Sham Sunder, J.@mdashThis appeal is directed against the judgment dated 07.05.1997, rendered by the Court of Sessions Judge, Faridkot, vide which it acquitted both the accused (now respondents), for the offence, punishable u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be as the ''Act'').
2. On 04.06.1994, Jagmohan Singh, Inspector, Station House Officer, Police Station, Mehna, along with ASI Ranjit Singh, and other police officials, was holding a picket, near the passage, leading to the Colonies from Ajitwal in the area of Ajitwal. A Maruti Car of white colour bearing No. PID 6096, was seen coming from the side of village Kokri Kalan, via unmetaled path (kacha path) and when the same reached near Jagmohan Singh, he gave a signal to stop the same, as a result whereof, it was stopped. Dharmpal Singh, accused, was driving the car while Major Singh, accused, was sitting by his side, on the front seat. Joginder Singh, Inspector, told them that search of the Car, was to be conducted, and whether they wanted the search to be conducted before a Magistrate, or a Gazetted Police Officer. Both the accused, stated that they wanted to be searched by a Gazetted Police Officer. Thereafter, Jagmohan Singh, Inspector, gave a wireless message, as a result whereof Sh. Narinder pal Singh Superintendent of Police, posted at Moga, along with security men, reached the place aforesaid. An attempt was made to join a person, from the public, but none was available. Thereafter, the search of the Car was conducted by Jagmohan Singh, Inspector, in the presence of Narinder Pal Singh, Superintendent of Police. The search of the dicky of the Car resulted into recovery of a gunny bag, containing opium, wrapped in a glazed paper. 100 grams of opium, was taken out as sample. The remaining opium was weighed, which came to be 64 Kgs. 900 grams. Separate parcel of the sample was prepared. The remaining opium was put into four plastic tins of the size of 15 Kgs. each and one tin of the size of 5 kilograms. All the tins were converted into parcels, sealed with the seals of Jagmohan Singh bearing impression ''JS'' and of Narinder Pal Singh bearing impression ''NPS''. The specimens of the seals were prepared, and the seals after use were handed over to AS1 Ranjit Singh. Sample parcel, parcels of plastic tins gunny bag and glazed paper, were taken into possession, vide memo PB, attested by the witnesses. On personal search of Dharmpal Singh, accused, currency notes of Rs.765/- were recovered, which were taken vide memo PE, attested by the witnesses. On personal search of Major Singh, accused, currency notes of Rs.492/-were recovered which were taken into possession vide memo PF, attested by the witnesses. The registration certificate of the aforesaid Car, which was in the name of Parminder Singh s/o Kartar Singh, brother of Dharmpal Singh, accused was also taken into possession vide memo Ex.PC, attested by the witnesses. The accused were arrested vide memo Ex.PD. Sit'', plan Ex.PG of the place of recovery was prepared. The accused could not produce any licence, for the possession of opium. Writing Ex.PH (ruqa) was sent to the Police Station, on the basis whereof, FIR Ex.PH/1, was registered. Thereafter, the police party reached the Police Station. On the next day, the case property was produced through Des Raj, Sub Inspector, before the Ilaqa Magistrate. Thereafter, the case property was deposited with the Assistant Moharrir Head Constable, Police Station, Mehna. The sample was sent to the Chemical Examiner, who found the contents thereof, to be opium. After the completion of investigation, both the accused were challaned, for the offence punishable u/s 18 of the Act ibid.
3. On appearance of the accused, in the Court, copies of documents, relied upon by the prosecution, were supplied to them, free of cost. Charge u/s 18 of the Act ibid, was framed against the accused, to which they pleaded not guilty and claimed judicial trial. The prosecution, in support of its case, examined Balraj Singh PW1, Narinder Pal Singh, Superintendent of Police, PW2, Jagmohan Singh, Inspector, Investigating Officer PW3, Gurmeet Singh, PW4, Des Raj, ASIP W5, Des Raj, Sub Inspector, PW6 and Baldev Singh, PW7. The report of the Chemical Examiner Ex.PX was tendered into evidence, by the Public Prosecutor for the State. Thereafter, he closed the prosecution evidence.
4. The statements of the accused, u/s 313 of the Code of Criminal Procedure, were recorded. They were put all incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication.
5. In defence, the accused examined Gopal Singh, DW1, Kuldip Singh DW2, R.K. Goel (DW3), Tek Chand (DW4), Sarwan Kumar, Incharge complaint branch (DW5), and Sarwan Kumar, Malkhana Clerk, in the Court of the Chief Judicial Magistrate, Faridkot (DW6). Ex.DK, copy of the judgment, was tendered into evidence, by Dharmpal Singh, accused. Thereafter, the accused closed the defence evidence.
6. Thereafter, the Court of Sessions Judge, Faridkot vide judgment dated 07.05.1997, acquitted the accused.
7. Feeling aggrieved, against the judgment of Sessions Judge, Faridkot, the instant appeal, was filed by the State of Punjab.
8. We have heard Sarvshri S.S. Bhinder, Additional Advocate General, Punjab, for the appellant, Sh. Hari Singh Mann, Advocate, for Dharampal Singh, respondent, Sh. T.S. Sangha, Advocate, for Major Singh, respondent, and have gone through the evidence and record of the case carefully.
9. The Additional Advocate General, Punjab, for the appellant, vehemently contended that the Sessions Judge was completely wrong, in acquitting both the accused/ respondents, especially, when it was proved that they were found in conscious possession of a big haul of opium weighing 65 Kilograms. He further contended that there was no reason, on the part of the Police Officers, to falsely implicate the accused, in the present case. He further contended that the Sessions Judge, was wrong in coming to the conclusion, that the provisions of Section 50 of the Act ibid, were applicable, to the facts of the case. He further contended that since the recovery was effected from the dicky of the Car, aforesaid, and not from the person of the accused, the provisions of Section 50 of the Act ibid, were not applicable and, as such, the question of violation thereof, did not at all arise. He further contended that the learned Sessions Judge was also wrong, in coming to the conclusion, that non-joining of an independent witness, was fatal to the case of the prosecution. He further contended that it was proved from the evidence, on record, that no independent witness was available, at the time of recovery, from the accused. He further contended that, thus, the judgment of the learned Sessions Judge, Faridkot was liable to be set aside.
10. To counter the submissions, advanced by the Additional Advocate General, Punjab, the Counsel for the respondents, submitted that the prosecution failed to prove that the accused/respondents were found in conscious possession of 65 K.gms of opium. They also contended that no question was put to the accused/respondents, in their statements u/s 313 Cr.P.C. that they were found in conscious possession of opium. Reliance was placed, in this regard, on Tarsem Singh v. State of Punjab, 2005(4) RCR(Cri) 301 (P&H) and Sukhdev Singh and another v. State of Punjab, 2006(4) CCC 459 (P&H) (DB) : 2006(4) RCR(Criminal) 263 (P&H). It was further contended by the Counsel for the accused/respondents, that since the alleged recover was effected, from a thorough fare, independent witnesses though available, were not joined and, as such, the possibility of false implication of the accused, could not be ruled out. It was, however, fairly conceded by the Counsel for the accused/ respondents, that at present, the provisions of Section 50 of the Act ibid, are not applicable to the facts of the case, as the alleged recovery was not effected, from the person of the accused/respondents. The Counsel for the respondents further contended that the learned Sessions Judge was, perfectly right, in acquitting the accused/respondents.
11. Coming to the first contention, as to whether, the accused/respondents, were found in conscious possession of 65 K.gms of opium, it may be stated here, that the submission of the Counsel for the accused/respondents, does not appear to be correct, and is liable to be rejected for the reasons to be recorded hereinafter. It is proved from the cogent, convincing, reliable and unimpeachabie evidence of Jagmohan Singh, Inspector, Station House Officer, P.S. Mehna, PW3, the Investigating Officer of this case, and Narinder Pal Singh, Superintendent of Police, PW2, that Dharampal Singh, accused, was driving Car No. PID 6096 and Major Singh, accused, was sitting by his side, on the front seat, at the relevant time, when the recovery of 65 K.gms. of opium, wrapped in a glazed paper, from a gunny bag lying in the dicky of the same, was effected. The Car, in question, belonged to the brother of Dharmpal Singh, accused, as per the registration certificate, referred to above. Since no enmity against the prosecution witnesses, was either alleged or proved, it could not be imagined that such a big haul of opium, could be planted, against the accused, by them. Since, the recovery of opium, was effected from the dicky of the Car, aforesaid, being driven by Dharmpal Singh, accused, by the side of whom, on the front seat, Major Singh, accused, was sitting, it can be safely held that both of them were found in possession of the same(opium). 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."
Section 35 which relates to the presumption of culpable mental state, is extracted as under:-
"Presumption of culpable mental state. - (I) 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."
12. 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.R, 2004 ACJ 260 (S.C.) : 2004(2) CCC 361 (S.C.) : 2003 SCC(Cri.) 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."
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. The accused were convicted and sentenced by the trial Court, holding that they were found in conscious possession of charas. 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, both of them, were travelling together, in the Car, referred to above; and proceeding towards the same destination, especially, when it was not a public vehicle; how they were not aware of the contents of the dicky and how they were not in conscious possession of 65 K.gms of opium. 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 their statements u/s 313 of the Code of Criminal Procedure, both the accused/ respondents, had stated that they were taken away from their houses, by the police officials, in the presence of the family members, and respectables, and were falsely implicated. No other defence was set up by the accused. Had it been the defence of Major Singh, accused, that he was just travelling in the Car, after having taken a lift, and did not know as to what was lying in the dicky, the matter would have been considered in the light thereof. Had it been the defence of Dharampal Singh, accused, that he took the Car of his brother, Parminder Singh, for performing a journey, and did not know, what was lying in the dicky thereof, the matter would have been considered in the light thereof. In the absence of any such defence, having been set up by the accused/ respondents, the Court can not coin any of its own. As stated above, since a big haul of opium weighing 65 K.gms, was recovered from the dicky of the Car, referred to above, of which Dharampal Singh was the driver and Major Singh was sitting by his side, on the front seat, it could be very well said that they were well aware of the same. They, therefore, were in conscious possession of the opium. No doubt, Gopal Singh, DW1 and Kuldeep Singh, DW2, stated that the accused were taken away from their houses, and were falsely implicated. However, Gopal Singh, DW1 and Kuldeep Singh, DW2, during the course of their cross-examination, stated that no resolution, regarding the false implication of the accused, was passed in the Panchayat. No application was moved by Major Singh or his relations, regarding his alleged false implication. An application, copy whereof is Ex.DJ, which is undated, was moved by Kartar Singh, father of Dharampal Singh. It appears that this was only an informatory application, to save the accused, from the clutches of law. The defence of false implication set up by the accused, in their statements, was, thus, merely an after thought and concocted version. Therefore, the defence version with regard to the false implication of the accused, being devoid of merit is rejected. In view of the principle of law, laid down, in Madan Lal''s case (supra) by the Apex Court, the principle of law, laid down, to the contrary, on the same point, in Tarsem Singh''s and Sukhdev Singh''s cases (supra), decided by the Division Benches of this Court, cannot hold the field. The submission of the learned Counsel for the respondents, therefore, being without merit, must fail, and the same stands rejected.
13. The accused/respondents, in their statements, u/s 313, were put a specific questions that 65 kgs. opium was recovered from the dicky of the Car aforesaid. They were, thus, made aware of the fact, that they were found in physical possession of the aforesaid haul of opium. They denied the same, and pleaded false implication. Since the possession of opium, from the Car, was established, presumption of law under Sections 54 and 35 of the Act came into operation, by virtue whereof, the accused were deemed to be in conscious possession of the same (opium). The provisions of law were not required to be put to the accused/respondents, in their statements, u/s 313 Cr.P.C. In answer to the questions put to them, in their statements u/s 313 Cr.P.C. that 65 K.gms opium, was recovered from the dicky of the Car, which was being driven by one of them, and the other was sitting by his side, on the front seat, they could very well state, that they were not found in conscious possession of the same (opium), but they did not do so. The submission of the Counsel for the respondents, that the accused were not put any question, with regard to their conscious possession of the opium, thus, being without merit is rejected.
14. Now coming to the next contention, with regard to the non-joining of an independent witness, it may be stated here, that Jagmohan Singh, PW3, in his cross-examination, in clear-cut terms, deposed that prior to and at the time of recovery, the persons from the public, did not pass but after the recovery the people did pass by their side, whereas, Narinder Singh-PW2, stated that no public person, passed by that side, during the period of his stay, at the place of recovery. The recovery was effected from the dicky of the Car, aforesaid, per chance. There is no reason, to disbelieve the statement of Jagmohan Singh, Inspector, that no person passed by the side at the time of recovery of opium, from the accused. Even if, some persons passed that way, after the recovery of opium was effected, from the accused, their joining would have hardly been of any consequence. Had they been joined, they would not have been said to be the witnesses, to the recovery. The evidence of the official witnesses, cannot be disbelieved, and distrusted, merely, on account of their official status. They are, as good, as any other independent witness. As stated above, neither any enmity was alleged, nor proved against the official witnesses, by the accused. In the face of the evidence of the official witnesses only, the Court is put on guard, to scrutinize the same, carefully and cautiously. The evidence of both the witnesses has been carefully and cautiously scrutinized, but nothing of consequence, has come to the fore, which may go to discredit the same. The evidence of both these witnesses carries a ring of truth. In
"The recovery proceedings can not, therefore, be held to be suspicious or unreliable simply because no independent witness opted to join the raiding party. At least, it would be a suspicious circumstance which would require the Court to scrutinize the prosecution evidence with more caution and care, but, in no case, it can by itself warrant the discredit of the prosecution evidence".
15. In Roop Singh v. State of Punjab, 1996(1) RCR(Cri) 147 (P&H), a Division Bench held as under:-
"It is certainly not the law that in each and every case irrespective of the case and attending circumstances, the evidence of the police officer needs corroboration before it is accepted or to be acted upon. The presumption that a person acts honestly, applies so much in favour of a police officer as of other persons, and it is not the judicial approach to distrust and suspect him without good grounds, therefore, even if the testimony of police officer requires some corroboration to be acted upon the corroboration does not necessarily men that the witness should be corroborated by other witness only. The testimony of a police officer can be corroborated by way of some intrinsic circumstantial evidence available on the record. In fact, in a given case, there may not be any other direct evidence of the witness to corroborate the evidence of the police officer but at the same time there is nothing to reach at the conclusion that the police officer was malicious and interested in falsely framing up the accused and there was certain in-built and unimpeachable circumstantial evidence on the record to support the evidence of the police officer, then in such a case implicit reliance can be placed upon the testimony of such a police officer."
16. 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 Officers 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 can not 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".
17. In view of the principle of law, laid down, in these authorities, the mere fact, that no independent witness, could be joined, on account of non- availability of the same, at the time of recovery, the case of prosecution does not become doubtful. In these circumstances, the Court of Sessions Judge, was wrong, in coining to the conclusion, that, on account of non joining of an independent witness, the case of the prosecution became doubtful. The submission of learned Counsel for the accused/respondents, in this regard, being without merit, must fail, and the same stands rejected.
18. No other point, was urged, on behalf of the Counsel for the appellant and the Counsel for the respondents.
19. In view of the aforesaid discussion, it can be safely held that the judgment of the learned Sessions Judge, is not based on the correct appreciation of evidence, and law on the point. The same is, thus, liable to be set aside.
20. For the reasons recorded hereinbefore, the appeal is accepted, the judgment dated 07.05.1997 of the learned Sessions Judge, Faridkot, is set aside. Both Dharampal Singh and Major Singh, accused/respondents are held guilty for the offence, punishable u/s 18 of the Act; convicted thereunder; and sentenced to undergo rigorous imprisonment for a period of 10 years each, and to pay a fine of Rs. 1 lac each, in default of payment of fine to undergo further RI for a period of one year each.
21. The Chief Judicial Magistrate, shall initiate necessary steps to get arrested the accused/respondents, so that they may undergo the sentence awarded by this Court.
22. Since, the Car, from the dicky whereof, the opium was recovered, belongs to Parminder Singh, brother of Dharmpal Singh, as per the registration certificate, the learned Sessions Judge, shall proceed, in accordance with the provisions of Sections 60 and 63 of the Act ibid, for considering the question of confiscation thereof.
