Criminal Appeal No. 347-SB of 2002 1
In the High Court of Punjab and Haryana, at Chandigarh.
1. Criminal Appeal No. 347-SB of 2002
Date of Decision: 25.3.2009
Leela Singh and Sukha Singh
...Appellants
Versus
State of Punjab
...Respondent
2. Criminal Appeal No. 355-SB of 2002
Budhu
...Appellant
Versus
State of Punjab
...Respondent
3. Criminal Appeal No. 395-SB of 2002
Surjit Singh
...Appellant
Versus
State of Punjab
...Respondent
4. Criminal Appeal No. 400-SB of 2002
Mangu
...Appellant
Versus
State of Punjab
...Respondent
Criminal Appeal No. 347-SB of 2002 2
AND
5. Criminal Appeal No. 1058-SB of 2002
Darshan Singh
...Appellant
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Surinder Singh Siao, Advocate
for the appellants (In Criminal Appeal
No. 347-SB of 2002).
Mr. Gurcharan Singh, Advocate
for the appellant (In Criminal Appeal
No. 355-SB of 2002).
Mr.S.K. Bawa, Advocate
for the appellant (In Criminal Appeal
No. 395-SB of 2002).
Mr. R.S. Chauhan, Advocate
for the appellant (in Criminal Appeal
No. 400-SB of 2002).
Mr. Deepak Arora, Advocate
for the appellant (In Criminal Appeal
No. 1058-SB of 2002).
Mr. Mehardeep Singh, Assistant Advocate
General, Punjab, for the State.
Kanwaljit Singh Ahluwalia, J. (Oral)
Inspector Ram Kumar, Station House Officer, Police Station
Malerkotla, had sent a ruqa to Police Station for registration of the case.
On 28.10.1999 he was present at seepage drain in the area falling in
the revenue estate of village Naudharani along with companion officials
Criminal Appeal No. 347-SB of 2002 3
for holding nakabandi. The police party was having an official vehicle
Allwyn Nissan bearing No. PB-13-B-7003. They saw one truck bearing
registration No. PAT 9644. The truck was signalled to stop. On seeing
the police party, truck driver became nervous and made an attempt to
reverse the vehicle. The police party on basis of suspicion apprehended
the truck. Leela and Sukha, caste Saini, residents of Indra Basti, Sunam,
jumped from the truck and ran away. Truck driver was interrogated. He
disclosed his name as Darshan Singh, resident of Ghanauli, Police
Station Rupnagar. The person sitting along with the driver gave his
name as Budhu son of Nuri Ram, caste Saini, resident of Ward No. 8,
Malaud, Police Station Payal, District Ludhiana. Two persons sitting on
the bags, loaded in the truck disclosed their names as Surjit Singh son
of Pritam Singh, resident of Patti Sherpur and Mangu Singh son of
Sarwan Singh, resident of Khalil Path Sherpur, Police Station Sherpur,
District Sangrur. Inspector Ram Kumar told them that he suspected that
bags loaded in the truck contained narcotic substance and he wanted to
search them. An offer was given that in case they desire, they can get
themselves searched from Magistrate or some Gazetted Officer. Upon
which, persons apprehended stated that they wanted to get themselves
searched from some Gazetted Officer. Inspector Ram Kumar prepared
the consent memos of Darshan Singh, Budhu, Surjit Singh and Mangu
Singh on which they appended their signatures in the presence of
witnesses. For effecting the search of the vehicle a request was sent to
Surinder Singh Saini, Deputy Superintendent of Police, Malerkotla.
Surinder Singh Saini, Deputy Superintendent of Police, Malerkotla,
arrived at the spot. On the request made by the Inspector, he agreed to
Criminal Appeal No. 347-SB of 2002 4
conduct the search. The bags loaded in the truck were counted. They
were found to be 20 in numbers. Two samples of 250 grams each were
drawn from each bag. The residue was weighed and was found to be 39
Kgs. 500 grams. Necessary formalities, in accordance with the
procedure prescribed for preparing the samples and taking into
possession the bags of poppy husk, were carried out. Eight quintals of
poppy husk was recovered from the accused. The matter was
investigated and report was submitted under Section 173 Cr.P.C.
against six accused, out of which Darshan Singh, Budhu, Surjit Singh
and Mangu Singh were arrested at the spot and Leela Singh and Sukha
allegedly had escaped from the place of recovery.
After the charge was framed, evidence was led, before the
findings of the Court below and arguments raised this Court are dealt
with and discussed, it will be pertinent to notice that all the six accused
were convicted and sentenced by the Court of Judge, Special Court,
Sangrur, under Section 15 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter to be referred as `the Act’) to ten
years rigorous imprisonment and a fine of Rs.1,00,000/- each, in default
to further undergo rigorous imprisonment for one year each. The truck
belonging to Darshan Singh was also confiscated.
Aggrieved against the conviction and sentence, five appeals
have been preferred.
Criminal Appeal No. 347-SB of 2002 has been filed by Leela
Singh and Sukha Singh, who were not arrested at the spot.
Criminal Appeal No. 355-SB of 2002 has been preferred by
Budhu son of Nuri Ram.
Criminal Appeal No. 347-SB of 2002 5
Criminal Appeal No. 395-SB of 2002 has been preferred by
Surjit Singh son of Pritam Singh.
Criminal Appeal No. 400-SB of 2002 has been preferred by
Mangu Singh son of Sarwan Singh.
Criminal Appeal No. 1058-SB of 2002 has been preferred by
Darshan Singh.
By this common judgment, all the five appeals shall be
decided together.
All six accused were charged by the Court of Judge, Special
Court, Sangrur on 3.2.2000 that on 28.10.1999 at about 11.15 A.M. all
the six accused were found in possession of 20 bags containing 40
Kgs. poppy husk in each bag, in the area of village Naudharani without
any authority of law and thereby were liable for prosecution under
Section 15 of the Act.
Karnail Singh, Head Constable, appeared as PW.1. He stated
that from 28.10.1999 to 3.11.1999 he was posted as Moharrir Head
Constable in Police Station Malerkotla. He further stated that he was
Incharge of the Malkhana. He tendered into evidence his affidavit Ex.PA
to prove link evidence to the effect that samples and case property for
the period they remained in Malkhana, were not tampered with.
Manjit Singh, Constable, appeared as PW.2. He tendered into
evidence his affidavit Ex.PB. In cross-examination, he admitted that on
the night intervening 1.11.1999/2.11.1999 he was present in the Police
Station and the samples were submitted with him.
Parkash Chand, Reader to the Sub Divisional Judicial
Magistrate, Malerkotla, appeared as PW.3. He stated that on
Criminal Appeal No. 347-SB of 2002 6
29.10.1999, he was posted as Reader in the Court of the Sub Divisional
Judicial Magistrate, Malerkotla. Satnam Singh, Assistant Sub Inspector,
produced before the Court, case property belonging to the present case
which was attested by the Sub Divisional Judicial Magistrate, Malerkotla,
and he identified his signatures.
Surinder Singh Saini, Deputy Superintendent of Police,
appeared as PW.4. He stated that on 28.10.1999 while he was posted
as Deputy Superintendent of Police, Malerkotla, he received wireless
message from Inspector Ram Kumar, Station House Officer, Police
Station Malerkotla. He reached at the spot where Inspector Ram Kumar
along with other police officials and PW. Gurdial Singh and four accused
Darshan Singh, Budh Singh, Surjit Singh and Mangu Singh were
present along with truck No. PAT-9644. He disclosed his identity.
Search of the truck was conducted. 20 gunny bags containing poppy
husk were recovered. Samples were drawn. Thereafter, weight of each
gunny bag was fond to be 39 Kgs. 500 grams. He stated that he has not
seen the case property in the Court. In the wireless message received,
names of the accused were not disclosed. When the message was
received he was in his office. Place of recovery from his office was at a
distance of 3 Kms. No search warrant for search of truck was obtained.
He had not recorded any separate consent memo of the accused.
Documents regarding ownership were not seen by him as they may
have been seen by Inspector Ram Kumar. Scales and weights were
already with the Investigating Officer. The scale was spring like
balance. He stated in the Court that he was unable to name each
individual accused.
Criminal Appeal No. 347-SB of 2002 7
Inspector Ram Kumar, Investigating Officer, appeared as
PW.5. He reiterated what was stated in the FIR. However, in
examination-in-chief, he has stated that he returned to the Police
Station, handed over the case property to Karnail Singh, Assistant
Moharrir Head Constable. He was declared hostile by the Public
Prosecutor and was cross-examined by him. In cross-examination, he
admitted that he had given option to the accused to get themselves
searched from the Gazetted Officer or a Magistrate. He further stated
that inadvertently in his examination-in-chief he has stated that he had
only given option to get themselves searched from the Gazetted Officer.
During cross-examination, he admitted that he is in custody in case
under Section 302 IPC. He further stated that place of recovery was at
a distance of 3 Kms. from the Police Station. He further stated that
before apprehending the truck, no other vehicle passed from the place
of occurrence. He further stated that nakabandi was started at 12.30
A.M. and the truck came at the spot at 6.00 A.M. He admitted that no
special report was sent to the police. He further stated that Sukha and
Leela were known to him when he was posted at Sunam earlier in the
year 1992. He further stated that none of the accused was owner of the
truck. He admitted that Om Parkash, Assistant Sub Inspector, had
returned the seal on the same day to him at Police Station. During
cross-examination, he further stated that he had no secret information
regarding the arrival of the truck of the accused. He further stated that
weights and small scales were with him. Spring balance scale was
arranged at the spot.
Sukhjinder Singh appeared as PW.6. He stated that he sold
Criminal Appeal No. 347-SB of 2002 8
truck No. PAT-9644 to Darshan Singh for Rs.1,92,000/-.
Om Parkash, Assistant Sub Inspector, appeared as PW.7. He
corroborated testimony of PW.5 Inspector Ram Kumar. He stated that
Inspector Ram Kumar, Investigating Officer, had handed over the seal
to him. In cross-examination, he stated that Bira Singh, Head Constable
brought spring type scale from Malerkotla.
Joginder Singh, Assistant Sub Inspector, appeared as PW.8.
He stated that on 8.12.1999 accused Sukha and Leela had surrendered
before him.
Satnam Singh, Assistant Sub Inspector, appeared as PW.9
and stated that he obtained the case property from Karnail Singh,
Assistant Moharrir Head Constable and produced the same before the
Court of Illaqa Magistrate.
Prosecution closed its evidence.
All the incriminating evidence was put to accused under
Section 313 Cr.P.C.
Accused Mango stated that all the six accused are related to
each other and they have been falsely implicated in this case. They
were arrested from their house.
Similar stand was taken by the other accused.
In defence no witness was examined.
Arguments were raised before the trial Court that Section 50 of
the Act has not been complied with as in examination-in-chief, PW.5
Inspector Ram Kumar, Investigating Officer, has stated that partial
option was given at the time of search and recovery. Another argument
raised before the trial Court was that provisions of Section 42 of the Act
Criminal Appeal No. 347-SB of 2002 9
have not been complied with. Recovery of truck was effected between
sunset and sunrise and no search warrant was obtained. It was further
urged that seal after use was handed over to PW.7 Om Parkash,
Assistant Sub Inspector and not to independent witness. Another
argument raised was that all the four accused who were found sitting on
the bags cannot be attributed conscious possession as they were
innocent passengers in the truck. The trial Court negated all these
arguments and held accused to be guilty of the offence and as stated
earlier had sentenced them resulting into filing of the appeals.
I have heard Mr. Gurcharan Singh, Mr. Surinder Singh Siao,
Mr. Deepak Arora and Mr. S.K. Bawa, Advocates for the
accused/appellants and Mr. Mehardeep Singh, Assistant Advocate
General, Punjab, appearing for the State.
It has been urged before me by counsel for the accused that
in statements under Section 313 Cr.P.C. it was not mentioned to them
that poppy husk was loaded in the truck.
To fortify their submissions, they have placed reliance upon
Single Bench judgment of this Court rendered in Bhola Singh v. State
of Punjab 2005(2) Recent Criminal Reports 520. To further support
this argument, reliance has been placed upon Dalbir Singh alias Beera
v. The State of Punjab 2008(2) Criminal Court Cases 086. In para 9
of the judgment rendered in Dalbir Singh alias Beera’s case (supra),
the legal position has been noticed as under:-
“7. The learned counsel for the appellants
have challenged the case of the prosecution on the
ground that the prosecution has miserably failed to
Criminal Appeal No. 347-SB of 2002 10prove that the accused were in conscious
possession of the contraband, allegedly recovered
from them. Once the conscious possession of the
contraband stuff is not proved, it cannot be easily
said that the recovery of the poppy husk in the
present case relates to the accused. In support of
their contention reference was made to a Full Bench
Decision of this Court in case Kashmir Singh v.
State of Punjab and Karam Singh v. State of
Punjab, 2006(3) Criminal Court Cases 08
(P&amd;H) (FB): Criminal Appeals No. 407 and
408-DB of 1999, the Full Bench has dealt in detail
with Sections 35 and 54 of the NDPS Act and
observed that unless the accused is put in the
statement under Section 313 Cr.P.C., that they
were in conscious possession of the contraband, the
order of conviction and sentence cannot be recorded
against the accused. It is the fundamental right of
the accused to know the case of the prosecution to
enable him develop his defence.
8. “It has been further observed that in any
prosecution for an offence under the Act, which
requires a culpable mental state of the accused, the
Court shall presume the existence of such mental
state but it shall be a defence for the accused to
prove the fact that he had no such metal state with
Criminal Appeal No. 347-SB of 2002 11respect to the act charged as an offence in that
‘prosecution, as provided in Section 35 of the Act.
For the purpose of this section a fact is said to be
proved only when the Court believes it to exist
beyond a reasonable doubt and not merely when its
existence is established by a preponderance of
probability”. Section 54 reads as under:-
“Presumption from possession of illicit articles –
In trials under the Act, it may be presumed, until and
until the contrary is proved, that the accused has
committed an offence under this Act in respect of –
(a) any narcotic drug or psychotropic
substances or controlled substance;
(b) any opium poppy, cannabis plant or coca
plant growing on any land which he cultivated;
(c) any apparatus specially designed or any
group of utensils specially adopted for the
manufacture of any narcotic drug or psychotropic
substance or controlled substance;
(d) any material which have undergone any
process towards the manufacture of a narcotic drug
or psychotropic substance or controlled substance,
or any residue left of the materials from which any
narcotic drug or psychotropic substance or
controlled substance has been manufactured, for the
possession of which he fails to account
Criminal Appeal No. 347-SB of 2002 12satisfactorily”.
9. The learned counsel for the appellant
referred to the judgment of the Supreme Court in
Madan Lal and another v. State of H.P., 2004(1)
Apex Court Judgments 260(S.C.): 2004(2)
Criminal Court Cases 361 (S.C. ): 2003 SCC (Crl.)
1664, wherein it was held as under:-
“The word “possession” means the legal right to
possession. The expression “possession” is a
polymorphous term which assumes different colours
in different contexts. It may carry different meanings
in contextually different back grounds. Possession
in a given case need not be physical possession but
can be constructive, having power and control over
the article in the case in question, while the person
to whom physical possession is given holds it
subject to that power or control”.
“The word “conscious” means awareness about a
particular fact. It is a state of kind “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 possession because of
the presumption available in law. Similar is the
position in terms of Section 54 where also
Criminal Appeal No. 347-SB of 2002 13presumption is available to be drawn from
possession of illicit articles”.
At the end of this judgment, the Full Bench further
observed that the accused is to be given an
opportunity to rebut the presumption as envisaged in
Section 313 of the Code of Criminal Procedure”.
Counsel for the appellants further relied upon judgment
rendered in State of Punjab v. Nachhattar Singh alias Bania 2007(3)
Recent Criminal Reports 1040, the decision rendered by a Division
Bench of this Court. Para 9 of the judgment reads as under:-
“9. Conscious possession is the core
ingredient to be established before the accused is
subjected to punishment under this Act. It is well
settled, as held in Syed Mohd. Syed Umer Syed
and Others v. State of Gujarat, 1995(2) RCR
(Criminal) 388: JT 1995 (3) SC 489 that unlawful
possession is sine qua non for conviction under the
Act and that fact has to be established by the
prosecution beyond reasonable doubt. Though
possession has not been defined in the Act but has
been judicially construed to be conscious and
intelligent possession and not merely the physical
presence of the accused in proximity or even in
close proximity of the object. There are two essential
elements of possession; firstly, the corpus – the
element of physical control and secondly, the
Criminal Appeal No. 347-SB of 2002 14
animus or intent with which such control is
exercised. It is for the prosecution to establish that
the accused was found in conscious and intelligent
possession of the contraband. In the instant case, it
is evident that the respondent was sitting on plastic
bags, in the pits, near the bridge of canal minor. This
is not suffice to prove conscious possession. Merely
by sitting on the bags, in absence of proof of
anything more, does not infer that he was in
conscious possession of those bags. The
investigating agency had not tried to ascertain
whether the bags containing poppy husk were
belonging to the accused or not? In a way, it had not
adduced any evidence to show the ownership of
poppy husk. There was no investigation as to how
those bags of poppy husk were transported to the
place of recovery. Moreover, no efforts had been
made to trace out the origin of contraband. The
police should have conducted further investigation to
prove that the respondents was really in conscious
possession of those bags. There is nothing to
establish that the place from where the poppy husk
was recovered was belonging to the respondent,
rather, admittedly, the place of recovery was a
Government place, feasible and accessible to
general public. In State of Punjab v. Balkar Singh
Criminal Appeal No. 347-SB of 2002 15
and another, 2004 SCC (Crl.) 838, in the similar
circumstances, when the accused were found sitting
on the bag whereof poppy husk was recovered,
considering the factum of absence of any proof with
regard to ownership of that contraband, it was held
that, in absence of any satisfactory explanation by
the accused for being present on that place, does
not prove that they were in conscious possession of
those contrabands. Therefore, in the light of this
evidence, the learned trial Court has rightly held that
the prosecution has failed to prove conscious
possession of the contraband”.
Besides this, much stress has been raised upon following four
arguments:-
a) Seal used for taking into possession samples and
case property was not handed over to the
independent witness but to PW.7 Om Parkash,
Assistant Sub Inspector, who in the Police Station
had returned the same to PW.5 Inspector Ram
Kumar. It has been nowhere stated that seal was
returned after the case property has been deposited
in the Malkhana or produced before the Sub
Divisional Judicial Magistrate. Therefore, it has
been canvassed before me that there was always
opportunity with the police to change the samples.
To ensure that samples are not altered, changed or
Criminal Appeal No. 347-SB of 2002 16tampered as safeguard seal should have been
handed over to the independent witness;
b) Samples were entrusted to PW.2 Constable Manjit
Singh who had not directly proceeded for depositing
the same to the Chemical Examiner but had
remained in the Police Line, Sangrur. Therefore, the
possibility of tampering with the samples during that
period could not be ruled out;
c) Section 42 of the Act has not been complied with.
No search warrant was obtained as search was
carried between sunset to sunrise. Therefore,
Section 42 being mandatory, prosecution is bound to
suffer;
d) Provisions of Section 50 of the Act were not
complied with. In examination-in-chief PW.5
Inspector Ram Kumar had stated that only option
given to the accused was to get themselves
searched under Section 50 of the Act.
To controvert these submissions, Mr. Mehardeep Singh,
Assistant Advocate General, Punjab, has stated that the accused have
stated in their statement under Section 313 Cr.P.C. that they all are
related. Therefore, while travelling in one truck, it can be safely
presumed that they knew that bags contained narcotic substance. It has
been further urged that for effecting a search from vehicle, Section 50 of
the Act is not to be applied and Section 42 of the Act is not attracted
when search is conducted from a moving vehicle. It has been submitted
Criminal Appeal No. 347-SB of 2002 17
that in case of recovery from a vehicle Section 43 of the Act is attracted.
I have given my thoughtful consideration to the rival
submissions advanced by counsel for the parties.
Admittedly, Leela and Sukha were not arrested at the spot. It
has been stated that even though police party was present along with
many companion police officials, escape of these two accused from the
spot is unnatural, improbable and unconvincing.
According to prosecution version, Leela and Sukha, Surjit and
Mango were sitting on the gunny bags in the rear of the truck whereas
Darshan Singh was driving the truck and Budhu was sitting along with
him. It was incumbent upon the prosecution to give a reasonable
explanation as to how Leela and Sukha escaped from the spot. The
Investigating Officer has stated that he knew Leela and Sukha earlier.
This statement was to save the prosecution from the discharge from the
onus that the identity of the accused is to be proved at the spot.
Possibility that the investigating Officer knew them earlier and that is
why he introduced them in the occurrence as additional accused cannot
be ruled out.
The Investigating Agency is bound to ensure minimum
safeguards and comply with the mandatory provisions of search and
seizure and how to furnish accused with the grounds of arrest. A
consent memo is to be prepared. He is to be made aware that the police
officer suspect that some contraband article is to be recovered, by
following a convenient route that accused had accused had escaped,
the Investigating Agency absolved itself from following these essential
mandatory provisions. Therefore, as abundant caution taking into
Criminal Appeal No. 347-SB of 2002 18
consideration that Leela and Sukha were not arrested at the spot,
benefit of doubt is to be granted to them. Hence, Criminal Appeal No.
347-SB of 2002 is accepted. Leela and Sukha are acquitted of the
charges.
This Court cannot loose sight of the fact that 20 bags were
loaded in the truck. Therefore, certain persons are required to load,
unload and reload bags in the vehicle. Therefore, besides the driver
Darshan Singh and his companion who was in the cabin of the truck
Surjit Singh and Mangu were required to facilitate loading and unloading
of the bags of poppy husk. In this context, submissions raised by
counsel for the appellants are to be appreciated.
A perusal of 313 Cr.P.C. statements of the accused reveal
that accused Mangu and Surjit Singh were told that they were sitting on
gunny bags. It was thereafter another question was brought to the notice
of accused that gunny bags contained poppy husk. They had raised no
plea in 313 Cr.P.C. statements that they were innocent travellers.
Rather they stated that they were arrested from their house. Therefore,
it cannot be said that they were not made aware that their possession of
the gunny bags was conscious. Sections 35 & 54 of the Act operate
against them. Therefore, observations of Full Bench of this Court in
Kashmir Singh’s case (supra) are not of any help to the appellants
Darshan Singh, Budhu, Surjit Singh and Mangu. Neither Section 50 nor
Section 42 of the Act are attracted in the present case. The recovery
was made from the vehicle. Therefore, Sections 50 & 42 of the Act are
not attracted. In case of a recovery from the vehicle Section 43 of the
Act shall apply. Therefore, it cannot be said that there is a breach of
Criminal Appeal No. 347-SB of 2002 19
mandatory provisions of Sections 50 & 42 of the Act. Section 43 of the
Act is directory in nature not mandatory and the same has been
complied with.
Argument that the seal was not handed over to the
independent witness or PW.2 Constable Manjit Singh had not directly
proceeded to the Chemical Examiner are devoid of merits. PW.2
Constable Manjit Singh was not cross-examined on this aspect. No plea
was raised during cross-examination that the samples were tampered
with. Rather cross-examination of PW.1 Karnail Singh, Head
Constable, and PW.2 Manjit Singh, Constable will show that only a
general suggestion has been put that they have sworn false affidavits. It
was incumbent upon the appellants to lay minimum foundation to state
that by non handing over of the seal and not taking the samples
straightway to the Chemical Examination, a prejudice has been caused
to them. No explanation was sought from the witnesses. Therefore, the
contention raised cannot be accepted.
Thus, I have no no hesitation to conclude that appellants
Darshan Singh, Surjit Singh Budhu and Mangu are guilty of the offence
and the appeals filed on their behalf are dismissed.
(Kanwaljit Singh Ahluwalia)
Judge
March 25, 2009
“DK”