GIAN CHAND & Ors. v. STATE OF HARYANA

1.3_. In the instant case, the issue relating to non compliance of Section 313 Cr.P.C. had not been raised before the High Court, and it was raised for the first time C before this Court. The appellants could not point out what prejudice has been caused to them if the fact of "conscious possession" was not put to them. Even otherwise such an issue cannot be raised in the existing facts and circumstances of the case wherein the burden 0 was on the accused to show how the contraband material came to be found in the vehicle which was driven by one of them and the other two were travelling in that vehicle. [Para 20) [746-E-G]

1.4. Mere non-joining of an independent witness E where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants. In the instant case, at the F time of incident some villagers had gathered there. The Investigating Officer in his cross-examination has made it clear that in spite of his best persuasion, none of them were willing to become a witness. Therefore, he could not examine any independent witness. Section 114 of the G Evidence Act 1872 gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse acta i.e., all the acts are · H 732 SUPREME COURT REPORTS [2013] 10 S.C.R. A presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises that the said acts have regularly been performed. [Paras 28, 29) [748-H; 749-A-D] B Avtar Singh & Ors. v. State of Punjab AIR 2002 SC 3343: 2002 (2) Suppl. SCR 482 - distinguished. Madan Lal & Anr. v. State of Himachal Pradesh AIR 2003 SC 3642: 2003 (2) Suppl. SCR 716; State of West Bengal C v. Mir Mohammad Omar & Ors. etc. etc. AIR 2000 SC 2988: 2000 (2) Suppl. SCR 712; Shambhu Nath Mehra v. The State of Ajmer AIR 1956 SC 404; 1956 SCR 199; Gunwantlal v. The State of Madhya Pradesh AIR 1972 SC 1756: 1973 (1) SCR 508; Sucha Singh v. State of Punjab AIR 2001 SC D 1436: 2001 (2) SCR 644; Sahadevan @ Sagadevan v. State rep. by Inspector of Police, Chennai AIR 2003 SC 215: 2003 (1) SCC 534; Durga Prasad Gupta v. The State of Rajasthan thr. CBI (2003) 12 sec 257: 2003 (4) Suppl. SCR 1; Santosh Kumar Singh v. State thr. CBI, (2010) 9 SCC 747: E 2010 (13) SCR 901; Manu Sao v. State of Bihar (2010) 12 SCC 310: 2010 (8) SCR 811; Neel Kumar alias Anil Kumar v. State of Haryana (2012) 5 SCC 766: 2012 (5) SCR 696; Megh Singh v. State of Punjab AIR 2003 SC 3184: 2003 (3) Suppl. SCR 720; Wasim Khan v. The State of Uttar Pradesh, F AIR 1956 SC 400: 1956 SCR 191; and Bhoor Singh & Anr. v. State of Punjab, AIR 1974 SC 1256: 1974 (4) SCC 754 Asraf Ali v. State of Assam (2008) 16 SCC 328: 2008 (10) SCR 1115; Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra AIR 1973 SC 2622: 1974 (1) SCR 489; G Paramjeet Singh @ Pamma v. State of Uttarakhand AIR 2011 SC 200: 2010 (11) SCR 1064; Rohtash v. State of Haryana JT 2013 (8) SC 181; Paras Ram v. State of Haryana, AIR 1993 SC 1212: 1992 (2) Suppl. SCR 55; Balbir Singh v. State (1996) 11 SCC 139; Akmal Ahmad v. State H of Delhi, AIR 1999 SC 1315: 1999 (2) SCR 160; M. GIAN CHAND & ORS. v. STATE OF HARYANA 733 Prabhulal v. Assistant Director, 1996 (7) Suppl. SCR 50; A Directorate of Revenue Intelligence AIR 2003 SC 4311: 2003 (3) Suppl. SCR 958; Ravinderan @ John v. Superintendent of Customs AIR 2007 SC 2040: 2007 (6) SCC 410; State, Govt. of NCT of Delhi v. Sunil & Anr. (2001) 1 SCC 652: 2000 (5) Suppl. SCR 144 and Appabhai & Anr. v. State of Gujarat B AIR 1988 SC 696: 1988 Suppl. sec 241 - relied on. Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwanthuva (Dead) Thr. L.Rs. & Ors. AIR 2013 SC 1204: 2013 (1) SCR 632; Ravinder Kumar Sharma v. State of Assam & Ors., AIR c 1999 SC 3571: 1999 (2) Suppl. SCR 339; Ghasita Sahu v. State of Madhya Pradesh, AIR 2008 SC 1425: 2008 (2) SCR 95; Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181 and State of Punjab v. Hari Singh and Ors. AIR (2009) SC 1966: 2009 (2) SCR 470 - referred to. D Case Law Reference: 2013 (1) SCR 632 referred to Para 11 1999 (2) Suppl. SCR 339 referred to Para 11 2008 (2) SCR 95 referred to Para 11 E JT 2013 (8) SC 181 referred to Para 11 2003 (2) Suppl. SCR 716 relied on Para 13 . 2000 (2) Suppl. SCR 712 relied on Para 16 F 1956 SCR 199 relied on Para 16 1973 (1) SCR 508 relied on Para 16 2001 (2) SCR 644 2003 (1 > sec 534 2003 (4) Suppl. SCR 1 relied on Para 16 relied on Para 16 relied on Para 16 2010 (13) SCR 901 relied on Para 16 G H 734 SUPREME COURT REPORTS [2013] 10 S.C.R. A 2010 (8) SCR 811 relied on Para 16 2012 (5) SCR 696 relied on Para 16 2009 (2) SCR 470 referred to Para 17 2002 (~) Suppl. SCR 482 distinguished Para 17 2003 (3) Suppl. SCR 720 relied on Para 18 1956 SCR 191 1974 (4) sec 754 relied on Para 20 relied on Para 20 2008 (10) SCR 1115 relied on Para 21 1974 (1) SCR 489 relied on Para 22 2010 (11) SCR 1064 relied on Para 23 JT 2013 (8) SC 181 relied on Para 25 1992 (2) Suppl. SCR 55 (1996) 11 sec 139 relied on Para 25 relied on Para 25 1999 (2) SCR 160 relied on Para 25 1996 (7) Suppl. SCR 50 relied on Para 25 2003 (3) Suppl. SCR 958 2001 (6 ) sec 410 relied on Para 25 relied on Para 25 2000 (5) Suppl. SCR 144 1988 Suppl. sec 241 relied on Para 26 relied on Para 27 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2302 of 2010. From the Judgment & Order dated 04.11.2008 of the High Court of Punjab & Haryana at Chandigarh in Criminal Appeal No. 392-SB of 2001. J.P. Dhanda, N.A. Usmani for the Appellants. B c D E F G H GIAN CHAND & ORS. v. STATE OF HARYANA 735 Brijender Chahar, R.K. Shokeen, Kamal Mohan Gupta for A the Respondent. The Judgment of the Court was delivered by DR. B.S. CHAUHAN, J. 1. This appeal has been filed against the judgment and order dated 4.11.2008 passed by the B High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 392-SB of 2001, by which it has affirmed the judgment and order dated 2.2.2001 passed by the trial court, Sirsa by which the appellants were convicted under the provisions of Section 15 of Narcotic Drugs and Psychotropic C · Substances Act, 1985 (hereinafter referred to as the 'Act'). By that order, they were sentenced to undergo RI for a period of 10 years each and to pay a fine of rupees 1 lakh each, and in default of payment of fine, to undergo further RI for a period of one year. D

2. Facts and circumstances .gfving rise to this appeal are that: . A. On 5.9.1996, at about 2.15 a.m., Bhan Singh, ASI of E Police Station, Rania alongwith other police officials was present in the village Chakka Bhuna in an official jeep. The police party saw a jeep coming at high speed from the opposite direction and asked the said jeep to stop. However, instead of stopping, the driver accelerated the speed of the jeep. This F created suspicion in the minds of the police officials. Thus, they chased the jeep. The occupants of the jeep took a U-turn and in that process the jeep struck the wall of a house in the village. The three occupants of the jeep tried to run away but they were caught by the police. The said three occupants were later G identified as the appellants. They were asked whether they would like to be searched· before a Gazetted officer or a Magistrate, however, they chose the former. The Deputy Superintendent of Police was called and a search was conducted in his presence. The vehicle had 10 bags containing H 736 SUPREME COURT REPORTS [2013] 10 S.C.R. A 41 kg poppy husk each. The police party took samples of 200 grams of poppy husk from each bag and the same was sealed by the Dy.S.P. 8 B. On the basis of same, an FIR was lodged on 5.9.1996 itself at 3.15 a.m. at the Rania Police Station against the appellants-accused. After investigation, a chargesheet was filed against them and the appellants claimed trial. Hence, the trial commenced. C. The prosecution led the evidence in support of its case C and also produced the case property in the court alongwith the damaged jeep in which the appellants were carrying 410 kg. poppy husk. In the FSL report all positive results were shown. Appellants did not lead any evidence in defence and pleaded that they had falsely been implicated in the crime. D D. After conclusion of the trial, the appellants were convicted and sentenced as referred to hereinbefore vide judgment and order dated 2.2.2001, and the said judgment and order has been affirmed by the High Court vide its judgment E and order dated 4.11.2008. Hence, this appeal.

3. Mr. J.P. Dhanda, learned counsel appearing for the appellants has submitted that no independent witness was F examined by the prosecution in the case, though a large number of people had gathered at the place of the alleged incident which led to the appellants-accused being apprehended. No independent witness was involved in preparation of the panchnama of the recovered substances. G Further, the prosecution failed to prove that the appellants accused . were in conscious possession of the contraband material. This incriminating circumstance had not even been put to the appellants-accused while recording their statements under Section 313 of Code of Criminal Procedure, 1973 H (hereinafter referred to as 'Cr.P.C.'). The appellants have GIAN CHAND & ORS. v. STATE OF HARYANA [DR. 8.S. CHAUHAN, J.] 737 already served about 8 years of sentence. Thus, the appeal A deserves to be allowed.

4. Per contra, Mr. Brijender Chahar, learned senior counsel appearing for the State has opposed the appeal contending that even if some persons had gathered at the place of B occurrence when the appellants were apprehended, nobody was willing to become a witness. Therefore, the prosecution could not examine any independent witness. The case of the prosecution does not deserve to get disbelieved simply because police officials themselves are the witnesses, nor there c is any requirement in law that in every case an independent witness should be examined. Further all incriminating material was put to the appellants-accused while recording their statements under Section 313 Cr.P.C. Once it is established that an accused is in possession of contraband substance, the D burden to prove that he had no knowledge of the same, shifts to the accused to prove the same. More so, the accused is supposed to explain his conduct while making his statement under Section 313 Cr.P.C. particularly where there are certain presumptions against him under Section 35 of the Act. There E are concurrent findings of fact recorded by the courts below. Thus, no interference is called for and the appeal is liable to be dismissed.

5. We have considered the rival submissions made by learned counsel for the parties and perused the record. F

6. No dispute has been raised regarding the poppy husk recovered from the jeep or the damaged jeep. Further, the appellants did not challenge the result shown in the FSL report wherein the qualitative tests in respect of Meconic Acid, G Morphine, Codeine, Thebaine, Papaverine and Narcotine had all been shown as positive.

7. All three occupants, i.e. the appellants abandoned the vehicle just after it dashed against the wall and made a H 738 SUPREME COURT REPORTS [2013] 10 S.C.R. A desperate attempt to escape but were apprehended by the police party. The Trial Court examined the matter elaborately and after appreciating the evidence of the witnesses, came to the conclusion that there were no discrepancies in the statements of the three officials, i.e. prosecution witnesses. B Their statements inspired tremendous confidence and thus, there was no reason for the court to discard the testimony of the official witnesses. The grievance had also been raised before the Trial Court that the chit carrying contents of case property was not available on the bags. However, this did not C give any benefit to the accused as there was overwhelming evidence on record to prove that the seizure of ten bags had actually been made from the accused. Further the contents of the samples sent for chemical analysis gave positive results on analysis in the laboratory. D E F G H

8. The High Court dealt with the issue elaborately regarding knowledge i.e. conscious possession, and held as under: "There were only three occupants in the jeep, at the relevant time. As many as 10 bags, each containing 41 kgs. Poppy husk, were lying in the jeep. It was not a small quantity of poppy husk, ..... and could escape the notice of the accused. It was a big haul of poppy husk, ...... The accused were having special means of knowledge, with regard to the bags, containing poppy husk, lying in the jeep. It was for the accused to explain, as to how the b~gs, containing poppy husk, were being transported. Not only this, the conduct of the accused, is also relevant, in this case. They instead of stopping the jeep, when the signal was given, by the policy party, accelerated the speed thereof and sped away towards Village Keharwala. It was only after hot chase, given by the members of the police party, in their jeep, that the driver of the jeep got nervous, could not properly negotiate the turn and lost control, as a result whereof, the said jeep struck against GIAN CHAND & ORS. v. STATE OF HARYANA [DR. B.S. CHAUHAN, J.] 739 the wall and stopped. In case, there was no contraband, A in the jeep, and the accused were not in the knowledge of the same then what was the necessity of speeding away the jeep, was for them to explain. This material circumstance goes against them. Under these circumstances, it could be said that they were in B possession of, and in control over the bags, lying in the jeep. Once the possession of the accused, and tl)eir control over the contraband, was proved, then statutory presumption under Section 54 and 35 of the C Act, operated against them, that they were in conscious possession thereof. Thereafter, it was for them, to rebut the statutory presumption, by leading cogent and convincing evidence. However, the appellants, failed to rebut the said presumption either during the course D of cross-examination of the prosecution witnesses, or by leading defence evidence." (Emphasis added)

9. Further, in their statement under Section 313 Cr.P.C., the appellants took the plea of false implication only and the appellants miserably failed to rebut the statutory presumption, referred to above. The High Court further held as under:- E F "In the instant case, no plea was taken up by the accused, during the course of trial or in their statements, under Section 313 Cr.P.C. that they were not the occupants of the jeep. No plea was taken by the accused that they were not aware of the contents of the bags, lying in the jeep. No plea was taken up by the driver of the jeep that he was G taking the bags, containing poppy husk, as per the directions of the owner thereof, and did not know, as to what was contained in the bags. No plea was taken up, by the other occupants, of the jeep, that they were merely labourers engaged for loading and unloading the bags, H { 740 SUPREME COURT REPORTS [2013] 10 S.C.R. A B c containing poppy husk, at the destination. No plea was taken up by the accused, other than the driver, sitting in the jeep, that they only took lift therein, and as such were passengers. They did not take up the plea, that the driver of the jeep knew them earlier and since they could not find any public transport, for going to their villages, he gave them lift therein on friendly basis. The facts of the cases, relied upon by the Counsel for the appellants, and referred to, in this paragraph, being distinguishable, from the facts of the instant case, no help can be drawn by the counsel for the appellants therefrom. In this view of the matter, the submission of the counsel for the appellants, being without merit, must fail, and the same stands rejected."

10. So far as the condition of the property is concerned, the court observed that "as the witnesses have been examined D after four years from the date of recovery. The case property remained lying in the malkhana. On account of shortage of space, in the malkhanas, the case properties cannot be stacked properly and the bags, containing poppy husk, underwent the process of decay, however, did not mean that the case property E produced in the court, did not relate to the instant case." There was nothing on record to show that the said case property had been tampered with.

11. The effect of not cross-examining a witness on a F particular fact/circumstance has been dealt with and explained by this Court in Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwanthuva (Dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 observing as under: "31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness musfbe given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by G H GIAN CHAND & ORS. v. STATE OF HARYANA [DR. S.S. CHAUHAN, J.] 741 the other party, as being untrue. Without this, it is not A possible to impeach his credibility. Such a Jaw has been advanced in view of the ·statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial B examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason c that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is D unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a fu/I and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses." E (Emphasis supplied)