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SUPREME COURT OF INDIA
Hon'ble Dr. Justice B.S. Chauhan and
Hon’ble Mr. Justice S.A. Bobde
Criminal Appeal No. 2302 of 2010
GIAN CHAND & ORS. – Appellants
Versus
STATE OF HARYANA – Respondent
Decided on : 23.07.2013
(B) Narcotic Drugs and Psychotropic Substances Act, 1985, Sec. 20 — Possession of contraband articles — Conscious possession — Word “Conscious” means awareness about a particular fact — Possession in a given case need not be actual physical possession and may be constructive i.e. having power and control over the article in question — Held accused found travelling in a jeep at odd hours in the night — Presence of contraband article therein — Then accused could be held to have conscious possession of the contraband substance. (Para 13)
(C) Narcotic Drugs and Psychotropic Substances Act, 1985, Secs. 35, 54 and Evidence Act, 1872, Sec. 106 — Presumption — Conjoint reading of the provisions — If accused is found to be in possession of contraband article he is presumed to have committed the offence under the relevant provisions of the Act until the contrary is proved — Thus, once possession of the contraband articles is established, the burden shifts to the accused to establish that he had no knowledge of the same. (Paras 15 and 16)
(D) Criminal Procedure Code, 1973, Sec. 313 — Compliance — Scope of — Every error or omission in compliance with the provisions of Sec. 313, Cr.P.C. does not necessarily vitiate the trial — In such a case, accused must show that some prejudice was caused or was likely to be caused. (Paras 20 to 24)
(E) Evidence Act, 1872, Sec. 114 — Independent witness — Non-examination — Necessity — Where there is no independent witness and all witnesses were from the police department — Then the evidence of such witnesses can not be discarded merely on the ground that they belong to the police force and are either interested in the investigating or the prosecuting agency — However, corroboration of their evidence on material particulars should be sought. (Paras 25 to 29)
¼v½ lk{; vf/kfu;e] 1872] /kkjk 138] 146 & lkf{k;ksa dh izfrijh{kk ugha & izHkko & vxj dksbZ i{k lkf{k;ksa ds dFkuksa dh ‘kq)rk ij lansg djrk gS rc lk{kh dks volj feyuk pkfg, vius dFku ds ml Hkkx dk fooj.k nsus ds fy, ftl ij v’kq) gksus dk lansg fd;k x;k Fkk & vkSj dfFkr lk{; dh lk{;rk dk vf/k{ksi djuk vlEHkoA
¼izLrj 11 vkSj 12½
¼c½ Lokid vkS”kf/k ,oa euizHkkoh inkFkZ vf/kfu;e] 1985] /kkjk 20 & fofuf”k) oLrq dk dCtk & lpsru dCtk & ‘kCn ßlpsruÞ dk vFkZ gS fdlh fo’ks”k rF; dh psrurk & dfFkr okn esa dCtk vko’;d ugha okLrfod HkkSfrd dCtk gks] ;g vkUof;d Hkh gks ldrk gS i.e. iz’u esa oLrq ij vf/kdkj vkSj fu;a=.k & /kkfjr fd vfHk;qDr v)Zjkf= esa viuh thi esa ;k=k djrk ik;k x;k] ftlesa fofuf”k) j[kk Fkk & bl izdkj vfHk;qDr ds ikl fofuf”k) dk lpsru dCtk gksuk ik;k x;kA ¼izLrj 13½
¼l½ Lokid vkS”kf/k ,oa euizHkkoh inkFkZ vf/kfu;e] 1985] /kkjk 35] 54 vkSj lk{; vfèkfu;e] 1872] /kkjk 106 & mi/kkj.kk & izko/kkuksa dk la;qDr i<+k tkuk & vxj vfHk;qDr ds ikl fofuf”k) oLrq ik;h xbZ rc mi/kkfjr fd mlds }kjk vf/kfu;e ds izko/kkuksa esa vijk/k dkfjr fd;k x;k Fkk tc rd fd izfrdwy fl) u gks tk, & bl izdkj tc vfHk;qDr ds dCts esa fofuf”k) LFkkfir gks tkrk gS rc ;g Hkkj vfHk;qDr ij gksrk gS fd fl) djs fd mldks bl rF; ds ckjs esa tkudkjh ugha FkhA ¼izLrj 15 vkSj 16½
¼n½ n.M izfØ;k lafgrk] 1973] /kkjk 313 & vuqikyu & foLrkj & /kkjk 313, Cr.P.C. ds izko/kkuksa ds vuqikyu esa =qfV ;k pwd vko’;d ugha fd okn dks nwf”kr djs & dfFkr okn esa vfHk;qDr dks n’kkZuk iM+sxk fd mlds lkFk i{kikr gqvk Fkk ;k gksus dh lEHkkouk FkhA ¼izLrj 20 ls 24½
¼;½ lk{; vf/kfu;e] 1872] /kkjk 114 & eqDr lk{kh & vijh{k.k & vko’;drk & tc dksbZ Lora= lk{kh u gks vfirq lHkh lk{kh iqfyl foHkkx ds gksa rc lkf{k;ksa ds lk{; dks ek= bl vk/kkj ij R;Dr ugha fd;k tk ldrk fd lk{kh iqfyl okys gSa vkSj fgrc) gSa] tk¡p ;k vfHk;kstu ,tsUlh esa & gkyk¡fd muds lk{;ksa dh iqf”V rkfRod fof’kf”V;ksa ij gksuh pkfg,A ¼izLrj 25 ls 29½
Dr. B.S. Chauhan, J. — This appeal has been filed against the judgment and order dated 4.11.2008 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 392-SB of 2001, by which it has affirmed the judgment and order dated 2.2.2001 passed by the trial court, Sirsa by which the appellants were convicted under the provisions of Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’). By that order, they were sentenced to undergo RI for a period of 10 years each and to pay a fine of rupees 1 lakh each, and in default of payment of fine, to undergo further RI for a period of one year.
2. Facts and circumstances giving rise to this appeal are that:
A. On 5.9.1996, at about 2.15 a.m., Bhan Singh, ASI of Police Station, Rania alongwith other police officials was present in the village Chakka Bhuna in an official jeep. The police party saw a jeep coming at high speed from the opposite direction and asked the said jeep to stop. However, instead of stopping, the driver accelerated the speed of the jeep. This created suspicion in the minds of the police officials. Thus, they chased the jeep. The occupants of the jeep took a U-turn and in that process the jeep struck the wall of a house in the village. The three occupants of the jeep tried to run away but they were caught by the police. The said three occupants were later identified as the appellants. They were asked whether they would like to be searched before a Gazetted officer or a Magistrate, however, they chose the former. The Deputy Superintendent of Police was called and a search was conducted in his presence. The vehicle had 10 bags containing 41 kg poppy husk each. The police party took samples of 200 grams of poppy husk from each bag and the same was sealed by the Dy.S.P.
B. On the basis of same, an FIR was lodged on 5.9.1996 itself at 3.15 a.m. at the Rania Police Station against the appellants-accused. After investigation, a chargesheet was filed against them and the appellants claimed trial. Hence, the trial commenced.
C. The prosecution led the evidence in support of its case and also produced the case property in the court alongwith the damaged jeep in which the appellants were carrying 410 kg. poppy husk. In the FSL report all positive results were shown. Appellants did not lead any evidence in defence and pleaded that they had falsely been implicated in the crime.
D. After conclusion of the trial, the appellants were convicted and sentenced as referred to hereinbefore vide judgment and order dated 2.2.2001, and the said judgment and order has been affirmed by then High Court vide its judgment and order dated 4.11.2008.
Hence, this appeal.
3. Mr. J.P. Dhanda, learned counsel appearing for the appellants has submitted that no independent witness was examined by the prosecution in the case, though a large number of people had gathered at the place of the alleged incident which led to the appellants-accused being apprehended. No independent witness was involved in preparation of the panchnama of the recovered substances. Further, the prosecution failed to prove that the appellants-accused were in conscious possession of the contraband material. This incriminating circumstance had not even been put to the appellants-accused while recording their statements under Section 313 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’). The appellants have already served about 8 years of sentence. Thus, the appeal deserves to be allowed.
4. Per contra, Mr. Brijender Chahar, learned senior counsel appearing for the State has opposed the appeal contending that even if some persons had gathered at the place of occurrence when the appellants were apprehended, nobody was willing to become a witness. Therefore, the prosecution could not examine any independent witness. The case of the prosecution does not deserve to get disbelieved simply because police officials themselves a
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