Sham Sunder, J.@mdashThis appeal is directed against the judgment of conviction and the order of sentence dated 28.05.1999, rendered by the
Special Judge, Amritsar, vide which he convicted the accused (now appellant), for the offence, punishable u/s 15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to be as the `Act'' only) and sentenced him 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 six months, for having been found in
possession of 20 bags, each containing 35 Kgs poppy husk, without any permit or licence.
2. The facts, in brief, are that on 19.08.1995, Sub Inspector Satnam Singh along with other police officials, was present at the turning of village
Panjwar, on the metalled road, for duty, in connection with Janam-Asthami, and checking of bad characters. At about 2.30 PM one truck, came
from the side of Jhabal and Balraj Singh, Head Constable, gave a signal, to the same to stop. When the truck driver was stopping the truck after
slowing down its speed, it was found that Sher Singh alias Shera son of Jagat Singh, resident of village Daulowal, was driving the same. The truck
bore registration No. PBJ-6411. Thereafter, Sher Singh, speeded up the truck and ran away. On suspicion, Satnam Singh, Sub Inspector and the
members of the Police party chased the truck, in the official vehicle. On seeing the Police vehicle, chasing the truck, the accused after covering a
distance of one and half kilometers, stopped the same, got down therefrom, and succeeded in making his escape good in the crops. The truck was
searched. 20 bags were found lying therein. Each bag was found containing 35 Kgs poppy husk. A sample of 500 grams, from each of the bags,
was taken out, and the remaining poppy husk was put in the same bags. The samples, and the bags, containing the remaining poppy husk, were
converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis
whereof, the FIR was 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 his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge u/s 15 of the Act,
was framed against the accused, to which he pleaded not guilty and claimed judicial trial.
4. The prosecution, in support of its case, examined Raghbir Singh, ASI, (PW- 1), Shamsher Singh, S.I., (PW-2), Satnam Singh, SI, (PW-3), and
Nazar Singh, MHC, (PW-4). Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence.
5. The statement of the accused, u/s 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances,
appearing against him, in the prosecution evidence, and pleaded false implication. It was stated by him, that he is only a labourer. It was further
stated by him that he did not know, as to how the truck could be driven. It was further stated by him that he was brought from his village, and kept
in illegal detention in CIA Staff Tarn Taran. It was further stated by him, that thereafter, he was falsely involved in this case.
5-A. In defence, the accused examined Amrik Singh, DW1, Nirmal Singh, DW2, and Dr. Ramesh Kumar, DW3. Thereafter, he closed his
defence evidence.
6. After hearing the Additional 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, submitted that the appellant was not arrested at the spot and he allegedly succeeded in running
away. He further submitted that none of the members of the Police party knew the appellant earlier, and, as such, the question of the establishment
of his identity as the perpetrator of crime, did not at all arise. He further submitted that no identification parade was held, during the course of
investigation, so as to pin-point the identity of the accused, as the perpetrator of crime. He further submitted that, as such, the accused was not
connected with the instant case. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The truck was
stopped, at about 2.30 PM, that is during the day light. The truck was slowed down, by the accused, who was the driver thereof, and the
members of the Police party properly identified him, as Sher Singh alias Shera. Instead of stopping the truck, he speeded up the same. When the
truck was chased in the official vehicle, by the Investigating Officer, and the other police officials, after covering some distance, the accused
alighted therefrom, and ran away in the crops. In these circumstances, there was no impossibility of the identification of the accused. Had the
incident taken place, at night, during darkness, and the accused had run away, it would have been said that without holding the identification
parade, during the course of investigation, his identity did not stand established, as the perpetrator of crime. As stated above, the accused was
identified, at the spot, as the perpetrator of crime. Not only this, when Satnam Singh, Sub Inspector, PW3, appeared in the Court, he identified
accused, Sher Singh as the one, who was driving the truck, at the relevant time. Since the identity of the accused, as the perpetrator of crime, was
duly established, he was connected with the instant case. In this view of the matter, the submission of the Counsel for the appellant, being without
merit, must fail, and the same stands rejected.
10. It was next submitted by the Counsel for the appellant, that the truck, in question, did not belong to the appellant. He further submitted that no
investigation was made by the Investigating Officer, to ascertain the ownership of the truck. He further submitted that, under these circumstances, it
could be said that the accused was falsely implicated in the instant case. The submission of the Counsel for the appellant, in this regard, does not
appear to be correct. No doubt, the Investigating Officer committed illegality or irregularity during the course of investigation, in not ascertaining the
ownership of the truck. However, such an illegality or irregularity, committed by the Investigating Officer, during the course of investigation, could
not advance the case of the accused, in any manner. If, on account of such illegality or irregularity, having been committed by the Investigating
Officer, during the course of investigation, the benefit of doubt, is given to the accused, then every negligent or dishonest Investigating Officer, shall
leave some loopholes, during the course of investigation, so as to create an escape route for the accused. At the most, had the investigation been
conducted by the Investigating Officer, as to who was the owner of the truck, he (owner) could be challaned for the offence punishable u/s 25 of
the Act, yet such a lapse, on his part, did not absolve the accused of his liability, for having committed the offence, punishable u/s 15 of the Act.
For the reasons, recorded above, non-ascertaining of the ownership of the truck, by the Investigating Officer, during the course of investigation,
did not at all cast any doubt, on the prosecution story. 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 conscious possession of the accused, in respect of the contraband, was not
proved, by the prosecution, and, as such, no offence punishable, u/s 15 of the Act, was constituted. The submission of the Counsel for the
appellant, in this regard, does not appear to be correct. As stated above, the accused was the sole occupant of the truck, in the capacity of driver,
at the relevant time. It was from the truck that 20 bags each containing 35 Kgs poppy husk were recovered. It was a big haul of poppy-husk,
which was recovered from the truck. It was not a small quantity of the poppy husk, which could escape the notice of the accused. The fact, as to
how, the bags, containing poppy- husk, were lying in the truck, was within the special means of knowledge of Sher Singh alias Shera, accused. It
was for him, to explain, as to how, 20 bags, containing poppy-husk, came to the truck, how he was transporting the same, and where he was to
take the same. He, however, failed to explain these circumstances. The possession of Sher Singh alias Shera, accused, in respect of the bags,
containing poppy-husk, was, proved, beyond a reasonable doubt. Once the possession of the accused, and his control over the bags, containing
poppy husk, was proved, then statutory presumption under Sections 54 and 35 of the Act, operated that he was in conscious possession thereof.
Thereafter, the onus shifted on to him, to rebut that presumption. In the instant case, the appellant, failed to rebut the statutory presumption,
referred to above. In these circumstances, the trial Court was right, in holding that he 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;
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.
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 v. State of H.P., 2003 (4) RCR(Criminal) 100 : 2004 (1) Apex
Criminal 426 : 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.
12. 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, 20 bags, containing poppy-husk were found in the truck, which was being driven by him. 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, in his statement, u/s 313 Cr.P.C., Sher Singh alias Shera, accused, 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, his
conscious possession, in respect of the contraband, was proved, and, as such, 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 only one sample from each of the bags, instead of two samples, as per the
requirement of law, was taken. He further submitted that, under these circumstances, the case of the prosecution became doubtful. The submission
of the Counsel for the appellant, in this regard, does not appear to be correct. There is no provision, in the Act, or in the Rules, framed thereunder,
that two samples, from each of the bags, containing contraband, recovered from the accused, should be taken. The object of taking the samples, is
to send the same to the Chemical Examiner, to find out, as to whether, the contents thereof, contained the contraband or not. The quantity of
poppy husk, contained in the samples, taken in this case, could be said to be sufficient, so as to enable the Chemical Examiner, to analyse the
same. Accordingly, the Chemical Examiner analyzed the same, and came to the conclusion, that the same constituted poppy husk. No prejudice,
whatsoever, was caused to the accused, on account of drawing of one sample, instead of two samples, as submitted by the Counsel for the
appellant. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
14. It was next submitted by the Counsel for the appellant that the sample parcels, were sent to the Chemical Examiner, after a delay of four days,
which remained unexplained and, as a result whereof, it could not be said that the samples were not tampered with, until the same reached the
office of the Chemical Examiner. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that
the delay, in sending the samples, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion,
that the sample parcels were tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence,
produced by the prosecution, to complete the link evidence. The other evidence produced by the prosecution, has been subjected to in-depth
scrutiny, and, as stated above, it has been found to be cogent, convincing, reliable, and trustworthy. From the other evidence, produced by the
prosecution, it was proved that none tampered with the sample parcels, until the same reached the office of the Chemical Examiner. Above all,
there is report of the Chemical Examiner, Ex.PD, which clearly proves that the seals on the samples, were intact, on their arrival, in the Laboratory,
and tallied with the sample seals sent. The report of the Chemical Examiner is per-se admissible into evidence, in its entirety, as per the provisions
of Section 293. The delay in sending the samples, to the office of the Chemical Examiner, therefore, did not prove fatal to the case of the
prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untempered with, until the
same reached the office of the Chemical Examiner, the matter would have been different. In State of Orissa v. Kanduri Sahoo, 2004 (1) RCR
(Criminal) 196 : 2004 (2) Apex Criminal 110 (SC), 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. In Narinder Singh @ Nindi v. State of Punjab, 2005 (3) RCR(Criminal) 343 (P&H),
which was a case, relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the
samples were intact. In these circumstances, it was held that, in the face of the other cogent, convincing, reliable, and trustworthy evidence,
produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of tampering with the samples, could
not be ruled out. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. Therefore, in the
instant case, unexplained delay of 04 days, in sending the samples, to the office of the Chemical Examiner, did not at all matter much. 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 no independent witness, was joined at the time of effecting the alleged recovery,
despite availability, and, as such, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, does
not appear to be correct. There was no secret information, against the accused, that he was coming with a contraband, in his possession. The
police party was on duty, in connection with Janma Asthami and checking of bad characters. It was all of a sudden, that a truck, came and when a
signal was given to stop the driver thereof, slowed down the speed and when he was identified by the Investigating Officer and other Police
officials, he sped away the truck. It was, thus, a chance recovery. There is no evidence, on record, that at the time of recovery any independent
witness was present, but was not intentionally and deliberately joined. Had any independent witness been joined, after the recovery, his evidence
would have been of no consequence, as he would not have been said to be a witness to the recovery. The mere fact, that the evidence of the
official witnesses, was not corroborated, through an independent source, is not sufficient to disbelieve and distrust the same. In the face of the
evidence of the official witnesses only, the Court is required to be put on guard, to scrutinize the same, carefully and cautiously. After careful and
cautious scrutiny, if the Court comes to the conclusion, that the same does not suffer from inherent infirmities, the same can be believed. The
evidence of the prosecution witnesses, has been scrutinized carefully. Nothing came to the fore, during the course of their cross examination, which
may go to discredit the same. They stood the test of touch-stone of all probabilities, during the course of their cross-examination. In Akmal Ahmed
v. State of Delhi, 1999 (2) RCR (Cri) 265 : 1999 (2) RCC 297 (SC), it was held that, it is now well- settled that the evidence of search or
seizure, made by the police will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of
NCT of Delhi v. Sunil, 2000 (1) SCC 748, it was held as under:
It is an archaic notion that actions of the Police officer, should be approached with initial distrust. It is time now to start placing at least initial trust
on the actions and the documents made by the Police. At any rate, the Court cannot start with the presumption that the police records are
untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly
performed is a wise principle of presumption and recognized even by the Legislature.
15-A. In Appabhai and Another Vs. State of Gujarat, , it was held that the prosecution story cannot be thrown out, on the ground, that an
independent witness had not been examined, by the prosecution. It was further held, in the said authority, that the civilized people, are generally
insensitive, when a crime is committed, even in their presence, and they withdraw from the victims'' side, and from the side of the vigilant. They
keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals, and do
not involve themselves, in it. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In these
circumstances, mere non-joining of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent,
convincing, creditworthy, and reliable, and there was no reason, on their part to falsely implicate the accused, no doubt, is cast on the prosecution
story. In this view of the matter, the submission of the Counsel, for the appellant, being without merit, must fail, and the same stands rejected.
16. It was next submitted by the Counsel for the appellant, that the seal after use, remained with the Investigating Officer and, as such, the chances
of tampering with the case property and the sample parcels, could not be ruled out. The submission of the Counsel for the appellant, in this regard,
does not appear to be correct. As stated above, no independent witness was present, and, as such could not be joined. Under these
circumstances, the seal of the Investigating Officer was required to be with him. Even otherwise, there is no requirement of law that the seal after
use, should be handed over to a third person. In Piara Singh v. The State of Punjab, 1982 CLR (2) 447, a case decided by a Full Bench of this
Court, the seal, on the sample of illicit liquor, recovered from the accused, was not entrusted to an independent person forthwith. Similarly, the
independent person, though entrusted with the seal, by the Investigating Officer, later on, was not produced as a witness. In these circumstances, it
was held that this fact alone, was not sufficient to affect the merits of the trial, and the prosecution case, could not be thrown out, on that score
alone. It was further held, in this case, that it was not incumbent upon the Police Officer, to hand over the seal, to a third person forthwith, and
even, in cases, where he had done so, it was not obligatory upon him, to produce such person, as a witness, during trial, as there was no statutory
requirement, whatsoever, to this effect. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case.
In view of the cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, regarding the completion of link evidence, the
mere fact that the seal remained with the Investigating Officer, did not affect the merits of the case. The submission of the Counsel for the appellant
is, thus, rejected.
17. It was next submitted by the Counsel for the appellant, that the accused being physically handicapped, could not run away, as sought to be
projected by the prosecution witnesses. He placed reliance, on the statement of Dr. Ramesh Kumar, DW-3, in this regard. Dr. Ramesh Kumar,
DW-3, stated that the accused was suffering from old fractures, on both the legs. During the course of cross-examination, it was stated by him,
that the age of Sher Singh, accused was about 30 years as on 07.05.1999. He, however, stated that he could move without any helper freely. He
also admitted that the accused was not operated upon, for any fracture in the bone. From the cross-examination of this witness, it was, thus,
proved that the accused even though he had suffered old fractures, on both the legs, could move without any helpers freely. The submission of the
Counsel for the appellant, to the effect, that he could not move or run away, therefore, was belied by the statement of Dr. Ramesh Kumar, DW3.
The accused stopped the truck, near the crops, alighted therefrom and entered the same. Therefore, he could not be located, at that very time, by
the Police party. The other evidence, produced by the accused, in his defence, was also held to be not reliable by the trial Court. The defence
version, set up by the accused, and the defence evidence, produced by him, was rightly disbelieved and discarded by the trial Court. The
conclusion, arrived at, by the trial Court, in this regard, is affirmed.
18. No other point, was urged, by the Counsel for the appellant.
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 and the order of sentence, dated 28.05.1999, are
upheld. It has come, on the record, that the accused was released on parole, but he did not surrender after the expiry of period of parole. 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, and send the compliance report.
21. The Senior Superintendents of Police, Amritsar, Ferozepur and Moga are directed to ensure that the appellant, is arrested, so that he may
undergo the remaining substantive sentence, awarded by the trial Court, and affirmed by this Court. They shall send the compliance reports to this
Court, within two months, from the date of receipt of a copy of the judgment positively.
22. The Director General of Police, Punjab, is directed to ensure that the directions., aforesaid, are complied with by the Senior Superintendents of
Police, referred to above, within the time frame, otherwise the action, in accordance with law, shall ensue.
23. The District & Sessions Judge, Amritsar is also directed to ensure that the directions, referred to above, are complied with, within the time
frame, and compliance report is sent immediately thereafter, to this Court.
24. The Registry shall keep track of the compliance of the directions, and put up the file, immediately after the expiry of the stipulated period,
whether the reports are received or not.
