Criminal Appeal No.2387-SB of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Appeal No.2387-SB of 2008
Date of Decision:13.10.2009
Sajjan Kumar
.....Appellant
Vs.
State of Haryana
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. R.S. Mamli, Advocate for the appellant.
Mr. Amit Kaushik, Assistant Advocate General, Haryana.
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JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment/ order of sentence
dated 16.10.2008 passed by the Court of learned Additional Sessions Judge,
Fatehabad whereby he convicted and sentenced Sajjan Kumar accused to
undergo rigorous imprisonment for a period of ten years and to pay a fine of
Rs.1 lac under Section 15 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 one year.
Shortly put, the facts of the prosecution case are that on
28.7.2005, Jagdish Kumar, Inspector amongst other police officials
intercepted the esteem car bearing registration No.DL-2CB-4629 in which
accused Sajjan and his co-accused Roshan (juvenile facing trial before the
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Juvenile Justice Board) were travelling. The search of the car revealed three
gunny bags containing total 120 kilograms of poppy husk. Two samples of
100 grams each were drawn from each bag and converted into parcels. The
remainder of each bag was also turned into parcels. All these parcels along
with the aforesaid car were seized vide recovery memo. The accused were
arrested. After completion of investigation, the charge-sheet was laid in the
Court for trial of the accused Sajjan Kumar.
The accused was charged under Section 15 of the Act to which
he did not plead guilty and claimed trial. To bring home guilt against the
accused, the prosecution examined PW1 Ram Lal, PW2 Ajaib Singh
Inspector, PW3 Jagdish Kumar Inspector, PW4 HC Madan Lal, PW5 ASI
Baldev Singh, PW6 HC Amar Singh, PW7 EHC Gian Sarup, PW8 SI
Ishwar Singh and closed its evidence. When examined under Section 313
of Cr.P.C., the accused denied all the incriminating circumstances appearing
in the prosecution evidence against him and pleaded innocence. He has put
forth that he was not arrested at the spot and he was taken into custody
much prior to his arrest shown and later on, he has been falsely implicated.
He did not adduce any evidence in defence.
After hearing the learned 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, he has preferred this appeal.
I have heard the learned Counsel for the parties, besides
perusing the record with due care and circumspection.
Mr. Mamli canvassed at the bar that the appellant was neither a
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driver nor owner of the vehicle. He was not in conscious possession of the
contraband. The provisions of Section 52 as well as 55 of the Act have not
been adhered to. The recovered poppy husk bags were not properly sealed,
nor the sample parcels were sent to the Forensic Science Laboratory within
the prescribed period.
As against this, the learned State Counsel maintained that the
conscious possession of the appellant qua the recovered poppy husk bags
has been established as he along with Roshan was found travelling in the
esteem car. He further pressed into service that the provisions of Section 52
and 55 have been observed and the sample parcels were forwarded for
chemical analysis within a reasonable time.
I have well considered the rival contentions. 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.” A
meticulous perusal of the statutory statement of the appellant recorded
under Section 313 of Cr.P.C would reveal that no such question has been
put to him. Thus, in view of Kashmir Singh’s case (supra), the conscious
possession of the appellant is not established. That being so, the
presumption arising under Section 35 or 54 of the Act does not operate in
favour of the prosecution. It is in the cross-examination of Jagdish Kumar
Inspector PW3 that “Both the accused had run away towards the backward
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direction after opening the windows and they have hardly covered five
paces when they were apprehended by us. One/two people were asked to
join the investigation, but they refused to join the investigation. I cannot
tell their names, nor I mentioned their names in the case diary.” This
evidence speaks volume of the fact that the accused in fact was not
apprehended from within the car, rather as alleged, he was overpowered
while fleeing. This is another circumstance to hold that his conscious
possession is not established qua the recovered poppy husk bags.
Furthermore, if the persons, who were asked to join investigation had
refused to do so, in turn, the Investigator was expected to initiate legal
action against them. He regretted his inability to disclose their names nor he
mentioned the same in the case diary. As such, the evidence tendered by the
official witnesses do not find corroboration from any independent source.
Furthermore, towards the end of his cross-examination, the Investigating
Officer has stated that “the accused present in the Court is not owner of the
car, nor he was driving the car at that time.” To add further to it, there is
inexplicable delay of as many as seven days in sending the sample parcels
for chemical analysis.
In view of the infirmities enumerated above, this appeal is
accepted setting aside the impugned judgment/ order of sentence. The
accused is acquitted of the charged offence.
October 13, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No