Criminal Appeal No.1530-SB of 2005 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Appeal No.1530-SB of 2005
Date of Decision:10.11.2009
Harjinder Singh and another
.....Appellants
Vs.
State of Punjab
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Ms. Baljit Mann, Advocate for the appellants.
Mr. T.S. Salana, Deputy Advocate General, Punjab.
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JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment dated 9.8.2005/
order of sentence dated 10.8.2005 passed by the Court of ld. Special Judge,
Ferozepur whereby he convicted and sentenced the accused Harjinder Singh
as well as Amarjit Singh to undergo rigorous imprisonment for a period of
ten years and to pay a fine of Rs.1 lac each under Section 15(c) of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, `the
Act’) and in default of payment of fine, the defaulter to further undergo
rigorous imprisonment for a period of one year.
As set up by the prosecution, on 2.10.1997 Sub Inspector
Gamdoor Singh of Police Station Sadar Abohar amongst other police
officials had laid naka at Bus Stand, Rajpura. Around 7:30 P.M., a truck
Criminal Appeal No.1530-SB of 2005 -2-
bearing registration No.PB-10-F-9403 came from the Matili side. The same
was signalled to stop with the help of torch light. The driver Harjinder
Singh stopped the truck. The accused Amarjit Singh was sitting in the tool
box of the truck. On search of this vehicle, two bags of poppy husk were
recovered from the tool box. The wireless message was flashed to the
Superintendent of Police, Abohar with a request to come at the spot. Each
of the bag was containing 35 Kgs. of poppy husk. Two samples of 250
grams each were drawn from each bag and converted into parcels. The
residue of each bag was also made into parcels. All these parcels were
sealed with seal `GS’. The sample seal was prepared. The seal after use was
handed over to Parminder Singh. The parcels along with the truck as well
as the other articles contained therein were seized vide recovery memo.
Both the accused were formally arrested. The ruqa was sent to the Police
Station wherein on its basis, formal FIR was registered. After completion of
investigation, the charge-sheet was laid in the Court for trial of the accused.
The accused were charged under Section 15 of the Act, to
which they did not plead guilty and claimed trial. To bring home guilt
against the accused, the prosecution examined PW1 Inspector Darshan
Singh, PW2 Sub Inspector Parminder Singh, PW3 Constable Shivraj Singh,
PW4 SI Gamdoor Singh, PW5 Mukhtiar Singh and closed its evidence.
When examined under Section 313 of Cr.P.C., both the accused denied all
the incriminating circumstances appearing in the prosecution evidence
against them. The accused Harjinder Singh has put forth that “I am
innocent. Our truck was overloaded. The police party was checking the
vehicle. Due to over loading of truck, the police officials demanded money
Criminal Appeal No.1530-SB of 2005 -3-
from us, but we refused to give the same. On this account, this false case
was planted upon us.” The accused did not adduce any evidence in their
defence.
After hearing the learned Additional Public Prosecutor for the
State, the learned defence counsel and examining the evidence on record,
the learned trial Court convicted and sentenced the accused as noticed at the
outset. Feeling aggrieved therewith, they have preferred this appeal.
To begin with, learned counsel for the appellants eloquenly
urged that SI Gamdoor Singh PW4 has admitted in his cross-examination
that there was no chit on the parcel, when the case property was produced in
the Court during the trial and that the seals were broken and were not
legible. In face of such state of the case property, it does not lie in the
mouth of the prosecution to contend that it is the same, which was recovered
from the appellants. To gloss over this submission, the learned State
Counsel pressed into service that due to transportation from one place to
another, the seals affixed on the case property were bound to break. I regret
my inability to be one with the learned State Counsel. The aforesaid
witness has testified in his cross-examination that “It is correct that there is
no chit on the bags, parcels nor there is any seal, again said seals are
available on the parcel, but that is not legible being broken. It is correct that
at this stage,there is no FIR no. written on the bags, nor there is a
identification mark on the parcels.” This evidence speaks volumes of the
fact that the bags in the shape of parcels produced in the Court as case
property did not bear any chit containing particulars of the case nor bore
written FIR no. or any other identification mark. Furthermore, the seals
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being in broken condition were illegible. There being no chit or FIR no. or
any other identification mark on the case property, by no stretch of
speculation, it can be said that the prosecution has been able to connect the
same with the appellants.
It has been further submitted on behalf of the appellants that a
glance through the statutory statements of both the appellants recorded
under Section 313 of Cr.P.C would reveal that no specific question has been
framed and put with regards to the conscious possession of the allegedly
recovered poppy husk bags to the appellants, when they were being
examined under Section 313 of Cr.P.C. Therefore, their conscious
possession is not established. To buttress this stance, she has sought to place
abundant reliance upon the observations rendered in re: State of Punjab v.
Surjit Singh, 2008(1) Recent Criminal Reports (Criminal) 266, Amarjit
Singh v. State of Haryana, 2008(3) Recent Criminal Reports (Criminal)
502, Ramu v. State of Punjab, 2008(3) Recent Criminal Reports
(Criminal) 506 and Jarnail Singh v. State of Punjab, 2008(4) Recent
Criminal Reports (Criminal) 294.
As against this, the learned State Counsel pressed into service
that the recovery of poppy husk bags from the appellants well establishes
their conscious possession qua these bags. I have well considered these
submissions.
In re: State of Punjab v. Hari Singh and others, (2009) 4
Supreme Court Cases 200, it has been observed by the Supreme Court
that “When the accused was examined under Section 313 Cr.P.C., the
essence of accusation was not brought to his notice, more particularly, that
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possession aspect, as was observed by this Court in Avtar Singh v. State of
Punjab. The effect of such omission vitally affects the prosecution case.”
In re: Avtar Singh v. State of Punjab, 2002(4) Recent Criminal Reports
(Criminal) 180, the Apex Court has held as under:-
“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
possession of poppy husk. Assuming that poppy husk comes
within the expression 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 PW-4 – 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 (PW-2), one person sitting in
the cabin by the side of the driver and another person sitting in
Criminal Appeal No.1530-SB of 2005 -6-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
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 he 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,
Criminal Appeal No.1530-SB of 2005 -7-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 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 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
Criminal Appeal No.1530-SB of 2005 -8-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.”
Adverting to the present one, a meticulous perusal of the
appellants’ statutory statement would reveal that the question of possession
as was observed by the Supreme Court in Avtar Singh’s case (supra) was
not put to them, while being examined under Section 313 of Cr.P.C. Thus,
in view of Hari Singh and others’ case (supra), this omission vitally
affects the prosecution case. To put it differently, it renders the prosecution
case vulnerable on this aspect. In re: Kashmir Singh v. State of Punjab,
2006(2) Recent Criminal Reports (Criminal) 477, the Full Bench of this
Court has ruled that “no presumption can be raised against the accused
person under Sections 35 or 54 of the NDPS Act or even under Section 114
of the Evidence Act that he was in conscious possession of the alleged
contraband unless a specific question has been put to him regarding
conscious possession under Section 313 of Cr.P.C.” In view of these
observations, in the case at hand, a specific question was required to be
framed and put to the appellants with regards to their being in conscious
Criminal Appeal No.1530-SB of 2005 -9-
possession of the recovered poppy husk bags, when they were being
examined under the said Section. So, on viewing the matter in background
of the afore-quoted law, the conscious possession of the appellants is not
established.
As a sequel of the above discussion, this appeal is accepted,
setting aside the impugned judgment/ order of sentence. The appellants are
hereby acquitted of the charged offence.
November 10, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No
