Criminal Appeal No.732-DB of 2007 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Kulwant Singh APPELLANT
VERSUS
The State of Punjab RESPONDENT
CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL
HON'BLE MR.JUSTICE L.N.MITTAL
Present:- Shri S.P.S.Sidhu, Advocate with Shri Kulwant Singh, Advocate
for the appellant.
Ms.Sonika Kapadia, Advocate, Amicus Curiae for the appellant
(in Cr.A.895-DB of 2007.
Shri Gurmail Singh, Advocate.
Shri Satinder Singh Gill, Additional A.G. Punjab.
MEHTAB S.GILL, J.
We will be deciding Criminal Appeal No.732-DB of 2007 and
Criminal Appeal No.895-DB of 2007 by this common judgment, as they arise out
of the same judgment/order dated 1.8.2007 of the learned Special Judge, Moga
whereby he convicted Kulwant Singh son of Bachittar Singh and Gurmail Singh
son of Sadhu Singh under Section 15 of the Narcotic Drugs and Psychotropic
Criminal Appeal No.732-DB of 2007 -2-
Substances Act, 1985 (hereinafter referred to as the Act) and sentenced them to
undergo RI for 12 years and to pay a fine of Rs.1,25,000/- each, in default, to
further undergo RI for one year and six months.
The case of the prosecution is unfolded by the Ruqa Ex.P6 sent by
SI Sukhmander Singh, S.H.O., Police Station Nihansinghwala. In the Ruqa he
stated that he along with the Assistant Sub Inspector, HC Raj Singh, HC Jasbir
Singh, Constable Naib Singh, Constable Jagtar Singh and PHG Ranjit Singh were
on patrol duty in Govt. Gypsy No.PB08-L-2280 driven by HC Satpal Singh. When
they were going from the side of Village Khai on the kacha path towards Village
Pakharwadh (Kishangarh), on the curve, Nirmal Singh son of Mahla Singh Harijan
of Village Khai met them. They joined him in their party. The police patty
proceeded to Village Pakharwadh. When they reached the semnala in the area of
Village Khai, the police party saw that two persons were sitting on the bags lying
on the northern bank of the semnala. On seeing the police party, one of the said
persons ran through the semnala towards Village Pakharwadh. The Assistant Sub
Inspector stopped the Jeep and came down and with the help of other officials
apprehended the man sitting on the bags. He disclosed his name as Gurmel Singh
alias Gela son of Sadhu Singh of Village Khai. The Assistant Sub Inspector then
asked about the name of the other person who ran away. Nirmal Singh said that
his name was kulwant Singh alias Kanta son of Bachittar Singh resident of Village
Khai. SI Sukhmander Singh and the Assistant Sub Inspector asked Gurmel Singh
that the bags seem to contain some intoxicant substance. He was asked as to
whether he wanted to be searched by the Assistant Sub Inspector or by a Gazetted
Officer. Gurmel Singh stated that his search be conducted by a Gazetted Officer.
A memo was prepared by SI Sukhmander Singh and the Assistant Sub Inspector
requested Raghbir Singh Sandhu, D.S.P., Baghapurana to reach the spot. The
D.S.P. Baghapurana along with his Reader Gursewak Singh reached the spot on a
Criminal Appeal No.732-DB of 2007 -3-
Govt. Gypsy. The D.S.P. disclosed his identity to Gurmel Singh and asked
whether he had confidence in him. Gurmel Singh stated that he had no objection if
the bags are now searched. The D.S.P. directed the Assistant Sub Inspector to open
the bags and check the same. The Assistant Sub Inspector then opened the mouths
of the bags which were found to contain poppy husk. Thereafter out of each bag
two samples each weighing 250 grams were separated and each of the remaining
bags came to be 31 kg. 50 grams. Six bags and 12 parcels of samples were tied
and converted into parcels and the same were sealed with the seal bearing “RS”
attested by the D.S.P. Sample seal was prepared separately and it was attested by
the D.S.P. The D.S.P. also sealed all the parcels with his seal “RS”. The seal after
use was handed over to HC Raj Singh and the D.S.P. kept his seal with him. SI
Sukhmander Singh along with the Assistant Sub Inspector then took all the six
bags and 12 parcels of samples containing poppy husk duly sealed along with the
sample seal, into his possession vide memo attested by the witnesses. On the basis
of this ruqa, F.I.R. Ex.P7 was recorded.
The prosecution to prove its case, brought into the witness-box ASI
Ruldu Singh PW-1, Nirmal Singh PW-2, Constable Karnail Singh PW-3, HC Raj
Singh PW-4, HC Sukhmander Singh PW-5, Constable Karnail Singh PW-6,
Raghbir Singh D.S.P. PW-7, SI Sukhchain Singh PW-8 and Baljit Singh
Photographer PW-9.
Learned counsel for the appellants have argued that recovery was
made from an open space i.e. semnala. This was government land. Anybody
could have put the bags there and the appellants were falsely implicated in this
case as Nirmal Singh PW-2 had a grievance against appellant Kulwant Singh. No
specific question was put to the appellants when they were examined under
Section 313 Cr.P.C. regarding the appellants being in conscious possession of the
bags of poppy husk. This is a legal flaw which itself goes to the root of the case.
Criminal Appeal No.732-DB of 2007 -4-
The Investigating Officer was bound to go further into the aspect as to how the
case property was lying there, who transported it and to come to a definite
conclusion that the case property was of the appellants. No neighbouring land
owners were questioned regarding the case property. Sitting itself on the bags
does not prove conscious possession. In fact, as per the prosecution case,
appellant Kulwant Singh was not arrested from the spot. He was not identified by
appellant Gurmel Singh, but by Nirmal Singh PW-2.
There are discrepancies in the statements of the official witnesses
regarding the running away of Kulwant Singh. Some witness stated that
appellants were wearing shoes, and some stated that appellant did not have the
shoes. There was no need for the police party to run after Kulwant Singh. When
he was running through the semnala, the police party being armed, could have
fired in the air to stop him from running away.
SI Sukhchain Singh PW-8 after using his seal, should have given it to
the independent witness Nirmal Singh PW-2, so that no tampering could take
place, but instead he handed it over to HC Raj Singh PW-4, who is junior to him.
There was all likelihood of the samples being tampered with.
Learned counsel for the State has argued that there was no need for
the Investigating Officer to go deeply into the matter of conscious possession, as
the appellants were sitting on the bags of poppy husk when one of them Gurmel
Singh was apprehended while Kulwant Singh ran away. The poppy bags were
lying near the semnala on government land. If it had been lying in somebody’s
private land, then the Investigating Officer was bound to question the owners of
that land as to how the bags were lying there. But in the case in hand, since the
appellants were sitting on these bags, the presumption is very clear that the
possession of these bags was that of the appellants. Appellant Kulwant Singh ran
away. This also pointed towards the guilt of the accused. There is no suggestion
Criminal Appeal No.732-DB of 2007 -5-
put to SI Sukhchain Singh PW-8 or ASI Ruldu Singh PW-1 regarding any
tampering being done with the case property. The case property was produced
before the J.M.I.C. SI Sukhchain Singh PW-8 moved an application Ex.P17
before the C.J.M. The C.J.M., Moga then passed the order Ex.P17/A and
thereafter the case property was taken to the police station and deposited with the
M.H.C. As per the F.I.R. Ex.P7 which gets corroboration from the statements of
ASI Ruldu Singh PW-1 and SI Sukhchain Singh PW-8, all the appellants were
sitting on the box.
We have heard the learned counsel for the parties and perused the
record with their assistance.
Learned counsel for the appellants have laid much stress in their
arguments that the recovery was made on the banks of the Semnala. The bags
were allegedly lying in an open space on land which belonged to the State of
Punjab. Appellants could not be held liable for the recovery of six bags of poppy
husk. No specific question was also put under Section 313 Cr.P.C. regarding
conscious possession.
This argument of the learned counsel for the appellants does not cut
much ice. As per the statement of ASI Ruldu Singh PW-1, the Investigating
Officer, he along with the police party was on patrol duty and while going on the
Kacha path leading to Village Pakharwadh, on reaching near the Kacha path, they
joined Nirmal Singh PW-2 as an independent witness. When they reached in the
area of Village Khai near the Semnala, they saw two persons sitting on bags on
the side of the canal. One of them ran away, while the other was caught at the
spot. The person who was caught, said that his name was Gurmel Singh. The
independent witness Nirmal Singh PW-2 identified the person who ran away being
appellant Kulwant Singh.
Similarly, the other witness to the recovery HC Raj Singh PW-4 has
Criminal Appeal No.732-DB of 2007 -6-
also stated the same. It is clear from the statements of these witnesses that both the
appellants were sitting on the bags of poppy husk and Kulwant Singh was
identified by no other person, than the independent witness Nirmal Singh PW-2.
The testimony of these witnesses could not be shattered in cross-examination. The
bags were lying on government land. If they had been lying on land of which
ownership was of a private person, then the argument of the learned counsel for
the appellants would have had some weight that the Investigating Officer should
have investigated further to find out as to how the bags were lying on the land of a
private person. Then the owner of that land should have been questioned.
After the recovery was made and the necessary formalities were gone
through of taking of the samples, the case property was produced before SI
Sukhchain Singh PW-8. SI Sukhchain Singh PW-8 further produced the case
property before the C.J.M., Moga vide application Ex.P17. The C.J.M., Moga
passed order Ex.P17/A that the case property be kept in custody in the Malkhana
of the police station. The next senior person i.e. Raghbir Singh D.S.P. PW-7 knew
about the recovery as he himself had gone when being asked as the appellants
wanted to be searched in the presence of a Gazetted Officer. Question No.1 put to
the appellants in their statements under Section 313 Cr.P.C. has clearly spelt out
that they were sitting on the contraband in six bags and Kulwant Singh ran away,
while Gurmel Singh was caught on the spot. The question is elaborate and clear as
to whether the appellants were consciously in possession of six bags or not.
Nothing more specific could have been asked from the appellants in their
statements under Section313 Cr.P.C.
With the above discussion and observations, we do not find any
infirmity in the judgment of the learned trial Court. Conviction of the appellants
is maintained. Sentence seems to be on the higher side. Sentence of the appellants
is modified from 12 years RI to 10 years RI and fine is also reduced from
Criminal Appeal No.732-DB of 2007 -7-
Rs.1,25,000/- to Rs.1,00,000/-.
With the above modification in sentence, both the appeals are
dismissed.
( MEHTAB S.GILL )
JUDGE
( L.N.MITTAL )
March 16, 2009 JUDGE
GD
WHETHER TO BE REFERRED TO REPORTER? YES/NO