IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Appeal No.2156-SB of 2004
Date of Decision: 3.9.2009
Amarjit Singh alias Gola and another.
....... Appellants through Shri
G.S.Sidhu and Shri
Manvinder Sidhu,
Advocates.
Versus
State of Punjab.
....... Respondent through Shri
B.B.S.Teji, Assistant
Advocate General, Punjab.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
This appeal is directed against judgment of conviction and
order of sentence dated 5.10.2004 passed by the Judge, Special Court,
Bathinda (hereinafter described as `the trial Court’) whereby the appellants
have been convicted under Section 15 of the Narcotic Drugs and
Psychotropic Substances Act,1985 (for short, `the Act’) and sentenced to
undergo rigorous imprisonment for ten years and to pay a fine of
Rs.1,00,000/- each and in default of payment of fine, to undergo further
rigorous imprisonment for six months each.
Crl.Appeal No.2156-SB of 2004
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The appellants were sent up for facing trial in a case registered
under Section 15 of the Act vide F.I.R. No.54 dated 10.5.2003 at Police
Station, Sadar, Bathinda. According to the case of the prosecution, on the
day in question, a police patrol was present along with an independent
witness -Harbans Singh in the area of village Naruana when they saw a
tractor bearing registration No. PUK-7141 being driven by appellant no.1,
whereas appellant no.2 was sitting on its right mudguard. Two gunny bags
and one plastic bags were placed on the lift of the tractor. The investigating
officer, i.e., Gurpreet Singh, suspecting some contraband being carried by
them, accosted the appellants and apprised them that he wanted to search
the bags and they had a right of the search being conducted in the presence
of a gazetted officer or a Magistrate. Both the appellants wanted their
search to be carried out before a gazetted officer and accordingly, Deputy
Superintendent of Police – Shri Jaspal was intimated and he reached the
spot. On search, poppy husk was recovered from the three bags. From each
bag, two samples of 100 grams each were separated and residue poppy husk
came to be 29 kilograms 800 grams in each bag. All the six samples were
converted into parcels and similarly, the three bags were converted into
parcels. All the parcels were sealed with the seal having impression of
words “GS’. The sample seal, Exhibit P1, was separately prepared. The
seal, after use, was handed over to A.S.I. Jugraj Singh and the entire case
property including the sample seal were taken into possession vide memo
Exhibit PC. The personal search of appellant-Amarjit Singh yielded a
currency note of Rs.100/- which was also taken into possession vide memo
Crl.Appeal No.2156-SB of 2004
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Exhibit PD. Ruqa, Exhibit PF was sent to the police station on the basis of
which formal F.I.R., Exhibit PF/1 was recorded. The appellants were
arrested. A site plan of the place of recovery was prepared and special
report, Exhibit PL was sent to the higher officers.
The case property remained in the custody of the investigating
officer which included the sample seal as well, as he was himself the
Station House Officer of the Police Station.
On 11.5.2003, the investigating officer produced the case
property including sample seal before the Area Magistrate and submitted
an application for disposal of the same. The learned Magistrate allowed
taking of three samples, i.e., second sample, from each bag, and sealed the
samples which were taken in the court with the seal of the investigating
officer having impression of `GS’ as well as the seal of the Magistrate
having impression of `HPS’. Photographs of the contraband were taken and
thereafter, order Exhibits PM/1 and PM/2 were passed directing the
investigating officer to keep the case property in his possession.
On 12.5.2003, the sample parcels along with sample seal were
sent to the Chemical Examiner through Constable Jangir Singh, who
deposited the same in the same condition. The spare sample parcels
including the samples which were taken in the Court of the Magistrate,
were produced during the trial along with the tractor. The Chemical
Examiner, vide his report, Exhibit-PR, opined that the samples were of
poppy husk.
A challan was presented against the appellants and they were
Crl.Appeal No.2156-SB of 2004
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accordingly charge sheeted to which they pleaded not guilty and claimed
trial.
The prosecution, in order to establish its case against the
appellants, examined as many as four witnesses.
In their statements recorded under Section 313 of the Cr.P.C.,
the appellants stated that they have been falsely implicated. Appellant no.1
took the plea that on 9.5.2003, A.S.I. Jugraj Singh had brought the tractor
from his fields in village Seikhu at about 8.00 P.M.; that on 10.5.2003 at
about 10.00 A.M., he along with Sarpanch-Kartara Ram and his father-Jagjit
Singh went to the police station where A.S.I. Jugraj Singh told them that he
along with tractor will be released till noon and that the said A.S.I. had
refused to pay the price of ten wheat bags which were purchased about a
year back and that was the reason why he was involved in this case.
Appellant no.2-Gurdeep Singh, on the other hand, stated that he was present
in his house on 10.5.2003 at about 8.00 A.M.; that his father, Balbir Singh
son of Jang Singh and Gamdoor Singh son of Bikkar Singh of village Gehri
were also present there; that a police party came to his house and in the
presence of the said persons, he was taken by them; that it was told that he
was wanted by the police party and thereafter, this false case was foisted
upon him; that he has no link or relationship with appellant no.1 and the
tractor also did not belong to him.
In his defence, appellant no.1 examined DW3-Sewak Singh and
DW5-Kartara Ram, whereas appellant no.2 produced DW1-Gamdoor Singh,
DW2-Balbir Singh DW4-Constable Paramjit Singh, DW6-Rajinder Kumar
Crl.Appeal No.2156-SB of 2004
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Gupta and DW7-Jarnail Singh.
The trial Court, after appraisal of the entire evidence on record,
found the appellants guilty of the offence alleged against them and
accordingly, passed the impugned judgment of conviction and order of
sentence resulting in the filing of the instant appeal.
Learned counsel for the appellants contended that no
independent witness was enjoined with the investigation even though as per
the case of the prosecution, one Harbans Singh was with the police party.
He has further contended that there is no explanation for not doing so. It
was submitted that the whole case of the prosecution rests on the statements
of the investigating officer and the Deputy Superintendent of Police which
casts a serious doubt about the story put forward against the appellants. It
was next submitted that the Deputy Superintendent of Police was merely a
witness of the search, but the seizure was not effected in his presence as the
alleged contraband was lying on the ground when he reached the spot.
Besides, it was contended that the link evidence is totally missing as the seal
was given to A.S.I.-Jugraj Singh, who retained the same in his possession
for one day. Even the samples were given to him and thus, the possibility of
the samples being tampered with cannot be ruled out, especially when the
Deputy Superintendent of Police while appearing as PW1, stated that the
CFS Form was prepared in the police station. It was lastly contended that
the conscious possession of the contraband has not be proved because
neither the ownership of the tractor was established nor the question the
appellants being in conscious possession of the contraband was put to them
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while recording their statements under Section 313 of the Cr.P.C. In
support of his contentions/ submissions, learned counsel for the appellants
placed reliance on Avtar Singh Versus State of Punjab, 2002(4) R.C.R.
(Criminal) 180 (S.C.) and State of Punjab Versus Hari Singh & Ors., 2009
(2) R.C.R. (Criminal) 144 (S.C.)= (2009) 4 S.C.C. 200.
On the other hand, learned counsel for the respondent-State
contended that there is overwhelming evidence on record to show that the
appellants were guilty of having committed an offence under Section 15 of
the Act as the samples were seized in their presence and were
simultaneously produced before the Magistrate, who also drew out the
second samples and sealed the same with his own seal. In this view of the
matter when entire procedure was followed, the appellants cannot escape
from the conviction merely because of the fact that no independent witness
was enjoined in the investigation. He further contended that there is no
evidence on record from where it can be inferred that the police was
inimical towards the appellants.
I have thoughtfully considered the rival contentions and have
gone through the whole record.
The fore-most question that is to be determined is as to whether
the appellants were in conscious possession of the contraband. If the
statements recorded under Section 313 of the Cr.P.C. are to be seen,it
becomes clear that the appellants were not confronted with the question that
they were in conscious possession of the contraband. Learned counsel for
the respondent-State had referred to the fact that appellant no.1 had taken
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the tractor on superdari and hence, conscious possession of the contraband
should be inferred from that fact. Indeed, there is some evidence on record
in the shape of an application of appellant no.1 for release of the tractor on
superdari. Even if it is taken to be correct, the mere ownership of the tractor
cannot be taken to construe conscious possession of the contraband. This
has also to be seen in the context of the statement of appellant no.2, who
categorically stated that he had no connection with appellant no.1 and he
was not riding the tractor. No question was put to him that he was in
conscious possession of the contraband. In this view of the matter, the
observations of the Supreme Court made in Avtar Singh’s cased (supra)
and Hari Singh’s case (supra) are attracted to the facts of the instant case.
In Avtar Singh’s case (supra), the Apex Court held in paragraph
6 of the judgment as follows:-
“6. “Possession is the core ingredients to be established before
the accused in the instant case are subjected to the punishment
under Section 15. If the accused are found to be in possession
of poppy straw which is a narcotic drug within the meaning of
Clause (xiv) of Section 2, it is for them to account for such
possession satisfactorily; if not, the presumption under Section
54 comes into play. We need not go into the aspect whether the
possession must be conscious possession. Perhaps taking clue
from the decision of this Court in Inder Sain v. State of
Punjab, 1983(2) SCC 372 arising under the Opium Act, the
learned trial Judge charged the accused of having conscious
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possession of poppy husk. Assuming that poppy husk comes
within the expression of poppy straw, the question, however,
remains whether the prosecution satisfactorily proved the fact
that the accused were in possession of poppy husk. Accepting
the evidence of PW4- the Head Constable, it is seen that
appellant No.3 (accused No.4) was driving the vehicle loaded
with bags of poppy husk. Appellants 1 and 2 (Accused Nos. 1
and 2) were sitting on the bags placed in the truck. As soon as
the vehicle was stopped by ASI (PW2), one person sitting in
the cabin by the side of the driver and another person sitting in
the back of the truck fled. No investigation has been directed to
ascertain the role played by each of the accused and the nexus
between the accused and the offending goods. The word
`possession’ no doubt has different shades of meaning and it is
quite elastic in its connotation. Possession and ownership need
not always go together by the minimum requisite element
which has to be satisfied in custody or control over the goods.
Can it be said, on the basis of the evidence available on record,
that the three appellants – one of whom was driving the vehicle
and other two sitting on the bags, were having such custody or
control? It is difficult to reach such conclusion beyond
reasonable doubt. It transpires from evidence that the
appellants were not the only occupants of the vehicle. One of
the persons who was sitting in the cabin and another person
Crl.Appeal No.2156-SB of 2004
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sitting at the back of the truck made themselves scarce after
seeing the police and the prosecution could not establish their
identity. It is quite probable that one of them could be the
custodian of goods whether or not be was the proprietor. The
persons who were merely sitting on the bags, in the absence of
proof of anything more, cannot be presumed to be in
possession of the goods. For instance, if they are labourers
engaged merely for loading and unloading purposes and there
is nothing to show that the goods were at least in their
temporary custody, conviction under Section 15 may not be
warranted. At best, they may be abettors, but, there is no such
charge here. True, their silence and failure to explain the
circumstances in which they were travelling in the vehicle at
the odd hours, is one strong circumstance that can be put
against them. A case of drawing presumption under Section
114 of the Evidence Act could perhaps be made out then to
prove the possession of the accused, but, the fact remains that
in the course of examination under Section 313 Cr.P.C., not
even a question was asked that they were the persons in
possession of poppy husk placed in the vehicle. The only
question put to them was that as per the prosecution evidence,
they were sitting on the bags of poppy husk. Strangely enough,
even the driver was questioned on the same lines. The object of
examination under Section 313, it is well known, is to afford an
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opportunity to the accused to explain the circumstances
appearing in the evidence against him. It is unfortunate that no
question was asked about the possession of goods. Having
regard to the charge of which appellants were accused, the
failure to elicit their answer on such a crucial aspect as
possession, is quite significant. In this state of things, it is not
proper to raise a presumption under Section 114 of the
Evidence Act nor is it after to conclude that the prosecution
established beyond reasonable doubt that the appellants were
in possession of poppy husk which was being carried by the
vehicle. The High Court resorted to the presumption under
Section 35 which relates to culpable state of mind, without
considering the aspect of possession. The trial Court invoked
the presumption under Section 54 of the Act without
addressing itself to the question of possession. The approach of
both the courts is erroneous in law. Both the courts rested their
conclusion on the fact that the accused failed to give
satisfactory explanation for travelling in the vehicle containing
poppy husk at an odd hour. But, the other relevant aspects
pointed out above were neither adverted to nor taken into
account by the trial Court and the High Court. Non-application
of mind to the material factors has thus vitiated the judgment
under appeal.”
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In Hari Singh’s case (supra), their Lordships have observed in
paragraph 33 of the judgment as under:-
“33. At the same time it should be borne in mind that the
provision is not intended to nail him to any position, but to
comply with the most salutary principle of natural justice
enshrined in the maxim audi alteram partem. The word `may’ in
clause (a) of sub-section (1) in Section 313 of the Code
indicates, without any doubt, that even if the court does not put
any question under that clause the accused cannot raise any
grievance for it. But if the court fails to put the needed question
under clause (b) of the sub-section it would result in a handicap
to the accused and he can legitimately claim that no evidence,
without affording him the opportunity to explain, can be used
against him. It is now well settled that a circumstance about
which the accused was not asked to explain cannot be used
against him.”
Besides, it has come in evidence that the seal remained with
the investigating officer, who was also Station House Officer for one full
day. There is no explanation as to why the seal remained in the custody of
the investigating officer, who also happened to be the Station House
Officer. This casts a serious doubt on the prosecution version.
That apart, it is also to be seen that it is the case of the
prosecution that an independent witness, namely, Harbans Singh, was
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present along with the police party, but he was neither enjoined with the
proceedings of search and seizure nor he was examined at the time of trial.
This aspect of the matter assumes more significance because according to
the case of the prosecution, the independent witness was present. If he was
present, it was incumbent upon the investigating officer either to have
enjoined him with the entire recovery proceedings or to have explained as to
why he did not do so. It is true that merely non-examination of an
independent witness does not render the prosecution case untrustworthy, but
at the same time, in the peculiar facts of this case when independent witness
was present, his non-joining and non-examination at the trial, raises a
question about the plausibility of the whole story.
On the basis of the above discussion, the appeal deserves to
succeed.
Accordingly, the instant appeal is accepted, the impugned
judgment is reversed and the appellants are acquitted of the charge against
them.
September 03,2009 ( Mahesh Grover ) "SCM" Judge