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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1564 OF 2008
Mohinder .... Appellant(s)
Versus
State of Haryana ....
Respondent(s)
J U D G M E N T
P.Sathasivam,J.
1) This appeal has been filed against the final judgment
and order dated 04.07.2007 passed by the High Court of
Punjab and Haryana at Chandigarh in Criminal Appeal No.
72-SB of 1994 whereby the High Court dismissed the appeal
preferred by the appellant herein and confirmed the order
dated 05.02.1994 passed by the Court of Additional Sessions
Judge, Sirsa in Sessions Case No. 11 of 1993 convicting him
under Section 18 of the Narcotic Drugs and Psychotropic
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Substances Act, 1985 (in short ‘the Act’) and sentenced him
to undergo rigorous imprisonment (RI) for a period of 10
years and to pay a fine of Rs. 1 lakh, in default, to further
undergo RI for a period of two years.
2) Brief facts:
(a) According to the prosecution, on 23.08.1991 at about
1.30 p.m., S.I/SHO Dalbir Singh (PW-6), who was then posted
at P.S. Ellenabad was present at Chowki of Mamera Khurd
along with Head Constable Jagdish Rai (PW-1) and
Constables Pratap Singh and Jang Singh and one Rameshwar
(PW-3). The accused-appellant came there and on seeing
the police party, he sneaked into the field of Narma crop. He
was apprehended on suspicion by Dalbir Singh (PW-6). At
that time, the appellant was carrying a tin in his hand and on
suspecting that he was carrying narcotic substance, Dalbir
Singh (PW-6) sent a V.T. Message to DSP Ram Gobind (PW-5)
who reached the scene at about 2 p.m. Dalbir Singh (PW-6)
presented the appellant before DSP Ram Gobind (PW-5)
along with Exh. PB for conducting the search of the tin
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carried by him in terms of the provisions of Section 50 of the
Act.
(b) On search being conducted by DSP Ram Gobind (PW-5),
3 ½ kgs of opium was found in the tin and out of the same,
200 gms. was separated from the same as sample and the
residue contraband were sealed. An FIR dated 23.08.1991
came to be registered at Police Station Ellenabad by Dilbag
Singh (PW-4) at 3.40 p.m. under Section 18 of the Act. The
case property was deposited and duly sealed. Before
reaching the Police Station, S.I. Dalbir Singh submitted a
report to the DSP Ram Gobind (PW-5) under Section 57 of
the Act.
(c) On 28.08.1991, the sample was handed over by Dilbag
Singh to constable Khazan Singh (PW-2) for being taken to
FSL, Madhuban and PW-2 delivered the said sample duly
intact on 30.08.1991 at the FSL. A report dated 20.04.1992
was received from FSL, Madhuban to the effect that the
sample was that of opium.
(d) On completion of the evidence and hearing, learned
Addl. Sessions Judge, Sirsa, by judgment and order dated
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05.02.1994 in Sessions Case No. 11 of 1993 convicted the
appellant and sentenced him to RI for 10 years and imposed
a fine of Rs. 1 lakh, in default of payment of fine, shall
further undergo RI for a period of two years.
(e) Aggrieved by the conviction and sentence awarded by
the Addl. Sessions Judge, the appellant preferred Criminal
Appeal No. 72 (SB) of 1994 before the High Court of Punjab
and Haryana at Chandigarh. By impugned judgment dated
04.07.2007, the High Court confirmed the conviction and
sentence as recorded by the trial Court and dismissed the
appeal. Hence the present appeal by way of special leave.
(3) Heard Mr. Shubhashis R. Soren, learned counsel for the
appellant and Mr. Kamal Mohan Gupta, learned counsel for
the respondent-State.
Contentions:
(4) Mr. Soren, learned counsel for the appellant, after
taking us through the entire materials mainly contended that
the entire investigation is defective and not in accordance
with Section 50 of the Act read with Section 100 of the Code
of Criminal Procedure, 1973 (in short “the Code”). He also
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submitted that there was a delay of 2 days in sending the
contraband for chemical analysis. He further pointed out that
there is no evidence as to conscious possession of
contraband. He also submitted that the appellant being a
rustic villager, the imposition of sentence of 10 years is on
the higher side.
(5) On the other hand, Mr. Gupta, learned counsel for the
State submitted that there is no violation of any of the
statutory provisions. Even otherwise, according to him, in
the absence of any search, there is no question of
compliance of Section 50 of the Act. He also submitted
apart from the police officers, one independent witness was
also examined. In respect of the allegation relating to delay
of two days in sending the contraband to the laboratory, it is
pointed out that in view of the fact that the container was
duly packed/sealed, the appellant has no way prejudiced and
nothing has been elicited from any of the prosecution
witnesses. He further pointed out that in view of Section 54
of the Act, it is for the appellant to discharge his burden.
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(6) We have carefully considered the rival contentions and
perused the relevant materials.
Discussion:
(7) It is seen that the case of the prosecution is supported
by the evidence of PWs-1, 5 and 6 apart from the evidence
produced on record through PWs 2 and 4. Head Constable
Jagdish Rai, (PW-1) and I.O. Dalbir Singh (PW-6) explained
the manner in which they had seen the appellant carrying a
tin, interception and seizure of the tin containing opium. It is
also seen that immediately after the message, within 10
minutes DSP (PW-5) had reached the scene and 3 ½ kgs of
opium was recovered from the tin held by the appellant in
his hand. Even though the only independent witness
Rameshwar (PW-3) who stood as a witness for recovery has
not supported the prosecution and declared hostile,
however, as rightly pointed out by the state counsel, he did
not deny the existence of his signature on Ex.PA.
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(8) We have also perused the evidence of DSP Ram Gobind
(PW-5) who explained the recovery and drawing of the
sample. He also made an entry of his visit in the logbook.
Though, learned counsel for the appellant pointed out that
the prosecution was not definite where the recoveries and
writings were made either under a tree or sitting on the
road, on perusal of the evidence of PWs 1, 5 and 6, we feel
that the said discrepancies are trivial in nature and there is
no serious infirmity in the version of PWs 1, 5 and 6.
(9) Regarding the delay in sending the contraband for
examination by the FSL, it was PW-2, who carried the
samples from the Police Station to FSL at Madhuban but he
was not asked any question in the cross examination, though
opportunity was given to the defence. Even otherwise, FSL
report Ex. P1 would show that the sample was received at
the FSL in tact with the seal which tallied with the specimen
seals forwarded. Accordingly, the said objection is liable to
the rejected.
(10) Even though it is argued that there is discrepancy as to
the quantity of sample, it is highlighted by the state counsel
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that sample weighing 200 gms. was drawn by PW-5 himself
and the weight of the same was found to be approximately
250 gms. by the FSL. It is relevant to note that the weight at
FSL was inclusive of the container and not of the contraband
alone drawn as a sample.
(11) Regarding the absence of evidence as to conscious
possession, it is brought to our notice that
search was
conducted by DSP leading to recovery of 3 ½ kgs of opium
from a tin retained by the appellant.
Nothing has been
explained or denied by the appellant in his Section 313
statement nor examined anyone as a defence witness.
As
rightly observed by the High Court, once the appellant was
asked by the court that he was carrying a tin in his hand and
opium was recovered therefrom, the aspect of conscious
possession of the contraband is presumed and in the
absence of any contra evidence, there is no reason to
disbelieve the prosecution version.
Further, it is not the case
of the appellant that incriminating circumstances were not
put to him under Section 313 of the Code.
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(12) In the light of the materials placed by the prosecution in
the form of oral and documentary evidence and in view of
Section 54 of the Act and in the absence of any evidence
from the accused discharging the presumption as to the
possession of the contraband, we are in entire agreement
with the conclusion arrived at by the trial Court and the High
Court.
(13) As regards the reduction of sentence, it is not in dispute
that possession of 3 ½ kgs of opium involves commercial
quantity and if that is so, in terms of sub-section (b) of
Section 18, imprisonment shall not be less than 10 years.
Admittedly, there is no enabling provision to the court for
reduction of sentence by giving special or adequate reasons
in the statute particularly in Section 18. Accordingly, we
reject the request of the learned counsel for the appellant.
(14) In the light of the above discussion, we are in entire
agreement with the conclusion arrived at by the courts
below. Consequently, the appeal fails and the same is
dismissed.
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……….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(M.Y. EQBAL)
NEW DELHI;
APRIL 8, 2013.
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