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Harjinder Singh And Another vs State Of Punjab on 10 November, 2009

Punjab-Haryana High Court
Harjinder Singh And Another vs State Of Punjab on 10 November, 2009
Criminal Appeal No.1530-SB of 2005                           -1-



      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH
                        ****
                                  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.
                        ****


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
Criminal Appeal No.1530-SB of 2005 -4-

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
Criminal Appeal No.1530-SB of 2005 -5-

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
 

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