Crl. Appeal No.121-SB of 1997 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.121-SB of 1997
Date of Decision : July 23, 2008
Jarnail Singh S/o Mukhtiar Singh, ....Appellant
resident of Village Khatran,
P.S. Dehlon, District Ludhiana.
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: None 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 8.2.1997, rendered by the Court of 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 10.7.1993, Hans Raj, ASI, alongwith
other police officials, was going towards village Saraud for patrol duty, and
Crl. Appeal No.121-SB of 1997 2
detection of suspects, and when the police party, reached a little ahead of Brick
Kiln, leading to mandial, the accused was seen standing, on filled bags, in a
corner, inside the boundary wall of Daropti Bhawan. On seeing the police
party, coming in a vehicle, he sat down, on the bags. He was apprehended, on
suspicion, while sitting on four bags, containing poppy-husk. The search of the
bags, was conducted, in accordance with the provisions of law, as a result
whereof, each bag was found containing 35 Kgs. Poppy-husk. Two samples of
250 grams, were separated from each bag, and the remaining poppy-husk, was
put into the same bags. The samples, and the bags, containing poppy-husk,
were converted into parcels, duly sealed with the seals, and taken into
possession. Ruqa was sent to the Police Station, on the basis whereof, formal
FIR was registered. The accused was arrested. The statements of the witnesses,
were recorded. After the completion of investigation, the accused was
challaned.
3. On 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 Ranjit Singh, SI
(PW-1), Jaswant Singh, Constable, (PW-2), Pavitar Singh, HC, (PW-3),
Gurdeep Singh, ASI (PW-4), and Hans Raj, ASI (PW-5). Thereafter, the
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
him, that no poppy-husk was recovered from him. It was further stated by him,
that on the evening of 9.7.1993, Hans Raj, ASI, was going on cycle, in plain
clothes, and he hit the cycle, against him (accused). It was further stated by
Crl. Appeal No.121-SB of 1997 3
him, that he raised protest, on account of this reason, as a result whereof,
exchange of hot words took place. It was further stated by him, that thereafter
he was taken to the Police Station, and the recovery of poppy-husk, was planted
against him. He, however, did not lead any evidence, in his defence.
6. 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 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. Due notice, that the appeal was fixed for regular hearing, on the
board of this Bench, was issued to the Counsel for the appellant, who had filed
vakalatnama. Mr. Ajay Pal Singh, Advocate, who was representing the
appellant, appeared in the Court, and stated that the appellant took away the
brief from him. There was no other vakalatnama of any other Counsel, on
behalf of the appellant, on the file. Under these circumstances, it is to
determined, as to whether, the Court can decide the appeal, in the absence of the
appellant, and his Counsel. In Dharmpal Vs. State of U.P. 2008 (1) Law
Herald (SC) 225, in similar circumstances, when the appeal against the
judgment of conviction, and the order of sentence, for the offence punishable
under Section 302 IPC, was fixed for regular hearing, before the Allahabad
High Court, neither the appellant, nor his Counsel put in appearance. In these
circumstances, the appeal was decided by the High Court, after perusing the
records, on merits. It was held by the Apex Court, that the High Court, in such
an event, could look into the records, and the other material placed thereon,
including the judgment of the trial Court, and thereafter decide the appeal on
merits, which would be due compliance of the provisions of Sections 385 and
386 of the Code of Criminal Procedure, in disposing of criminal appeals.
Crl. Appeal No.121-SB of 1997 4
However, it was further held, in the said authority, that the Appellate Court,
cannot dismiss the appeal, in default. Similar, principle of law was laid down,
in Bani Singh Vs. State of U.P. 1996 (4) SCC 720. Relying upon the principle
of law, laid down, in these authorities, this appeal is being decided on merits.
9. I have heard the learned Counsel for the respondent, and carefully
perused the records, evidence, and the impugned judgment.
10. One of the grounds, taken up in the memorandum of appeal, was to
the effect, that no independent witness, was joined, though the alleged recovery
was effected, in the morning. It was further stated, in the grounds of appeal,
that even no effort was made to join, an independent witness, at the time of the
alleged recovery, and, as such, the case of the prosecution became doubtful. It
may be stated here, that it was a chance recovery. The police party was going,
in connection with patrol duty, and checking of suspects, when per chance, it
saw the accused, standing on the bags, containing poppy-husk, who on seeing
the police party, sat thereon, inside the boundary wall of Daropti Bhawan.
There is no evidence, on the record, that any independent witness, was present,
at the time of apprehension of the accused, search of the bags, and recovery of
poppy-husk therefrom. Had there been any secret information, against the
accused, non-joining of an independent person, would have been considered to
be a circumstance, going against the prosecution. Had any independent witness
been joined, after the recovery, his evidence would have been of no relevance,
as he could not be said to be a witness to the search and seizure. It was, under
these circumstances, that independent witness could not be joined. It is settled
principle of law, that the evidence of the official witnesses, cannot be distrusted
and disbelieved, merely on account of their official status. Their evidence is as
good, as that of any other independent witness. 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
Crl. Appeal No.121-SB of 1997 5
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 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.”
11. 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 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
Crl. Appeal No.121-SB of 1997 6
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. This ground, therefore, does not hold good.
12. The next ground, taken up in the memorandum of appeal, was to the
effect, that the affidavits tendered by the prosecution witnesses, being faulty,
could not be taken into consideration, but the trial Court was wrong in doing so,
as a result whereof, miscarriage of justice occasioned. Ex.PC, is the affidavit of
Pavitar Singh, HC, whereas, Ex.PB, is the affidavit of Jaswant Singh,
Constable. Both the affidavits have been carefully perused. There does not
appear to be any infirmity therein. The depondents of these affidavits were read
over and explained the contents thereof, by the Judicial Magistrate Ist Class,
Malerkotla. They were identified by the Asstt. District Attorney, Malerkotla. A
certificate was given by the Judicial Magistrate Ist Class, Malerkotla, that after
perfectly understanding the contents of the affidavits, the deponents appended
their signatures, in his presence. Thereafter, the Judicial Magistrate, attested the
affidavits. Under these circumstances, it could not be said that the trial Court
was wrong, in taking into considration, these affidavits. This ground, therefore,
does not hold good.
13. The next ground, taken up in the memorandum of appeal, was to the
effect that the mandatory provisions of Section 50 of the Act, were not
complied with, as a result whereof, the trial, conviction, and sentence, stood
vitiated. In this case, the recovery was not effected from the personal search of
the accused, but from the bags, on which he was found sitting. It may be stated
here, that the provisions of Section 50 of the Act, were not applicable, in the
instant case, as the search was not effected, from the person of the accused, but
from the bags. 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
Crl. Appeal No.121-SB of 1997 7
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 search, in the instant case, the
trial Court was right in recording conviction and awarding sentence, to the
accused. This ground, therefore, does not hold good.
14. The next ground taken up, in the memorandum of appeal, was to the
effect, that the provisions of Section 55 of the Act, were not complied with. It
may be stated here, that the provisions of Section 55 of the Act, are directory in
nature. However, in the instant case, the Investigating Officer, took care to
comply with the provisions of Section 55 of the Act. Rajinder Singh, SI
(PW-1), was the SHO of P.S. Malerkotla, at the relevant time. He in clear-cut
terms stated that Hans Raj, ASI, produced before him, the case property, the
accused, and the witnesses, on 10.7.1993. He further stated that, he verified the
investigation, and satisfied himself. He further stated that he put his own seal,
on the case property, and got the same deposited with Pavitar Singh, MHC, with
seals intact. There was, therefore, due compliance of the provisions of Section
55 of the Act. This ground, therefore, does not hold good.
15. The next ground taken up, in the memorandum of appeal, was to the
effect that the provisions of Section 57 of the Act, were not complied with. It
may be stated here, that the provisions of Section 57 of the Act, are directory, in
nature. Mere non-compliance thereof, does not ipso-facto vitiate the conviction,
Crl. Appeal No.121-SB of 1997 8
and sentence. There is nothing, on the record, to indicate that, on account of
non-strict compliance of the provisions of Section 57 of the Act, any prejudice
was caused to the accused. There was substantial compliance of the provisions
of Section 57 of the Act, as the ruqa was sent from the place of recovery,
wherein all the details, with regard to search and seizure were mentioned. The
object of Section 57 of the Act, is to inform the Officer Superior, within the
shortest possible time, so that he may be apprised of, the proceedings conducted
by a junior police official, in order to avoid criticism of the public, against the
high-handedness of the police, and to avert chances of false implication of the
accused. In the instant case, when the case property was produced before the
SHO, and even the ruqa was sent from the spot, containing the complete
information, with regard to the search and seizure, there was substantial
compliance of the said provision. Non-sending of a separate special report, by
the Investigating Officer, to his Officer Superior, did not, in any way, affect the
merits of the case. This ground, therefore, does not hold good.
16. The next ground taken up, in the memorandum of appeal, was to the
effect, that the sample parcels were taken out of the Malkhana, by Pavitar
Singh, HC, on 19.7.1993, and the same were handed over to Jaswant Singh,
Constable, who took the same to the office of the Chemical Examiner, on
20.7.1993. The said parcels, were returned by the Chemical Examiner, with
some objections, and the same were again sent on 26.7.1993. It was stated, in
the grounds of appeal, that this fact was sufficient to create doubt, on the
prosecution story, as the chances of tampering with the sample parcels, could
not be ruled out. It may be stated here, that the case property, and the sample
parcels were produced before the SHO, on the same day, who verified the
investigation, as also the case property, and, thereafter, affixed his own seal.
Thereafter, it was deposited with the MHC, with seals intact. The affidavits,
referred to above of the formal witnesses, clearly go to prove that none-
Crl. Appeal No.121-SB of 1997 9
tampered with the samples, until the same reached the office of the Chemical
Examiner. To cap it all, there is report Ex.PH, of the Chemical Examiner,
which is admissible under Section 293 of the Cr.P.C. in toto. According to this
report, the seals on the exhibits were intact, on arrival, till the time the analysis
thereof, was started, and agreed with the specimen seals sent. It is further
evident from this report, that the exhibits remained in safe custody, after the
receipt thereof, in the office of the Chemical Examiner. This report of the
Chemical Examiner, was not challenged by the accused. Under these
circumstances, there was no possibility of tampering with the sample parcels,
until the same reached the office of the Chemical Examiner. The Court,
therefore, could not act merely on conjectures and surmises, that there was
possibility of tampering with the samples, only on account of the reason, that on
one occassion, the same were returned with certain objections, by the Chemical
Examiner. Since, there was no tampering with the samples, until the same
reached the office of the Chemical Examiner, the link evidence was complete.
This ground, therefore, being without merit, must fail, and the same stands
rejected.
17. The next ground, taken up in the memorandum of appeal, was to the
effect, that the prosecution miserably failed to prove conscious possession of
the accused, in relation to the bags, containing poppy-husk. As per the
prosecution story, which was proved, on the basis of cogent, convincing,
reliable, and trustworthy evidence, in the first instance, the accused was seen
standing, on the bags, containing poppy-husk. On noticing the police party, he
sat down, on the bags, so as to conceal his presence, and avoid his detection.
However, the police party entertained suspicion, on account of the said activity
of the accused, and apprehended him, while he was sitting on the bags. In
which capacity the accused was sitting, on the bags, was for him to explain.
The accused was, thus, in physical possession of, and in control over the bags,
Crl. Appeal No.121-SB of 1997 10
containing poppy-husk. Since, the possession of the accused, in relation of the
poppy-husk was proved, statutory presumption under Sections 35 and 54 of the
Act, operated against him, that he was in conscious possession thereof. It was
for the accused, to rebut the statutory presumption, operating against him. The
accused did not take up the plea, that he was merely sitting on the bags, but the
same did not belong to him. He also did not take up the plea, that the bags
belonged to somebody else, but he had been deputed to keep watch over the
same. He also did not take up the plea, that he became fearful, on noticing the
police party, and with a view to conceal his presence, sat on the bags, but he did
not know, as to whom the same belonged. He only took up the plea that he was
falsely implicated. The accused, however, failed to rebut the statutory
presumption aforesaid. In Megh Singh Vs. State of Punjab, (2003) 8 SCC 266,
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. Keeping in
view the principle of law, laid down, in the aforesaid case, the provisions of
Sections 35 and 54 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
Crl. Appeal No.121-SB of 1997 11
was in conscious possession of bags, containing poppy-husk. This ground,
therefore, does not hold good.
18. No other ground to assail the judgment of the trial Court, was taken
up, in the memorandum of appeal.
19. 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.
20. For the reasons recorded, hereinbefore, the appeal is dismissed. The
judgment of conviction, and the order of sentence dated 8.2.1997, are upheld. If
the appellant is on bail, 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 Code of Criminal Procedure, and submit the compliance
report, within a period of two months, from the date of receipt of the certified
copy of the judgment.
July 23, 2008 (SHAM SUNDER) Vimal JUDGE