Supreme Court of India
GIAN CHAND & ORS.versusSTATE OF HARYANA
- Citation
- 2013 INSC 488
- Decided
- 23 July 2013
- Disposal
- Dismissed
- Bench
- B S CHAUHAN
Holding
The Supreme Court affirmed the conviction, holding that possession was established, the statutory presumption of knowledge applied, the appellants failed to rebut it, and the procedural omissions did not prejudice the trial.
Summary
The appellants were seized at night while travelling in a jeep that contained ten bags of poppy husk (total 410 kg). They were convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to ten years of rigorous imprisonment. On appeal they argued that the prosecution failed to prove "conscious possession" and that the issue was not put to them under Section 313 of the CrPC, and that the absence of independent witnesses rendered the seizure doubtful. The Supreme Court held that the seizure was properly documented, the police witnesses were reliable, and the volume of contraband made it implausible that the accused were unaware. Under Sections 35 and 54 of the NDPS Act a statutory presumption of knowledge arises once possession is proved, shifting the burden to the accused, who failed to rebut it. The Court also ruled that the lack of an independent witness or a panchnama does not per se vitiate the trial where police testimony is cogent, and no prejudice was shown for the alleged non‑compliance with Section 313. Consequently, the conviction was upheld and the appeal dismissed.
Issues considered
- The existence of "conscious possession" of the poppy husk by the appellants.
- Whether the failure to put the issue of conscious possession before the accused under Section 313 CrPC violated the principles of natural justice.
- Whether the absence of independent witnesses or a panchnama of the seized bags invalidates the conviction.
- Effect of the statutory presumptions under Sections 35 and 54 of the NDPS Act and the evidential burden under Section 106 of the Evidence Act.
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Indian Evidence Act, 1872s. 106, s. 114, s. 138, s. 146
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 15, s. 20, s. 35, s. 54
Subjects
NDPS Actconscious possessionSection 313 CrPCstatutory presumptionburden of proofevidence actindependent witnessdrug traffickingcriminal appeal
Judgment
[2013) 10 S.C.R. 728
A GIAN CHAND & ORS.
v.
STATE OF HARYANA
(Criminal Appeal No. 2302 of 2010)
JULY 23, 2013
B
[DR. B.S. CHAUHAN AND S.A. BOBDE, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985
- ss. 15, 20, 35 & 54 - Accused-appellants found carrying ten
C bags of contraband in a vehicle - Convicted by Courts below
u/s. 15 - Justification - Held: Justified - Overwhelming evidence
on record to prove that the seizure of ten bags had actually
been made from the appellants - Since appellants were found
in possession of contraband article, they were presumed to
o have committed the· offence until the contrary was proved -
Burden was on the appellants to establish that they had no ·
knowledge of the same - Appellants miserably failed to rebut
the statutory presumption - They could not point out what
prejudice was caused to them if the fact of "conscious
E possession" was not put to them while recording their
statements u/s.313 CrPC - Mere non-joining of independent
witness did not cast doubt on the version forwarded by the
prosecution since no reason on record to falsely implicate the
appellants - On facts, at the time of the incident some
F villagers had gathered there - The Investigating Officer in his
cross-examination made it clear that in spite of his best
persuasion, none of them were willing to become witness and
therefore, he could not examine any independent witness -
Further, every official act by the police is presumed t6 have
been regularly performed - Evidence Act, 1872 - ss.106 and
G 114 - Maxims - "omnia praesumuntur rite it dowee probetur
in contrarium solenniter esse acta".
The accused-appellants were allegedly found
travelling in a jeep at odd hours in the night and carrying
H 728
GIAN CHAND & ORS. v. STATE OF HARYANA 729
contraband material i.e. 10 bags containing 41 kg poppy A
husk each. The trial court convicted the appellants under
Section 15 of Narcotic Drugs and Psychotropic
Substances Act, 1985 and sentenced them to undergo RI
for a pe.riod of 10 years each. The conviction and
sentenced was affirmed by the High Court. B
The appellants challenged their conviction before
this Court on grounds: 1) that the prosecution failed to
prove that the appellants were in "conscious
possession" of the contraband and this incriminating C
circumstance was not put to the appellants while
recording their statements under Section 313 CrPC and
2) that no independent witness was examined or
involved in preparation of the panchnama of the
recovered substances.
D
Dismissing the appeal, the Court
HELD: 1.1. The appellants abandoned the vehicle
(jeep) just after it dashed against the wall and made a
desperate attempt to escape but were apprehended by E
the police party. The Trial Court examined the matter
elaborately and after appreciating the evidence of the
witnesses, came to the conclusion that there were no
discrepancies in the statements of the three officials, i.e.
prosecution witnesses. Their statements inspired F
tremendous confidence and thus, there was no reason
for the court to discard the testimony of the official
witnesses. Grievance had also been ·raised before the
Trial Court that the chit carrying contents of case property
was not available on the bags. However, this did not give G
any benefit to the accused as there was overwhelming
evidence on record to prove that the seizure of ten bags
had actually been made from the accused. Further the
contents of the samples sent for chemical analysis gave
positive results on analysis in the laboratory. Moreover, H
730 SUPREME COURT REPORTS [2013] 10 S.C.R.
A the defence did not put any question to the Investigating
Officer in his cross-examination in respect of missing
chits from the bags containing the case property/
contraband articles. Thus, no grievance could be raised
by the appellants in this regard. (Paras 7, 12] [737-H; 738-
B A-D; 741-G]
1.2. From the conjoint reading of the provisions of
Section 35 and 54 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, it becomes clear that
c if the accused is found to be in possession of the
contraband article, he is presumed to have committed
the offence under the relevant provisions of the Act until
ttie contrary is proved. According to Section 35 of the Act,
the court shall presume the existence of mental state for
0 the commission of an offence and it is for the accused
to prove otherwise. Thus, once possession of the
contraband articles is established, the burden shifts on
the accused to establish that he had no knowledge of the
same. In the instant case, in their statement under Section
E 313 CrPC, the appellants took the plea of false implication
only and the appellants miserably failed to rebut the
statutory presumption. Additionally, it can also be held
that once the possession of the contraband material with
the accused is established, the accused has to establish
F how he came to be in possession of the same as it is
within his special knowledge and therefore, the case falls
within the ambit of the provisions of Section 106 of the
Evidence Act, 1872. Section 106 is not intended to relieve
the prosecution of its burden to prove the guilt of the
G accused beyond reasonable doubt. But the Section
would apply to cases where the prosecution has
succeeded in proving facts from which a reasonable
inference can be drawn regarding the existence of certain
other facts, unless the accused by virtue of his special
H knowledge regarding such facts, failed to offer any
GIAN CHAND & ORS. v. STATE OF HARYANA 731
explanation which might drive the Court to draw a A
different inference. Section 106 of the Evidence Act is
designed to meet certain exceptional cases, in which, it
would be impossible for the prosecution to establish
certain facts which are particularly within the knowledge
of the accused. [Paras 9, 14, 15 & 16) [739-E; 742-H; 743- B
A-0, F-H]
1.3_. In the instant case, the issue relating to non-
compliance of Section 313 Cr.P.C. had not been raised
before the High Court, and it was raised for the first time C
before this Court. The appellants could not point out what
prejudice has been caused to them if the fact of
"conscious possession" was not put to them. Even
otherwise such an issue cannot be raised in the existing
facts and circumstances of the case wherein the burden 0
was on the accused to show how the contraband
material came to be found in the vehicle which was driven
by one of them and the other two were travelling in that
vehicle. [Para 20) [746-E-G]
1.4. Mere non-joining of an independent witness E
where the evidence of the prosecution witnesses may be
found to be cogent, convincing, creditworthy and reliable,
cannot cast doubt on the version forwarded by the
prosecution if there seems to be no reason on record to
falsely implicate the appellants. In the instant case, at the F
time of incident some villagers had gathered there. The
Investigating Officer in his cross-examination has made
it clear that in spite of his best persuasion, none of them
were willing to become a witness. Therefore, he could
not examine any independent witness. Section 114 of the G
Evidence Act 1872 gives rise to the presumption that
every official act done by the police was regularly
performed and such presumption requires rebuttal. The
legal maxim omnia praesumuntur rite it dowee probetur
in contrarium solenniter esse acta i.e., all the acts are · H
732 SUPREME COURT REPORTS [2013] 10 S.C.R.
A presumed to have been done rightly and regularly,
applies. When acts are of official nature and went
through the process of scrutiny by official persons, a
presumption arises that the said acts have regularly been
performed. [Paras 28, 29) [748-H; 749-A-D]
B
Avtar Singh & Ors. v. State of Punjab AIR 2002 SC
3343: 2002 (2) Suppl. SCR 482 - distinguished.
Madan Lal & Anr. v. State of Himachal Pradesh AIR 2003
SC 3642: 2003 (2) Suppl. SCR 716; State of West Bengal
C v. Mir Mohammad Omar & Ors. etc. etc. AIR 2000 SC 2988:
2000 (2) Suppl. SCR 712; Shambhu Nath Mehra v. The
State of Ajmer AIR 1956 SC 404; 1956 SCR 199; Gunwantlal
v. The State of Madhya Pradesh AIR 1972 SC 1756: 1973
(1) SCR 508; Sucha Singh v. State of Punjab AIR 2001 SC
D 1436: 2001 (2) SCR 644; Sahadevan @ Sagadevan v. State
rep. by Inspector of Police, Chennai AIR 2003 SC 215: 2003
(1) SCC 534; Durga Prasad Gupta v. The State of Rajasthan
thr. CBI (2003) 12 sec 257: 2003 (4) Suppl. SCR 1;
Santosh Kumar Singh v. State thr. CBI, (2010) 9 SCC 747:
E 2010 (13) SCR 901; Manu Sao v. State of Bihar (2010) 12
SCC 310: 2010 (8) SCR 811; Neel Kumar alias Anil Kumar
v. State of Haryana (2012) 5 SCC 766: 2012 (5) SCR 696;
Megh Singh v. State of Punjab AIR 2003 SC 3184: 2003 (3)
Suppl. SCR 720; Wasim Khan v. The State of Uttar Pradesh,
F AIR 1956 SC 400: 1956 SCR 191; and Bhoor Singh & Anr.
v. State of Punjab, AIR 1974 SC 1256: 1974 (4) SCC 754
Asraf Ali v. State of Assam (2008) 16 SCC 328: 2008 (10)
SCR 1115; Shivaji Sahebrao Bobade & Anr. v. State of
Maharashtra AIR 1973 SC 2622: 1974 (1) SCR 489;
G Paramjeet Singh @ Pamma v. State of Uttarakhand AIR
2011 SC 200: 2010 (11) SCR 1064; Rohtash v. State of
Haryana JT 2013 (8) SC 181; Paras Ram v. State of
Haryana, AIR 1993 SC 1212: 1992 (2) Suppl. SCR 55; Balbir
Singh v. State (1996) 11 SCC 139; Akmal Ahmad v. State
H of Delhi, AIR 1999 SC 1315: 1999 (2) SCR 160; M.
GIAN CHAND & ORS. v. STATE OF HARYANA 733
Prabhulal v. Assistant Director, 1996 (7) Suppl. SCR 50; A
Directorate of Revenue Intelligence AIR 2003 SC 4311: 2003
(3) Suppl. SCR 958; Ravinderan @ John v. Superintendent
of Customs AIR 2007 SC 2040: 2007 (6) SCC 410; State,
Govt. of NCT of Delhi v. Sunil & Anr. (2001) 1 SCC 652: 2000
(5) Suppl. SCR 144 and Appabhai & Anr. v. State of Gujarat B
AIR 1988 SC 696: 1988 Suppl. sec 241 - relied on.
Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwanthuva
(Dead) Thr. L.Rs. & Ors. AIR 2013 SC 1204: 2013 (1) SCR
632; Ravinder Kumar Sharma v. State of Assam & Ors., AIR c
1999 SC 3571: 1999 (2) Suppl. SCR 339; Ghasita Sahu v.
State of Madhya Pradesh, AIR 2008 SC 1425: 2008 (2) SCR
95; Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181
and State of Punjab v. Hari Singh and Ors. AIR (2009) SC
1966: 2009 (2) SCR 470 - referred to. D
Case Law Reference:
2013 (1) SCR 632 referred to Para 11
1999 (2) Suppl. SCR 339 referred to Para 11
E
2008 (2) SCR 95 referred to Para 11
JT 2013 (8) SC 181 referred to Para 11
2003 (2) Suppl. SCR 716 relied on Para 13
. 2000 (2) Suppl. SCR 712 relied on Para 16 F
1956 SCR 199 relied on Para 16
1973 (1) SCR 508 relied on Para 16
2001 (2) SCR 644 relied on Para 16
G
2003 (1 > sec 534 relied on Para 16
2003 (4) Suppl. SCR 1 relied on Para 16
2010 (13) SCR 901 relied on Para 16
H
734 SUPREME COURT REPORTS [2013] 10 S.C.R.
A 2010 (8) SCR 811 relied on Para 16
2012 (5) SCR 696 relied on Para 16
2009 (2) SCR 470 referred to Para 17
2002 (~) Suppl. SCR 482 distinguished Para 17
B
2003 (3) Suppl. SCR 720 relied on Para 18
1956 SCR 191 relied on Para 20
1974 (4) sec 754 relied on Para 20
c 2008 (10) SCR 1115 relied on Para 21
1974 (1) SCR 489 relied on Para 22
2010 (11) SCR 1064 relied on Para 23
JT 2013 (8) SC 181 relied on Para 25
D
1992 (2) Suppl. SCR 55 relied on Para 25
(1996) 11 sec 139 relied on Para 25
1999 (2) SCR 160 relied on Para 25
E 1996 (7) Suppl. SCR 50 relied on Para 25
2003 (3) Suppl. SCR 958 relied on Para 25
2001 (6 ) sec 410 relied on Para 25
F 2000 (5) Suppl. SCR 144 relied on Para 26
1988 Suppl. sec 241 relied on Para 27
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2302 of 2010.
G
From the Judgment & Order dated 04.11.2008 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 392-SB of 2001.
J.P. Dhanda, N.A. Usmani for the Appellants.
H
GIAN CHAND & ORS. v. STATE OF HARYANA 735
Brijender Chahar, R.K. Shokeen, Kamal Mohan Gupta for A
the Respondent.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. This appeal has been filed
against the judgment and order dated 4.11.2008 passed by the B
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 C
· 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. D
2. Facts and circumstances .gfving rise to this appeal are
that:
. A. On 5.9.1996, at about 2.15 a.m., Bhan Singh, ASI of E
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 F
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 G
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 H
736 SUPREME COURT REPORTS [2013] 10 S.C.R.
A 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
8 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
C 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
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
E 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
F 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.
G 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
H (hereinafter referred to as 'Cr.P.C.'). The appellants have
GIAN CHAND & ORS. v. STATE OF HARYANA 737
[DR. 8.S. CHAUHAN, J.]
already served about 8 years of sentence. Thus, the appeal A
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 B
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 witnesses, nor there c
is any requirement in law that in every case an independent
witness should be examined. Further all incriminating material
was put to the appellants-accused while recording their
statements under Section 313 Cr.P.C. Once it is established
that an accused is in possession of contraband substance, the D
burden to prove that he had no knowledge of the same, shifts
to the accused to prove the same. More so, the accused is
supposed to explain his conduct while making his statement
under Section 313 Cr.P.C. particularly where there are certain
presumptions against him under Section 35 of the Act. There E
are concurrent findings of fact recorded by the courts below.
Thus, no interference is called for and the appeal is liable to
be dismissed.
5. We have considered the rival submissions made by
learned counsel for the parties and perused the record. F
6. No dispute has been raised regarding the poppy husk
recovered from the jeep or the damaged jeep. Further, the
appellants did not challenge the result shown in the FSL report
wherein the qualitative tests in respect of Meconic Acid, G
Morphine, Codeine, Thebaine, Papaverine and Narcotine had
all been shown as positive.
7. All three occupants, i.e. the appellants abandoned the
vehicle just after it dashed against the wall and made a
H
738 SUPREME COURT REPORTS [2013] 10 S.C.R.
A desperate attempt to escape but were apprehended by the
police party. The Trial Court examined the matter elaborately
and after appreciating the evidence of the witnesses, came to
the conclusion that there were no discrepancies in the
statements of the three officials, i.e. prosecution witnesses.
B Their statements inspired tremendous confidence and thus,
there was no reason for the court to discard the testimony of
the official witnesses. The grievance had also been raised
before the Trial Court that the chit carrying contents of case
property was not available on the bags. However, this did not
C give any benefit to the accused as there was overwhelming
evidence on record to prove that the seizure of ten bags had
actually been made from the accused. Further the contents of
the samples sent for chemical analysis gave positive results on
analysis in the laboratory.
D
8. The High Court dealt with the issue elaborately
regarding knowledge i.e. conscious possession, and held as
under:
"There were only three occupants in the jeep, at the
E relevant time. As many as 10 bags, each containing 41
kgs. Poppy husk, were lying in the jeep. It was not a small
quantity of poppy husk, ..... and could escape the notice of
the accused. It was a big haul of poppy husk, ...... The
accused were having special means of knowledge, with
F regard to the bags, containing poppy husk, lying in the jeep.
It was for the accused to explain, as to how the b~gs,
containing poppy husk, were being transported. Not
only this, the conduct of the accused, is also relevant, in
this case. They instead of stopping the jeep, when the
G signal was given, by the policy party, accelerated the
speed thereof and sped away towards Village Keharwala.
It was only after hot chase, given by the members of the
police party, in their jeep, that the driver of the jeep got
nervous, could not properly negotiate the turn and lost
H control, as a result whereof, the said jeep struck against
GIAN CHAND & ORS. v. STATE OF HARYANA 739
[DR. B.S. CHAUHAN, J.]
the wall and stopped. In case, there was no contraband, A
in the jeep, and the accused were not in the knowledge of
the same then what was the necessity of speeding away
the jeep, was for them to explain. This material
circumstance goes against them. Under these
circumstances, it could be said that they were in B
possession of, and in control over the bags, lying in the
jeep.
Once the possession of the accused, and tl)eir
control over the contraband, was proved, then
statutory presumption under Section 54 and 35 of the C
Act, operated against them, that they were in
conscious possession thereof. Thereafter, it was for
them, to rebut the statutory presumption, by leading cogent
and convincing evidence. However, the appellants, failed
to rebut the said presumption either during the course D
of cross-examination of the prosecution witnesses, or by
leading defence evidence."
(Emphasis added)
E
9. Further, in their statement under Section 313 Cr.P.C.,
the appellants took the plea of false implication only and the
appellants miserably failed to rebut the statutory presumption,
referred to above. The High Court further held as under:-
"In the instant case, no plea was taken up by the accused, F
during the course of trial or in their statements, under
Section 313 Cr.P.C. that they were not the occupants of
the jeep. No plea was taken by the accused that they were
not aware of the contents of the bags, lying in the jeep. No
plea was taken up by the driver of the jeep that he was G
taking the bags, containing poppy husk, as per the
directions of the owner thereof, and did not know, as to
what was contained in the bags. No plea was taken up,
by the other occupants, of the jeep, that they were merely
labourers engaged for loading and unloading the bags, H
{
740 SUPREME COURT REPORTS [2013] 10 S.C.R.
A containing poppy husk, at the destination. No plea was
taken up by the accused, other than the driver, sitting in
the jeep, that they only took lift therein, and as such were
passengers. They did not take up the plea, that the driver
of the jeep knew them earlier and since they could not find
B any public transport, for going to their villages, he gave
them lift therein on friendly basis. The facts of the cases,
relied upon by the Counsel for the appellants, and referred
to, in this paragraph, being distinguishable, from the facts
of the instant case, no help can be drawn by the counsel
for the appellants therefrom. In this view of the matter, the
c submission of the counsel for the appellants, being without
merit, must fail, and the same stands rejected."
10. So far as the condition of the property is concerned,
the court observed that "as the witnesses have been examined
D after four years from the date of recovery. The case property
remained lying in the malkhana. On account of shortage of
space, in the malkhanas, the case properties cannot be stacked
properly and the bags, containing poppy husk, underwent the
process of decay, however, did not mean that the case property
E produced in the court, did not relate to the instant case." There
was nothing on record to show that the said case property had
been tampered with.
11. The effect of not cross-examining a witness on a
F particular fact/circumstance has been dealt with and explained
by this Court in Laxmibai (Dead) Thr. L.Rs. & Anr. v.
Bhagwanthuva (Dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204
observing as under:
"31. Furthermore, there cannot be any dispute with
G respect to the settled legal proposition, that if a party
wishes to raise any doubt as regards the correctness of
the statement of a witness, the said witness musfbe given
an opportunity to explain his statement by drawing his
attention to that part of it, which has been objected to by
H
GIAN CHAND & ORS. v. STATE OF HARYANA 741
[DR. S.S. CHAUHAN, J.]
the other party, as being untrue. Without this, it is not A
possible to impeach his credibility. Such a Jaw has been
advanced in view of the ·statutory provisions enshrined in
Section 138 of the Evidence Act, 1872, which enable the
opposite party to cross-examine a witness as regards
information tendered in evidence by him during his initial B
examination in chief, and the scope of this provision
stands enlarged by Section 146 of the Evidence Act,
which permits a witness to be questioned, inter-alia, in
order to test his veracity. Thereafter, the unchallenged
part of his evidence is to be relied upon, for the reason c
that it is impossible for the witness to explain or elaborate
upon any doubts as regards the same, in the absence
of questions put to him with respect to the circumstances
which indicate that the version of events provided by him,
is not fit to be believed, and the witness himself, is D
unworthy of credit. Thus, if a party intends to impeach a
witness, he must provide adequate opportunity to the
witness in the witness box, to give a fu/I and proper
explanation. The same is essential to ensure fair play
and fairness in dealing with witnesses."
E
(Emphasis supplied)
(See also: Ravinder Kumar Sharma v. State of Assam & Ors.,
AIR 1999 SC 3571; Ghasita Sahu v. State of Madhya
Pradesh, AIR 2008 SC 1425; and Rohtash Kumar v. State of F·
Haryana, JT 2013 (8) SC 181)
12. The defence did not put any question to the
Investigating Officer in his cross-examination in respect of
missing chits from the bags containing the case property/ G
contraband articles. Thus, no grievance could be raised by the
appellants in this regard.
13. The appellants were found travelling in a jeep at odd
hours in th!! night and the contraband material was found.
H
742 SUPREME COURT REPORTS (2013] 10 S.C.R.
A Therefore, the question arises whether they can be held to have
conscious possession of the contraband substances.
This Court dealt with this issue in Madan Lal & Anr. v.
State of Himachal Pradesh AIR 2003 SC 3642, observing that
B Section 20(b) makes possession of contraband articles an
offence. Section 20 appears in Chapter IV of the Act which
relates to offences and penalties for possession of such
articles. Undoubtedly, in order to bring home the charge of illicit
possession, there must be conscious possession. The
c expression 'possession' has been held to be a polymorphous
term having different meanings in contextually different
backgrounds. Therefore, its definition cannot be put in a
straitjacket formula. The word 'conscious' means awareness
about a particular fact. It is a state of mind which is deliberate
0 or intended. 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 case in question, while the person
to whom physical possession is given holds it subject to that
power or control. The Court further held as under:
E "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. Section 35 of the Act
gives a statutory recognition of this position because of
F presumption available in law. Similar is the position in
terms of Section 54 where also presumption is available
to be drawn from possession of illicit articles .... lt has not
been shown· by the accused-appellants that the
possession was not conscious in the logical background
G of Sections 35 and 54 of the Act." (Emphasis added)
14. From the conjoint reading of the provisions of Section
35 and 54 of the Act, it becomes clear that if the accused is
found to be in possession of the contraband article, he is
H presumed to have committed the offence under the relevant
GIAN CHAND & ORS. v. STATE OF HARYANA 743
[DR. B.S. CHAUHAN, J.]
provisions of the Act until the contrary is proved. According to A
Section 35 of the 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.
Thus, in view of the above, it is a settled legal proposition
B
that once possession of the contraband articles is established,
the burden shifts on the accused to a.stablish that he had no
knowledge of the same.
15. Additionally, it can also be held that once the
possession of the contraband material with the accused is C
established, the accused has to establish how he came to be
in possession of the same as it is within his special knowledge
and therefore, the case falls within the ambit of the provisions
of Section 106 of the Evidence Act, 1872 (hereinafter referred
to as 'the Act 1872'). D
16. In State of West Bengal v. Mir Mohammad Omar &
Ors. etc. etc., AIR 2000 SC 2988, this Court held that if the fact
is specifically in the knowledge of any person, then the burden
of proving that fact is upon him. It is impossible for the E
prosecution to prove certain facts particularly within the
knowledge of accused. Section 106 is not intended to relieve
the prosecution of its burden to prove the guilt of the accused
beyond reasonable doubt. But the Section would apply to
cases where the prosecution has succeeded In proving facts F
from which a reasonable inference can be drawn regarding the
existence of certain other facts, unless the accused by virtue
of his special knowledge regarding such facts, failed to offer
any explanation which might drive the Coµrt to draw a different
inference. Section 106 of the Evidence Act is designed to G
meet certain exceptional cases, in which, it would be
impossible for the prosecution to establish certain facts
which are particularly within the knowledge of the
accused.
H
744 SUPREME COURT REPORTS [2013) 10 S.C.R.
A (See also: Shambhu Nath Mehra v. The State of Ajmer
AIR 1956 SC 404; Gunwantlal v. The State of Madhya Pradesh
AIR 1972 SC 1756; Sucha Singh v. State of Punjab AIR 2001
SC 1436; Sahadevan@ Sagadevan v. State rep. by Inspector
of Police, Chennai AIR 2003 SC 215; Durga Prasad Gupta
B v. The State of Rajasthan thr. CBI, (2003) 12 SCC 257;
Santosh Kumar Singh v. State thr. CBI, (2010) 9 SCC 747;
Manu Sao v. State of Bihar (2010) 12 SCC 31 O; Neel Kumar
alias Anil Kumar v. State of Haryana (2012) 5 SCC 766).
17. Learned counsel for the appellants has placed much
C reliance upon the judgment of this Court in State of Punjab v.
Hari Singh & Ors., AIR 2009 SC 1966, wherein placing reliance
upon the earlier judgment in Avtar Singh & Ors. v. State of
Punjab, AIR 2002 SC 3343, it was held that if the incriminating
material i.e., the issue relating to possession had not been put
D to the accused under Section 313 Cr.P.C. the principles of
natural justice stand violated and the judgment stands vitiated.
18. So far as the judgment in Avtar Singh (supra) is
concerned, it has been considered by this Court in Megh Singh
E v. State of Punjab AIR 2003 SC 3184. The Court held that the
circumstantial flexibility, one additional or different fact may
make a world of difference between conclusions in two cases
or between two accused in the same case. Each case
depends on its own facts and a close similarity between one
F case and another is not enough because a single significant
detail may alter the entire aspect. It is more pronounced in
criminal cases where the backbone of adjudication is fact
based. In Avtar Singh (supra), the contraband articles were
being carried in a truck. There were several persons in the truck.
G Some of them fled and it could not be established by evidence
that anyone of them had conscious possession. While the
accused was examined under Section 313 Cr.P.C. the
essence of accusations was not brought to his notice,
particularly with respect to the aspect of possession. It was also
H noticed that the possibility of the accused persons being
GIAN CHAND & ORS. v. STATE OF HARYANA 745
[DR. B.S. CHAUHAN, J.]
labourers of the truck was not ruled out by evidence. Since the A
decision was rendered on special consideration of several
peculiar factual aspects specially noticed in that case, it cannot
be of any assistance in all the cases.
19. Therefore, it is evident that Avtar Singfl (supra) does B
not lay down the law of universal application as it had been
decided _on. its own facts.
20. So far as Section 313 Cr.P.C. is concerned,
undoubtedly, the attention of the accused must specifically be C
brought to inculpable pieces of evidence to give him an
opportunity to offer an explanation if he chooses to do so. A
three-Judge Bench of this Court in Wasim Khan v. The State
of Uttar Pradesh, Al R 1956 SC 400; and Bhoor Singh & Anr.
v. State of Punjab, Al R 1974 SC 1256 held that every error or
omission in compliance of the provisions of Section 342 of the D
old Cr.P.C. does not necessarily vitiate trial. The accused must
show that some prejudice has been caused or was likely to
have been caused to him.
21. In Asraf Ali v. State of Assam, (2008) 16 SCC 328, a E
similar view has been reiterated by this Court observing that
all material circumstances appearing in the evidence against
the accused are required to be put to him specifically and failure
to do so amounts to serious irregularity vitiating trial, if it is
shown that the accused was prejudiced. F
22. In Shivaji Sahebrao Bobade & Anr. v. State of
Maharashtra, AIR 1973 SC 2622, a three-Judge Bench of this
Court held that "basic fairness of a criminal trial may gravely
imperil the validity of the trial itself, if consequential miscarriage G
of justice has flowed." However, where such an omission has
occurred it does not ipso facto vitiate the proceedings and
prejudice occasioned by such defect, must be established
by the accused.
23. In Paramjeet Singh @ Pamma v. State of H
746 SUPREME COURT REPORTS [2013] 10 S.C.R
A Uttarakhand, AIR 2011 SC 200, after considering large number
of cases on the issue, this Court held as under:-
"Thus, it is evident from the above that the provisions of
Section 313 Cr. P. C make it obligatory for the court to
B question the accused on the evidence and
circumstances against him so as to offer the accused an
opportunity to explain the same. But, it would not be
enough for the accused to show that he has not been
questioned or examined on a particular circumstance,
instead he must show that such non-examination
c has actually and materially prejudiced him and has
resulted in the failure of justice. In other words, in the
event of an inadvertent omission on the part of the court
to question the accused on any incriminating
circumstance cannot ipso facto vitiate the trial unless it
D is shown that some material prejudice was caused to
the accused by the omission of the court"
(Emphasis added)
E 24. In the instant case the issue relating to non-compliance
of the provisions of Section 313 Cr.P.C. has not been raised
before the High Court, and it is raised for the first time before
this Court. Learned counsel for the appellants could not point
out what prejudice has been caused to them if the fact of
F "conscious possession''. has not been put to them. Even
otherwise such an issue cannot be raised in the existing facts
and circumstances of the case wherein the burden was on the
accused to show how the contraband material came to be found
in the vehicle which was driven by one of them and the other
G two were travelling in that vehicle.
25. The next question for consideration does arise as to
whether it is necessary to examine an independent witness and
further as to whether a case can be seen with doubt where all
the witnesses are from the police department.
H
GIAN CHAND & ORS. v. STATE OF HARYANA 747
[DR. B.S. CHAUHAN, J.]
. In Rohtash v. State of Haryana JT 2013 (8) SC 181, this A
court considered the issue at length and after placing reliance
upon its earlier judgments came to the conclusion that where
all witnesses are from the police department, their depositions
must be subject to strict scrutiny. However, the evidence of
police officials cannot be discarded merely on the ground that B
they belong to the police force, and are either interested in the
investigating or the prosecuting agency. However, as far as
possible the corroboration of their evidence on material
particulars should be sought. The Court held as under:
c
"Thus, a witness is normally considered to be
independent, unless he springs from sources which are
likely to be tainted and this usually means that the said
witness has cause, to bear such enmity against the
accused, so as to implicate him falsely. In view of the D
above, there can be no prohibition to the effect that a
policeman cannot be a witness, or that his deposition
cannot be relied upon."
(See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212;
Balbir Singh v. State, (1996) 11 SCC 139; Akmal Ahmad v. E
State of Delhi, AIR 1999 SC 1315; M. Prabhulal v. Assistant
Director, Directorate of Revenue Intelligence, AIR 2003 SC
4311; and Ravinderan@ John v. Superintendent of Customs,
AIR 2007 SC 2040).
F
26. In State, Govt. of NCT of Delhi v. Sunil & Anr. (2001)
1 SCC 652, this Court examined a similar issue in a case
where no person had agreed to affix his signature on the
document. The Court observed that it is an archaic notion that
actions ofthe police officer should be viewed with initial distrust. G
At any rate, the court cannot begin with the presumption that
police records are untrustworthy. As a proposition of law the
presumption should be the other way around. The wise principle
of presumption, which is also recognised by the legislature, is
that judicial and official acts are regularly performed. Hence,
H
748 SUPREME COURT REPORTS [2013] 10 S.C.R.
A when a police officer gives evidence in court that a certain
article was recovered by him on the strength of the statement
made by the accused it is open to the court to believe that
version to be correct if it is not otherwise shown to be unreliable.
The burden is on the accused, through cross-examination of
B witnesses or through other materials, to show that the evidence
of the police officer is unreliable. If the court has any good
reason to suspect the truthfulness of such records of the police
· the courl1could certainly take into account the fact that no other
independent person was present at the time of recovery. But it
C is not a legally approvable procedure to presume that police
action is unreliable to start with, nor to jettison such action
merely for the reason that police did not collect signatures of
independent persons in the documents made
contemporaneous with such actions.
D
27. In Appabhai & Anr. v. State of Gujarat AIR 1988 SC
696, this court dealt with the issue of non-examining the
independent witnesses and held as under:
"The prosecution case cannot be thrown out or doubted
E on that ground alone. Experience reminds us that
civilized people are generally insensitive when a crime
is committed even in their presence. They withdraw both
from the victim and the vigilante. They keep themselves
away from the Court unless it is inevitable. They think that
F crime like civil dispute is between two individuals or
parties and they should not involve themselves. This
kind of apathy of the general public is indeed
unfortunate, but it is there everywhere whether -in village
life, towns or cities. One cannot ignore this handicap with
G which the investigating agency has to discharge its
duties."
28. The principle of law laid down hereinabove is fully
applicable to the facts of the present case. Therefore, mere non-
H joining of an independent witness where the evidence of the
GIAN CHAND & ORS. v. STATE OF HARYANA 749
[DR. 8.S. CHAUHAN, J.]
prosecution witnesses may be found to be cogent, convincing, A
creditworthy and reliable, cannot cast doubt on the version
forwarded by the prosecution if there seems to be no reason
· on record to falsely implicate the appellants.
29. In the instant case at the time of incident some villagers 8
had gathered there. The Investigating Officer in his cross-
examination has made it clear that in spite of his best
persuasion, none of them were willing to become a witness.
Therefore, he could not examine any independent witness.
Section 114 of the Act 1872 gives rise to the presumption C
that every official act done by the police was regularly performed
and such presumption requires rebuttal. The legal maxim omnia
ptaesumuntur rite it dowee probetur in contrarium solenniter
esse acta i.e., all the acts are presumed to have been done
rightly and regularly, applies. When acts are of official nature D
and went through the process of scrutiny by official persons, a
presumption arises that the said acts have regularly been
performed.
In view of the above, the submissions of the learned E
counsel for the appellants in this regard, are held to be without
any substance.
30. In view of the above, the appeal does not present
special features warranting any interference by this court. F
Appeal is devoid of any merit and is, accordingly, dismissed.
8.8.8. Appea: dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "NDPS Act"Sign in to search