Roop Singh vs State of Punjab

P.K. Jain, J.

This appeal has been preferred against the judgment and order dated September 28, 1993, passed by the Additional Sessions Judge, Sangrur, whereby the appellant has been convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''the Act'') and has been sentenced to undergo rigorous imprisonment for 15 days and to pay a fine Rs. 5,00,000/, in default of payment of which to undergo further rigorous imprisonment for five years. His coaccused and real brother Avtar Singh has been aquitted on account of his identity having been not established.

The prosecution case is that on 25.7.1990, S.I. Bikramjit Singh, S.H.O., Police Station, Sherpur (P.W. 2), along with other police officials, was holding a naka on the bridge over the canal drain in the area of village Mahmadpur. One Nirbhai Singh of village Poorgarh, while coming from the side of village Kuthala, joined them. At about 9.45 p.m., a truck bearing registration No. PUL9965, came from the side of village Mahmadpur. On a signal given by S.I. Bikramjit Singh (P.W.2), the truck was stopped. The appellant was on the wheel of the truck, his coaccused Avtar Singh jumped out of the truck from its left side and escaped under the cover of darkness. S.I. Bikramjit Singh told the appellant that he had a suspicion that the bags loaded inside the truck contained poppy husk and that he wanted to conduct personal search as well as the search of the truck. He also gve an offer to the appellant, if wanted, the said search could be conducted before a gazetted officer or a Magistrate, on which the appellant expressed his desire to be searched before a gazetted officer. On wireless message, Shri Durga Dass, D.S.P. (now deceased) reached the spot and made neccessary enquiries from the appellant. Thereafter S.I. Bikramjit Singh conducted search of the said truck which was found to be loaded with 100 bags. These bags were found to contain poppy husk, each weighing 40 Kgs. Two samples weighing 250 grams each were separated from each of the 100 bags. The samples and all the gunny bags containing the remaing poppy husk were then sealed by the said Sub Inspector with his own seal. The sealed samples and the gunny bags along with the tarpaulin, a rope and the truck were taken into possession vide memo Exhibit PA which was attested by Shri Durga Dutta, D.S.P. also. Specimen of the seal was prepared separately and the seal after use was handed over to A.S.I. Swarn Singh, a member of the Police party. Ruqa Exhibit PB was sent to the police station, on the basis of which formal FIRExhibit PB/1 was recorded. Case property was deposited with the M.H.C. On enquiry from the appellant, the name and whereabouts of his coaccused Avtar Singh were revealed. The said coaccused has surrended on 7.9.1990 before the Court of the Judcial Magistrate and he was arrested in the present case on 8.9.1990. The samples were sent for chemical analysis and the reportExhibit PD was received from the Forensic Science Laboratory, Punjab, Chandigarh.

The prosecution examined A.S.I.Swaran Singh (P.W. 1), S.I. Bikramjit Singh (P.W. 2) regarding the main occurrence, Constable Narinder Singh (P.W. 3), who had carried the sample parcel to the Forensic Science Laboratory, Punjab, Chandigargh and H.C. Gurnam Singh, with whom the case property was deposited in the malkhana and who had despatched one set of the sample parcels through Constable Narinder Singh to the Forensic Science Laboratory, Punjab, Chandigarh.

In their examination under section 313 of the Code of Criminal Procedure, both the accused denied the allegations of the prosecution and pleaded that they had been falsely implicated. According to the appellant, he was arrested by the police at Sherpur on 22.7.1990 and was kept in illegal custody till 26.7.1990. He then stated that he had parked this truck in the house of his relation Major Singh, son of Kartar Singh of village Burajkalaran and a D.S.P. had raided that house on 16.7.1990 and had taken away the said truck belonging to him. He further stated that Major Singh had sent telegrams to various higher authorities and similar telegrams were also sent by his coaccused, his real brother Avtar Singh. He further explained that one Mohinder Singh of Truck Union, Hathoor, was inimical towards him and his brother, whereas D.S.P. Durga Dass, Malerkotla, was very close to said Mohinder Singh and it was for this reason that they had been falsely implicated in this case. Avtar Singh, coaccused, adopted this plea put forward by the appellant.

The accusedpersons examined two witnesses in their defence. Shri Jagdish Rai (D.W. 1) is a Clerk from Post & Telegraph Office, Dhuri. He proved Exhibits DA and DB, the certified copies of the two telegrams despatched from their Telegraph Office vide receipts Exhibits DA/1 and DB/1. Shri Jagtar Singh (D.W. 2) is the Additional Ahlmad, then posted in the Court of Shri N.K. Goel, SubJudge I Class, Dhuri. He produced the original telegramExhibit DC received in that Court on July 18, 1990.

While accepting the testimony of A.S.I. Swaran Singh (P.W. 1) and S.I. Bikramjit Singh (P.W. 2) read with Exhibit PD the report of the Forensic Science Laboratory, and rejecting the defence plea, learned trial Court convicted and sentenced the appellant, as stated above. His coaccused Avtar Singh was acquitted since his identity could not be established to be the person who was sitting along side the appellant in the truck when it was apprehended.

We have heard the learned counsel for the appellant and the learned State Counsel. They have taken us through the record of the trial Court also.

Shri R.S. Ghai, Sr. Advocate, learned counsel for the appellant, has assailed the conviction of the appellant on the grounds that there has not been any just and proper compliance of the provisions of Sections 50, 52 and 55 of the Act; that Nirbhai Singh was the only independent witness stated to be present at the time of alleged recovery but he has not been examined by the prosecution; that the prosecution has not been able to prove conscious possession of the appellant in respect of the poppy husk in question and that in view of the defence plea which stands established on the testimony of two defence witnesses, the prosecution case becomes highly doubtful and the conviction of the appellant cannot be sustained.

On the other hand the learned State counsel has argued that Nirbhai Singh, P.W., was given up since he had been won over by the accused persons, that there has been full compliance of the requirements of the provisions of Sections 50, 52 and 55 of the Act; and that once the prosecution has proved that the appellant was found in possession of the contraband article, it was for him to prove that he was not in conscious possession thereof. The learned counsel has further pointed out that the defence plea has got no relevance to the occurrence in question.

According to the testimony of S.I. Bikramjit Singh (P.W 2), the truck in question was intercepted at about 9.45 p.m. while it was coming from the side of village Mahmadpur and the appellant was on the wheel of the truck. The testimony of this witness further reveals that since a suspicion had arisen in his mind regarding some contraband being carried in the said truck, he gave an offer to the appellant that if the latter so desired, the search could be conducted in the presence of a Magistrate or a gazetted officer. The appellant replied in the affirmative, on which D.S.P. Durga Dass, Malerkotla on the receiptof the wireless message, reached the spot. The said D.S.P. had made enquiries on the spotand thereafter S.I. Bikramjit Singh conducted the search of the truck in question in the presence of the said D.S.P. Durga Dass and during the said search 100 bags of poppy husk containing 40 Kgs., were found loaded therein. There is nomandate or requirement of Section 50 of the Act that the offer given by S.I. Bikramjit Singh ought or must have been reduced into writing. After the recovery was effected and the samples were taken out from eachof the 100 bags and when the sample parcels and the remaining bags were resealed, the sme were seized vide memo Exhibit PA which memo has also been attested by D.S.P. Durga Dass. This fact goes to show that the search of the truck was conducted in the presence of the said gazetted officer which meets the requirement of section 50 of the Act. The defence plea that no such recovery was effeted and the case was foisted upon the appellant and his brother at the instance of D.S.P. Durga Dass has been rightly rejected by the learned trial Court as would be seen hereinafter.

It is correct that Nirbhai Singh was an independent public person who was present at the time when the truck was intercepted and its search was conducted, and the contraband was recovered therefrom and also at the time when the samples were separated and the same were sealed. It is also correct that the prosecution gave up Nirbhai Singh as having been won over and the conviction of the appellant now stands upon the testimony of two police officials S.I. Bikramjit Singh (P.W. 2) and A.S.I. Swaran Singh (P.W. 1). According to the learned counsel for the appellant, the learned Cuurt ought to have drawn an adverse inference against the prosecution for nonproduction of Nirbhai Singh and should not have based the conviction of the appellant merely on the testimony of these two official witnesses; who had got the time and opportunity to join other independent public persons to witness the said search.

We are unable to agree with the aforesaid contention of the learned counsel for the appellant. A Panchwitness may turn hostile and not support the case of the prosecution or may be hesitant in appearing in the Court and depose against an accused for various reasons from fear to bribe. He is an average and ordinary human being and quite exposed and vulnerable to the human feelings of yielding, browbeating, threats, inducements, etc. To figure as a Panchwitness at the stage of police investigation, is one thing, and thereafter to give evidence before the Court is entirely a different thing. In fact, a Panchwitness generally think twice before entering into a witnessbox and if at all he enters the same, one would not be surprised if he does not support the prosecution because of variety of the reasons mentioned above. Therefore, the fact that the prosecution has given up the independent public person Nirbhai Singh having been won over by the accused persons, is fully justified in the presentday situation prevailing in the Society and no adverse inference against the prosecution can be drawn in this case.

As regards the second limb of the argument that the conviction has been sustained merely on the testimony of two police officers without any independent corroboration, is also without any merit. It is certainly not the law that in each and every case irrespective of the case and attending circumstances, the evidence of the police officer needs coroboration before it is accepted or to be acted upon. The presumption that a person acts honestly, applies so much in favour of a police officer as of other persons, and it is not the judicial approach to distrust and suspect him without good grounds therefor. Even if the testimony of a police officer requires some corroboration to be acted upon, the corroboration does not necessarily mean that the witness should be corroborated by other witness only. The testimony of a police officer can be corroborated by way of some intrinsic circumstantial evidence available on the record. In fact, in a given case, there may not be any other direct evidence of the witnness to coroborate the evidence of the police officer but at the same time there is nothing to reach at the conclusion that the police officer was malicious and interested in falsely framing up the accused and there was certain inbuilt and unimpeachable circumstantial evidence on the record to support the evidence of the police officer, then in such a case implicit reliance can be placed upon the testimony of such a police officer.

In the present case, there is nothing on the record to discredit the testimony of S.I. Bikramjit Singh (P.W. 2) and A.S.I. Swaran Singh (P.W.1). An attempt was made to raise the plea in defence that on 16.8.1990 D.S.P. Durga Dass had raided the house of Major Singh and took away the truck belonging to the accused persons since the said D.S.P. was siding with one Mohinder Singh who was inimical to Major Singh or to the appellant and his brother. In support of this defence plea, certified copies of the two telegramsExhibit DA and DB have been proved on the record. In none of these two telegrams the registration number of the vehicle has given. Major Singh has not been examined who could have deposed if the truck in question was parked at his house by the appellant or his brother and it was taken away by D.S.P. Durga Das on 16.7.1990. Further there is nothing on the record to show that as to what legal steps the appellant or his brother had taken from 16.7.1990 upto 24.7.1990 for getting the said truck released, if it had been illegally taken away by the said D.S.P. These two telegrams are not enough in the eyes of law to sustain the plea that the truck in question was seized by the D.S.P. on 16.7.1990 and it was kept in his custody for a long period of 9 days and then 100 bags of poppy husk were procured by the police and were planted upon the appellant and his brother. The defence plea has no nexus to the date, time and place of the occurrence and does not inspire any confidence. On the other hand, there is nothing on the record to show that there was any mala fides or an oblique or an ulterior motive on the part of S.I. Bikramjit Singh to frame up the appellant.

The testimony of both these police officers could not be shaken in their detailed crossexamination on any material point involved in the case.

A vain attempt was made by the learned counsel for the appellant to argue that the grounds of arrest were not disclosed to the appellant at the time of his arrest and as such there was noncompliance of Section 52 of the Act. This contention is not sustainable in the eyes of law. On merits S.I.Bikramjit Singh (P.W. 2) has categorically stated that he had orally communicated the grounds of arrest to the appellant at the time of his arrest. Further, the appellant was caught redhanded and after complying with the provisions of Section 50, 100 bags containing poppy husk were recovered from the truck being driven by the appellant. These circumstances, in themselves, are enough to make the appellant know the substance of the alleged offence. Therefore, it cannot be said that there was noncompliance of section 52(1) of the Act.

Lastly, the learned counsel for the appellant has argued that the prosecution has not been able to prove conscious possession on the part of the appellant in respect of the alleged 100 bags of poppy husk. This argument is also without any merit. It has been established from the testimony of S.I. Bikramjit Singh (P.W 2) and A.S.I. Swaran Singh (P.W. 1) that when the truck was intercepted, the appellant was on the wheel of the truck and was apprehended on the spot. In other words, the appellant was found to be in possession of narcotic drug. In view of the provisions of Section 54 of the Act, in a prosecution under Chapter IV of the Act, when the prosecution has shown by evidence that the accused had dealt with the narcotic drug or psychotropic substance or is in physical custody of the same, or is directly concerned with it, the onus shifts to the accused to prove beyond reasonable doubt that he did not knowingly possess the said drug or the substance. If the accused fails to discharge this onus, he is liable to be convicted and punished accordingly. In the present case the plea of the appellant is one of total denial, what to speak of explaining the possession of the narcotic drug in the truck being driven by him. It is not the plea of the appellant that he was carrying the goods of someone on hire and had no knowledge as to what was contained in the gunny bags. In these circumstances, there is no escape from the conclusion that the appellant was in conscious possession of the 100 bags of poppy husk.

In view of the above discussion, we do not find any reason of differ with the learned trial Court that the prosecution has proved its case against the appellant beyond any reasonable doubt. Therefore, the judgment of conviction is hereby upheld.

As regards the sentence, we agree with the learned counsel for the appellant that the same should be commensurate with the gravity of the offence. In the present case the narcotic drug recovered from the possession of the appellant is poppy husk which is less dangerous than the other narcotic drugs and psychotropic substances. There is nothing on the record to show that the appellant is a previous convict or is a habitual dealer in such drug or substances. The ends of justice would be met if the sentence imposed upon the appellant is reduced to the minimum sentence prescribed by Section 15 of the Act.

Consequently, while affirming the conviction of the appellant, we reduce his sentence to ten years'' rigorous imprisonment and to pay a fine of Rs. 1,00,000/ in default of payment of fine, to further undergo rigorous imprisonment for one year. The appeal is thus disposed of in these terms.

JUDGMENTed accordingly.