Judgment:
Harbans Lal, J.
1. This appeal is directed against the judgment dated 20-5-2004/order of sentence dated 21-5-2004 passed by the Court of learned Special Judge, Ferozepur, whereby he convicted and sentenced the accused Karaj Singh to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lac under Section 15 of the NDPS Act (for brevity, 'the Act') and in default of payment of fine to further undergo rigorous imprisonment for one year.
2. As set up by the prosecution on 25-6-2001, ASI Jassa Singh of Police Station Makhu among other police officials was proceeding on a private Canter towards Villages Phemewala, Tibbi Arian Lehra Bet, Chhianparri etc. in connection with patrolling. When they were going towards southern side from Village Lehra Bet on metalled road and reached the bridge of canal minor at about 3.30 p.m., meanwhile, a jeep which was blue in colour came from kutcha rasta towards the metalled road. Thereafter, it took a turn towards Village Lehra Bet. On catching sight, the same was signalled by the aforesaid ASI to stop. On suspicion, he apprehended the accused Karaj Singh with the aid of his companions. He checked the gunny bags lying in the jeep. The contents thereof were found emitting the odour like poppy-husk. The accused was informed about his right that if he wishes, he can have search of the jeep in the presence of a gazetted officer or a Magistrate. In turn, the accused opted to have search of the same before a Gazetted Officer. On receipt of message, Pardeep Kumar DSP Zira came at the spot and introduced himself to the accused. Thereafter, the aforesaid ASI in the presence of DSP carried out search of the jeep, which yielded in 8 bags containing poppy husk. 250 grams of poppy husk was drawn from each bag to serve as sample. The remainder of each bag when weighed came to 40 kgs. The samples as well as the residue were converted into parcels which were sealed with seal 'JS' of which the specimen seal impression was prepared. The DSP also affixed his own seal bearing impression 'PK' on all the parcels, which along with jeep bearing registration No. HR-06-0311 were seized vide memo. The seal after use was made over to ASI Baldev Singh. The registration certificate of the jeep was also taken into possession. The currency notes worth Rs. 110/- recovered in consequence of personal search of the accused were also seized vide separate memo. Ruqa was sent to the police station, where on its basis formal FIR was registered. The accused was arrested. After completion of investigation, the charge-sheet was Laid in the Court of learned Special Judge, Ferozepur for trial of the accused.
3. The accused was charged under Section 15 of the Act to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW.1 SI Jaspal Singh, PW.2 ASI Jassa Singh, PW.3 Constable Massa Singh, PW.4 ASI Baldev Singh, PW.5 DSP Pardeep Kumar, PW.6 Joginder Kumar Clerk, SDM Office, Zira, PW.7 Constable Balwinder Singh and closed its evidence. When examined under Section 313 of Cr.P.C. the accused came up with the following plea:
I am innocent/My wife's brother Daljit Singh son of Puran Singh r/o Village Kili Bodla P.S. Makhu was named as accused in case FIR No. 92 dt. 21-6-2001, P.S. Makhu under Section 15 of NDPS Act by SI Jaspal Singh and. ASI Jassa Singh and he was shown to have run away from the spot. Later on, the police, has been raiding his house and jeep No. HR-06-311 was brought from his house by the police in presence of his family members and respectables of the village to pressurise Daljit Singh to surrender before the police. When. Daljit Singh did not surrender in spite of that, then I was taken away from my house earlier to 25-6-2001,by police of PS Makhu in the presence of my family members and respectables of the village being close relative of said Daljit Singh. After illegal detention by police, I was falsely involved in this case by falsely showing recovery of poppy husk bags from the abovesaid jeep of Daljit Singh to further pressurise Daljit Singh to surrender before the police. Ultimately, when Daljit Singh was arrested by police, he was also involved in this case and in another case under the NDPS Act.
In defence, he examined DW1 Raj Singh Sarpanch, DW2 Surat Singh, DW3 Pipal Singh, DW4 Gurdial Singh, DW5 Head Constable Lakhbir Singh and closed his defence evidence. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as notice at the outset.
4. Feeling, aggrieved with his conviction/sentence, he has preferred this appeal.
5. I have heard the learned Counsel for the parties, besides perusing the record with due care and circumspection.
6. To begin with Mr. S.P.S. Sidhu, Advocate appearing on behalf of the appellant stressing his every nerve urged with a good deal of force that as is borne out from the evidence of the Investigator ASI Jassa Singh, no public man was associated in the investigation. Thus, the prosecution case hinges merely on the statements of police officials, who being highly interested in the success of the case, it would be quite risky to rely upon their evidence. To controvert this submission, the learned State Counsel argued that by now, it is well settled that the evidence tendered by official witnesses has to be weighed in the same scales as of others and the same cannot be discarded just because of their official status.
7. I have given a deep and thoughtful consideration to the rival contentions. It is in the cross examination of ASI Jassa Singh (sic) that 'No independent person joined the police party in spite of efforts made from 2-3 places to join the independent witness.' This evidence leaves no scope for doubt that every possible attempt was made to associate the independent witness, but none was willing to become a witness. In re : Appabhai and Anr. v. State of Gujarat : 1988 (Supplementary) Supreme Court Cases 241 : 1988 Cri LJ 848, the Apex Court ruled as under:
Merely because of the failure on the part of the prosecution to produce any independent witness to the incident that occurred at a public place like a bus stand, where there must have been several of such witnesses, the prosecution case cannot be thrown out or doubted. Generally people are insensitive when a crime is committed even in their presence. The Court instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version find then search for the nugget of truth with due regard to probability, if any, suggested by the accused.
8. Mr. Sidhu had been emphatic in the course of arguments that the Investigator has admitted in clear cut terms that the private canter in which they were travelling was being driven by a private driver employed by owner of the canter and if it was so, it was obligatory upon him (investigating officer) to have joined such driver in the investigtation. His non-joining cast a cloak of suspicion on the prosecution version. To buttress this stance, he has sought to place abundant reliance upon the observations made by this Court in re: Ranbir Singh v. State of Harvana 2001 (1) RCrimR(Criminal) 674.
9. To tide over these submissions, the learned State Counsel maintained that the prosecution case should not be thrown out of hand merely because of non-joining of the stated driver of the canter.
10. I have well considered these contentions. In re: Ranbir Singh (supra), the police party was holding the Nakabandi, when they were allegedly having a private jeep being driven by Vakil Chand. On seeing the police party, Jai Singh had escaped from the scene leaving the driver Ranbir Singh behind in four-wheeler bearing registration No. HR-16-7316. Jai Singh accused was arrested on 21-2-1994 from his village on Vakil Chand telling that the person escaped was Jai Singh. Vakil Chand was not produced in the witness box by the prosecution to say that he had disclosed the name of Jai Singh to the police. Thus, inter-alia on this ground, it was held that the version of the defence appears to be more plausible and the conviction/sentence of the appellant was set aside. Herein this case, a glance through the cross-examination of the Investigator would reveal that the name of the driver, who was driving the private canter has not been elicited. It was equally available to the accused to examine such person in his defence. Thus, in this indicia, non-citing and non-examining of such driver hardly affects the prosecution case. In re: State of Punjab v. Balbir Singh : 1994 (1) RCrimR 737 : 1994 Cri LJ 3702, it has been ruled by the Apex Court that 'there is no bar in recording the conviction by relying upon the statements of police officers.' In paragraph No. 8 of the judgment, it has been observed that 'It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official, but as a rule of caution and depending upon the circumstances of the case, the Courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions.' In the case at hand, it surfaces in the cross-examination of the Investigating Officer that every possible attempt was made to join some independent witness. Thus, by no stretch of imagination, it could be said that he has deliberately failed to associate such witness. In a case where independent witness has not been joined, the safest course open to the Court is that it could carefully scrutinise the evidence of police witnesses and if their evidence is otherwise trustworthy and inspire confidence and they also do not appear to have any motive to falsely implicate the accused, there is no reason why they could not be believed. In re : Chander Shekhar v. The State (1986) 2 Crimes 419 : 1987 Cri LJ 1159 the Division Bench has observed as under:
One of the greatest disadvantages of living in highly urbanized areas is that people are out of sympathy with their neighbours and fellow citizens. This is for a variety of reasons. None wants to get involved in such matters. Our experience is that in the recent past it is really becoming difficult to involve public witnesses in Court cases particularly in cases of capital offences. It is commonplace experience that in Delhi if an accident takes place, hardly any body feels concerned. Life is so mechanical and fast that no body has time to sympathise with a fellow citizen. We blame none for it as this is the life style growing in highly urbanized areas. Even those who feel concerned keep away for fear of their own security and getting involved in tardy proceedings. There is a subdued murmur that the law and order agency has failed to provide security to the law abiding citizens and what rules, now, is the might and ingenuity of the criminals. Under these circumstances, it will be dangerous not to rely on relation witnesses and police witnesses in such matters. Of course, provided, such witnesses are confirmed to be truthful when tested at the yardstick of the peculiar facts and circumstances of each case.
11. In the present one, though the recovery took place on the road, but none had come forward to witness the recovery proceedings. On the considering the broad spectrum of the prosecution version, viz-a-viz, the defence plea adopted by the accused, it transpires that the latter does not compete in probability with the former. So, the contention raised by Mr. Sidhu being bereft of any merit is turned down.
12. Mr. Sidhu further assailed the prosecution edifice by contending that the recovery is alleged to have been effected on 25-6-2001, whereas the sample parcels as per Ex. P.2, the docket were dispatched to the Chemical Examiner, Punjab on 2nd July, 2001. During this interregnum of 6 days, there could be every possibility to tamper with their contents. This inexplicable delay causes dent in the prosecution case. He has also pressed into service that as per Instruction No. 1/88 dated 15-3-1988 issued by the Narcotic Control Bureau, New Delhi, the sample parcels in such cases should be sent within 72 hours. This instruction has been flagrantly -- violated. He has sought to place abundant reliance upon the observations made by this Court in re : Parminder Singh v. State of Haryana 2006 (4) RCri R(Criminal) 495.
13. I regret my inability to be one with Mr. Sidhu. In re : State of Orissa v. Kanduri Sahoo : 2004 (1) Supreme Court Cases 337 : 2004 Cri LJ 842 the sample of cannabis (ganja) was sent for chemical examination after four days of recovery. The Apex Court ruled that 'The evidence of PW-1 was categorical to the effect that the articles were kept in the Excise Malkhana from where they were brought and sent for chemical examination. This relevant aspect appears to have been missed by the High Court. In Valsala's case (supra), it was not Laid down that whenever there is delay in sending the samples, the prosecution version would become vulnerable. What was emphasised related to proper and safe custody of the seized articles., In the background to that particular case, when delay of three months was there and there was no clear evidence as to with whom the articles were lying, the decision was rendered. No evidence was led to show that the contraband articles were in proper custody and in proper form. But the factual situation is different here. That being so, the High Court's judgment does not stand scrutiny and is set aside. The conviction as done by the trial Court was proper'. It was also observed that merely because the articles were kept in Excise Malkhana for 4 days would not make the prosecution version suspect. Coming to the instant case, the chemical examiner in his report Ex. PI5 has mentioned that the seals affixed on the sample parcels were intact and the same tallied with the sample seal sent. It is in the evidence of ASI Jassa Singh, Investigator that 'As SHO stood transferred and as per entry in DDR, I was to officiate as SHO and that is why I kept the sample, case property and sample seal chit with me in the Malkhana in an intact condition. On 26-6-20011 made written request Ex. P. 12 to Illaqa Magistrate Sh. K.S. Dhaliwal at Zira for obtaining his orders for keeping case property in Malkhana and he passed orders Ex. P. 13 on it. This order Ex. P. 13 was passed in my presence and it bears signature on Ex. P. 13. Even my statement Ex. P. 14 was recorded by Sh. K.S. Dhaliwal while passing orders Ex. P. 13. Then I kept the parcels as well as gunny bag parcels and sample seal chit with me in my malkhana. On 29-6-2001, I handed over case property in intact condition along with 8 samples to SI Jaspal Singh, who again stood transferred as SHO PS Makhu. So long as, case property remained with me neither I tampered with the samples nor with the case property and nor with sample seal chit and nor I allowed any one to tamper with the same.'
14. The affidavit Ex. P17 of Balwinder Singh Constable PW 17 who carried the sample parcels for chemical analysis also conforms to the above mentioned chemical examiner's report. It is in the evidence of SI Jaspal Singh PW 1 that 'On 29-6-2001, 1 was posted as SHO P.S. Makhu. On that day, ASI Jassa Singh handed over eight bags of poppy husk along with 8 parcels of sample duly sealed with seal bearing impression JS/PK to me along with sample seal chit. I took over the case property samples as well as sample seal chit after incorporating entry in Register No. 19. On 2-7-2001, I handed over 8 parcels of the sample along with sample seal chit to Constable Balwinder Singh No. 3011 in an intact condition'. It is in his further evidence that 'On return, Constable Balwinder Singh handed back me the road receipt.' This evidence when read in conjunction with the Chemical Examiner's report go a long way in proving that right from the stage of seizure till their examination, the contents of the sample parcels remained intact and the same were not tampered with at any stage. Thus, the delay in sending the same parcels, to the Chemical Examiner is of no consequence.
15. The standing instruction sought to be relied upon by Mr. Sidhu is advisory in nature and have no legal sanctity. Only statutory laws made by the Parliament or rules made under delegated legislature/power as conferred by the statute have legal force. Circulars, administrative orders or executive instructions issued without any statutory powers are not binding in nature. These are instructions of prudence. The statutory provisions and rules made under the Act have to be looked upon independent of the departmental instructions. To say the least of it, the stated instruction does not carry statutory flavour and that being so, it is not sufficient to throw out the prosecution case merely because of the stated delay in sending the sample parcels to the Chemical Examiner. Sequelly, the accused appellant cannot derive any mileage from the observations rendered in re : Parminder Singh (supra).
16. Elaborating his arguments further, Mr. Sidhu pressed into service that as a matter of fact, Daljit Singh the brother of the accused-appellant's wife was named as an accused in case FIR No. 92 dated 21-6-2001, Police Station Makhu under Section 15 of the Act by SI Jaspal Singh and ASI Jassa Singh and in that case, he was shown to have run away from the spot and the police was conducting raid at his house and when he did not surrender, then the accused appellant was whisked away from his house to the police station and involved in the present case. This plea is substantiated by Raj Singh Sarpanch DW1, Surat Singh DW2, Pipal Singh DW3 and Gurdial Singh DW 4.
17. The learned State Counsel countered this argument by urging with full force that the plea taken up by the accused appellant is an after-thought. I have well considered the rival contentions. Towards the end of his cross examination, Raj Singh DW1 has deposed that 'At that time. I was not Sarpanch. The Sarpanch of that rime had already expired and his son was looking after his work but the son of Sarpanch was not informed about the arrest of Karaj Singh' I am at loss to understand as to why the son of Sarpanch was not informed, if the accused appellant was taken away by the police to the police station in the alleged manner. Furthermore, if he was falsely roped in this case, the defence witnesses referred to above would have left no stone unturned in transacting the resolution in the Panchayat against the conduct of the concerned police officer. This apart, they would have approached the higher authorities of the police hierarchy by complaining that the accused appellant in fact has been involved in this case without any rhyme or reason. It does not stand to the logic that such a huge quantity of poppy husk would have been foisted upon the accused-appellant just to exert pressure upon him to produce Daljit Singh, the brother of his wife. It is a case of heavy recovery. It is not believable that the Investigating Officer of the rank of Assistant Sub Inspector would plant 8 bags of poppy husk of considerable cost from his personal resources. It is in the cross examination of Pipla Singh DW3, that 'We did not inform the Sarpanch of the village that the police has taken away the jeep. Volunteered Sarpanch came to know about the jeep later on and he had been accompanying us to the police station. We did not file any written complaint to the police.' As per this evidence, the then Sarpanch of the village was alive, whereas DW1 went to say that he had already expired and his son was looking after his work. Thus, both these defence witnesses are not in unison on this point. It is in the cross examination of Gurdial Singh DW4 that 'It is correct that Daljit Singh is facing so many cases under the N.D.P.S. Act and are pending in this Court. Volunteered he has been involved in those cases. No application in writing was given against the accused or for the release of jeep. I am neither a Lamberdar, nor member Panchayat of the village.' It is crystal clear from this witness that Daljit Singh is facing trial in number of such cases. The pendency of numerous cases against him ipso facto demolishes the defence plea that to put pressure upon the accused appellant to make Daljit Singh to surrender before the police, this case was planted upon the accused appellant. Thus, neither the defence plea nor the evidence adduced in support of it inspire confidence. It is in the evidence of DW5 HC Lakhbir Singh that FIR No. 92 dated 21-6-2001 under Section 15/61/85 of the Act was registered against Bhajan Singh, Sukhwinder Singh, Chiman Singh and Daljit Singh and Ex. D3 is the correct photostat copy of the said FIR. This evidence is not required to be dilated upon.
18. The next argument having been raised by Mr. Sidhu is that in re: Avtar Singh v. State of Punjab : 2002 (4) Recent Criminal Reports (Criminal) 180 : 2002 Cri LJ 4330 as many as 16 bags of poppy husk were recovered from the truck. Two accused were sitting on the bags and one accused was driving the truck. It was held that it has not been proved that accused had custody and control of the bags and the conviction was set aside. He further agitated at the bar that in re: Sukhdev Singh and Anr. v. State of Punjab 2006 (4) RCrimR(Criminal) 263, the Division Bench of this Court while dealing with a case of recovery of 125 bags of poppy husk in a truck observed that during examination under Section 313 of Cr.P.C., no question has been put to the accused that they were in conscious possession and consequently, the conscious possession is not proved. He further submitted that herein this case too, no question with regards to conscious possession has been put to accused-appellant, when he was examined under Section 313 of Cr.P.C. and that being so, in view of the ratio Laid down in re : Sukhdev Singh and Anr. (supra) as well as Avtar Singh's case (supra), no conscious possession of the accused appellant is established. I am unable to persuade myself to agree with this submission for the discussion to follow hereunder.
19. In re: Megh Singh v. State of Punjab : 2004 (I) AC 482 : 2003 Cri LJ 4329, the accused was sitting on gunny bags containing contraband. It was held by the Apex Court that 'Word 'conscious' means awareness about a particular fact. It is a statement of mind which is deliberate or intended. Expression 'possession' is a polymorphous term which assumes different colours in different contexts. It is impossible to work out a completely logical and precise definition of 'possession' uniformly applicable to all situations in the context of all statutes. 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 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. This position was highlighted in Madan Lal and Anr. v. State of Himachal Pradesh : 2003 (6) SCALE 483 : 2003 Cri LJ 3868.
20. In re: Avtar Singh : (2002 Cri LJ 4330)(supra), it has been observed that 'No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and offending goods.' It was further observed that one of the persons, who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods.' Thus, obviously, the facts of Avtar Singh's case (supra) are distinguishable from the one in hand. In the instant case, the accused being driver of the vehicle, by all probabilities, was well aware of the contents of the bags loaded in the vehicle being driven by him. If the matter is viewed in the background of Megh Singh (supra) as well as Madan Lal and Anr. (supra), the possession of the accused-appellant qua the poppy bags in the vehicle having been established, the presumption arising under Section 35 as well as 54 of the Act operates in favour of the prosecution that the accused-appellant was in conscious possession of these bags.
21. No other material point has been urged or agitated by either counsel.
22. On analysing the evidence tendered by PW 2 ASI Jassa Singh, PW4 ASI Baldev Singh and PW5 DSP Pardeep Kumar, it transpires that the credibility of these witnesses could not be impeached during their cross examination. Thus, the same being impeccable, credible and consistent, unhesitatingly and unmistakably can be relied upon. Sequelly, this appeal being devoid of any merit is dismissed.
23. The Registry is directed to send a certified copy of this judgment to the learned Chief Judicial Magistrate, Ferozepur for taking necessary steps to send the appellant to the prison to serve the unexpired period of his sentence.