2008 Supreme(P&H) 141

2008(1) LAW HERALD (P&H) (DB) 749
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice J.S. Khehar
The Hon’ble Mr. Justice Sham Sunder
Crl. Appeal No. 686-DBA of 1997
State of Punjab
v.
Dharampal Singh
{Decided on 22/01/2008}

IMPORTANT POINTS
Contraband--Conscious possession—Presumption from possession of illicit articles—Presumption of culpable mental state—Law explained.

Headnote:Contraband--Statement of accused—The provisions of law were not required to be put to the accused/respondents, in their statements, under Section 313 Cr.P.C.

       Contraband--Recovery of--Official witnesses—The evidence of the official witnesses, cannot be disbelieved, and distrusted, merely, on account of their official status.

       Contraband--Mere fact, that no independent witness, could be joined, on account of non-availability of the same, at the time of recovery, the case of prosecution does not become doubtful.

       (A) Narcotic Drugs and Psychotropic Substances Act, 1985, Section 54—Contraband—Appeal against acquittal—Acquittal set-aside—Appeal of the State accepted—Heavy recovery—Recovery of 65 kg. of opium from dicky of a car—Police holding a picket—Accused ‘D’ was driving car while accused ‘M’ was sitting by the side of driver—Presumption from possession of illicit articles—Conscious possession proved; Interalia—Since, the recovery of opium, was effected from the dicky of the car, being driven by ‘D’ accused, by the side of whom, on the front seat, ’M’ accused, was sitting, it can be safely held that both of them were found in possession of the same opium. (Para 11)

       (B) Narcotic Drugs and Psychotropic Substances Act, 1985, Section 54 & 35—Contraband--Conscious possession—Presumption from possession of illicit articles—Presumption of culpable mental state—Law explained—Held;

       (i) 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.

       (ii) According to Section 35 of the NDPS Act, the Court shall presume the existence of mental state, for the commission of an offence, and it is for the accused to prove otherwise.

       (iii) The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended.

       (iv) 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. (Para 12)

       (C) Narcotic Drugs and Psychotropic Substances Act, 1985, Section 54 & 35—Contraband--Conscious possession—Since the possession of opium, from the Car, was established, presumption of law under Sections 54 and 35 of the Act came into operation. (Paras 12 & 13)

       (D) Narcotic Drugs and Psychotropic Substances Act, 1985, Section 18—Criminal Procedure Code, 1973, Section 313—Contraband--Statement of accused—The provisions of law were not required to be put to the accused/respondents, in their statements, under Section 313 Cr.P.C.(Para 13)

       (E) Evidence Act, 1872, Section 3—Narcotic Drugs and Psychotropic Substances Act, 1985, Section 18—Contraband--Recovery of--Official witnesses—Neither any enmity was alleged no proved against the official witnesses—Their evidence carries a ring of truth—Held Interalia-

       (i) The evidence of the official witnesses, cannot be disbelieved, and distrusted, merely, on account of their official status.

       (ii) They are, as good, as any other independent witness.

       (iii) In the face of the evidence of the official witnesses only, the Court is put on guard, to scrutinize the same, carefully and cautiously. (Para 14)

       (F) Narcotic Drugs and Psychotropic Substances Act, 1985, Section 18—Contraband--Search & Seizure—No independent witness was joined at the time of recovery on account of non availability—Prosecution case does not become doubtful—Held; Mere fact, that no independent witness, could be joined, on account of non-availability of the same, at the time of recovery, the case of prosecution does not become doubtful.

       (G) Narcotic Drugs and Psychotropic Substances Act, 1985, Section 18—Contraband—Defence versions—Recovery of big haul of 65 kgs. of opium from the dicky of car—Accused had failed to explain as to how they were travelling in car together which was not a public vehicle—No defence was set up by the accused person except false implication—Held; Interalia—

       (i) The defence version with regard to the false implication of the accused, being devoid of merit is rejected.

       (ii) In the absence of any such defence, having been set up by the accused/respondents, the Court can not coin any of its own. (Para 12)