{"id":226974,"date":"2008-09-19T00:00:00","date_gmt":"2008-09-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sahid-ahmed-vs-intelligence-officer-from-the-on-19-september-2008"},"modified":"2018-08-03T15:21:10","modified_gmt":"2018-08-03T09:51:10","slug":"sahid-ahmed-vs-intelligence-officer-from-the-on-19-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sahid-ahmed-vs-intelligence-officer-from-the-on-19-september-2008","title":{"rendered":"Sahid Ahmed vs Intelligence Officer From The … on 19 September, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Sahid Ahmed vs Intelligence Officer From The … on 19 September, 2008<\/div>\n
Crl. Appeal No.333-SB of 1999                                   1\nCrl. Appeal No.707-SB of 1999\n\n        IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                        CHANDIGARH\n\n                                Crl. Appeal No.333-SB of 1999\n                                Date of Decision : September 19, 2008\n\n\nSahid Ahmed S\/o Sharif Ahmed,                        ...Appellant\nR\/o Gulabi Bagh Colony,\nTibba Road, Ludhiana.\n\n                                Versus\n\nIntelligence Officer from the office of              ....Respondent\nAssistant Director, Directorate of Revenue\nIntelligence, Ministry of Finance,\nGovt. of India, Amritsar.\n\n                                Crl. Appeal No.707-SB of 1999\n\nGopal Singh S\/o Joginder Pal Singh,                  ...Appellant\nR\/o Village Malwan, P.S.Nangal,\nTehsil Anandpur Sahib,\nDistrict Ropar.\n\n                                Versus\n\nUOI through the office of                            ....Respondent\nAssistant Director, Directorate of Revenue\nIntelligence, Ministry of Finance,\nGovt. of India, Amritsar.\n\nCORAM: HON'BLE MR. JUSTICE SHAM SUNDER\n\nPresent: Mr. M.L.Saggar, Sr. Advocate, with\n         Mr. G.P.Vashisht, Advocate,\n         for the appellant, in Crl.A.No.333-SB of 1999.\n\n          Mr. S.S.Rana, Advocate,\n          for the appellant, in Crl.A.No.707-SB of 1999.\n\n          Mr. D.D.Sharma, Advocate,\n          for the respondent, in both the appeals.\n\n\nSHAM SUNDER, J.\n<\/pre>\n
          This judgment shall dispose of Criminal Appeal No.333-SB of 1999,<\/p>\n
filed by Sahid Ahmed, and Criminal Appeal No.707-SB of 1999, filed by Gopal<\/p>\n
Singh, accused (now appellants), arising out of the judgment of conviction, and
\n Crl. Appeal No.333-SB of 1999                                       2<\/span>
\nCrl. Appeal No.707-SB of 1999<\/p>\n
the order of sentence dated 25.1.1999, rendered by the Court of Addl. Sessions<\/p>\n
Judge-cum-Special Judge, Amritsar, vide which it convicted Sahid Ahmed and<\/p>\n
Gopal Singh, accused\/appellants, and Rahul Kumar (non-appellant) for the<\/p>\n
offence, punishable under Section 21 of the Narcotic Drugs & Psychotropic<\/p>\n
Substances Act, 1985 (hereinafter called as ‘the Act’ only) and sentenced them,<\/p>\n
to undergo rigorous imprisonment, for a period of ten years each, and to pay a<\/p>\n
fine of Rs.1 lac each, and in default of payment of the same, to undergo<\/p>\n
rigorous imprisonment for another period of six months each, for having been<\/p>\n
found in possession of 23 kgs. Heroin (net weight), and 23 Kgs. And 575 grams<\/p>\n
heroin (gross weight).\n<\/p>\n
2.         The facts, in brief, are that on a specific information, a special picket<\/p>\n
was held on 12.4.1996, at Canal Bridge, near village Sujanpur, at Lakhanpur-<\/p>\n
Jalandhar-Pathankot road. The picket party was headed by Arvinderpal Singh,<\/p>\n
JAD, BSF(G), Amritsar, and consisted of Harcharan Singh, Asstt. Director,<\/p>\n
DRI, Amritsar, and other officials. At about 12.55 PM, on 12.4.1996, a truck,<\/p>\n
bearing No.PB-13A-2947, was intercepted by the picket party. There were<\/p>\n
three occupants, in the said truck. The truck was signalled to stop. It was<\/p>\n
stopped. It was being driven by Gopal Singh, accused. Sahid Ahmed and<\/p>\n
Rahul Kumar @ Raju, accused, were sitting behind the long seat of the truck.<\/p>\n
On preliminary enquiry, they disclosed their names, as above, and denied<\/p>\n
having concealed any narcotic substance, in the said truck. As the officers had<\/p>\n
specific information, and the place of inspection, was not found suitable, and<\/p>\n
secure for conducting rummaging of the said truck, on the road side, the same<\/p>\n
alongwith the three suspects aforesaid, were escorted to the office of the<\/p>\n
Directorate of Revenue Intelligence, situated in Green Avenue, Amritsar. In the<\/p>\n
presence of two independent witnesses namely Moti Sagar and Vijay Kumar,<\/p>\n
letters were delivered to the accused, whether they would like themselves, and<\/p>\n
their truck to be searched, in the presence of a Gazetted Officer, or a Magistrate.
\n Crl. Appeal No.333-SB of 1999                                    3<\/span>
\nCrl. Appeal No.707-SB of 1999<\/p>\n
The accused gave their consent, for search of their person, as well as the truck,<\/p>\n
in the presence of Harcharan Singh, Asstt. Director, DRI, Amritsar. The search<\/p>\n
of truck No.PB-13A-2947, was conducted, in the presence of the aforesaid<\/p>\n
independent witnesses, and Harcharan Singh, Asstt. Director, DRI, Amritsar, a<\/p>\n
Gazetted Officer, which resulted into the recovery of 2 jute bags, one of big<\/p>\n
size, and the other of medium size, from the box lying beneath the long seat,<\/p>\n
behind the driver’s seat, besides the Registration Certificate of the truck, in<\/p>\n
question. These bags, were opened, and their contents, were examined. The big<\/p>\n
size bag was found containing 13 packets wrapped with yellow coloured<\/p>\n
adhesive tape, and the medium size bag, was found containing 10 packets,<\/p>\n
wrapped with yellow coloured adhesive tape. Thus in all 23 packets, were<\/p>\n
recovered, from the two jute bags aforesaid. On cutting open the tape, from all<\/p>\n
the recovered 23 packets, the same were found packed in white cotton cloth.<\/p>\n
The packing of the brownish powder in each of the recovered 23 packets was<\/p>\n
found to be as follows :\n<\/p>\n
          “The brownish powder was packed in a khaki coloured paper<\/p>\n
          envelope, the envelope was further kept in polythene bag, and the<\/p>\n
          polythene bag was further packed and stitched with white coloured<\/p>\n
          cotton cloth.”\n<\/p><\/blockquote>\n
2-A.       The cotton cloth 10 packets, were having ‘777’ markings, and 13<\/p>\n
packets were having ‘999’ markings. On opening of each of the recovered 23<\/p>\n
packets, the same were found containing a powder like substance, which was<\/p>\n
brownish in colour, and was having typical smell. On weighment, each packet<\/p>\n
was found weighing 1 kg. net. Total gross weight of the brownish powder of all<\/p>\n
the 23 packets, was found to be 23 kgs. 575 grams, and net weight was found to<\/p>\n
be 23 kgs. On testing by the Officer, with the U.N.testing kit, each packet,<\/p>\n
showed positive result for heroin (opium based). Thereafter, the said heroin<\/p>\n
was seized, under Section 42 of the Act. The truck, bearing No.PB-13A-2947,
\n Crl. Appeal No.333-SB of 1999                                     4<\/span>
\nCrl. Appeal No.707-SB of 1999<\/p>\n
alongwith the Registration Certificate, was also seized, under the Act. The<\/p>\n
personal search of Sahid Ahmed, accused, was effected, in the presence of<\/p>\n
independent witnesses and Harcharan Singh, Asstt. Director, DRI, Amritsar, as<\/p>\n
a result whereof, Indian currency of Rs.200\/-, one identity card, issued by Indian<\/p>\n
Muslim Council Pb. Regd. No.493, were recovered. On personal search of<\/p>\n
Gopal Singh, accused, a sum of Rs.500\/- in Indian currency, and his driving<\/p>\n
licence No.21543 dated 23.5.1989, issued by DIG Bareily, were recovered. On<\/p>\n
personal search of Rahul Kumar, no recovery was effected.<\/p>\n
3.         For the purpose of drawl of samples, for chemical analysis, all the<\/p>\n
recovered 23 packets of brownish powder, were divided into 3 lots. Lot No.1,<\/p>\n
comprised 10 packets, marked S1 to S10, having marking ‘777’, Lot No.2,<\/p>\n
comprised 7 packets, marked S11 to S17, having marking ‘999’, and the rest of<\/p>\n
the 6 packets, having marking ‘999’ were allotted Lot No.3, and marked as S18<\/p>\n
to S23.    Samples from each packet were taken out, so as to make a<\/p>\n
homogeneous mixture.      Out of the homogeneous mixture of each lot, the<\/p>\n
corresponding samples each of 5 grams in duplicate, were drawn. Each of the<\/p>\n
representative sample, was kept in a polythene bag. Each of the polythene bag<\/p>\n
was kept in a paper envelope. The paper envelopes were sealed with the seal of<\/p>\n
DRI, over a paper slip, bearing the signatures\/thumb impression of the DRI<\/p>\n
Officer, the Officer of the BSF, two independent witnesses, as also of Sahid<\/p>\n
Ahmed, Gopal Singh and Rahul Kumar, accused. The representative samples,<\/p>\n
drawn from Lot No.1, were marked as L-1, original, and L-2 duplicate.<\/p>\n
Similarly, representative samples drawn from Lot Nos.2 and 3, were marked as<\/p>\n
L-2 original and L-2 duplicate, L-3 original and L-3 duplicate. After drawl of<\/p>\n
the 6 samples, each of the 23 packets were repacked in their original style. The<\/p>\n
outer cover of each bag, was also stitched. The recovered two jute bags, used<\/p>\n
for concealing and packing the recovered 23 packets, were too seized, under the<\/p>\n
provisions of the Act, on the reasonable belief, that the same were also liable to
\n Crl. Appeal No.333-SB of 1999                                      5<\/span>
\nCrl. Appeal No.707-SB of 1999<\/p>\n
confiscation, under the Act. All the recovered 23 bags, containing brownish<\/p>\n
powder totally weighing 23 kgs. 545 grams (excluding samples) (gross weight),<\/p>\n
net weight 22 kgs. 970 grams (excluding samples), and assessed to be valued at<\/p>\n
Rs.1.15 crores, at that time, alongwith 2 jute bags, valued at Rs.100\/-, and torn<\/p>\n
pieces of adhesive tape, having NCP put in a steel trunk, which was locked and<\/p>\n
sealed with the seal of DRI, over a paper slip, bearing thumb<\/p>\n
impression\/signatures of two independent witnesses, the officer of DRI, and<\/p>\n
BSF (G), Amritsar. The accused were arrested. A report in the shape of form ‘F’<\/p>\n
was sent to the Superior Officers, on 14.4.1996.          The investigation was<\/p>\n
conducted, as per the details mentioned in the complaint, which was filed in the<\/p>\n
Court.\n<\/p>\n
4.         On appearance of the accused, in the Court, copies of the documents,<\/p>\n
relied upon by the complainant, were supplied to them. After the case was<\/p>\n
received by commitment, charge under Section 21 of the Act, was framed<\/p>\n
against them, to which they pleaded not guilty, and claimed judicial trial.<\/p>\n
5.         The prosecution, in support of its case, examined Kewal Krishan,<\/p>\n
Intelligence Officer, DRI, Amritsar, (PW-1), who deposed with regard to the<\/p>\n
secret information, received by him, and three other officers, which was reduced<\/p>\n
into writing. He proved secret information, Ex.PA, which was reduced into<\/p>\n
writing, signed by him, and others. He further stated that the secret information<\/p>\n
was communicated to their higher Officer, Deputy Director, DRD, New Delhi.<\/p>\n
He further stated that, he was a member of the picket party, which intercepted<\/p>\n
the truck aforesaid, alongwith 3 occupants (accused), of the same. He further<\/p>\n
stated that the truck was brought to the DRI Office, at Amritsar. He further<\/p>\n
stated that the recovery of heroin, referred to above, was effected from the<\/p>\n
truck. Harcharan Singh, Asstt. Commissioner of Customs, (PW-2), being a<\/p>\n
member of the picket party, also supported the case of the complainant, in all<\/p>\n
material particulars. Sukhdev Singh, Constable (PW-3), interalia deposed that
\n Crl. Appeal No.333-SB of 1999                                     6<\/span>
\nCrl. Appeal No.707-SB of 1999<\/p>\n
on 15.4.1996, while he was posted as Constable, in the office of the Directorate<\/p>\n
Revenue Intelligence, Amritsar, Harcharan Singh, Asstt. Director, handed over<\/p>\n
to him, in the morning, three envelopes and two letters. The envelopes were<\/p>\n
sealed. He proved Ex.PU and Ex.PL, copies of the letters, which were given to<\/p>\n
him, by Harcharan Singh. He further stated that he left him, at Railway Station,<\/p>\n
Amritsar, and he went to Delhi. He further stated that he handed over the sealed<\/p>\n
envelopes and the letters, in the Laboratory, and obtained receipt Ex.PV. He<\/p>\n
further stated that neither he tampered with the envelopes and the letters, nor<\/p>\n
did he allow anybody, to tamper with the same, till the same remained in his<\/p>\n
custody. Bijon Behari Deb, Chemical Examiner (PW-4), deposed with regard to<\/p>\n
the receipt of 3 samples, alongwith the forwarding letters Ex.PU and Ex.PL. He<\/p>\n
further stated that the impression of the seal, on the test memo, and the sample<\/p>\n
parcels tallied with each other. He issued receipt Ex.PV. He further stated that<\/p>\n
after analysis, he gave his report, Ex.PS, and opined that each of the 3 samples,<\/p>\n
was in the form of brown coloured powder, and each answered positive test for<\/p>\n
diacetyl morphine and covered under the Act. He further stated that the street<\/p>\n
name of diacetyl morphine, is heroin.\n<\/p>\n
5-A.       The Counsel for the complainant, gave up Moti Sagar and Vijay<\/p>\n
Kumar, independent witnesses, as having been won over, by the accused.<\/p>\n
Thereafter, he closed the evidence of the complainant.\n<\/p>\n
6.         The statements of the accused, under Section 313 Cr.P.C., were<\/p>\n
recorded, and they were put all the incriminating circumstances, appearing<\/p>\n
against them, in the prosecution evidence. They pleaded false implication. They<\/p>\n
stated that they did not tender any statement, whatsoever, before the Customs<\/p>\n
Authorities. It was further stated by them, that, in fact, their thumb impressions<\/p>\n
and signatures were obtained on blank papers forcibly, under pressure, and on<\/p>\n
physical pain, and later on the same were converted into their confessional<\/p>\n
statements. They further stated that nothing was recovered, from them, nor they
\n Crl. Appeal No.333-SB of 1999                                     7<\/span>
\nCrl. Appeal No.707-SB of 1999<\/p>\n
were having any concern with the recovery alleged, by the complainant. They,<\/p>\n
however, did not lead any evidence, in their defence.\n<\/p>\n
7.         After hearing the Counsel for the complainant, the Counsel for the<\/p>\n
accused, and, on going through the evidence, on record, the trial Court,<\/p>\n
convicted and sentenced the accused\/appellants, as stated hereinbefore.<\/p>\n
8.         Feeling aggrieved, against the judgment of conviction, and the order<\/p>\n
of sentence, rendered by the trial Court, the instant appeals, were filed by Sahid<\/p>\n
Ahmed, and Gopal Singh, appellants, only.\n<\/p>\n
9.         I have heard the learned Counsel for the parties, and have gone<\/p>\n
through the evidence and record, of the case, carefully.<\/p>\n
10.        The Counsel for the appellants, at the very outset, contended that<\/p>\n
when, as per the story of the prosecution, the truck was intercepted, in the area<\/p>\n
of village Sujanpur, on Lakhanpur-Jalandhar-Pathankot road, why the same<\/p>\n
was not searched, at the spot, and why the same, alongwith the occupants<\/p>\n
thereof, was brought to the office of the DRI, at Amritsar, was a fact, which<\/p>\n
remained shrouded in mystery. They further submitted that, this fact alone, was<\/p>\n
sufficient, to cast a cloud of doubt, on the prosecution story. The submission of<\/p>\n
the Counsel for the appellants, in this regard, does not appear to be correct. The<\/p>\n
explanation, as to why the truck, and the occupants thereof, were brought to the<\/p>\n
DRI office, at Amritsar, was provided by Kewal Krishan, Intelligence Officer,<\/p>\n
DRI, Amritsar (PW-1). He, in clear-cut terms, stated that since the place, where<\/p>\n
the truck, occupied by 3 persons, who were the accused, was intercepted, was<\/p>\n
not secure, and safe for rummaging, it was brought to the DRI office, alongwith<\/p>\n
the accused. There is no requirement of law, that after apprehension of the<\/p>\n
vehicle, suspected to be carrying some contraband, search of the same, should<\/p>\n
be conducted, at the same very place, even if, adoption of such a course, may<\/p>\n
not be safe and secure. The members of the picket party, were required to take<\/p>\n
sufficient precautions, to ensure the safe conduct of the proceedings, regarding
\n Crl. Appeal No.333-SB of 1999                                     8<\/span>
\nCrl. Appeal No.707-SB of 1999<\/p>\n
search and seizure, at a place, which could be said to be proper for security<\/p>\n
purposes. A big haul of heroin, weighing 23 kgs.(net), the value whereof, at<\/p>\n
the relevant time, was 1 crore 15 lacs, and, at present, may be more than 5<\/p>\n
crores, per kilogram, was recovered. It was, under these circumstances, the<\/p>\n
truck, and the occupants, thereof, were brought to the DRI office, at Amritsar.<\/p>\n
On account of this reason, no doubt, whatsoever, could be cast on the case of<\/p>\n
the prosecution.   The submission of the Counsel for the appellants, being<\/p>\n
without merit, must fail, and the same stands rejected.\n<\/p>\n
11.        It was next submitted by the Counsel for the appellants, that the<\/p>\n
appellants, were not proved to be in conscious possession of 23 Kgs. 575 grams,<\/p>\n
heroin (gross weight), and 23 Kgs. Heroin (net weight). The submission of the<\/p>\n
Counsel for the appellants, in this regard, does not appear to be correct. When<\/p>\n
the truck, containing the aforesaid contraband, was intercepted, Gopal Singh,<\/p>\n
appellant, was the driver thereof, whereas, Sahid Ahmed, appellant, was sitting<\/p>\n
in the same. Rahul Kumar (non-appellant), was the cleaner of the truck. They<\/p>\n
were the only 3 occupants of the truck, at the relevant time. Two jute bags,<\/p>\n
containing the aforesaid heroin, were lying under the long sleeping seat, behind<\/p>\n
the driver’s seat. Gopal Singh, appellant, made a statement, before the Customs<\/p>\n
Officer, Ex.PG, on 13.4.1996, under Section 67 of the Act, wherein, he<\/p>\n
admitted that he knew Sahid Ahmed, earlier, as he was mechanic, employed by<\/p>\n
the firm, in which he was the driver. He also admitted that Rahul Kumar (non-<\/p>\n
appellant), was the cleaner of the truck. It means that all 3 of them, were known<\/p>\n
to each other, earlier to the search and seizure. It, therefore, could not be said<\/p>\n
that any one of them, was a stranger to each other. Gopal Singh, appellant, in<\/p>\n
his statement, under Section 67, made by him, voluntarily before the Customs<\/p>\n
Officer, on the aforesaid date, also admitted that Sahid Ahmed, had told him,<\/p>\n
that he had kept the articles, delivered to him, by his acquaintances, under the<\/p>\n
long seat, behind the driver’s seat. Sahid Ahmed, appellant, also admitted that
\n Crl. Appeal No.333-SB of 1999                                      9<\/span>
\nCrl. Appeal No.707-SB of 1999<\/p>\n
he kept two jute bags, containing heroin, under the long seat behind the driver’s<\/p>\n
seat, and told about the same to Gopal Singh, driver. Gopal Singh, being the<\/p>\n
driver of the truck, was required to be diligent enough, to check, as to which<\/p>\n
articles, in the bags, had been kept by Sahid Ahmed, under the seat, behind the<\/p>\n
driver’s seat. Drivers of the vehicles, normally, before starting from a particular<\/p>\n
place, check the articles lying in the vehicle. Under these circumstances, all the<\/p>\n
accused, very well knew, as to what was contained in the jute bags, lying under<\/p>\n
the seat, behind the driver’s seat. They were, therefore, in possession of, and in<\/p>\n
control over the heroin, referred to above. Once the possession of the accused,<\/p>\n
and their control over the contraband was proved, then statutory presumption<\/p>\n
under Sections 54 and 35 of the Act, operated against them, that they were in<\/p>\n
conscious possession thereof. Thereafter, it was for them, to rebut the statutory<\/p>\n
presumption, by leading cogent and convincing evidence.             However, the<\/p>\n
appellants failed to rebut that presumption, either during the course of cross-<\/p>\n
examination of the prosecution witnesses, or by leading defence evidence. In<\/p>\n
these circumstances, the trial Court was right, in holding that they were in<\/p>\n
conscious possession of the contraband. Section 54 of the Act ibid reads as<\/p>\n
under :-\n<\/p>\n
                      “Presumption from possession of illicit articles:- In trials<\/p>\n
                      under this Act, it may be presumed, unless and until the<\/p>\n
                      contrary is proved, that the accused has committed an<\/p>\n
                      offence under this Act, in respect of:-<\/p>\n<\/blockquote>\n
                      a)         any narcotic drug or psychotropic substance or\n\n                      controlled substance;\n\n                      b)         any opium poppy, cannabis plant or coca plant\n\n                      growing on any land which he has cultivated;\n\n                      c)         any apparatus specially designed or any group\n\n<\/pre>\n
                      of utensils specially adopted for the manufacture of any
\n Crl. Appeal No.333-SB of 1999                                     10<\/span>
\nCrl. Appeal No.707-SB of 1999<\/p>\n
                      narcotic drug or psychotropic substance or controller<\/p>\n
                      substance; or<\/p>\n<\/blockquote>\n
                      d)          any materials which have undergone any<\/p>\n
                      process towards the manufacture of a narcotic drug or<\/p>\n
                      psychotropic substance or controlled substance, or any<\/p>\n
                      residue left of the materials from which any narcotic drug<\/p>\n
                      or psychotropic substance or controlled substance has<\/p>\n
                      been manufactured,<\/p>\n
                      for the possession of which he fails to account<\/p>\n
                      satisfactorily.”\n<\/p><\/blockquote>\n
11-A.      Section 35 which relates to the presumption of culpable mental state,<\/p>\n
is extracted as under :-\n<\/p>\n
                       “Presumption of culpable mental state:-      (1)   In any<\/p>\n
                       prosecution for an offence under this Act, which requires<\/p>\n
                       a culpable mental state of the accused, the Court shall<\/p>\n
                       presume the existence of such mental state but it shall be<\/p>\n
                       a defence for the accused to prove the fact that he had no<\/p>\n
                       such mental state with respect to the act charged as an<\/p>\n
                       offence in that prosecution.\n<\/p>\n
                       Explanation:-     In this section “culpable mental state”\n<\/p>\n
                       includes intention, motive knowledge of a fact and belief<\/p>\n
                       in, or reason to believe, a fact.\n<\/p>\n
                       (2) For the purpose of this section, a fact is said to be<\/p>\n
                       proved only when the court believes it to exist beyond a<\/p>\n
                       reasonable doubt and not merely when its existence is<\/p>\n
                       established by a preponderance of probability.”\n<\/p>\n
11-B.      From the conjoint reading of the provisions of Sections 54 and 35,<\/p>\n
referred to hereinbefore, it becomes abundantly clear, that once an accused, is
\n Crl. Appeal No.333-SB of 1999                                        11<\/span>
\nCrl. Appeal No.707-SB of 1999<\/p>\n
found to be in possession of a contraband, he is presumed to have committed<\/p>\n
the offence, under the relevant provisions of the Act, until the contrary is<\/p>\n
proved. According to Section 35 of the Act ibid, the Court shall presume the<\/p>\n
existence of mental state, for the commission of an offence, and it is for the<\/p>\n
accused to prove otherwise. In Madan Lal and another Vs. State of H. P.<\/p>\n
2003 SCC (Crl.) 1664 it was held as under:-\n<\/p>\n
                    The word “conscious” means awareness about a
\n                    particular fact. It is a state of mind which is deliberate or
\n                    intended.\n<\/p><\/blockquote>\n
                                Once possession is established, the person who
\n                    claims that it was not a conscious possession has to
\n                    establish it, because how he came to be in possession is
\n                    within his special knowledge. Section 35 of the Act gives a
\n                    statutory recognition of this position because of the
\n                    presumption available in law. Similar is the position in
\n                    terms of Section 54 where also presumption is available to
\n                    be drawn from possession of illicit articles.”<\/p>\n<\/blockquote>\n
11-C.      The facts of Madan Lal’s case (supra) in brief, were that accused<\/p>\n
Manjit Singh was driving the Car, and the remaining four accused, were sitting<\/p>\n
therein. One steel container (dolu) in a black coloured bag, was recovered from<\/p>\n
the said Car, which contained 820 gms. charas. All the accused were convicted<\/p>\n
and sentenced by the trial Court, holding that they were found in conscious<\/p>\n
possession of charas, despite the fact, that one of the accused, admitted his<\/p>\n
conscious possession, of the contraband. The Apex Court held that the trial<\/p>\n
Court was right, in coming to the conclusion, that the accused were found in<\/p>\n
conscious possession of charas, as they had failed to explain, as to how, they<\/p>\n
were travelling in a Car together, which was not a public vehicle. The Apex<\/p>\n
Court upheld the conviction and sentence awarded to the accused. In the instant<\/p>\n
case, the accused failed to explain, as to how, the heroin, referred to above, was<\/p>\n
found under the long seat, behind the driver’s seat, in the truck, which was being
\n Crl. Appeal No.333-SB of 1999                                     12<\/span>
\nCrl. Appeal No.707-SB of 1999<\/p>\n
driven by one of them. The facts of Madan Lal’s case (supra) are similar and<\/p>\n
identical to the facts of the present case. The principle of law, laid down, in<\/p>\n
Madan Lal’s case (supra) is fully applicable to the facts of the present case.<\/p>\n
In the instant case, the accused\/appellants took up the plea, only of false<\/p>\n
implication. As stated above, the accused, thus, miserably failed to rebut the<\/p>\n
statutory presumption, referred to above. Thus, their conscious possession, in<\/p>\n
respect of the contraband, was proved, and, as such, the submission of the<\/p>\n
Counsel for the appellants, being without merit, must fail, and the same stands<\/p>\n
rejected.\n<\/p>\n
12.         The Counsel for Gopal Singh (driver), appellant, relying upon his<\/p>\n
statement, Ex.PG, made by him, on 13.4.1996, before the Customs Officer,<\/p>\n
under Section 67 of the Act, submitted that he did not know, as to what was<\/p>\n
contained in the jute bags, lying under the seat, behind the driver’s seat. He<\/p>\n
further submitted that, he only believed Sahid Ahmed, that some articles had<\/p>\n
been kept under that seat.     He further submitted that even Sahid Ahmed,<\/p>\n
admitted that he kept the jute bags, containing heroin, under the seat, behind the<\/p>\n
driver’s seat. He further submitted that, as such, Gopal Singh, could not be said<\/p>\n
to be in conscious possession of the contraband, referred to above, and, thus, he<\/p>\n
did not commit any offence, punishable under Section 21 of the Act. The<\/p>\n
submission of the Counsel for the appellant, in this regard, does not appear to be<\/p>\n
correct. As stated above, Gopal was the driver of the truck, at the relevant time.<\/p>\n
He was wholly-solely incharge of the truck, at the relevant time. It could not be<\/p>\n
expected of him, just to believe the representation, made by Sahid Ahmed. As<\/p>\n
soon as Sahid Ahmed told him, that he had kept the articles, handed over to<\/p>\n
him, by his acquaintances, under the long seat, behind the driver’s seat, he must<\/p>\n
have checked the same, and finding that the same contained the contraband, for<\/p>\n
undisclosed reasons, connived with Sahid Ahmed. Neither, during the course of<\/p>\n
cross-examination of the prosecution witnesses, nor in his statement, under
\n Crl. Appeal No.333-SB of 1999                                     13<\/span>
\nCrl. Appeal No.707-SB of 1999<\/p>\n
Section 313 Cr.P.C., he took up the plea, that he made a statement, Ex.PG,<\/p>\n
wherein, he stated that he was not in the knowledge of the contents of the jute<\/p>\n
bags aforesaid. On the other hand, he retracted from his statement, Ex.PG,<\/p>\n
made by him, before the Customs Officer first in point of time, as for the first<\/p>\n
time, before this Court, he took up such a plea that he was not in possession of<\/p>\n
the contraband. Had it been so, it was required of him, to put to the prosecution<\/p>\n
witnesses, during the course of cross-examination, that he was not in conscious<\/p>\n
possession of the contraband. He was also required to take up such a plea, in<\/p>\n
his statement, under Section 313 Cr.P.C. It was at a very belated stage, that he<\/p>\n
came up with the plea, that he was not in conscious possession of the<\/p>\n
contraband. No doubt, Kewal Krishan, (PW-1), during the course of his cross-<\/p>\n
examination, stated that during the course of investigation, it was discovered<\/p>\n
that Gopal Singh and Rahul Kumar, accused, had no knowledge of<\/p>\n
transportation of narcotic substance, in the truck. However, his statement, in<\/p>\n
this regard, cannot be taken as a gospel truth. Similarly, Harbahajan Singh,<\/p>\n
Asstt. Commissioner of Customs (PW-2), stated that Gopal Singh and Rahul<\/p>\n
Kumar, were found innocent, in the investigation, but complaint was filed<\/p>\n
against them, because they too were caught at the spot. He further stated that<\/p>\n
Kewal Krishan, did not inform him, in writing that Gopal Singh and Rahul<\/p>\n
Kumar, were innocent. The Customs Officers, after catching the accused, with<\/p>\n
the contraband aforesaid, filed the criminal complaint aforesaid. It is for the<\/p>\n
Court to decide, as to which accused was innocent, and which accused was<\/p>\n
guilty. They had no right to decide the guilt or innocence of the accused. Their<\/p>\n
duty was only to detect the crime, and then file a complaint, against the accused.<\/p>\n
As soon as the complaint was filed by them, their role was over. They were<\/p>\n
only to appear, as witnesses, thereafter. From the overall assessment of the<\/p>\n
evidence, produced by the prosecution, it is proved that Gopal Singh, knew<\/p>\n
about the contents of the jute bags, and he was, thus, in possession of, and in
\n Crl. Appeal No.333-SB of 1999                                     14<\/span>
\nCrl. Appeal No.707-SB of 1999<\/p>\n
control over the same. In Madan Lal’s case (supra), also one of the five<\/p>\n
accused admitted his conscious possession, in respect of the contraband, but in<\/p>\n
his statement, under Section 313 Cr.P.C., he did not take up such a plea. As<\/p>\n
stated above, the Apex Court held that all the 5 accused, including the driver,<\/p>\n
were in conscious possession of 820 grams charas, which was lying in the car.<\/p>\n
In this view of the matter, the submission of the Counsel for the appellant, being<\/p>\n
without merit, must fail, and the same stands rejected.\n<\/p>\n
13.        The Counsel for the Sahid Ahmed, appellant, submitted that Sahid<\/p>\n
Ahmed, was neither the owner, nor the driver of the truck, but only a mechanic,<\/p>\n
and, as such, conscious possession, of the contraband, could not be attributted to<\/p>\n
him. The submission of the Counsel for Sahid Ahmed, appellant, does not<\/p>\n
appear to be correct.     Sahid Ahmed, appellant, when made          confessional<\/p>\n
statement, under Section 67 of the Act, before the Customs Officer, Ex.PF,<\/p>\n
dated 13.4.1996, voluntarily admitted that he kept 2 jute bags, containing<\/p>\n
contraband, under the long seat, behind the driver’s seat. This confessional<\/p>\n
statement was, without any pressure, or undue influence. The Customs Officers<\/p>\n
are not the Police Officers. The confessional statement made by Sahid Ahmed,<\/p>\n
to them, was not hit by the provisions of Section 25 of the Indian Evidence Act,<\/p>\n
1872.   From the evidence produced by the complainant, coupled with the<\/p>\n
confessional statement, Ex.PF, made by Sahid Ahmed, his conscious<\/p>\n
possession, in respect of the contraband, stood duly proved. The mere fact that<\/p>\n
he was neither the owner, nor the driver of the truck, did not at all absolve him,<\/p>\n
of his liability, especially in view of his confessional statement, Ex.PF. The<\/p>\n
submission of the Counsel for Sahid Ahmed, appellant, being without merit,<\/p>\n
must fail, and the same stands rejected.\n<\/p>\n
14.        The Counsel for the appellants, however, placed reliance on Avtar<\/p>\n
Singh Vs. State of Punjab 2002(4) RCR (Criminal) 181, in respect of their<\/p>\n
contention, that the accused, were not found in conscious possession of the
\n Crl. Appeal No.333-SB of 1999                                      15<\/span>
\nCrl. Appeal No.707-SB of 1999<\/p>\n
contraband, in the truck. In Avtar Singh’s case (supra), the possession of the<\/p>\n
accused, was not proved. The Apex Court held that they may be labourers. At<\/p>\n
the same time, the Apex Court held that they, at the most, could be said to be<\/p>\n
the abettors, but they were not convicted, and sentenced, on the ground, that no<\/p>\n
charge for abetment had been framed against them. The Apex Court, therefore,<\/p>\n
did not completely absolve them, of their liability. Avtar Singh’s case (supra),<\/p>\n
was duly noticed, and distinguished, in Megh Singh Vs. State of Punjab, 2003<\/p>\n
(4) RCR (Criminal) 319, on factual matrix. The facts of Avtar Singh’s case<\/p>\n
(supra), are thus, distinguishable from the facts of the instant case. No help,<\/p>\n
therefore, can be drawn, by the Counsel for the appellants, therefrom. The<\/p>\n
submission of the Counsel for the appellants, being without merit, must fail, and<\/p>\n
the same stands rejected.\n<\/p>\n
15.        It was next submitted by the Counsel for the appellants, that no<\/p>\n
question was put to the accused, in their statements, under Section 313 Cr.P.C.,<\/p>\n
that they were in conscious possession of the contraband, and, as such, they<\/p>\n
could not be held guilty of the offence, punishable, under Section 21 of the Act.<\/p>\n
They also placed reliance on Raj Kumar Vs. State of Punjab 2005(1) RCR<\/p>\n
(Criminal) 70, in respect of their contention. It may be stated here, that in their<\/p>\n
statements, under Section 313 Cr.P.C., the accused were required to be put only<\/p>\n
the incriminating circumstances, appearing against them, in the prosecution<\/p>\n
evidence. They were not required to be put the provisions of law, or the<\/p>\n
presumption operating, under the provisions of law, in their statements, under<\/p>\n
Section 313 Cr.P.C. The accused were put a specific question, that two jute<\/p>\n
bags, containing contraband, were found lying the truck, of which they were<\/p>\n
occupants. They were made aware that they were in possession of, and in<\/p>\n
control over the jute bags, containing contraband. After their possession was<\/p>\n
proved, in respect of the contraband, then the statutory presumption, under<\/p>\n
Sections 54 and 35 of the Act, operated against them, that they were in
\n Crl. Appeal No.333-SB of 1999                                       16<\/span>
\nCrl. Appeal No.707-SB of 1999<\/p>\n
conscious possession thereof. Such statutory presumption, operating against<\/p>\n
them, under the provisions of Sections 54 and 35 of the Act, therefore, was not<\/p>\n
required to be put to them, during the course of their statements, under Section<\/p>\n
313 Cr.P.C. In this view of the matter, the submission of the Counsel for the<\/p>\n
appellants, being without merit, must fail, and the same stands rejected.<\/p>\n
16.          No other point, was urged, by the Counsel for the parties.<\/p>\n
17.          In view of the above discussion, it is held that the judgment of<\/p>\n
conviction, and the order of sentence, rendered by the trial Court, are based on<\/p>\n
the correct appreciation of evidence, and law, on the point. The same do not<\/p>\n
warrant any interference, and are liable to be upheld.\n<\/p>\n
18.          For the reasons recorded, hereinbefore, both the appeals are<\/p>\n
dismissed.     The judgment of conviction, and the order of sentence dated<\/p>\n
25.1.1999, are upheld. If the accused\/appellants are on bail, their bail bonds,<\/p>\n
shall stand cancelled.     The Chief Judicial Magistrate, Amritsar, shall take<\/p>\n
necessary steps, to comply with the judgment, with due promptitude, keeping in<\/p>\n
view the applicability of the provisions of Section 428 of the Code of Criminal<\/p>\n
Procedure. Compliance report be sent within two months.<\/p>\n
September 19, 2008                                       (SHAM SUNDER)\nVimal                                                        JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Sahid Ahmed vs Intelligence Officer From The … on 19 September, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-226974","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nSahid Ahmed vs Intelligence Officer From The ... on 19 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sahid-ahmed-vs-intelligence-officer-from-the-on-19-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sahid Ahmed vs Intelligence Officer From The ... on 19 September, 2008 - 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