Appeal against conviction for possession of poppy-husk under NDPS Act dismissed. Court held statutory presumption of conscious possession applies and failure to rebut it warrants conviction despite delays and missing prosecution witnesses.
Appeal dismissed; conviction and sentence upheld; bail bonds cancelled.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Crl. Appeal No.272-SB of 2001
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No.272-SB of 2001 Date of Decision : 1.12.2008
...Appellants
Versus
The State of Punjab
....Respondent
CORAM:HON'BLE MR. JUSTICE SHAM SUNDER
1. Whether Reporters of Local Newspapers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Ashok Sharma, Advocate, for the appellants.
Mr. T.S.Salana, DAG, Punjab, for the respondent-State.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction, and the order of sentence dated 14.12.2000, rendered by the Special Judge, Ferozepur, vide which he convicted the accused (now appellants), for the offence, punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced them, to undergo rigorous imprisonment for a period of ten years each, and to pay a fine of Rs.1 lac each, and in default of payment
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of the same, to undergo rigorous imprisonment for another period of 1 year each, for having been found in possession of 51 bags, each containing 35 kgs. poppy-husk, (falling within the ambit of commercial quantity), without any permit or licence.
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recovered. Two samples of 250 grams each, from each of the bags, were taken out, and the remaining poppy-husk, was put into the same gunny 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, alongwith the truck. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. The statements of the witnesses, were recorded. The accused were arrested. After the completion of investigation, the accused were challaned.
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the trial Court, convicted and sentenced the accused, as stated hereinbefore.
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admissible into evidence, in its entirety, as per the provisions of Section 293 Cr.P.C. 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 untampered with, until the same reached the office of the Chemical Examiner, the matter would have been different. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.) , it was held that mere delay in sending the sample to the Laboratory is not fatal, where there is evidence that the seized articles remained in safe custody. In Narinder Singh @ Nindi Vs. State of Punjab 2005(3) RCR (Criminal) 343 , 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 17 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 appellants, being without merit, must fail, and the same stands rejected.
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the Act. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Jodh Singh, accused, was driving the truck, and Hira Singh, accused, was sitting by his side. 51 bags, each containing 35 kgs. poppy-husk, were lying in the body of the truck, though under the maize bags. It could not be imagined that such a big haul of poppy-husk, was kept in the body of the truck, without the knowledge of the driver, and his co-occupant. Had it been a small quantity of poppy-husk, it could be said, that the same escaped their notice. It was, within the special means of knowledge of the accused, as to how the bags, containing poppy-husk, were lying, in the truck, and to which destination, the same were being taken. It was not a small quantity of poppy-husk, for the consumption of the occupants of the truck, but for sale, on commercial basis, for minting money. The accused, however, failed to explain the circumstances, aforesaid. Under these circumstances, it could be said that the accused, were found in possession of, and in control over the bags, containing the poppy-husk, lying in the truck. Once their posession was proved, statutory presumption, under Sections 54 and 35 of the Act, operated against them, that they were in conscious possession thereof. Thereafter, it was for them, to rebut that statutory presumption. It was not the case of the accused, that they did not know the contents of the bags, lying in the truck. It was not the case of the driver of the truck, that he was carrying the same, as per the command of the owner of the truck. It was not the plea of the other accused, namely Hira Singh, that he only took a lift, in the truck, as he had no other means of transport, to go to his village. It was not the case of the co-accused, that he was merely a labourer, and engaged by the owner of the truck, or
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the driver thereof, for the purpose of loading the bags therein, and unloading the same, at a particular destination. The plea of the accused was only that they were falsely implicated. The accused, therefore, failed to rebut the statutory presumption, operating against them satisfactorily. In these circumstances, the trial Court was right, in holding that they were in conscious possession of the contraband. Section 54 of the Act ibid reads as under :-
"Presumption from possession of illicit articles:- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act, in respect of:-
a) any narcotic drug or psychotropic substance or controlled substance;
b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any 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
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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
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and another Vs. State of H. P. 2003 SCC (Crl.) 1664 it was held as
under:-
The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended.
Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. ”
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fully applicable to the facts of the present case. As stated above, the accused miserably failed to rebut the statutory presumption, referred to above. Thus, their conscious possession, in respect of the contraband, was proved, and, as such, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 13. The Counsel for the appellants, however, placed reliance on Dalbir Singh @ Beera Vs. The State of Punjab 2008(1) RCR (Criminal) 1050 , Kashmir Singh Vs. State of Punjab 2006(2) RCR (Criminal) 477 , Raj Kumar Vs. State of Punjab 2005(1) RCR(Criminal) 70 , and Hakam Singh Vs. State of Punjab 2008(4) RCR (Criminal) 489 , to contend that the accused were not found in conscious possession of the poppy-husk, referred to above. In Dalbir Singh @ Beera's case (supra) , decided by a Single Bench, the prosecution failed to prove the conscious possession of the bags, containing poppy-husk, being carried in the truck. In these circumstances, the appellant was acquitted. In Kashmir Singh's case (supra) , it was held that once, there was recovery of contraband from the possession of the accused, presumption, under Sections 54 and 35 of the Act, that he was in conscious possession of the same, would arise, but the same could be applied only, after affording an opportunity to the accused, to rebut the same. It was further held, in this authority, that once the possession of the accused, in respect of the contraband is established, then it was for him, to prove, as to how, they were not in conscious possession thereof. In Raj Kumar's case (supra) , decided by a Division Bench of this Court, the prosecution failed to prove, as to which of the accused, travelling in the jeep was in conscious possession of the contraband. In Hakam Singh's case (supra) , it was not proved that the
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accused were in conscious possession of the contraband. Even, there were so many other infirmities, in the prosecution case, and, ultimately, the appellant was acquitted. The facts of the aforesaid authorities, are clearly distinguishable, from the facts of the instant case. In the instant case, it was proved that the accused were in possession of the bags, containing contraband. Once, their possession was proved, it was for them, to establish that they were not in conscious possession thereof. It has been held above, that the accused failed to rebut the statutory presumption, operating against them, under Sections 54 and 35 of the Act, that they were in conscious possession of the contraband, lying in the truck. Charge in this case, was framed against the accused, whereby they were conveyed that they were found in the conscious possession of 51 bags, containing poppy-husk. Thereafter, the prosecution evidence was led, and the accused were afforded full opportunity, to cross-examine the witnesses. They fully cross-examined the witnesses. They were aware of the fact, that the case against them, was that they were in conscious possession of 51 bags, containing poppy-husk. The statements of the accused, under Section 313 Cr.P.C., were also recorded, wherein they were put specific questions, that 51 bags, each containing 35 kgs. Poppy-husk, were lying in the body of the truck. They were, thus, made aware that they were in possession of 51 bags, containing poppy-husk. Even, the accused were afforded an opportunity to lead defence evidence. It is, thus, proved that the accused were afforded full opportunity to rebut the statutory presumption, operating against them, under Sections 54 and 35 of the Act. Even otherwise, in view of the principle of law, laid down, in Madan Lal's case (supra) , decided by the Apex Court, the principle of
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law, laid down, to the contrary, on the same point, by this Court, in the aforesaid cases, shall not hold the field. Under these circumstances, no help can be drawn, by the Counsel for the appellants, from the aforesaid authorities. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
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investigation of the case, did not affect the merits thereof. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
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damaged condition, and some bags, were leaking. He further submitted that Gurpreet Singh, ASI (PW-4), also stated that the slips containing the particulars of the case, on some of the gunny bags, were not legible, whereas, on some of the bags, the same were legible. It may be stated here that the recovery, in this case, was effected on 17.4.1998, whereas, the case property was produced, during the course of the statement of Gurpreet Singh, ASI (PW-4), on 8.8.2000. It means that the case property was produced, in the Court, after about 2 years and 4 months of the recovery. The case property, remained lying, in the malkhana. It is a matter of common experience, that the case property of so many cases, are stacked in the malkhana. On account of insufficient space, in the malkhana, it is not at all possible to properly stack the case property of all the cases. If due to mis-handling of the case property, or during the course of transit, or on account of natural decay, the seals on some of the bags, stood broken, and the chits, containing the particulars of the case, on some of the bags, got removed, that did not mean, that the case property was not connected with the instant case. The only obligation, upon the prosecution was to produce the case property, and to get it identified, from the prosecution witnesses. In the instant case, the case property was produced, in the Court, and the same was identified by Gurpreet Singh, ASI (PW-4), as the one, as was recovered from the accused. In State of Rajasthan Vs. Udai Lal 2008(2) RCR (Criminal) 956 (S.C.) , as many as 119 bags, containing poppy-husk, were recovered, from the accused. At the time of trial only 5 bags, out of 119 bags, of poppy-husk, were produced, in the Court. The trial Court, convicted and sentenced the accused, for the offence, punishable under Section 15 of
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the Act, whereas, in appeal, the High Court acquitted the appellant/accused. However, the Apex Court, in the appeal, set aside the judgment of the High Court, and restored that of the trial Court. As stated above, the case property, stood duly connected with the instant case. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
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person to tamper with the same. Darshan Singh, HC (PW-7), stated that the case-property duly sealed, alongwith the sample parcels, and sample impression of the seal, was deposited with him, by Nagore Singh, Inspector/SHO, on 18.4.1998, and on 4.5.1998, he sent 51 samples, and the sample impression of the seals, to the office of the Chemical Examiner, through Manjit Singh, Constable. Above all, there is a report of the Chemical Examiner, to the effect, that the samples were received with seals intact, and agreed with the sample seal sent. Report, Ex.P-16, is admissible under Section 293 Cr.P.C., in toto. This report was never challenged by the accused. The link evidence, therefore, was complete, in this case. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 19. The Counsel for the appellants, however, placed reliance on judgment dated 28.2.2008, in Criminal Appeal No.56-DB of 2005, in case titled as "Raghbir Singh @ Bhira and others Vs. State of Haryana" rendered by a Division of this Court, to contend that the link evidence, in this case, was not complete. The facts of the aforesaid case, are clearly distinguishable, from the facts of the instant case. In that case, the affidavit of some other Constable, than the one, who took the sample parcels, to the office of the Forensic Science Laboratory, was tendered into evidence, by the Public Prosecutor for the State. Under these circumstances, it was held that that the affidavit was not connected with that case. It was, under these circumstances, that it was held that the link evidence was incomplete. It was Manjit Singh, Constable, (PW-2), who was handed over the sample parcels, alongwith the sample seal, and the docket for deposit, in the office of the Chemical Examiner on 4.5.1998.
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He deposited the same, on 5.5.1998, in the office of the Chemical Examiner. He stated that neither he tampered with the sample parcels, nor did he allow anybody to tamper with the same, until the same remained in his custody. As stated above, the facts of Raghbir Singh @ Bhira's case (supra) being distinguishable, no help, therefore, can be drawn by the Counsel for the appellants. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.
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compliance report to this Court, within 3 months, from the date of receipt of a copy of the judgment.
1.12.2008 Vimal
(SHAM SUNDER) JUDGE
3 issues framed by the court
Whether unexplained delay in sending seized samples to the Chemical Examiner renders the prosecution case fatal.
Whether mere possession of contraband establishes conscious possession under Sections 54 and 35 of the NDPS Act without specific mention in Section 313 Cr.P.C.
Whether non-joining of the truck owner in the investigation affects the prosecution case.
Colour shows how this judgement treated each authority
State of Orissa Vs. Kanduri SahooRelied on¶33
State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.)
Narinder Singh @ Nindi Vs. State of PunjabRelied on¶33
Narinder Singh @ Nindi Vs. State of Punjab 2005(3) RCR (Criminal) 343
Madan Lal and another Vs. State of H. P.Applied¶57
Madan Lal and another Vs. State of H. P. 2003 SCC (Crl.) 1664 · Who else cites this
Dalbir Singh @ Beera Vs. The State of PunjabDistinguished¶66
Dalbir Singh @ Beera Vs. The State of Punjab 2008(1) RCR (Criminal) 1050
Kashmir Singh Vs. State of PunjabDistinguished¶66
Kashmir Singh Vs. State of Punjab 2006(2) RCR (Criminal) 477
Raj Kumar Vs. State of PunjabDistinguished¶66
Raj Kumar Vs. State of Punjab 2005(1) RCR(Criminal) 70
Hakam Singh Vs. State of PunjabDistinguished¶66
Hakam Singh Vs. State of Punjab 2008(4) RCR (Criminal) 489
State of Rajasthan Vs. Udai LalRelied on¶85
State of Rajasthan Vs. Udai Lal 2008(2) RCR (Criminal) 956 (S.C.)
Raghbir Singh @ Bhira and others Vs. State of HaryanaDistinguished¶92
Raghbir Singh @ Bhira and others Vs. State of Haryana
6 provisions across 2 enactments
Hira Singh
Jodh Singh
State of Punjab
Sham Sunder
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
