Criminal Appeal No.1114-SB of 2000 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Crl. Appeal No.1114-SB of 2001
Date of decision:September 29 , 2008
1. Vikramjit Singh son of Ranjit Singh
2. Gurvinder Singh son of Lal Singh
both residents of Village Mardan Khera,Distt. Karnal.
....... Appellants/accused
Versus
State of Haryana
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Bipan Ghai, Senior Advocate with Mr. Deepak
Garg, Advocate, for the appellants.
Mr. A.K.Jindal,AAG,Haryana,
for the respondent.
Sham Sunder, J.
This appeal is directed against the judgment of
conviction dated 30.9.2000 and the order of sentence dated 3.10.2000,
rendered by the Judge,Special Court, Karnal, vide which, he convicted the
accused (now 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 two and half years each, for having
been found in possession of six bags each containing 40 kgs poppy husk.
2. The facts, in brief, are that on 26.7.1999 SI/SHO Jarnail Singh
alongwith other Police officials, was checking the traffic in Kaithal Chowk,
Assandh, in a Government Jeep, where he received a secret information
Criminal Appeal No.1114-SB of 2000 2
that Vikramjit Singh and Gurvinder Singh, accused were habitual of
dealing with poppy husk. It was also informed that they had concealed six
gunny bags of poppy husk, in the kotha of tubewell of Vikramjit Singh,
and if a raid was conducted, they could be apprehended. On receipt of the
information, Chet Ram, Tehsildar, was summoned through Constable
Satbir Singh and associated with the raiding party. Thereafter, the police
party conducted raid on the kotha of tubewell of accused Vikramjit
Singh,where both the accused were found sitting, on the gunny bags. Both
of them were apprehended. On inquiry, they disclosed their identity. The
gunny bags were six in number. On search, each bag was found containing
40 kgs of poppy husk. A sample of 200 grams was separated from each of
the bags. The remaining poppy husk was kept in the same bags. The
samples and 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, the FIR was
registered. The accused were arrested. Site plan was prepared. The
statements of the witnesses, were recorded. 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, was framed against them, to which they
pleaded not guilty, and claimed judicial trial.
4. The prosecution, in support of its case, examined HC Daya
Nand, PW1, HC Inder Singh,PW2, Chet Ram, PW3, SI Azad Singh, PW4
and SI Jarnail Singh, PW5. Thereafter, the Public Prosecutor for the State
closed the prosecution evidence.
5. The statements of the accused, under Section 313 Cr.P.C.,
were recorded. They were put all the incriminating circumstances,
appearing against them, in the prosecution evidence. They pleaded false
Criminal Appeal No.1114-SB of 2000 3
implication. However, they produced Kartar Singh, DW1, and Rati Ram
DW2, in their 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 above.
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 appellants.
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 appellants, at the very outset, submitted
that though a secret information was received that the accused was sitting
on the gunny bags, containing poppy husk, in the kotha of tubewell
belonging to one of them and if a raid was conducted, heavy quantity of
contraband, could be recovered , yet the same was neither reduced into
writing nor sent to the Officer superior, immediately, as a result whereof,
the trial, conviction and sentence stood vitiated. The submission of the
Counsel for the appellants, in this regard, does not appear to be correct. It
is, no doubt, true that the secret information was not reduced into writing
nor immediately sent to the Officer superior. It was, on account of the
reason that urgency was involved. The secret informer informed SI Jarnail
Singh that if the raid was conducted immediately in the kotha of tubewell
of Vikramjit Singh,accused, he alongwith other accused could be
apprehended, with a big haul of poppy husk. Had the Investigating Officer
consumed time, in reducing into writing, the secret information, the
possibility of leakage of the same, and escape of the accused, thereby
defeating the very purpose of raid, would not have been ruled out. It was,
under these circumstances, that the secret information could not be
reduced into writing and sent to the Officer superior immediately. However,
Criminal Appeal No.1114-SB of 2000 4
as soon of the recovery was effected from the accused, ruqa was sent to
the Police Station on the basis whereof FIR was registered and copies
thereof in the form of special reports, were sent to the superior Officers, as
also the Ilaqa Magistrate. The ruqa contained all the details with regard to
search and seizure and arrest of the accused. There was, thus substantial
compliance of the provisions of Section 42 of the Act. In Sajan Abraham
Vs. State of Kerala (2001) 6 Supreme Court Cases 692, a case decided
by a three Judge Bench of the Apex Court, in somewhat similar
circumstances, it was held by the Apex Court, that substantial compliance
with the provisions of Section 42 would be sufficient, and the strict
compliance should not be insisted upon. The facts of Sajjan Abraham’s
case (supra) were to the effect that HC (PW-3), got information at about 7
PM, that the appellant was selling injectable narcotic drugs, at a particular
place. When he proceeded for the Police Station, to give this information,
to his immediate superior, Sub Inspector of the Police (PW-5), he found
him (PW-5) along with his Police Party, which was on patrol duty coming,
and hence the said information was communicated there by PW-3 to PW-
5. Thereafter, PW-5, along with his police party, and, PW-3, proceeded
immediately towards the place, where the appellant was standing, and
apprehended him. It was contended that PW-5 had not reduced into
writing, the information, given by PW-3, with respect to the
accused/appellant’s involvement, before proceeding to arrest him, nor he
had communicated it to his immediate superior, which constituted violation
of Section 42. The said contention of the Counsel for the appellant, was
repelled by the Apex Court, holding that, PW-5, could not have recorded
the information given by, PW-3, and communicate the same, to his
superior, while he was in motion, being on patrol duty, in a jeep, before
proceeding to apprehend the accused. Had he not acted immediately, the
appellant would have escaped. On these facts, it was held by the Apex
Criminal Appeal No.1114-SB of 2000 5
Court, that no inference could be drawn, that there had been any violation
of the provisions of Section 42 of the Act. In these circumstances, in the
said authority, it was held as under:-
“In construing any facts to find, whether the prosecution has
complied with the mandate of any provision which is
mandatory, one has to examine it with a pragmatic approach.
The law under the aforesaid Act being stringent to the persons
involved in the field of illicit drug traffic and drug abuse, the
legislature time and again has made some of its provisions
obligatory for the prosecution to comply with, which the courts
have interpreted it to be mandatory. This is in order to balance
the stringency for an accused by casting an obligation on the
prosecution for its strict compliance. The stringency is
because of the type of crime involved under it, so that no such
person escapes from the clutches of the law. The court
however while construing such provisions strictly should not
interpret the same so literally as to render their compliance,
impossible. However, before drawing such an inference, it
should be examined with caution and circumspection. In other
words, if in a case, the following of a mandate strictly, results
in delay in trapping an accused, which may lead the accused
to escape, then the prosecution case should not be thrown
out.”
10. In the instant case, the Police Party was in motion, while on
patrol duty, when the secret information was received by Jarnail Singh, S.I.
In these circumstances, it could not be expected to waste even a single
minute, in reducing into writing the secret information and sending the
same to the superior Officer immediately as in the meanwhile, the accused
would have escaped. Since, there was substantial compliance, with the
Criminal Appeal No.1114-SB of 2000 6
provisions of Section 42 of the Act, it could not be said that there was
intentional and deliberate non-compliance thereof strictly. On account of
this reason, the case of the prosecution cannot be thrown out. The
principle of law, laid down in Sajan Abraham’s case (supra), a case
decided by a three Judge Bench of the Apex Court, is, thus, fully applicable
to the facts of the present case. The trial Court was, thus, right in
recording conviction and awarding sentence, to the accused. The
submission of the Counsel for the appellant, in this regard, being without
merit, must fail, and the same stands rejected.
11. The case can be looked at, from another angle also. The
recovery, in this case, was effected in the presence of Chet Ram,
Tehsildar-cum- Executive Magistrate, duly empowered Officer under
Section 41 of the Act. If the search was conducted and recovery was
effected either by the Gazetted Officer, duly empowered under Section 41
of the Act, or in his presence, then the compliance of the provisions of
Section 42 of the Act, is not required to be made. In Union of India
V.Satrohan 2008(3) RCR (Criminal) 803 SC it was held that if the
empowered Gazetted Officer himself conducts the search and seizes the
contraband, or these acts are done in his presence, then such an Officer
could be said to be duly empowered, under Section 41 of the Act, and in
those circumstances, compliance of the provisions of Section 42 of the Act
is not required to be made. The principle of law, laid down in Satrohan’s
case (supra) is fully applicable to the facts of the instant case. Under these
circumstance, non strict compliance with the provisions of Section 42 of
the Act did not at all cast any doubt on the case of the prosecution, nor
any prejudice was caused to the accused on account of this reason. The
submission of the Counsel for the appellants, in this regard, being without
merit, must fail and the same stands rejected.
12. It was next submitted by the Counsel for the appellants, that no
Criminal Appeal No.1114-SB of 2000 7
evidence was collected, during the course of investigation as to whom the
kotha of tubewell belonged. It was further submitted that only oral evidence
came, in this regard, that it belonged to Vikramjit Singh,accused. It was
further submitted that when the documentary evidence could be collected
to prove the ownership of the kotha, the oral evidence, was of no
significance. He further submitted that in the absence of the documentary
evidence to whom the kotha of tubewell belonged, it could not be said that
the accused was in conscious possession of the contraband recovered.
The submission of the Counsel for the appellants, does not appear to be
correct. The accused were found sitting on six bags containing poppy husk.
It was heavy recovery. It within the special means of knowledge of the
accused, as to how they were found sitting on the bags, containing poppy
husk, wherefrom the said poppy husk was brought to that kotha of the
tubewell; and to which place the same was to be transported. They were
required to explain these circumstances. However, they did not furnish any
explanation in this regard. Under these circumstances, their possession
stood proved, in respect of the bags, containing poppy husk. Once the
possession of the accused, in relation to the bags, containing poppy-husk
was proved, statutory presumption under Sections 54 and 35 of the Act,
operated against him, that they were in conscious possession thereof.
Thereafter, it was for the accused, to rebut the statutory presumption,
operating against them. They only took up the plea that they were falsely
implicated. 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.
Criminal Appeal No.1114-SB of 2000 8
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 the 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 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 the bags, containing poppy-husk.
In this view of the matter, the submission of the Counsel for the appellants,
being without merit, must fail, and the same stands rejected.
13. It was next submitted by the Counsel for the appellants, that
the presence of Chet Ram, Tehsildar-cum-Executive Magistrate, at the
time of search, and seizure, was highly doubtful. He further submitted that
had he been present, at the time of search and seizure, he would have
put his seal, on the sample parcels. He further submitted that he did not
affix his seal on the case property and the sample parcels which clearly
made his presence doubtful. The submission of the Counsel for the
appellants, in this regard does not appear to be correct. The mere fact that
Chet Ram, did not affix his seal on the case property and the sample
parcels did not mean that he was not present, at the time of search and
seizure. Chet Ram appeared as, PW3. He in clear-cut terms stated that in
his presence search and seizure in this case was effected. He further
stated that the case property and the sample parcels were duly sealed with
the seal bearing impression ‘JS’ belonging to Jarnail Singh. After use the
Criminal Appeal No.1114-SB of 2000 9
seal was handed over to Chet Ram. It was also proved from the evidence
of Jarnail Singh, PW5, that Chet Ram, Tehsildar-cum-Executive Magistrate
was present with him, at the time of search and seizure. In the presence of
cogent, convincing and reliable evidence of both these witnesses, it could
not be said that Chet Ram,PW3, was not present at the time of search and
seizure. He might not have been in possession of his own seal at the time
of search and seizure, and that was why he could not affix the same, on
the case property, and the sample parcels. In this view of the matter, the
submission of the Counsel for the appellants, in this regard, being without
merit, must fail, and the same stands rejected.
14. It was next submitted by the Counsel for the appellants that the
bags containing poppy husk, when produced, in the Court were in torn
condition and, as such, the case property did not stand connected with
the instant case. The submission of the Counsel for the appellant, in this
regard, does not appear to be correct. It is a matter of common experience
that the case property of a number of cases is kept in the Malkhana. If on
account of irresponsible handling of the same or during the course of
transit, damage is caused to the bags, containing the contraband,that does
not mean that the case property is not connected with the case. The only
obligation, upon the prosecution, is to produce the case property, to get
identified the same from the witnesses. In the instant case the case
property was produced in the Court, and the same, was identified as the
one as was recovered from the accused at the time of alleged search, and
seizure, and, as such, the same stood duly connected with the instant
case. The submission of the Counsel for the appellants, in this regard,
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
Criminal Appeal No.1114-SB of 2000 10
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 dated 30.9.2000, and the order of
sentence dated 3.10.2000, are upheld. If the accused/appellants are on
bail, their bail bonds, shall stand cancelled. The Chief Judicial Magistrate,
Karnal, 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.
September 29, 2008 (SHAM SUNDER) sks JUDGE