2008 Supreme(P&H) 1766

2008(4) LAW HERALD (P&H) 3299
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Sham Sunder
Crl. Appeal No.915-SB of 2000
Raju
v.
State of Haryana
{Decided on 21/10/2008}

Headnote:(A) Contraband--Secret information--Independent witnesses--Non Joining of--Recovery of 20 bags each containing 40 kg poppy husk--On secret information Investigating Officer and other Police Official started waiting for arrival of jeep piloting tractor trolley--Nothing on record that independent was not joined intentionally and deliberately--First concern of I.O. was that tractor trolley carrying poppy husk did not escape--Mere fact that no independent witness could be joined is itself not sufficient to come to conclusion that sample parcels were tempered with--Conviction upheld--|Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 15. (Para 9)

       (B) Contraband--Independent witness--Non joining of--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, can be cast upon the prosecution story--|Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 15.

       (C) Contraband--Independent witness--Non joining of--In absence of joining of independent witnesses, evidence of official witness cannot be distrusted and disbelieved--After careful and cautious scrutiny if court found that some does not suffer from only serious infirmity same can be believed--|Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 15. (Para 9)

       (D) Contraband--Possession of contraband--Presumption--Recovery of contraband--Conscious possession--Recovery of 20 bags each containing 40 kg. poppy husk--A big haul of poppy husk were carried in tractor trolley which could not escape notice of accused though he was setting on mudguard--Thus, it was within special means of knowledge of accused as to how 20 bags of poppy husk were found in tractor trolley and to which destination they were being taken--They failed to explain a said circumstances--Thus, accused found in possession of 20 bags containing poppy husk--|Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 15, 54 and 35. (Para 10)

       (E) Contraband--Conscious possession--Recovery of 20 bags each containing 40 kg from tractor trolley--Plea that accused were merely labourers and not owner of tractor trolley taken up by them nor they led any evidence in support thereof--Such plea taken at appellate stage only an afterthought just to wriggle out of the criminal liability--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 15, 50, 54, 54--Criminal Procedure Code, 1973, Section 313. (Para 12)

       (F) Contraband--Conscious Possession--No provision under Section 313 Cr.P.C. either provision of law or presumption obtaining under provisions of law should also be put to accused--Specific question that one of them was accused--Specific question that one of them was driver and other was sitting on mudguard of tractor trolley in which 20 bags each containing 40 kg. poppy husk was lying--Thus, they were made aware that they were in possession of and in control over bags--After their possession is proved then presumption operated against them--Contention that question that they were in conscious possession of poppy husk was not put to accused under Section 313 Cr.P.C. not tenable--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 15, 50, 54, 54--Criminal Procedure Code, 1973, Section 313. (Para 13)

       (G) Contraband--Sample--Delay in sending--Report of FSL--Delay of 9 days in sending sample to FSL unexplained--Not sufficient to come to conclusion that sample parcels were tempered with at any stage--None tampered with sample parcels until same reached offices of FSL proved--Report of FSL proves that seals on samples was found intact and agreed with specimen seals--Report of FSL per-se admissible into evidence in its entirety as per sections 293 Cr.P.C.--No challenge made to report--Delay in sending sample to office of FSL not proved fatal to case of prosecution--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 15--|Criminal Procedure Code, 1973, Section 293. (Para 14)

       (H) Contraband--Sample--Delay in sending--Mere delay in sending sample to laboratory not fatal where there is evidence that seized articles remained in safe custody--|Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 15, 54 and 35. (Para 14)

       (I) Contraband--Investigation--I.O. sent ruqa and became complainant--He also investigated the case--No evidence that prejudice caused to accused on account of such practice by I.O.--Investigation and subsequent proceedings did not become invalid--|Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 15, 54 and 35. (Para 15)