Crl. Appeal No. 505-SB of 2007
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IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Crl. Appeal No. 505-SB of 2007
Date of decision.04.10.2008
Resham Kaur wife of Chamkaur Singh son of Narain Singh,
resident of village Rattian, Tehsil and District Moga.
....... Appellant
Versus
The State of Punjab
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Vivek Goel, 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 dated 01.02.2007 and the order of sentence dated
05.02.2007, rendered by the Special Judge, Moga, vide which
he convicted the accused (now appellant), for the offence,
punishable under Section 15(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to be
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as the ‘Act’ only) and sentenced her to undergo RI for a period
of 10 years and to pay a fine of Rs. 1 lac, in default of payment
of fine, to undergo further rigorous imprisonment, for a period
of one year, for having been found in possession of four bags
each containing 25 Kgs and 250 grams poppy straw, without
any permit or licence.
2. The facts, in brief, are that on 30.09.2005
ASI Sham Lal along with other police officials, was on patrol
duty on the link road, leading from Mehna to village
Chugawan, in a Government vehicle. When the police party
reached near the drain, in the area of village Chugawan, one
lady, was found sitting on four bags, lying in a dried drain. On
seeing the police party, she tried to slip away, but on suspicion,
she was apprehended. She disclosed her identity. Search of the
bags, in accordance with the provisions of law, in the presence
of DSP Bhulla Singh, who was called to the spot, by sending a
message, was conducted. Each bag was found containing 25
Kgs and 250 grams poppy husk. One sample of 250 grams of
poppy husk, was taken out, from each bag. The contents of
the samples were put into separate containers, and the
remaining poppy husk, was kept in the same bags. The bags,
and the samples, were converted into parcels, duly sealed, and
taken into possession, vide a separate recovery memo. Ruqa
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was sent to the Police Station, on the basis whereof, the FIR
was recorded. The site plan was prepared. The accused was
arrested. The statements of the witnesses were recorded. After
the completion of investigation, the accused was challaned.
3. On her appearance, in the Court, the
accused was supplied the copies of documents, relied upon by
the prosecution. Charge under Section 15(c) of the Act, was
framed against the accused, to which she pleaded not guilty
and claimed judicial trial.
4. The prosecution, in support of its case,
examined Sham Lal, ASI, (PW-1), Ashok Kumar,
Photographer, (PW-2), Ramesh Kumar, C., (PW-3), Balbir
Singh, HC, ( PW-4 ), Bhulla Singh, DSP, ( PW-5 ), Avtar
Singh, ASI, ( PW-6 ), Kesar Singh, SI, ( PW-7 ), Amar Singh,
ASI, ( PW-8 ) and Kulwant Singh, HC, ( PW-9 ). Thereafter,
the Additional Public Prosecutor for the State, closed the
prosecution evidence.
5. The statement of the accused, under
Section 313 of the Code of Criminal Procedure, was recorded.
She was put all the incriminating circumstances, appearing
against her, in the prosecution evidence. She pleaded false
implication. She, however, stated that she was not the owner
of the bags, containing poppy husk. She further stated that she
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did not possess the same. She further stated that she was
neither the owner , nor in possession of the place of recovery.
She further stated that a false case was planted against her, by
the police. She further stated that on 30.09.2005, she was
illegally taken by the police, in the presence of Raju and
Maghar Singh. The police searched her house, but no
incriminating article was recovered. She further stated that, in
fact, her son Lal Singh,who was residing separately from
her, was absconder in a criminal case and in order to
pressurize her to produce him, she was falsely implicated in
the instant case. She further stated that her husband also
moved an application, regarding her false implication. She
further stated that Tata Sumo, which was in the name of her
son Lal Singh, was also illegally taken into possession, by the
police, but the same was not returned to her. She further
stated that a telegram was also sent to the Senior authorities in
this regard. Later on, Harjit Singh and the driver were left by
the police.
5-A In her defence, the accused examined
Jagsir Singh, C., DW1, Raju son of Gulzar Singh, DW-2, and
Chamkaur Singh, DW-3. Thereafter, the accused closed the
defence evidence.
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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 appellant.
8. I have heard the 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, vehemently contended that though the alleged
recovery was effected, in this case, on 30.09.2005, yet the
samples were sent to the office of Chemical Examiner on
11.10.2005 i.e. after the delay of 11 days. He further
submitted that there was no explanation, with regard to delay,
in sending the samples, to the office of the Laboratory. He
further submitted that, under these circumstances, the
possibility of tampering with the samples, until the same
reached the office of the Laboratory, could not be ruled out.
The submission of the Counsel for the appellant, in this
regard, does not appear to be correct. Mere delay, in itself, is
not sufficient to come to the conclusion, that the sample
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parcels were tampered with, until the same reached the office
of the Chemical Examiner. In the absence of any explanation,
the Court is required to take into consideration the other
evidence, produced by the prosecution, to come to the
conclusion whether the link evidence is complete on not. In
the instant case, the other evidence produced by the
prosecution has been subjected to in-depth scrutiny, and the
same has been found to be cogent, convincing, reliable and
trustworthy. From the other evidence, it was proved that none
tampered with the samples, until the same reached the office
of the Laboratory. Even there is report of the Chemical
Examiner Ex.P25, which clearly proves that the seals on the
exhibits were intact, on arrival, till the time of their analysis
and agreed with the specimen impression of the seals. The
report Ex.25 of the Chemical Examiner, is per-se admissible,
in toto, under Section 293 of the Code of Criminal Procedure.
There is no challenge, to the report of the Laboratory, in this
case. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR
(Criminal) 196 (S.C.), it was held that mere delay in sending
the samples to the Laboratory, is not fatal, where there is
evidence that the seized articles remained in safe custody.
Since, it was proved that none tampered with the samples,
until the same were received, in the office of the Chemical
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Examiner, the submission of the Counsel for the appellant,
merely based on conjectures, does not hold good. The
principle of law, laid down, in the aforesaid authority, is fully
applicable to the facts of the instant case. Since it was proved
that none tampered with the samples, until the same reached
the office of the Chemical Examiner, the submission of the
Counsel for the appellant, in this regard, being without merit,
must fail, and the same stands rejected.
10. The Counsel for the appellant,
however, placed reliance on Jagmohan Singh alias Jago v.
State of Punjab 2007(3) RCR ( Criminal ) 900, decided by a
Single Bench of this Court, to contend that non-furnishing of
an explanation for sending the samples to the office of the
Chemical Examiner, after delay, clearly proved that the
possibility of the tampering with the same, could not be ruled
out. The perusal of the facts of Jagmohan Singh alias Jago’s
case ( supra) reveals that the appellant was acquitted
therein, on so many grounds. One of the major grounds, for
the acquittal of the appellant, was to the effect, that the
accused was not found in conscious possession of the poppy
husk. No other evidence produced, in that case, that none
tampered with the sample, until the same reached the office of
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the Chemical Examiner, as there was delay of 12 days, in
sending the same, to the Laboratory. In the instant case, the
evidence was produced, by the prosecution, as stated above,
to prove that none tampered with the samples, until the same
reached the Laboratory. That evidence as stated above, has
been found cogent, convincing, reliable and trustworthy. As
would be discussed, in the succeeding paragraphs, the
accused was also found in conscious possession of poppy
husk. The facts of Jagmohan Singh alias Jago’s case
( supra ) are distinguishable, from the facts of the present
case. No help, therefore, can be drawn, by the Counsel for
the appellant, from the authority, cited by him, and referred to
above. In this view of the matter, the submission of the
Counsel for the appellant, being without merit, must fail, and
the same stands rejected.
11. It was next submitted by the Counsel for
the appellant, that the appellant was not found in conscious
possession of the bags, containing poppy husk. He further
submitted that the mere fact that the appellant was allegedly
found sitting on the bags, at a place, which was neither her
ownership nor in her possession, did not prove that she was
in possession of the said bags, containing poppy husk. He
further submitted that the prosecution miserably failed to
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prove the conscious possession of the appellant, in respect of
the contraband and, as such, no offence, whatsoever, was
committed by her, under Section 15 of the Act. The
submission of the Counsel for the appellant, in this regard,
does not appear to be correct. The accused was found sitting
on four bags, containing poppy husk. Since she was found
sitting on four bags containing poppy husk, it was within her
special means of knowledge, as to how the bags containing
poppy husk came there. It was also within her special means
of knowledge, as to how, she was sitting on those bags. It
was also within her special means of knowledge as to where
those bags were to be transported. The accused, however,
failed to furnish any explanation in regard to the aforesaid
questions. It is not the case of the accused that she was just
passing by that side, and with a view to take rest, she sat on
those bags. It was also not the case of the accused that
somebody else kept the bags, containing poppy husk there in
her presence, told her, to keep a watch over the same and she
was, thus, not in conscious possession thereof. It was also
not the case of the accused, during the course of trial, that the
bags containing poppy husk were the ownership of somebody
else, but she was only asked, to keep the same, in her
possession temporarily. Since the accused, was found sitting
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on four bags, containing poppy husk, her possession in
relation thereto and control over the same was proved. Once
the possession of and control over the bags, containing poppy
husk, in relation to the accused, was established, then
statutory presumption under Sections 54 and 35 of the Act,
operated against her, that she was in conscious possession
thereof. Thereafter, the onus shifted, on to her, to prove that
she was not in conscious possession thereof. Thereafter, it
was for her, to rebut the presumption, by leading cogent and
convincing evidence. However, the appellant 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 the accused was in conscious
possession of the contraband. Section 54 of the Act ibid reads
as under :-
“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;
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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
controller 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.”
11-A. 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 Court 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.
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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.”
11-B. 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 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.
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Similar is the position in terms of Section 54 where also
presumption is available to be drawn from possession of illicit
articles.”
11-C 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 of the contraband. 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 the instant case, it therefore, could
not be said that the accused was not aware of the contraband.
It was not a small quantity of contraband, which was
concealed, and, as such, could escape the notice of the accused.
Keeping in view the principle of law, laid down, in the
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aforesaid cases, 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 was found in conscious possession of poppy husk. In
this view of the matter, the submission of the Counsel for the
appellant, in this regard, being without merit, must fail, and the
same stands rejected.
12. The Counsel for the appellant,however,
placed reliance on Baldev Singh v. State of Punjab 2005(1)
RCR (Criminal) 823, and Sukhdev Singh alias Sukha v.
State of Punjab 2006(1) RCR ( Criminal ) 4 , in support of
his contention, that the accused was not found in conscious
possession of the contraband. These cases were decided by this
Court. The perusal of the facts of the aforesaid authorities,
clearly goes to show that the same are distinguishable, from the
facts of the instant case. In the aforesaid cases, relied upon by
the Counsel for the appellant, the accused were acquitted on a
number of grounds. Even the accused were not found in
conscious possession of the contraband. In the instant case, the
conscious possession of the contraband of the accused and her
control over the same, stood proved. Even otherwise, in view
of the principle of law laid down, in Megh Singh’s case
( supra ), decided by the Apex Court, any principle of law, to
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the contrary, laid down, on the same point, in the aforesaid
authorities, relied upon by the Counsel for the appellant, shall
not hold the field. No help, therefore, can be drawn, by the
Counsel for the appellant, from these authorities. 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 no question in statement under Section 313
Cr.P.C., was put to the accused, that she was in conscious
possession of the contraband and as such, she could not be held
guilty for the offence punishable under Section 15 of the Act.
The submission of the Counsel for the appellant, in this regard,
also does not appear to be correct. It may be stated here that in
statement under Section 313 Cr.P.C., only the incriminating
circumstances, appearing against the accused, in the
prosecution evidence are required to be put to him/her. The
provisions of law, or the presumption operating under the
provisions of law, are not required to be put to her/him in the
statement under Section 313 Cr.P.C.. In the instant case, in the
statement under Section 313 Cr.P.C., the accused was put a
specific question, that she was found sitting on four bags,
containing poppy husk. She was, thus, made aware of the
factum that she was found in possession of and in control over
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the bags, containing poppy husk. As stated above, once the
possession of the contraband was proved, in relation to the
accused, statutory presumption of law under Sections 54 and
35 of the Act, started operating against him/her that he/she was
in conscious possession thereof. In these circumstances, it
could not be said that the statement under Section 313 Cr.P.C.,
of the accused was not properly recorded. The submission of
the Counsel for the appellant, thus, being devoid of merit, is
rejected.
14. The Counsel for the appellant, however,
placed reliance on Bhola Singh v. State of Punjab 2005(2)
RCR ( Criminal ) 520, decided by a Single Bench of this
Court, in support of his contention that once the question
regarding conscious possession of the contraband was not put
to the accused, in her statement, under Section 313 Cr.P.C., she
cannot be convicted for the offence under the Act. In Bhola
Singh’s case ( supra ) no question was put to the accused, that
he was in possession of those bags. In these circumstances, it
was held that the conscious possession of the contraband, was
not proved, in relation to him. The facts of the aforesaid
authority, are distinguishable, from the facts of the instant case.
No help, therefore, can be drawn, by the Counsel for the
appellant, from the authority, cited by him, and referred to
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above. 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. It was next submitted by the Counsel for the
appellant, that the affidavit of Balbir Singh, Head Constable,
being contrary to the provisions of Section 297(2) Cr.P.C.,
and, therefore, no reliance, thereon, could be placed. He
further submitted that once the affidavit of Balbir Singh,HC, is
taken off the record, then the link evidence becomes
incomplete. The submission of the Counsel for the appellant,
in this regard, does not appear to be correct. Balbir Singh, HC,
who tendered his affidavit Ex.P-18, appeared in the witness
box as PW-4. He was duly cross-examined by the Counsel for
the accused. In case, there was any defect, in the affidavit of
Balbir Singh, HC, PW-4, regarding verification the matter
could be got clarified from him. However, no question, was
put to this witness, in this regard. Had this witness been not
examined, the matter would have been different. Under these
circumstances, whether there was any technical defect, in the
affidavit or not, that hardly mattered. In Balwinder Singh v.
State of Haryana 1998(1) RCR ( Criminal ) 191 ( DB )
(P&H), a contention was raised by the Counsel for the
accused, that the affidavits of the police officials, were not
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verified, as per the provisions of law, and, as such, a prejudice
was caused to the accused, on account of that reason. In that
case, both the formal witnesses, were tendered for cross-
examination, by the prosecution, and they were cross-
examined. In these circumstances, it was held by a Division
Bench of this Court, that since both the formal witnesses were
tendered for cross-examination, whether there was any defects
in the verification of the affidavit or not, hardly mattered and it
did not cause any prejudice to the accused. The principle of law
laid down in Balwinder Singh’s case ( supra ) is fully
applicable to the facts of the instant case. It, therefore, does not
lie, in the mouth of the appellant, to say, that the verification of
the affidavits was defective. The submission of the Counsel
for the appellant, thus, being devoid of merit, is rejected.
16. The Counsel for the appellant, however,
placed reliance on Santokh Singh @ Sokha v. The State of
Punjab 2003(1) RCR ( Criminal ) 613, a case decided by a
Single Bench of this Court. In that case, the verification of the
affidavit was defective. It was, thus, held by this Court that the
link evidence was incomplete. The facts of the aforesaid
authority are distinguishable, from the facts of the present
case. Even otherwise, in view of the principle of law, laid
down, in Balwinder Singh’s case ( supra ), decided by a
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Division Bench of this Court, any contrary principle of law,
laid down, on the same point in Santokh Singh @ Sokha’s
case ( supra ), shall not hold the field. No help, therefore, can
be drawn by the Counsel for the appellant, from the ratio of
law, laid down, in the authority cited by him, and referred to
above. In this view of the matter, the submission of the
Counsel for the appellant, being without merit, must fail, and
the same stands rejected.
17. It was next submitted by the Counsel for the
appellant that when the case property was produced before the
Illaqa Magistrate, he passed order Ex.P20/A, stating therein
that the samples of poppy husk were produced before him. He
further submitted that this order is dated 06.12.2005. He
further submitted that by that time, the samples had already
been sent to the Chemical Examiner and how the same could be
produced and photographs thereof, could be taken before the
Illaqa Magistrate. He further submitted that, under these
circumstances, the entire case of the prosecution, was false.
The submission of the Counsel for the appellant, on the face of
it, appears to be very attractive, but when scrutinized, in the
face of the evidence, pales into insignificance. No doubt, in
the order dated 06.12.2005, there is mention of production of
sample parcels, for taking photographs thereof. However, it is
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evident from the inventory Ex.P-20, that there was no mention
of the production of the sample parcels. On account of
inadvertence, it was typed that sample parcels were also
produced. However, lateron, an application was moved for
correction of the order. The Judicial Magistrate Ist Class,
Moga, on 14.12.2005 passed the following order, Ex.P20/B:-
“At this stage, SHO P.S. Mehna has given an
application for the correction of inventory to the
extent that 4 samples have already been drawn
from the case property. I have perused the
inventory report already made by the Court and 4
samples in small cloth parcels produced has been
made inadvertently. So, necessary correction be
made to that extent.”
It was only a typographical mistake, which occurred in
Ex.P-20/A. It could be corrected by the concerned Magistrate,
at any time. The same was corrected. Under these
circumstances, no help can be drawn, by the Counsel for the
appellant, from such a typographical mistake. In this view of
the matter, the submission of the Counsel for the appellant,
being without merit, must fail, and the same stands rejected.
18. No other point, was urged, by the Counsel
for the parties.
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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. The same are liable to be upheld.
20. For the reasons recorded, hereinbefore, the
appeal is dismissed. The judgment of conviction dated
01.02.2007 and the order of sentence, dated 05.02.2007, are
upheld. If the appellant is on bail, her bail bonds shall stand
cancelled. The Chief Judicial Magistrate, shall take necessary
steps, in accordance with the provisions of law, to comply with
the judgment, within two months, from the date of receipt of a
certified copy of the same, keeping in view the applicability of
the provisions of Section 428 of the Code of Criminal
Procedure.
(SHAM SUNDER)
JUDGE
October 04, 2008
dinesh