Crl. Appeal No.333-SB of 1999 1
Crl. Appeal No.707-SB of 1999
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.333-SB of 1999
Date of Decision : September 19, 2008
Sahid Ahmed S/o Sharif Ahmed, ...Appellant
R/o Gulabi Bagh Colony,
Tibba Road, Ludhiana.
Versus
Intelligence Officer from the office of ....Respondent
Assistant Director, Directorate of Revenue
Intelligence, Ministry of Finance,
Govt. of India, Amritsar.
Crl. Appeal No.707-SB of 1999
Gopal Singh S/o Joginder Pal Singh, ...Appellant
R/o Village Malwan, P.S.Nangal,
Tehsil Anandpur Sahib,
District Ropar.
Versus
UOI through the office of ....Respondent
Assistant Director, Directorate of Revenue
Intelligence, Ministry of Finance,
Govt. of India, Amritsar.
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. M.L.Saggar, Sr. Advocate, with
Mr. G.P.Vashisht, Advocate,
for the appellant, in Crl.A.No.333-SB of 1999.
Mr. S.S.Rana, Advocate,
for the appellant, in Crl.A.No.707-SB of 1999.
Mr. D.D.Sharma, Advocate,
for the respondent, in both the appeals.
SHAM SUNDER, J.
This judgment shall dispose of Criminal Appeal No.333-SB of 1999,
filed by Sahid Ahmed, and Criminal Appeal No.707-SB of 1999, filed by Gopal
Singh, accused (now appellants), arising out of the judgment of conviction, and
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the order of sentence dated 25.1.1999, rendered by the Court of Addl. Sessions
Judge-cum-Special Judge, Amritsar, vide which it convicted Sahid Ahmed and
Gopal Singh, accused/appellants, and Rahul Kumar (non-appellant) for the
offence, punishable under Section 21 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 23 kgs. Heroin (net weight), and 23 Kgs. And 575 grams
heroin (gross weight).
2. The facts, in brief, are that on a specific information, a special picket
was held on 12.4.1996, at Canal Bridge, near village Sujanpur, at Lakhanpur-
Jalandhar-Pathankot road. The picket party was headed by Arvinderpal Singh,
JAD, BSF(G), Amritsar, and consisted of Harcharan Singh, Asstt. Director,
DRI, Amritsar, and other officials. At about 12.55 PM, on 12.4.1996, a truck,
bearing No.PB-13A-2947, was intercepted by the picket party. There were
three occupants, in the said truck. The truck was signalled to stop. It was
stopped. It was being driven by Gopal Singh, accused. Sahid Ahmed and
Rahul Kumar @ Raju, accused, were sitting behind the long seat of the truck.
On preliminary enquiry, they disclosed their names, as above, and denied
having concealed any narcotic substance, in the said truck. As the officers had
specific information, and the place of inspection, was not found suitable, and
secure for conducting rummaging of the said truck, on the road side, the same
alongwith the three suspects aforesaid, were escorted to the office of the
Directorate of Revenue Intelligence, situated in Green Avenue, Amritsar. In the
presence of two independent witnesses namely Moti Sagar and Vijay Kumar,
letters were delivered to the accused, whether they would like themselves, and
their truck to be searched, in the presence of a Gazetted Officer, or a Magistrate.
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The accused gave their consent, for search of their person, as well as the truck,
in the presence of Harcharan Singh, Asstt. Director, DRI, Amritsar. The search
of truck No.PB-13A-2947, was conducted, in the presence of the aforesaid
independent witnesses, and Harcharan Singh, Asstt. Director, DRI, Amritsar, a
Gazetted Officer, which resulted into the recovery of 2 jute bags, one of big
size, and the other of medium size, from the box lying beneath the long seat,
behind the driver’s seat, besides the Registration Certificate of the truck, in
question. These bags, were opened, and their contents, were examined. The big
size bag was found containing 13 packets wrapped with yellow coloured
adhesive tape, and the medium size bag, was found containing 10 packets,
wrapped with yellow coloured adhesive tape. Thus in all 23 packets, were
recovered, from the two jute bags aforesaid. On cutting open the tape, from all
the recovered 23 packets, the same were found packed in white cotton cloth.
The packing of the brownish powder in each of the recovered 23 packets was
found to be as follows :
“The brownish powder was packed in a khaki coloured paper
envelope, the envelope was further kept in polythene bag, and the
polythene bag was further packed and stitched with white coloured
cotton cloth.”
2-A. The cotton cloth 10 packets, were having ‘777’ markings, and 13
packets were having ‘999’ markings. On opening of each of the recovered 23
packets, the same were found containing a powder like substance, which was
brownish in colour, and was having typical smell. On weighment, each packet
was found weighing 1 kg. net. Total gross weight of the brownish powder of all
the 23 packets, was found to be 23 kgs. 575 grams, and net weight was found to
be 23 kgs. On testing by the Officer, with the U.N.testing kit, each packet,
showed positive result for heroin (opium based). Thereafter, the said heroin
was seized, under Section 42 of the Act. The truck, bearing No.PB-13A-2947,
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alongwith the Registration Certificate, was also seized, under the Act. The
personal search of Sahid Ahmed, accused, was effected, in the presence of
independent witnesses and Harcharan Singh, Asstt. Director, DRI, Amritsar, as
a result whereof, Indian currency of Rs.200/-, one identity card, issued by Indian
Muslim Council Pb. Regd. No.493, were recovered. On personal search of
Gopal Singh, accused, a sum of Rs.500/- in Indian currency, and his driving
licence No.21543 dated 23.5.1989, issued by DIG Bareily, were recovered. On
personal search of Rahul Kumar, no recovery was effected.
3. For the purpose of drawl of samples, for chemical analysis, all the
recovered 23 packets of brownish powder, were divided into 3 lots. Lot No.1,
comprised 10 packets, marked S1 to S10, having marking ‘777’, Lot No.2,
comprised 7 packets, marked S11 to S17, having marking ‘999’, and the rest of
the 6 packets, having marking ‘999’ were allotted Lot No.3, and marked as S18
to S23. Samples from each packet were taken out, so as to make a
homogeneous mixture. Out of the homogeneous mixture of each lot, the
corresponding samples each of 5 grams in duplicate, were drawn. Each of the
representative sample, was kept in a polythene bag. Each of the polythene bag
was kept in a paper envelope. The paper envelopes were sealed with the seal of
DRI, over a paper slip, bearing the signatures/thumb impression of the DRI
Officer, the Officer of the BSF, two independent witnesses, as also of Sahid
Ahmed, Gopal Singh and Rahul Kumar, accused. The representative samples,
drawn from Lot No.1, were marked as L-1, original, and L-2 duplicate.
Similarly, representative samples drawn from Lot Nos.2 and 3, were marked as
L-2 original and L-2 duplicate, L-3 original and L-3 duplicate. After drawl of
the 6 samples, each of the 23 packets were repacked in their original style. The
outer cover of each bag, was also stitched. The recovered two jute bags, used
for concealing and packing the recovered 23 packets, were too seized, under the
provisions of the Act, on the reasonable belief, that the same were also liable to
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confiscation, under the Act. All the recovered 23 bags, containing brownish
powder totally weighing 23 kgs. 545 grams (excluding samples) (gross weight),
net weight 22 kgs. 970 grams (excluding samples), and assessed to be valued at
Rs.1.15 crores, at that time, alongwith 2 jute bags, valued at Rs.100/-, and torn
pieces of adhesive tape, having NCP put in a steel trunk, which was locked and
sealed with the seal of DRI, over a paper slip, bearing thumb
impression/signatures of two independent witnesses, the officer of DRI, and
BSF (G), Amritsar. The accused were arrested. A report in the shape of form ‘F’
was sent to the Superior Officers, on 14.4.1996. The investigation was
conducted, as per the details mentioned in the complaint, which was filed in the
Court.
4. On appearance of the accused, in the Court, copies of the documents,
relied upon by the complainant, were supplied to them. After the case was
received by commitment, charge under Section 21 of the Act, was framed
against them, to which they pleaded not guilty, and claimed judicial trial.
5. The prosecution, in support of its case, examined Kewal Krishan,
Intelligence Officer, DRI, Amritsar, (PW-1), who deposed with regard to the
secret information, received by him, and three other officers, which was reduced
into writing. He proved secret information, Ex.PA, which was reduced into
writing, signed by him, and others. He further stated that the secret information
was communicated to their higher Officer, Deputy Director, DRD, New Delhi.
He further stated that, he was a member of the picket party, which intercepted
the truck aforesaid, alongwith 3 occupants (accused), of the same. He further
stated that the truck was brought to the DRI Office, at Amritsar. He further
stated that the recovery of heroin, referred to above, was effected from the
truck. Harcharan Singh, Asstt. Commissioner of Customs, (PW-2), being a
member of the picket party, also supported the case of the complainant, in all
material particulars. Sukhdev Singh, Constable (PW-3), interalia deposed that
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on 15.4.1996, while he was posted as Constable, in the office of the Directorate
Revenue Intelligence, Amritsar, Harcharan Singh, Asstt. Director, handed over
to him, in the morning, three envelopes and two letters. The envelopes were
sealed. He proved Ex.PU and Ex.PL, copies of the letters, which were given to
him, by Harcharan Singh. He further stated that he left him, at Railway Station,
Amritsar, and he went to Delhi. He further stated that he handed over the sealed
envelopes and the letters, in the Laboratory, and obtained receipt Ex.PV. He
further stated that neither he tampered with the envelopes and the letters, nor
did he allow anybody, to tamper with the same, till the same remained in his
custody. Bijon Behari Deb, Chemical Examiner (PW-4), deposed with regard to
the receipt of 3 samples, alongwith the forwarding letters Ex.PU and Ex.PL. He
further stated that the impression of the seal, on the test memo, and the sample
parcels tallied with each other. He issued receipt Ex.PV. He further stated that
after analysis, he gave his report, Ex.PS, and opined that each of the 3 samples,
was in the form of brown coloured powder, and each answered positive test for
diacetyl morphine and covered under the Act. He further stated that the street
name of diacetyl morphine, is heroin.
5-A. The Counsel for the complainant, gave up Moti Sagar and Vijay
Kumar, independent witnesses, as having been won over, by the accused.
Thereafter, he closed the evidence of the complainant.
6. 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. They
stated that they did not tender any statement, whatsoever, before the Customs
Authorities. It was further stated by them, that, in fact, their thumb impressions
and signatures were obtained on blank papers forcibly, under pressure, and on
physical pain, and later on the same were converted into their confessional
statements. They further stated that nothing was recovered, from them, nor they
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were having any concern with the recovery alleged, by the complainant. They,
however, did not lead any evidence, in their defence.
7. After hearing the Counsel for the complainant, the Counsel for the
accused, and, on going through the evidence, on record, the trial Court,
convicted and sentenced the accused/appellants, as stated hereinbefore.
8. Feeling aggrieved, against the judgment of conviction, and the order
of sentence, rendered by the trial Court, the instant appeals, were filed by Sahid
Ahmed, and Gopal Singh, appellants, only.
9. I have heard the learned Counsel for the parties, and have gone
through the evidence and record, of the case, carefully.
10. The Counsel for the appellants, at the very outset, contended that
when, as per the story of the prosecution, the truck was intercepted, in the area
of village Sujanpur, on Lakhanpur-Jalandhar-Pathankot road, why the same
was not searched, at the spot, and why the same, alongwith the occupants
thereof, was brought to the office of the DRI, at Amritsar, was a fact, which
remained shrouded in mystery. They further submitted that, this fact alone, was
sufficient, to cast a cloud of doubt, on the prosecution story. The submission of
the Counsel for the appellants, in this regard, does not appear to be correct. The
explanation, as to why the truck, and the occupants thereof, were brought to the
DRI office, at Amritsar, was provided by Kewal Krishan, Intelligence Officer,
DRI, Amritsar (PW-1). He, in clear-cut terms, stated that since the place, where
the truck, occupied by 3 persons, who were the accused, was intercepted, was
not secure, and safe for rummaging, it was brought to the DRI office, alongwith
the accused. There is no requirement of law, that after apprehension of the
vehicle, suspected to be carrying some contraband, search of the same, should
be conducted, at the same very place, even if, adoption of such a course, may
not be safe and secure. The members of the picket party, were required to take
sufficient precautions, to ensure the safe conduct of the proceedings, regarding
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search and seizure, at a place, which could be said to be proper for security
purposes. A big haul of heroin, weighing 23 kgs.(net), the value whereof, at
the relevant time, was 1 crore 15 lacs, and, at present, may be more than 5
crores, per kilogram, was recovered. It was, under these circumstances, the
truck, and the occupants, thereof, were brought to the DRI office, at Amritsar.
On account of this reason, no doubt, whatsoever, could be cast on the case of
the prosecution. The submission of the Counsel for the appellants, being
without merit, must fail, and the same stands rejected.
11. It was next submitted by the Counsel for the appellants, that the
appellants, were not proved to be in conscious possession of 23 Kgs. 575 grams,
heroin (gross weight), and 23 Kgs. Heroin (net weight). The submission of the
Counsel for the appellants, in this regard, does not appear to be correct. When
the truck, containing the aforesaid contraband, was intercepted, Gopal Singh,
appellant, was the driver thereof, whereas, Sahid Ahmed, appellant, was sitting
in the same. Rahul Kumar (non-appellant), was the cleaner of the truck. They
were the only 3 occupants of the truck, at the relevant time. Two jute bags,
containing the aforesaid heroin, were lying under the long sleeping seat, behind
the driver’s seat. Gopal Singh, appellant, made a statement, before the Customs
Officer, Ex.PG, on 13.4.1996, under Section 67 of the Act, wherein, he
admitted that he knew Sahid Ahmed, earlier, as he was mechanic, employed by
the firm, in which he was the driver. He also admitted that Rahul Kumar (non-
appellant), was the cleaner of the truck. It means that all 3 of them, were known
to each other, earlier to the search and seizure. It, therefore, could not be said
that any one of them, was a stranger to each other. Gopal Singh, appellant, in
his statement, under Section 67, made by him, voluntarily before the Customs
Officer, on the aforesaid date, also admitted that Sahid Ahmed, had told him,
that he had kept the articles, delivered to him, by his acquaintances, under the
long seat, behind the driver’s seat. Sahid Ahmed, appellant, also admitted that
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he kept two jute bags, containing heroin, under the long seat behind the driver’s
seat, and told about the same to Gopal Singh, driver. Gopal Singh, being the
driver of the truck, was required to be diligent enough, to check, as to which
articles, in the bags, had been kept by Sahid Ahmed, under the seat, behind the
driver’s seat. Drivers of the vehicles, normally, before starting from a particular
place, check the articles lying in the vehicle. Under these circumstances, all the
accused, very well knew, as to what was contained in the jute bags, lying under
the seat, behind the driver’s seat. They were, therefore, in possession of, and in
control over the heroin, referred to above. 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 statutory
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 :-
“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
Crl. Appeal No.333-SB of 1999 10
Crl. Appeal No.707-SB of 1999narcotic 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.
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
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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. Similar is the position in
terms of Section 54 where also presumption is available to
be drawn from possession of illicit articles.”
11-C. 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, the heroin, referred to above, was
found under the long seat, behind the driver’s seat, in the truck, which was being
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driven by one of them. 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, the accused/appellants took up the plea, only of false
implication. As stated above, the accused, thus, 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.
12. The Counsel for Gopal Singh (driver), appellant, relying upon his
statement, Ex.PG, made by him, on 13.4.1996, before the Customs Officer,
under Section 67 of the Act, submitted that he did not know, as to what was
contained in the jute bags, lying under the seat, behind the driver’s seat. He
further submitted that, he only believed Sahid Ahmed, that some articles had
been kept under that seat. He further submitted that even Sahid Ahmed,
admitted that he kept the jute bags, containing heroin, under the seat, behind the
driver’s seat. He further submitted that, as such, Gopal Singh, could not be said
to be in conscious possession of the contraband, referred to above, and, thus, he
did not commit any offence, punishable under Section 21 of the Act. The
submission of the Counsel for the appellant, in this regard, does not appear to be
correct. As stated above, Gopal was the driver of the truck, at the relevant time.
He was wholly-solely incharge of the truck, at the relevant time. It could not be
expected of him, just to believe the representation, made by Sahid Ahmed. As
soon as Sahid Ahmed told him, that he had kept the articles, handed over to
him, by his acquaintances, under the long seat, behind the driver’s seat, he must
have checked the same, and finding that the same contained the contraband, for
undisclosed reasons, connived with Sahid Ahmed. Neither, during the course of
cross-examination of the prosecution witnesses, nor in his statement, under
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Section 313 Cr.P.C., he took up the plea, that he made a statement, Ex.PG,
wherein, he stated that he was not in the knowledge of the contents of the jute
bags aforesaid. On the other hand, he retracted from his statement, Ex.PG,
made by him, before the Customs Officer first in point of time, as for the first
time, before this Court, he took up such a plea that he was not in possession of
the contraband. Had it been so, it was required of him, to put to the prosecution
witnesses, during the course of cross-examination, that he was not in conscious
possession of the contraband. He was also required to take up such a plea, in
his statement, under Section 313 Cr.P.C. It was at a very belated stage, that he
came up with the plea, that he was not in conscious possession of the
contraband. No doubt, Kewal Krishan, (PW-1), during the course of his cross-
examination, stated that during the course of investigation, it was discovered
that Gopal Singh and Rahul Kumar, accused, had no knowledge of
transportation of narcotic substance, in the truck. However, his statement, in
this regard, cannot be taken as a gospel truth. Similarly, Harbahajan Singh,
Asstt. Commissioner of Customs (PW-2), stated that Gopal Singh and Rahul
Kumar, were found innocent, in the investigation, but complaint was filed
against them, because they too were caught at the spot. He further stated that
Kewal Krishan, did not inform him, in writing that Gopal Singh and Rahul
Kumar, were innocent. The Customs Officers, after catching the accused, with
the contraband aforesaid, filed the criminal complaint aforesaid. It is for the
Court to decide, as to which accused was innocent, and which accused was
guilty. They had no right to decide the guilt or innocence of the accused. Their
duty was only to detect the crime, and then file a complaint, against the accused.
As soon as the complaint was filed by them, their role was over. They were
only to appear, as witnesses, thereafter. From the overall assessment of the
evidence, produced by the prosecution, it is proved that Gopal Singh, knew
about the contents of the jute bags, and he was, thus, in possession of, and in
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control over the same. In Madan Lal’s case (supra), also one of the five
accused admitted his conscious possession, in respect of the contraband, but in
his statement, under Section 313 Cr.P.C., he did not take up such a plea. As
stated above, the Apex Court held that all the 5 accused, including the driver,
were in conscious possession of 820 grams charas, which was lying in the car.
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. The Counsel for the Sahid Ahmed, appellant, submitted that Sahid
Ahmed, was neither the owner, nor the driver of the truck, but only a mechanic,
and, as such, conscious possession, of the contraband, could not be attributted to
him. The submission of the Counsel for Sahid Ahmed, appellant, does not
appear to be correct. Sahid Ahmed, appellant, when made confessional
statement, under Section 67 of the Act, before the Customs Officer, Ex.PF,
dated 13.4.1996, voluntarily admitted that he kept 2 jute bags, containing
contraband, under the long seat, behind the driver’s seat. This confessional
statement was, without any pressure, or undue influence. The Customs Officers
are not the Police Officers. The confessional statement made by Sahid Ahmed,
to them, was not hit by the provisions of Section 25 of the Indian Evidence Act,
1872. From the evidence produced by the complainant, coupled with the
confessional statement, Ex.PF, made by Sahid Ahmed, his conscious
possession, in respect of the contraband, stood duly proved. The mere fact that
he was neither the owner, nor the driver of the truck, did not at all absolve him,
of his liability, especially in view of his confessional statement, Ex.PF. The
submission of the Counsel for Sahid Ahmed, appellant, being without merit,
must fail, and the same stands rejected.
14. The Counsel for the appellants, however, placed reliance on Avtar
Singh Vs. State of Punjab 2002(4) RCR (Criminal) 181, in respect of their
contention, that the accused, were not found in conscious possession of the
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contraband, in the truck. In Avtar Singh’s case (supra), the possession of the
accused, was not proved. The Apex Court held that they may be labourers. At
the same time, the Apex Court held that they, at the most, could be said to be
the abettors, but they were not convicted, and sentenced, on the ground, that no
charge for abetment had been framed against them. The Apex Court, therefore,
did not completely absolve them, of their liability. Avtar Singh’s case (supra),
was duly noticed, and distinguished, in Megh Singh Vs. State of Punjab, 2003
(4) RCR (Criminal) 319, on factual matrix. The facts of Avtar Singh’s case
(supra), are thus, distinguishable from the facts of the instant case. No help,
therefore, can be drawn, by the Counsel for the appellants, therefrom. The
submission of the Counsel for the appellants, being without merit, must fail, and
the same stands rejected.
15. It was next submitted by the Counsel for the appellants, that no
question was put to the accused, in their statements, under Section 313 Cr.P.C.,
that they were in conscious possession of the contraband, and, as such, they
could not be held guilty of the offence, punishable, under Section 21 of the Act.
They also placed reliance on Raj Kumar Vs. State of Punjab 2005(1) RCR
(Criminal) 70, in respect of their contention. It may be stated here, that in their
statements, under Section 313 Cr.P.C., the accused were required to be put only
the incriminating circumstances, appearing against them, in the prosecution
evidence. They were not required to be put the provisions of law, or the
presumption operating, under the provisions of law, in their statements, under
Section 313 Cr.P.C. The accused were put a specific question, that two jute
bags, containing contraband, were found lying the truck, of which they were
occupants. They were made aware that they were in possession of, and in
control over the jute bags, containing contraband. After their possession was
proved, in respect of the contraband, then the statutory presumption, under
Sections 54 and 35 of the Act, operated against them, that they were in
Crl. Appeal No.333-SB of 1999 16
Crl. Appeal No.707-SB of 1999
conscious possession thereof. Such statutory presumption, operating against
them, under the provisions of Sections 54 and 35 of the Act, therefore, was not
required to be put to them, during the course of their statements, under Section
313 Cr.P.C. In this view of the matter, the submission of the Counsel for the
appellants, being without merit, must fail, and the same stands rejected.
16. No other point, was urged, by the Counsel for the parties.
17. 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.
18. For the reasons recorded, hereinbefore, both the appeals are
dismissed. The judgment of conviction, and the order of sentence dated
25.1.1999, are upheld. If the accused/appellants are on bail, their bail bonds,
shall stand cancelled. The Chief Judicial Magistrate, Amritsar, 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. Compliance report be sent within two months.
September 19, 2008 (SHAM SUNDER) Vimal JUDGE