Criminal Appeal No. 835-SB of 2003 v. State of Haryana

Assistant Sub Inspector (PW3), a formal witness, who recorded the FIR PC/1, on the receipt of information PC, Karan Singh, Inspector (PW4), Ram Kumar, Head Constable (PW5), a witness to the recovery, and, Ajaib Singh, Assistant Sub Inspector (PW6), the Investigating Officer. Thereafter, the Public Prosecutor, for the State, closed the prosecution evidence.

7. The statements of the accused, under Section 313 of the Criminal Appeal No. 835-SB of 2003 4 Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They, however, did not lead evidence in their defence.

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

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

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 appellants, at the very outset submitted, that the mandatory provisions of Section 42 of the Act, were not complied with, by the Investigating Officer, as a result whereof, the trial, conviction and sentence stood vitiated. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. In the instant case, the recovery of poppy husk, was not effected, from a building or enclosed place, or from a vehicle, or a cattle, standing in an enclosed place. On the other hand, the recovery, was effected, from a public place, where, a picket, had been held by the Police. Under these circumstances, the provisions of Section 43 of the Act, were applicable and not the provisions of Section 42 of the Act. 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 (being an officer Criminal Appeal No. 835-SB of 2003 5 superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, 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, enter into an search any such (a) building, conveyance or place; (b) in case of resistance, break open any door and remove any which any obstacle to such entry; seize such drug or substance and (c) 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 : and detain and search, and, if he thinks (d) proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Criminal Appeal No. 835-SB of 2003 6 Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity 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 -- seize, in any public place or in (a) 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 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 an offence punishable under Chapter IV relating to such drug or substance; detain and search any person (b) 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 company. 11-A. A conjoint reading of Sections 42 and 43 of the Act, shows that these sections are independent of each other. Section 43 authorises Criminal Appeal No. 835-SB of 2003 7 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. 11-B. 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. This interpretation is the only harmonious interpretation of Sections 42 and 43 of the Act.” It is well settled principle of law, that the provisions of a Statute, are to Criminal Appeal No. 835-SB of 2003 8 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. 11-C. 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 transit any narcotic drug or 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 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 Criminal Appeal No. 835-SB of 2003 9 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.” 11-D. In the instant case, in pursuance of the secret information, the recovery of contraband was effected, from the Camel, in transit at a public place. Since the provisions of Section 42 of the Act, were inapplicable to the instant case, the question of violation thereof, did not at all arise. The principle of law, laid down, in the aforesaid cases, is applicable to the facts of the instant case. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.

12. It was next submitted by the Counsel for the appellants, 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 appellants, in this regard, does not appear to be correct. The recovery, in this case, was not effected, from the person of the accused, but from the load, which was being carried, on the Camel, by them. 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 in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004 (1) S.C. 597. The submission of the Counsel for the appellants, thus, being without substance stands rejected. Criminal Appeal No. 835-SB of 2003 10

13. It was next submitted by the Counsel for the appellants, that the conscious possession of the accused, in respect of the poppy husk, allegedly recovered, from the Camel, was not proved, and, as such, no offence, punishable under Section 15 of the Act, was committed by them. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Ran Singh, accused, was holding the rope of the Camel, and Hawa Singh, accused, was also accompanying him. At that time, both of them very well knew, as to what was contained, in the load, being carried on the back of the Camel. It was not a small quantity of poppy husk, which was not in the knowledge of the accused. It was a big haul of four bags, each containing 39 kgs of poppy husk, which was loaded, on the back of the Camel. The accused, were, thus, in physical possession of the poppy husk. Once the physical or constructive possession of the contraband, in relation to the accused, is proved, then it is for them, to explain, as to wherefrom, the said contraband, was loaded, on the back of the Camel, and where, the same, was being taken. Such a fact, could not be said to be within the special means of knowledge of the accused. No explanation, whatsoever, was furnished by them, in that regard. Once the physical or constructive possession of the poppy husk, in relation to the accused, was proved, then statutory presumption, under Sections 35 and 54 of the Act, operates that, they were in conscious possession thereof. Thereafter, it was for the accused, to rebut that statutory presumption, by leading cogent and convincing evidence. No evidence, to rebut the statutory presumption, was produced, by the accused. Section 54 of the Criminal Appeal No. 835-SB of 2003 11 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; 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." 13-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. Criminal Appeal No. 835-SB of 2003 12 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." 13-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.”

14. The facts of Madan Lal’s case (supra) in brief, were that Criminal Appeal No. 835-SB of 2003 13 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. 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 facts of Madan Lal's and Megh Singh's cases Criminal Appeal No. 835-SB of 2003 14 (supra) are similar and identical to the facts of the present case. 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 their statements, under Section 313 Cr.P.C., the accused/appellant, only took up the plea of false implication. 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.

15. It was next submitted by the Counsel for the appellants, that according to the prosecution story, Ran Singh, succeeded in running away. He further submitted that, no evidence, was produced, as to how, he was known to Ajaib Singh, Assistant Sub Inspector earlier. He further submitted that, no identification parade, during the course of investigation, was conducted, to pin-point the identity of Ran Singh, accused. He further submitted that, as such, the identity of Ran Singh, accused, as the perpetrator of crime, was not proved. He further submitted that, under these circumstances, Ran Singh, did not commit any offence, but, he was falsely implicated. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The recovery, in this case, was effected, at about 4.15 PM, in the month of July, 1997. In the month of July, at about 4.15 PM, there is sufficient light of the day. Ajaib Singh, Assistant Sub Inspector, in clear-cut terms, stated that, Ran Singh, was earlier known to him. Under these Criminal Appeal No. 835-SB of 2003 15 circumstances, it was not at all difficult, for him, to identify Ran Singh, accused. Had the recovery been effected, at night, the matter would have been different. The identity of Ran Singh, accused, thus, stood duly proved, through the evidence of Ajaib Singh, Assistant Sub Inspector. The submission of the Counsel for the appellants, that since Ran Singh, accused, was not earlier known to Ajaib Singh, Assistant Sub Inspector, his identity, was not established, as the perpetrator of crime, being without merit, must fail, and the same stands rejected.

17. No other point, was urged, by the Counsel for the parties. The judgement of conviction and the order of sentence, rendered by the trial Court, being based on the correct appreciation of evidence and law, on the point, need no interference, except for minor modification, in the matter of reduction of sentence, awarded in default of payment of fine. The judgement of conviction and the order of sentence, do not suffer from any illegality or infirmity, and are liable to be upheld, with the modification, referred to above.

18. For the reasons recorded above, the appeal, is dismissed with the modification, as indicated above. The judgement of conviction and the order of substantive sentence and imposition of fine are upheld. The sentence awarded in default of payment of fine, is reduced to rigorous imprisonment, for a period of 1 year each, from rigorous imprisonment, for a period of 5 years each, as awarded, by the trial Court.

19. The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment with due promptitude, keeping in view the Criminal Appeal No. 835-SB of 2003 16 applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within 02 months.

20. 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.

21. 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.

03.02.2010 AMODH (SHAM SUNDER) JUDGE