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TMI Blog2015 (5) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... t unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as 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. In the case at hand, the evidence is unimpeachable and beyond reproach and the witnesses cited by the prosecution can be believed and their evidence has been correctly relied upon by the trial court and the High Court to record a conviction. It is well settled in law that what is necessary for proving the prosecution case is not the quantity but the quality of the evidence. - Criminal Appeal No. 681 of 2011 - - - Dated:- 5-5-2015 - MISRA,DIPAK AND RAMANA,N.V., JJ. For the Appellant: J.P. Dhanda, Adv. For the Respondent: Jayant K. Sud, AAG, Vishal Dabas, B. Singh, Ajay P. Tushir and Kavita Wadia, Advs. JUDGMENT Dipak Misra, J. 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imately placed the chargesheet before the concerned Magistrate, who in turn committed the matter to the Special Court under the NDPS Act. The accused persons pleaded not guilty and claimed to be tried. 3. The prosecution in order to substantiate the charge, examined seven witnesses. The main witnesses are ASI, Gurdas Singh, PW-1, Jagjivan Singh, PW-2, Ajit Singh, PW-3 and Om Prakash, PW-7. ASI, Jarnail Singh, could not be examined as he had expired before the commencement of the evidence of the prosecution. The accused-Appellants took the plea that they were brought from the village and falsely implicated in the case and there was no recovery effected from them. The defence in support of its stand examined nine witnesses, DW-1 to DW-9. 4. The learned trial Judge appreciating the evidence on record found the Appellants and two others guilty of the offence and sentenced them, as has been stated hereinbefore. Being dissatisfied with the judgment of conviction and order of sentence, the Appellants along with two others preferred Criminal Appeal No. 384 of 1998 and Bagga Singh and Balwinder Singh preferred separate appeals. It was contended before the High Court that the identity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no need for compliance of Section 50 of the NDPS Act. 8. First, we shall deal with the facet of test identification parade. There is no dispute that the test identification parade has not been held in this case. The two witnesses, namely, PW-2 and PW-3 have identified the accused-Appellants in court. As per their evidence they had seen the accused-Appellants in torch light and they had also seen them running away. It has also come in the evidence that they chased them but they could not be apprehended. Learned trial Judge as well as the High Court has taken note of the fact that it was 4:00 a.m. in the month of April and, therefore, it was not all that dark and with the help of torch light, they could have identified the accused persons. The suggestion given to these witnesses is absolutely vague. Nothing really has been elicited in the cross-examination to discard the testimony of these witnesses. 9. In Matru v. State of U.P.: (1971) 2 SCC 75, it has been held that the identification test does not constitute substantive evidence and it is primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation of an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he spot. That apart, they absconded for few days from their village. They have not taken the plea that they were taking any lift in the truck and their presence in the truck has been proven by the prosecution. It is not a small bag lying in the corner of the truck that the accused-Appellants can advance the plea that they were not aware of it. In the instant case, there were 110 bags of poppy husk being carried in the truck. Their presence which has been proven, establishes their control over the bags. The circumstances clearly establish that they were aware of the poppy husk inside the bags and in such a situation, it is difficult to accept that they were not in conscious possession of the said articles. 15. In this context reference to the decision in Madan Lal v. State of H.P.: (2003) 7 SCC 465 would be fruitful wherein it has been held thus: 22. The expression possession is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. and Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja (1979) 4 SCC 274 to work out a completely logica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion. 17. In view of the aforesaid enunciation of law, once possession is found, the accused is presumed to be in conscious possession as has been held in Ram Singh v. Central Bureau of Narcotics: (2011) 11 SCC 347. If the accused takes a stand that he was not in conscious possession, he has to establish the same, as has been held in Dharampal Singh (supra). As the materials brought on record would show, the accused-Appellants were sitting in the truck; their presence in the truck has been clearly established; and they had run away from the spot and absconded for some days from the village. It is proven that there were 110 bags of poppy husk in the truck and the accused-Appellants were in control of the articles in the truck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not cover their body with clothings, are not to be taken notice of. Therefore, the word person would mean a human being with appropriate coverings and clothings and also footwear. 11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word person occurring in Section 50 of the Act. Similar view ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as 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. 22. In the case at hand, the evidence is unimpeachable and beyond reproach and the witnesses cited by the prosecution can be believed and their evidence has been correctly relied upon by the trial court and the High Court to record a conviction. It is well settled in law that what is necessary for proving the prosecution case is not the quantity but the quality of the evidence. 23. In view of the aforesaid premised reasons, we do not perceive any merit in this appeal and it is accordingly dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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