Criminal Appeal No. 231-SB of 2003 v. State of Punjab

of first information report. Shamsher Singh Boparai, Deputy Superintendent of Police, was intimated, on telephone, regarding the receipt of the secret information. He was requested to reach Madhopur Chowk, G.T. Road. In pursuance of the aforesaid secret information, Gurmail Singh, Inspector, proceeded towards Madhopur Chowk, and also associated one Suresh Kumar, on the way. He then held a picket (naka), on Madhopur Chowk, G.T. Road, Sirhand, and apprehended a truck, bearing No. DL-IG-6331, coming from the side of Ambala. The driver of the truck disclosed his name, as Malkiat Singh, while two other persons, sitting alongwith him, disclosed their names as Amrik Singh and Balbir Singh. One more person, who was sitting, on the rear seat of the truck managed to escape, whose name, later on, came to be known, as Shingara Singh. Search of the truck was conducted, in accordance with the provisions of law. 55 bags containing cattle feed, were lying, in the body of the truck. Apart from that, 125 bags, each containing 38 kgs poppy husk, were also recovered, from the body of the truck. A sample of 250 gms, from each of the bags was taken out, and the remaining poppy husk, was put into the same bags. The Criminal Appeal No. 231-SB of 2003 3 samples and bags, containing the remaining poppy husk, were converted into parcels, duly sealed and taken into possession, alongwith the truck, vide separate recovery memo. Site plan was prepared. Ruqa was sent to the Police Station, on the basis whereof, the FIR was registered. The accused were arrested. After the completion of investigation, they were challaned.

3. On their appearance, in the Court of the Committing Magistrate, the accused, were supplied the copies of documents, relied upon by the prosecution.

4. After the case was received by commitment, in the Court of Sessions, charge under Section 15 of the Act, was framed, against the accused, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial.

5. The prosecution, in support of its case, examined Shamsher Singh, Deputy Superintendent of Police, Head Quarter Khanna (PW1), a witness to the recovery, Suresh Kumar (PW2), an independent witness, to the recovery, Gurmail Singh, Inspector (Retired) (PW3), the Investigating Officer, Sajjan Ram, Head Constable (PW4), who tendered his affidavit P16, Gurpinder Pal Singh, Assistant Sub Inspector (PW5), who tendered his affidavit P17, and, Swaran Singh, Head Constable (PW6), who tendered his affidavit P18. Thereafter, the prosecution, closed its evidence.

6. The statement of Balbir Singh, accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution Criminal Appeal No. 231-SB of 2003 4 evidence. He pleaded false implication. However, he did not lead any evidence in defence.

7. During the course of trial Malkiat Singh, Amrik Singh, and, Shingara Singh, accused, died, as per the trial Court record.

8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced Balbir Singh, accused, as stated above.

9. Feeling aggrieved, the instant appeal, has been filed by the appellant.

10. I have heard the Counsel for the parties, and, have gone the evidence and record of the case, carefully.

11. The Counsel for the appellant, at the very outset, submitted that the appellant, was not found in conscious possession of the bags, containing poppy husk, and, as such, he did not commit any offence, punishable under Section 15 of the Act. He further submitted that Shamsher Singh Boparai, Deputy Superintendent of Police, when appeared as PW1, during the course of his cross-examination, stated that, Malkiat Singh and Shingara Singh, accused (since deceased), are brothers and the real owners of the poppy husk. He further submitted that, on account of such statement, made by Shamsher Singh Boparai, Deputy Superintendent of Police, it could not be said, that the appellant, was in any way connected with the poppy husk, which was allegedly recovered. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. There is no other evidence, on the record, except the bald statement of S.S. Boparai, Deputy Criminal Appeal No. 231-SB of 2003 5 Superintendent of Police, to the effect, that Malkiat Singh and Shingara Singh, were only the owners of the contraband. Shamsher Singh Boparai, could not disclose the source of his knowledge, as to how he came to know that only Malkiat Singh and Shingara Singh were the owners of the contraband. No person from whom such a huge quantity of poppy husk had been purchased, was examined to prove that Malkiat Singh and Shingara Singh, purchased the same from him. No document was also produced to prove the exclusive ownership of Malkiat Singh and Shingara Singh, in relation to the contraband. No witness, in whose presence the contraband was allegedly purchased by Malkiat Singh and Shingara Singh was produced. The Deputy Superintendent of Police appears to have made the aforesaid statement just with a view to save the appellant, as he knew that all other accused had died. For constituting the offence, punishable under Section 15 of the Act, the conscious possession of the contraband, is required to be proved. The accused/appellant, alongwith his co-accused, except the one, who escaped was arrested, at the spot. The truck, was being driven by Malkiat Singh, while Amrik Singh, Balbir Singh, and Shingara Singh, were sitting alongwith him therein. Except Malkiat Singh, Amrik Singh, Balbir Singh, and Shingara Singh, nobody else was the occupant of the truck aforesaid. It was not a small quantity of poppy husk, which was lying, in the truck, which could escape the notice of the accused. As many as 125 bags, each containing 38 kgs of poppy husk, were lying, in the body of the truck, which could be said to be a big haul of the contraband. It, therefore, could not be imagined, that the said big Criminal Appeal No. 231-SB of 2003 6 haul of the poppy husk, lying in the truck, was not in the knowledge of the accused. It was within the special means of knowledge of the accused, as to wherefrom, the bags, containing the poppy husk, were loaded, in the truck, and, to which destination, the same, were being carried. The accused, were found to be in physical possession of the bags, containing the poppy husk. Once the physical possession of the bags, containing the poppy husk, in relation to the accused, was proved, the statutory presumption, under Sections 35 and 54 of the Act, operated against him, that he was in conscious possession thereof. Thereafter, it was, for him, to rebut that statutory presumption. In the instant case, the accused, failed to lead any evidence, to rebut, that statutory presumption. 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:- any narcotic drug or psychotropic a) substance or controlled substance; any opium poppy, cannabis plant b) 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 Criminal Appeal No. 231-SB of 2003 7 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 Vs. State of H. P. 2003 SCC (Crl.) 1664 Criminal Appeal No. 231-SB of 2003 it was held as under:- 8 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. 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 Criminal Appeal No. 231-SB of 2003 9 the present case. In the instant case, in his statement, under Section 313 Cr.P.C., the accused/appellant, took up the plea, only of false implication. As stated above, the accused 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 appellants, being without merit, must fail, and the same stands rejected.

13. It was next submitted by the Counsel for the appellant, that the mandatory provisions of Section 42 of the Act, were violated, in this case, by the Investigating Officer, as a result whereof, the trial, conviction, and sentence stood vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. It is, no doubt, true that, a secret information, was received, by the Investigating Officer, in this case, and he reduced the same into writing, in the form of first information report. In the instant case, the recovery, was not affected, from a building or an enclosed place or from a vehicle, parked in an enclosed place. The recovery of the contraband, lying in the truck, was affected, from the G.T. Road, when a picket was held, by the Investigating Officer, alongwith other Police Officials. Under these circumstances, the provisions of Section 42 of the Act, were not applicable, but, on the other hand, the provisions of Section 43 of the Act, were applicable, to the instant case. The provisions of Sections 42 and 43 of the Act, read as under :- “42. Power of entry, search, seizure and arrest without warrant or authorization – (1) Any such officer Criminal Appeal No. 231-SB of 2003 10 central (being an officer superior in rank to a peon, sepoy or constable) of the excise, departments of narcotics, revenue, customs, intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, olice or any other department of a State Government, if he has reasons to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, (a) enter into an search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any which any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of offence under Chapter IV relating to such drug or substance : (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any Criminal Appeal No. 231-SB of 2003 11 offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an offence takes down any information in writing under sub- Section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior.” “43. Power of seizure and arrest in public place. -- Any officer of any of the department mentioned in Section 42 may -- (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance article confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; liable (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be useful, arrest him and any other person in his Criminal Appeal No. 231-SB of 2003 12 company. 13-A. A conjoint reading of Sections 42 and 43 of the Act, shows that these sections are independent of each other. Section 43 authorises any Officer of the departments, mentioned in Section 42, for search, seizure, arrest and detention in any public place, or in transit, in respect of any narcotic drug or psychotropic substance, in respect of which, he has reason to believe that an offence punishable under Chapter IV has been committed, whereas, Section 42 of the Act empowers the Officer for search, seizure and arrest in a building, conveyance or enclosed place. When the information is with regard to concealment of some narcotic, in a vehicle, in transit, then the provisions of Section 43 of the Act are applicable. The word 'public place' has been explained for the purpose of Section 43 of the Act, which includes any public conveyance, hotel, shop or other places intended for use or accessible to the public.

14. A Division Bench of this Court in Dharminder Kumar Vs. State of Punjab, 2002(4) RCR (Crl.)278, has held as under :- “Thus it is evident that if seizure is made from any animal, conveyance or article in a public place or in transit then Section43 of the Act would be applicable. Section 43 and Section 42 of the Act operate in different spheres. Since the conveyance has been specifically included in Section 43 of the Act also, therefore, the conveyance which is found in a public place or in transit would be covered under the provisions of Section 43 of the Act whereas conveyance used in Section 42 of the Act has to be read as conveyance which is other than a public place. Criminal Appeal No. 231-SB of 2003 13 This interpretation is the only harmonious interpretation of Sections 42 and 43 of the Act.” 14-A. It is well settled principle of law, that the provisions of a Statute, are to be construed, in harmonious manner, so that none of the same is rendered nugatory. By harmonious construing the provisions of Sections 42 and 43 of the Act, it can be safely concluded, that if a conveyance is intercepted or apprehended at a public place, or in transit, then the provisions of Section 42 of the Act, would not be applicable.

15. It was held in State of Haryana Vs. Jarnail Singh and others 2004(2) RCR (Crl.) 960 (SC), as under :- “7. Section 43 of the NDPS Act provides that any officer of any of the departments mentioned in Section 42 may seize in any public place or in any narcotic drug or transit psychotropic substance etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public.

8. Sections 42 and 43, therefore, contemplate two difference situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is Criminal Appeal No. 231-SB of 2003 14 made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise.” In view of the principle of law, laid down, in the aforesaid cases, the trial Court, was right, in holding that since the provisions of Section 42 of the Act were not applicable to the facts of the instant case, the question of compliance of the same did not at all arise. This submission of the Counsel for the appellant, thus, being devoid of merit, stands rejected.

16. It was next submitted by the Counsel for the appellant, that the mandatory provisions of Section 50 of the Act, were not complied with, as a result whereof, the trial, conviction and sentence stood vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The recovery, in this case, was effected, from the truck, at a public place, and not from the person of the accused, and, as such, the mandatory provisions of Section 50 of the Act, were not applicable, to the instant case. In State of Punjab Vs. Baldev Singh, 1999(6) S.C.C. 172, a Constitution Bench of the Apex Court, settled beyond doubt, that the language of Section 50, was implicitly clear that the search had to be, in relation to a person, and not in relation to the premises, vehicles, or articles. Similar view was taken Criminal Appeal No. 231-SB of 2003 15 in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004 (1) S.C. 597. The submission of the Counsel for the appellant, thus, being without substance stands rejected.

18. No other point, was urged, by the Counsel for the parties. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld.

19. For the reasons recorded above, Criminal Appeal No. 231- SB of 2003, is dismissed. The judgment of conviction and the order of sentence, rendered by the trial Court, are upheld. If the appellant, is on bail, his bail bonds shall stand cancelled.

20. The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within 02 months.

21. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court.

22. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action.

02.02.2010 Amodh (SHAM SUNDER) JUDGE