JUDGMENT
Adarsh Kumar Goel, J.
1. The State is aggrieved by acquittal of the respondent of the charge under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the Act”).
2. Case of the prosecution is that SI Massa Singh (PW-3) was on patrol duty along with other members of the police party on 22.11.1994. The police party was going from Jadla to Sanawa by the canal path on cycles. When they reached near sugarcane field of Jagdish Singh, Lamberdar, in the area of Jadla, the accused was seen sitting on gunny bags. He tried to slip away. He was asked to stop and was inquired about the contents of the bags. On checking, bags were found to be containing poppy husk. He took sample of 250 gms. from each of the bags and made them into parcels. In all, there were ten bags weighing 39 kgs. 750 gms. each after taking out the sample. The bags were separately sealed. Sample impression of seals was prepared. The same was handed over to HC Shangara Singh. Sample parcels and the gunny bags were taken into possession and a writing (Ex.PD) was sent to the Police Station, Nawanshahr, on the basis of which, FIR was recorded by ASI Baldev Singh. Rough site plan was prepared and accused was arrested. SI Massa Singh (PW3) was himself the incharge of the police post and was the Additional SHO of Police Station, Nawanshahr. He deposited the case property with seals intact with MHC Bhupinder Singh. As per report of Chemical Examiner (Ex.PF), the samples were found to be containing poppy husk. After completion of investigation, the accused was sent up for trial.
3. The prosecution examined PW-3 SI Massa Singh and PW-4 HC Shangara Singh who proved the recovery. The contraband bags were produced before the Court. Affidavits of Bhupinder Singh, MHC (Ex.PA) and affidavit of Constable Gian Singh (Ex.PB) were also filed. MHC Bhupinder Singh stated that case property was deposited with him on 22.11.1994 and was not tampered with. He sent the samples to the office of Chemical Examiner through Constable Gian Singh and the samples were not tampered with. They were in his custody. Constable Gian Singh in his affidavit stated that he took the samples from MHC Bhupinder Singh and delivered the same in the office of Chemical Examiner and the same were not tampered with. As per report (Ex.PF), samples were received intact and in good condition and the contents thereof were poppy heads. As per statement made by the accused on 24.5.1995, he did not have any objection to affidavits PA and PB being admitted into evidence and he did not wish to cross-examine the deponents of the affidavits. The affidavits were ordered to be read in evidence as PW-1 and PW-2.
4. After considering the evidence, the trial Court held that case of the prosecution was not proved beyond reasonable doubt. The reasons given by the trial Court are as under:
(i) Provisions of Section 50 of the Act were not complied with as offer to conduct the search in the presence of a gazetted officer was not made.
(ii) No person from the locality was joined as independent witness.
(iii) Evidence of police officials alone was not sufficient for conviction.
5. We have heard learned Counsel for the parties and perused the record.
6. Learned Counsel for the State submitted that the reasons given by the trial Court for acquittal of the respondent are perverse inasmuch as the provisions of Section 50 of the Act are not attracted to the present situation. Absence of independent witness by itself cannot be a ground not to rely upon the testimony of official witnesses and unless evidence of official witnesses suffers from any discrepancy, there is no bar to an accused being convicted on the basis of such evidence.
7. Learned Counsel for the respondent sought to justify acquittal on the ground that conscious possession cannot be held to be proved in absence of investigation as to how the contraband was transported to place of incident and the ownership of the contraband. Mere presence of the accused at the place where the contraband was recovered, is not enough to infer that the accused was in conscious possession of the bags. Reliance has been placed on judgment of the Hon’ble Supreme Court in State of Punjab v. Balkar Singh 2004 SCC (Cri) 838 and judgment of this Court in Sukhdev Singh @ Sukha v. State of Punjab 2006(1) RCR (Criminal) 4. It was also submitted that in absence of evidence of sample having been received by the Chemical Examiner with proper seals, acquittal of the respondent-accused was justified. It was also submitted that recovery being from thoroughfare, in absence of any independent witness, case against the respondent could not be held to have been proved. It was also submitted that as per instructions issued by the Government of India, quantity of sample should be in duplicate. Reliance was placed on judgments of the Hon’ble Supreme Court in Gurbax Singh v. State of Haryana 2001(1) RCR (Criminal) 702, of this Court in State of Punjab v. Kashmir Singh 2002(3) RCR (Criminal) 481 and State of Punjab v. Ram Chand 2001(1) RCR (Criminal) 817.
8. We are of the view that the reasons given by the trial Court are perverse and not sustainable in law nor are the contentions now raised justifying acquittal of the respondent-accused tenable.
9. Before discussing the contentions raised on behalf of the accused, reference may be made to the evidence on record. PW-3 SI Massa Singh fully supported the version given by him in his writing (Ex.PD) sent to Police Station on 22.11.1994 at 5.30 P.M., which led to registration of FIR on the same day at 6.10/6.35 P.M. According to him, while on patrol duty, he noticed the accused person sitting on gunny bags and he became suspicious from the demeanour of the accused. On suspicion, he conducted search of the gunny bags and found them to be containing poppy husk. He took out samples and sealed them and also sealed the gunny bags. He sent a writing to the police station and deposited the case property with seals intact with the MHC Bhupinder Singh. He was cross-examined, but his evidence remained unshaken. No suggestion on behalf of the defence was given that the witness had any animosity against the accused. Version given by PW-3 Massa Singh, SI was fully corroborated by HC Shangara Singh (PW-4), who also witnessed the recovery taking place. Affidavit of MHC Bhupinder Singh about depositing of the case property, the same remaining intact and sending of samples without any tampering and affidavit of Constable Gian Singh about transportation of samples to the Chemical Examiner without any tampering were tendered and the accused made a statement that he did not wish to cross-examine the deponents, on account of which, the said affidavits were accepted as evidence. Report of Chemical Examiner shows that the samples contained poppy husk. The only explanation the accused gave was that he was picked up from his house and falsely implicated.
10. From the above evidence, it stands established that recovery of contraband was effected from the conscious possession of the accused and thus, offence has been duly proved against him. As regards applicability of Section 50 of the Act, we may refer to judgment of the Hon’ble Supreme Court in State of Rajasthan v. Ram Chandra , wherein, it was observed as under:
10. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. (See Kalema Tumba v. State of Maharashtra ), State of Punjab v. Baldev Singh , and Gurbax Singh v. State of Haryana 2001 (3) SCC 28.) The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh case (supra).
11. As regards conscious possession, we may refer to judgment of the Hon’ble Supreme Court in Megh Singh v. State of Punjab wherein it was observed:
9. The expression possession is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja to work out a completely logical and precise definition of possession uniformally applicable to all situations in the context of all statutes.
10. The word conscious means awareness about a particular fact. It is a state of mind which is deliberate or intended.
11. As noted in Gunwantlal v. State of M.P. possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control.
12. The word possession means the legal right to possession (see Heath v. Drown) 1972 (2) All ER 561(HL). In an interesting case it was observed that where a person keeps his firearm in his mothers flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976) 1 All ER 844 (QBD).
13. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of 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. This position was highlighted in Madan Lal v. State of H.P. ).”
17. “The decision in Avtar Singh v. State of Punjab was rendered in a different factual background. In that case the articles were being carried in a truck. There were several persons in the truck. It had not been established by evidence that any one of them had any conscious possession. That also was not the only factor taken note of. While the accused was examined under Section 313 of the Code of Criminal Procedure, 1973 (for short the Code), the essence of accusations was not brought to his notice, more particularly with the possession aspect. It was also noticed that the possibility of the accused persons being labourers of the truck was not ruled out by the evidence. Since the decision was rendered on consideration of several peculiar factual aspects specially noticed in that case, it is of no assistance to the accused also.
12. As regards independent witness, non-examination thereof by itself does not create any doubt about prosecution case, if the evidence of official witnesses is reliable. Reference may be made to judgment of Hon’ble the Supreme Court in Appabhai and Anr. v. State of Gujarat AIR 1988 SC 696, wherein it was observed:
11…It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether -in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused…
13. In Pradeep Narayan Madgaonkar etc. etc., v. State of Maharashtra , it was observed:
11. …Indeed, the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the Investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation,requires greater care to appreciate their testimony….
14. Report of Chemical Examiner clearly shows that the samples were properly sealed and quantity was sufficient for examination. In these circumstances, no prejudice is shown to have been caused to the accused from the quantum of sample being not as per instructions.
15. No doubt investigation should have been conducted about transportation of the contraband and ownership thereof, but mere defect in investigation is no ground for acquittal of he accused where the offence is otherwise duly proved. Reference may be made to judgment of the Hon’ble Supreme Court in Leela Ram v. State of Haryana , wherein it was observed:
8. Before however, proceeding with the matter on the counts as above, it would be convenient to note another aspect of the matter, namely, the observations pertaining to the investigation by the investigating agency. It is now a well-settled principle that any irregularity or even an illegality during investigation ought not to be treated as a ground to reject the prosecution case and we need not dilate on the issue excepting referring to a decision of this Court (vide State of Rajasthan v. Kishore ].
16. In the present case, possession from the accused has been fully proved, which itself completes the offence, as ingredient of offence is possession. The judgments relied upon by learned Counsel for the respondent are distinguishable.
17. In Balkar Singh (supra), there were two persons belonging to different villages and version of prosecution of recovery having been effected, was not found to be reliable. It was observed that there was no evidence to prove conscious possession from the accused. Observations of the Hon’ble Supreme Court in Megh Raj (supra) have not been referred to. In these circumstances, this judgment is distinguishable.
18. Moreover, as held in Prakash Chander Pathak v. State of Uttar Pradesh , decisions even of the highest Court on a question of fact cannot be cited as a precedent. In the said case, it was observed:
8. Learned Counsel for the appellant cited before us a number of reported decisions of this Court bearing on the appreciation of circumstantial evidence. We need not refer to those authorities. It is enough to say that decisions even of the highest court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of other cases which must rest in the ultimate analysis upon their own particular facts. The general principles governing appreciation of circumstantial evidence are well-established and beyond doubt or controversy. The more difficult question is one of applying those principles to the facts and circumstances of a particular case coming before the Court. That question has to be determined by the Court as and when it arises with reference to the particular facts and circumstances of that individual case. It is no use, therefore, appealing to precedents in such matters. No case on facts can be on all fours with those of another. Therefore, it will serve no useful purpose to decide this case with reference to the decisions of this Court in previous cases….
19. Identical observations have also been made in State Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. .
20. For the above reasons, we are of the view that acquittal of the respondent is not sustainable. The impugned judgment of the trial Court is set-aside. The respondent is convicted under Section 15 of the NDPS Act and is sentenced to undergo RI for 10 years and to pay fine of Rs. 1 lac, in default, to undergo further RI for one year.