Criminal Appeal No. 684-SB of 2004 v. The State of Haryana

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

10. The Counsel for the appellant, at the very outset, submitted that, the room, wherefrom, the alleged recovery, was effected, belonged Criminal Appeal No. 684-SB of 2004 6 to Devi Lal, an independent witness, who did not support the case of the prosecution, and, as such, the trial Court, was wrong, in recording conviction of the accused. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. No doubt, to some extent, Devi Lal, independent witness, PW7, to whom, the room (kotha) belonged, did not support the case of the prosecution. He, however, supported the case of the prosecution in material particulars. He, in clear-cut terms stated, in his statement, that when he alongwith the Police officials, entered the room (kotha), Bansi, accused, was there, and, he was apprehended. On personal search of Bansi, accused, one country-made pistol and 22 live cartridges, in a belt, under the jacket, were recovered. He only did not support the case of the prosecution, with regard to the identity of Vinod, who was acquitted, by the trial Court. The presence of the accused with country-made pistol and 22 live cartridges, on the basis of the statement of Devi Lal, independent witness, was, thus, proved. Even, Satbir Singh, Sub Inspector, PW4, in his statement, stated that, he saw three persons, in the room (kotha), out of whom, one was removing the fodder from over the gunny bags and the other two were carrying a gunny bag out side. He further stated that, on seeing the Police party, the two persons, who were carrying a gunny bag, out of the room, succeeded in fleeing and the third one, who was removing fodder from over the gunny bags, was apprehended, at the spot, who disclosed his name as Bansi, accused (now appellant). Ram Kumar, Inspector, PW6, the Investigating Officer, and, Mann Singh, Deputy Superintendent of Police, PW5, also Criminal Appeal No. 684-SB of 2004 7 corroborated the statement of Satbir Singh, Sub Inspector, PW4, in all material particulars. When the statements of Satbir Singh, Sub Inspector, PW4, a witness to the recovery, Mann Singh, Deputy Superintendent of Police, PW5, and, Ram Kumar, Inspector, PW6, the Investigating Officer, alongwith the statement of Devi Lal, independent witness, PW7, are carefully perused, only one and one conclusion, that can be arrived at, was that, the accused, was apprehended, at the spot, when he was removing the fodder from over the gunny bags, and pistol alongwith 22 live cartridges, were also recovered, from him. In these circumstances, the submission of the Counsel for the appellant, to the effect, that Devi Lal, independent witness, did not support the case of the prosecution, 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 appellant, in respect of the gunny bags, containing poppy husk, was not proved. He further submitted that, since the room (kotha), belonged to Devi Lal, he could be said to be in conscious possession of the gunny bags, containing poppy husk. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. In the first instance, Devi Lal, informed the Police, that when he went to the fields, he noticed, that in a room (kotha), belonging to him, where, he was storing his fodder, bags containing poppy husk, were found, to have been stored. It was on receipt of this information, that the Police party alongwith Devi Lal, independent witness, proceeded to the pre-disclosed place and apprehended the Criminal Appeal No. 684-SB of 2004 8 accused alongwith a pistol and 22 live cartridges, and, he was also found, in the first instance, removing fodder from over the bags, containing poppy husk. Two persons, who were carrying a gunny bag, to the Fiat car, parked nearby, however, succeeded in running away, and, they were identified by Devi Lal, as Krishan and Vinod. In case, Bansi, accused, was not in conscious possession of the gunny bags, containing poppy husk, or, had no knowledge, with regard to the same, then what was the necessity, for him, to remove the fodder from over the same, that too, by storing the same, in a room (kotha), belonging to Devi Lal. The conduct of the accused, in removing the fodder from over the gunny bags, in a room, belonging to Devi Lal, in itself clearly goes, to show, that he alongwith his co-accused, had stored the same therein. The possession of the accused and his control, in relation to the bags, containing poppy husk, was proved. No explanation, was furnished, by the accused, as to how, he was found present there, and, why he was removing the fodder from over the gunny bags. It was within the special means of knowledge of the accused, as to wherefrom, those gunny bags, containing poppy husk, had been brought there; why the same were stored there; where, they were to be taken; and for what purpose. No explanation, on the aforesaid aspects of the matter, was furnished by him. Once the possession of the accused or his control, in relation to the bags, containing poppy husk, was proved, then statutory presumption, under Sections 35 and 54 of the Act, arose against him, that he was in conscious possession thereof. Thereafter, it was, for him, to rebut that statutory presumption. He, Criminal Appeal No. 684-SB of 2004 9 however, failed to rebut the same, by leading evidence. 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 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 Criminal Appeal No. 684-SB of 2004 10 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 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.” Criminal Appeal No. 684-SB of 2004 11

12. In Megh Singh Vs. State of Punjab, 2003 (4) RCR (Criminal) 319, on 22.2.1993, three persons were found sitting, on the gunny bags, containing poppy husk. The appellant was arrested, while the other two fled. 25 bags containing poppy husk, were found, at the spot, which were seized. The appellant was convicted and sentenced by the trial Court, and the appeal filed by him, was also dismissed by the High Court. The Apex Court, upheld the conviction and sentence of the appellant, observing that he was in conscious possession. The word ‘conscious’ means awareness about a particular fact. It is the state of mind, which is deliberate or intended. It was further held that possession, in a given case, need not be physical possession, but can be constructive, having power and control over the article, while the person whom physical possession is given holds it subject to that power or control. The principle of law, laid down, in Madan Lal's and Megh Singh's cases (supra) is fully applicable to the facts of the present case. In the instant case, in his statement, under Section 313 Cr.P.C., the accused/appellant, took up the plea 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 appellant, being without merit, must fail, and the same stands rejected.

14. No other point, was urged, by the Counsel for the parties. In view of the above discussion, it is held that the judgement of conviction and the order of the sentence, rendered by the Criminal Appeal No. 684-SB of 2004 12 trial Court, are based on the correct appreciation of evidence and law, on the point. The same do not suffer from any illegality or infirmity and deserve to be upheld.

15. For the reasons recorded above, the appeal, being devoid of merit, 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.

16. 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.

17. 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.

18. 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.

17.05.2010 Amodh (SHAM SUNDER) JUDGE