Criminal Appeal No.1696-SB of 2005 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Appeal No.1696-SB of 2005
Date of Decision:08.09.2009
Makhan Singh
.....Appellant
Vs.
State of Punjab
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. Narinder Singh, Advocate for the appellant.
Mr. A.P.S. Mann, Senior Deputy Advocate General, Punjab.
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JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment dated 16.8.2005/
order of sentence dated 17.8.2005 passed by the Court of learned Judge,
Special Court, Bathinda whereby he convicted and sentenced Makhan Singh
accused to undergo rigorous imprisonment for a period of ten years and to
pay a fine of Rs.1 lac under Section 15(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for brevity, `the Act’) and in default of
payment of fine to further undergo rigorous imprisonment for two years and
acquitted the accused Harmail Singh and Sudagar Singh.
The facts in brief are that on 23.3.2004 ASI Mohan Singh
amongst other police officials was going in government canter bearing
registration No.PB-03-C-6240 in connection with patrolling. On the bus
stand of Mehraj, Tek Singh was associated with the police party.
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Thereafter, the police party was going on the bank of canal from bridge
within the revenue limits of Village Sadhana. Three persons were spotted
sitting on three gunny bags on the canal bank. On catching sight of the
police party, they started running. One of them was apprehended, whereas
the remaining two succeeded in fleeing away. The nabbed person disclosed
his name as Makhan Singh, who was informed of his right to have his
search before a Gazetted Officer or a Magistrate. He opted to have search
before a Gazetted Officer. On receipt of wireless message, DSP Sukhpal
Singh (D) Bathinda came at the spot. He disclosed his identity to the
aforesaid accused. He also apprised the accused of his right to have his
search in the presence of a Gazetted Officer or a Magistrate. He reposed
confidence in the said DSP. On the directions of DSP Sukhpal Singh, the
contents of the gunny bags were searched. The same were found to be
poppy husk. These bags were got photographed by calling Gopal Krishan
Photographer. Two samples of 100 grams each were drawn from each bag
and converted into parcels. The remainder of each bag when weighed came
to 32 Kgs. which was also turned into parcels. All the three parcels were
sealed with seal `MS’ and seized vide memo. The accused Makhan Singh
was arrested. Accused Harmail Singh was arrested on 26.3.2004. The
accused Sudagar Singh was arrested after obtaining production warrant.
After completion of investigation, the charge-sheet was laid in the Court for
trial of the accused.
All the three 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 Constable Surjit Singh,
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PW2 ASI Mohan Singh Investigator, PW3 Inspector Devinder Singh, PW4
DSP S.S. Brar, PW5 Gopal Krishan Photographer and closed its evidence.
When examined under Section 313 of Cr.P.C, all the three accused denied
the incriminating circumstances appearing in the prosecution evidence
against them and pleaded false implication. Harmail Singh accused alleged
that he has been involved in this case due to party faction. Makhan Singh
accused put forth that he was away to attend the rally of Sardar Parkash
Singh Badal near Bathinda and was involved at the instance of the party
men of Captain Amrinder Singh. They 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 the
record, the learned trial Court convicted Makhan Singh accused and
acquitted his co-accused. Feeling aggrieved with his conviction/ sentence,
Makhan Singh accused has preferred this appeal.
I have heard the learned counsel for the parties, besides
perusing the record with due care and circumspection.
To begin with, learned counsel for the appellant strenuously
urged that as alleged by the prosecution, the appellant was sitting on the
poppy husk bag. If these facts are taken on their face value, by no stretch of
imagination, these constitute the conscious possession of the appellant.
The learned State Counsel could not controvert this contention
in a successful manner. In re: State of Punjab v. Balkar Singh and
another, (2004) 3 Supreme Court Cases 582, the accused persons were
alleged to have been sitting on 100 bags of poppy husk. It was held by the
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Apex Court that merely by being found to be present at the place, where the
poppy bags were found and the failure to give any satisfactory explanation
for being so present did not prove that the accused persons were in the
possession of the said poppy bags. In fairness, the police should have
conducted further investigation (as to transportation of poppy bags to place
of incident, ownership of the poppy husk etc.) to prove that the accused
were really in possession of the said articles. If the matter is viewed in the
background of these observations, the conscious possession of the appellant
is not established. 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 144 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.”
Adverting to the facts of the instant case, a meticulous perusal
of the statement of the appellant recorded under Section 313 of Cr.P.C
would reveal that no such question has been put to him. In view of Kashmir
Singh’s case (supra), also the conscious possession of the appellant qua the
alleged bags is not established. The prosecution has not adduced any
evidence to the effect that the alleged bags did belong to the appellant.
Furthermore, in view of Balkar Singh’s case (supra), it has not been
demonstrated by the prosecution as to how these bags were transported to
the alleged place of recovery.
It is in the cross-examination of Gopal Krishan PW5
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Photographer that “I remained on the spot for about an hour, no person was
there nearby the place of recovery at that time, no writing work was done by
the police in my presence.” This evidence falsify the prosecution story.
The seal after use was allegedly handed over to Tek Singh
independent witness, who has also not been examined. The appellant has
been deprived of his right to cross-examine him. There is also inexplicable
delay of 8 days in sending the sample parcels to the Office of Chemical
Examiner.
As a sequel of the above discussion, this appeal is allowed
setting aside the impugned judgment. The accused is acquitted of the
charged offence.
September 08, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No