RAJU Vs. STATE OF HAYANA

JUDGEMENT

(1.) THIS APPEAL IS DIRECTED AGAINST THE JUDGMENT OF CONVICTION DATED 6.9.2000, AND THE ORDER OF SENTENCE DATED 8.9.2000, RENDERED BY THE COURT OF ADDL.SESSIONS JUDGE, FATEHABAD, VIDE WHICH IT CONVICTED THE ACCUSED/APPELLANTS (RAJU AND ROOPA RAM), FOR THE OFFENCE, PUNISHABLE UNDER SECTION 15 OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 (HEREINAFTER CALLED AS THE ACT ONLY) AND SENTENCED THEM, TO UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF TEN YEARS EACH, AND TO PAY A FINE OF RS.1 LAC EACH, AND IN DEFAULT OF PAYMENT OF THE SAME, TO UNDERGO RIGOROUS IMPRISONMENT FOR ANOTHER PERIOD OF ONE YEAR EACH, FOR HAVING BEEN FOUND IN POSSESSION OF 20 BAGS, EACH CONTAINING 40 KGS.POPPY -HUSK, WITHOUT ANY PERMIT OR LICENCE.HOWEVER, THE COURT ACQUITTED HANSA, CHHINDA RAM, PIRTHI RAM, AND HANSA @ HANS RAJ.

(2.) THE facts, in brief, are that on 13.12.1997, Ajaib Singh, SI, alongwith other police officials, was present in the Main Bazar, at Ratia, in a jeep, when he received a secret information that Jeep bearing No. GJ - 17 -9916, driven by Hans Ram S/o Kesar Ram, followed by an Eicher tractor bearing No. PBS -5524, driven by Raju S/o Shikari, was coming from the direction of Dhani Jakhan Dadi, towards Ratia. He was also informed that Ram Dass, Pirthi Ram and Chhinda Bajigarh, residents of Ratangarh, were accompanying Hans Raj, in the jeep whereas Roopa Ram S/o Panju Ram, and Hansa S/o Ram Lal, were accompanying Raju, in the tractor. He was further informed that the tractor was carrying a huge quantity of poppy straw, in its trolley, and it was being piloted by the jeep aforesaid. He was also informed that if the jeep was not stopped for checking, the tractor trolley loaded with poppy straw, shall continue to follow it (jeep) and poppy straw could be recovered from the tractor trolley. Thereafter, the police party started waiting for the arrival of the tractor trolley, and the jeep aforesaid. Ajaib Singh, SI, was talking to Ghisa Ram, ASI, etc., when jeep No. GJ -17 -9916, came from the direction of Dhani jakhan Dadi. The said jeep was not stopped by Ajaib Singh, SI, and it proceeded towards village Ratangarh. After that Govt. Jeep No. HR -20 -D -342 was brought to the road and stopped, in front of tractor No. PBS -5524, which came to that place with a trolley attached to it. Raju S/o Shikari, was driving the tractor, while Roopa Ram S/o Panju, was sitting on the left mudguard and Hansa S/o Ram Lal, was sitting on the right mudguard of the tractor. Hansa S/o Ram Lal, made good his escape, but Raju, who was driving the tractor, and Roopa, who was sitting on the left mudguard of the tractor, were apprehended, at the spot. Thereafter, the search of the tractor -trolley was conducted, in the presence of Charanjit Singh, DSP, Fatehabad, who was called to the spot, by sending a wireless message, as a result whereof, 20 bags, each containing 40 Kgs. Poppy -husk, were recovered therefrom. A sample of 200 grams, from each of the bags, was taken out, and the remaining poppy -husk, was kept in the same bags. The samples, and the bags, containing the remaining poppy -husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. The statements of the witnesses, were recorded. The remaining accused were also arrested. After the completion of investigation, the accused were challaned. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against them, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Karan Singh, HC, (PW -1), Mahabir Singh, Constable (PW -2), Charanjit Singh, DSP, (PW -3), Ghisa Ram, ASI, (PW -4), Raj Kumar, SI (PW -5), Gurcharan Singh (PW -6), and Ajaib Singh, SI, (PW -7), the Investigating Officer. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statements of the accused, under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They, however, did not lead any evidence, in their defence. 6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced Raju and Roopa Ram, accused, as stated hereinbefore, whereas it acquitted Hansa, Chhinda Ram, Pirthi Ram, and Hansa @ Hans Raj. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by Raju and Roopa Ram, appellants. 8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellants, at the very outset, submitted that though a secret information was received, yet no independent witness was joined, though sufficient time was with the police party, to join him. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. As soon as, the secret information, was received by the Investigating Officer, he alongwith other police officials started waiting for the arrival of the jeep, and the tractor trolley. There is nothing, on the record, that, in the meanwhile, any independent witness came present at the spot, but was not intentionally and deliberately joined by the Investigating Officer. The first concern of the Investigating Officer, was to see that the jeep piloting the tractor trolley, and the said tractor trolley, carrying the poppy -husk, did not escape, so as to defeat the very purpose of holding a picket. Under these circumstances, no independent witness could be joined. The mere fact that no independent witness could be joined, on account of the aforesaid reasons, in itself, was not sufficient to come to the conclusion, that the sample parcels, were tampered with, until the same reached the office of the Forensic Science Laboratory. In the absence of joining of an independent witness, the evidence of the official witnesses, cannot be distrusted and disbelieved. In the face of the evidence of the official witnesses only, the Court is required to scrutinize the same, carefully and cautiously. After careful and cautious scrutiny, if the Court comes to the conclusion, that the same does not suffer from any serious infirmity, the same can be believed. The evidence of the official witnesses, in the instant case, has been subjected to indepth scrutiny, and nothing came to the fore, which may go to discredit the same. The evidence of the official witnesses, was rightly found to be cogent, convincing, reliable and trustworthy, by the trial Court. The trial Court, was right, in placing reliance on the same, in coming to the conclusion, that the accused committed the offence, punishable, under Section 15 of the Act. This Court, after reappraisal of the evidence of the prosecution witnesses, also comes to the same conclusion. In Akmal Ahmed v. State of Delhi, 1999(2) RCC 297 (S.C.), it was held that, it is now well -settled, that the evidence of search or seizure, made by the police, will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi v. Sunil, (2000)I S.C.C. 748, it was held as under : -

(3.) The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In these circumstances, mere non -joining of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part, to falsely implicate the accused, no doubt, is cast on the prosecution story. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellants, that the mere fact that Roopa Ram, was sitting on a mudguard of the tractor, did not mean that he was in conscious possession of the poppy -husk, allegedly recovered therefrom. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. A big haul of poppy -husk, was being carried in the tractor trolley. It was not a small quantity of poppy -husk, which was being carried in the tractor trolley, which could escape the notice of Roopa Ram, though he was sitting on the mudguard. It was, thus, within the special means of knowledge of Raju and Roopa Ram, accused, as to how, 20 bags, each containing 40 Kgs. Poppy -husk, were found in the tractor trolley and to which destination, they were being taken. They were required, to explain the aforesaid circumstances. They, however, failed to do so. The accused were, thus, found in possession of the bags, containing poppy -husk. Once the possession of the accused, and their control over the contraband was proved, then statutory presumption under Sections 54 and 35 of the Act, operated against them, that they were in conscious possession thereof. Thereafter, it was for them, to rebut the presumption, by leading cogent and convincing evidence. However, the appellants failed to rebut that presumption, either during the course of cross -examination of the prosecution witnesses, or by leading defence evidence. In these circumstances, the trial Court was right, in holding that they were in conscious possession of the contraband. Section 54 of the Act ibid reads as under : -