IMPORTANT POINTS
Parts of evidence not challenged can be relied upon.
Possession shall be presumed to be conscious possession unless contrary is proved.
Error or omission in compliance with section 313, Cr.P.C. will become material only if accused shows prejudice.
Evidence of police officers should not be suspected to start with.

JUDGMENT

Dr. B.S. Chauhan, J.

1. 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 charge-sheet 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 the 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 are the witn