe that an offence
punishable under Chapter IV has been committed, whereas, Section 42 of the
Act empowers the Officer for search, seizure and arrest in a building,
conveyance or enclosed place. When the information is with regard to
concealment of some narcotic, in a vehicle, in transit, then the provisions of
Section 43 of the Act are applicable. The word ‘public place’ has been
explained for the purpose of Section 43 of the Act, which includes any public
conveyance, hotel, shop or other places intended for use or accessible to the
public.
10-B. A Division Bench of this Court in Dharminder Kumar Vs. State of
Punjab, 2002(4) RCR (Crl.)278 has held as under :-
“Thus it is evident that if seizure is made from any animal,
conveyance or article in a public place or in transit then
Crl. Appeal No.506-SB of 1999 8Section43 of the Act would be applicable. Section 43 and Section
42 of the Act operate in different spheres. Since the conveyance
has been specifically included in Section 43 of the Act also,
therefore, the conveyance which is found in a public place or in
transit would be covered under the provisions of Section 43 of the
Act whereas conveyance used in Section 42 of the Act has to be
read as conveyance which is other than a public place. This
interpretation is the only harmonious interpretation of Sections 42
and 43 of the Act.”
10-C. It is well settled principle of law, that the provisions of a Statute, are
to be construed, in harmonious manner, so that none of the same is rendered
nugatory. By harmonious construing the provisions of Sections 42 and 43 of
the Act, it can be safely concluded, that if a conveyance is intercepted or
apprehended at a public place, or in transit, then the provisions of Section 42 of
the Act, would not be applicable.
10-D. It was held in State of Haryana Vs. Jarnail Singh and others 2004
(2) RCR (Crl.) 960 (SC) as under :-
“7. Section 43 of the NDPS Act provides that any officer of any of
the departments mentioned in Section 42 may seize in any public
place or in transit any narcotic drug or psychotropic substance
etc. in respect of which he has reason to believe that an offence
punishable under the Act has been committed. He is also
authorized to detain and search any person whom he has reason
to believe to have committed an offence punishable under the Act.
Explanation to Section 43 lays down that for the purposes of this
section, the expression “public place” includes any public
conveyance, hotel, shop, or other place intended for use by, or
accessible to the public.
Crl. Appeal No.506-SB of 1999 9
8. Sections 42 and 43, therefore, contemplate two difference
situations. Section 42 contemplates entry into and search of any
building, conveyance or enclosed place, while Section 43
contemplates a seizure made in any public place or in transit. If
seizure is made under Section 42 between sunset and sunrise, the
requirement of the proviso thereto has to be complied with. There
is no such proviso in Section 43 of the Act and, therefore, it is
obvious that if a public conveyance is searched in a public place,
the officer making the search is not required to record his
satisfaction as contemplated by the proviso to Section 42 of the
NDPS Act for searching the vehicle between sunset and the
sunrise.”
11. In the instant case, Sukhdev Singh, ASI, alongwith other police
officials, was on patrol duty, from village Jharon to village Longowal, on
metalled road, when the appellant was found sitting on 4 bags, containing
poppy-husk, at a public place. The recovery was, thus, effected from a public
place. Thus, the provisions of Section 43 of the Act, were applicable, and not
the provisions of Section 42 of the Act. In this view of the matter, the trial
Court was right in holding that the question of compliance with the provisions
of Section 42, did not at all arise, as the same were inapplicable. The trial Court
was, thus, right in recording conviction, and awarding sentence, to the accused.
12. It was next submitted by the Counsel for the appellant, that the seal
after use, was not handed over to the independent witness, but to a Head
Constable, and, as such, the possibility of tampering with the sample parcels,
until the same reached the office of the Chemical Examiner, 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
Crl. Appeal No.506-SB of 1999 10
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 Police 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 was 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 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, 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
Crl. Appeal No.506-SB of 1999 11
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.
13. It was next submitted by the Counsel for the appellant, that the
mandatory provisions of Section 50 of the Act, were violated by the
Investigating Officer, at the time of the alleged search and seizure. He further
submitted that, on account of this reason, the very investigation, and the
subsequent trial, stood vitiated. The submission of the Counsel for the
appellant, in this regard, does not appear to be correct. In the instant case, the
search was not effected from the person of the accused, but from the bags, on
which he was sitting. Had the recovery been effected from the person of the
accused, then the provisions of Section 50 of the Act, would have been attracted
to the instant 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 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.
14. It was next submitted by the Counsel for the appellant, that the
appellant was not found in conscious possession of 4 bags, containing poppy-
Crl. Appeal No.506-SB of 1999 12
husk. He further submitted that the invetigating agency, did not investigate into
the matter, as to whom, the place belonged, where the bags, containing poppy-
husk, were lying, on which the accused was allegedly found sitting. Since, the
bags, containing poppy-husk, referred to above, were lying at a public place, on
which he was sitting, it was for him to explain, as to how, those bags,
containing poppy-husk, came to that place, and how he was found in possession
thereof. He, however, failed to do so. Once the possession of the accused, in
respect of the contraband, 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 Vs. State of Punjab, 2003 (4)
RCR (Criminal) 319, 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.
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.
Crl. Appeal No.506-SB of 1999 13
Once possession is established, the person who claims
that it was not a conscious possession has to establish it,
because how he came to be in possession is within his
special knowledge. Section 35 of the Act gives a statutory
recognition of this position because of the presumption
available in law. Similar is the position in terms of
Section 54 where also presumption is available to be
drawn from possession of illicit articles.”
14-A. 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 authorities, 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 4 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.
15. No other point, was urged, by the Counsel for the parties.
16. 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.
17. For the reasons recorded, hereinbefore, the appeal is dismissed. The
judgment of conviction, and the order of sentence dated 9.3.1999, are upheld. If
the accused/appellant is on bail, then his bail bonds, shall stand cancelled. The
Chief Judicial Magistrate, Sangrur, 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
Crl. Appeal No.506-SB of 1999 14
Court, within a period of three months.
8.9.2008 (SHAM SUNDER) Vimal JUDGE