{"id":12905,"date":"2009-11-10T00:00:00","date_gmt":"2009-11-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/harjinder-singh-and-another-vs-state-of-punjab-on-10-november-2009"},"modified":"2019-04-02T12:16:47","modified_gmt":"2019-04-02T06:46:47","slug":"harjinder-singh-and-another-vs-state-of-punjab-on-10-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/harjinder-singh-and-another-vs-state-of-punjab-on-10-november-2009","title":{"rendered":"Harjinder Singh And Another vs State Of Punjab on 10 November, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Harjinder Singh And Another vs State Of Punjab on 10 November, 2009<\/div>\n
Criminal Appeal No.1530-SB of 2005                           -1-\n\n\n\n      IN THE HIGH COURT OF PUNJAB AND HARYANA\n                   AT CHANDIGARH\n                        ****\n                                  Criminal Appeal No.1530-SB of 2005\n                                     Date of Decision:10.11.2009\n\nHarjinder Singh and another\n                                                       .....Appellants\n            Vs.\n\nState of Punjab\n                                                       .....Respondent\n\n\nCORAM:- HON'BLE MR. JUSTICE HARBANS LAL\n\n\nPresent:-   Ms. Baljit Mann, Advocate for the appellants.\n\n            Mr. T.S. Salana, Deputy Advocate General, Punjab.\n                        ****\n\n\nJUDGMENT\n<\/pre>\n
HARBANS LAL, J.\n<\/p>\n
            This appeal is directed against the judgment dated 9.8.2005\/<\/p>\n
order of sentence dated 10.8.2005 passed by the Court of ld. Special Judge,<\/p>\n
Ferozepur whereby he convicted and sentenced the accused Harjinder Singh<\/p>\n
as well as Amarjit Singh to undergo rigorous imprisonment for a period of<\/p>\n
ten years and to pay a fine of Rs.1 lac each under Section 15(c) of the<\/p>\n
Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, `the<\/p>\n
Act’) and in default of payment of fine, the defaulter to further undergo<\/p>\n
rigorous imprisonment for a period of one year.\n<\/p>\n
            As set up by the prosecution, on 2.10.1997 Sub Inspector<\/p>\n
Gamdoor Singh of Police Station Sadar Abohar amongst other police<\/p>\n
officials had laid naka at Bus Stand, Rajpura. Around 7:30 P.M., a truck
\n Criminal Appeal No.1530-SB of 2005                              -2-<\/span><\/p>\n
bearing registration No.PB-10-F-9403 came from the Matili side. The same<\/p>\n
was signalled to stop with the help of torch light. The driver Harjinder<\/p>\n
Singh stopped the truck. The accused Amarjit Singh was sitting in the tool<\/p>\n
box of the truck. On search of this vehicle, two bags of poppy husk were<\/p>\n
recovered from the tool box. The wireless message was flashed to the<\/p>\n
Superintendent of Police, Abohar with a request to come at the spot. Each<\/p>\n
of the bag was containing 35 Kgs. of poppy husk. Two samples of 250<\/p>\n
grams each were drawn from each bag and converted into parcels. The<\/p>\n
residue of each bag was also made into parcels. All these parcels were<\/p>\n
sealed with seal `GS’. The sample seal was prepared. The seal after use was<\/p>\n
handed over to Parminder Singh. The parcels along with the truck as well<\/p>\n
as the other articles contained therein were seized vide recovery memo.<\/p>\n
Both the accused were formally arrested. The ruqa was sent to the Police<\/p>\n
Station wherein on its basis, formal FIR was registered. After completion of<\/p>\n
investigation, the charge-sheet was laid in the Court for trial of the accused.<\/p>\n
            The accused were charged under Section 15 of the Act, to<\/p>\n
which they did not plead guilty and claimed trial. To bring home guilt<\/p>\n
against the accused, the prosecution examined PW1 Inspector Darshan<\/p>\n
Singh, PW2 Sub Inspector Parminder Singh, PW3 Constable Shivraj Singh,<\/p>\n
PW4 SI Gamdoor Singh, PW5 Mukhtiar Singh and closed its evidence.<\/p>\n
When examined under Section 313 of Cr.P.C., both the accused denied all<\/p>\n
the incriminating circumstances appearing in the prosecution evidence<\/p>\n
against them.    The accused Harjinder Singh has put forth that “I am<\/p>\n
innocent. Our truck was overloaded. The police party was checking the<\/p>\n
vehicle. Due to over loading of truck, the police officials demanded money
\n Criminal Appeal No.1530-SB of 2005                                -3-<\/span><\/p>\n
from us, but we refused to give the same. On this account, this false case<\/p>\n
was planted upon us.” The accused did not adduce any evidence in their<\/p>\n
defence.\n<\/p>\n
             After hearing the learned Additional Public Prosecutor for the<\/p>\n
State, the learned defence counsel and examining the evidence on record,<\/p>\n
the learned trial Court convicted and sentenced the accused as noticed at the<\/p>\n
outset. Feeling aggrieved therewith, they have preferred this appeal.<\/p>\n
             To begin with, learned counsel for the appellants eloquenly<\/p>\n
urged that SI Gamdoor Singh PW4 has admitted in his cross-examination<\/p>\n
that there was no chit on the parcel, when the case property was produced in<\/p>\n
the Court during the trial and that the seals were broken and were not<\/p>\n
legible. In face of such state of the case property, it does not lie in the<\/p>\n
mouth of the prosecution to contend that it is the same, which was recovered<\/p>\n
from the appellants.     To gloss over this submission, the learned State<\/p>\n
Counsel pressed into service that due to transportation from one place to<\/p>\n
another, the seals affixed on the case property were bound to break. I regret<\/p>\n
my inability to be one with the learned State Counsel.           The aforesaid<\/p>\n
witness has testified in his cross-examination that “It is correct that there is<\/p>\n
no chit on the bags, parcels nor there is any seal, again said seals are<\/p>\n
available on the parcel, but that is not legible being broken. It is correct that<\/p>\n
at this stage,there is no FIR no. written on the bags, nor there is a<\/p>\n
identification mark on the parcels.” This evidence speaks volumes of the<\/p>\n
fact that the bags in the shape of parcels produced in the Court as case<\/p>\n
property did not bear any chit containing particulars of the case nor bore<\/p>\n
written FIR no. or any other identification mark. Furthermore, the seals
\n Criminal Appeal No.1530-SB of 2005                              -4-<\/span><\/p>\n
being in broken condition were illegible. There being no chit or FIR no. or<\/p>\n
any other identification mark on the case property, by no stretch of<\/p>\n
speculation, it can be said that the prosecution has been able to connect the<\/p>\n
same with the appellants.\n<\/p>\n
            It has been further submitted on behalf of the appellants that a<\/p>\n
glance through the statutory statements of both the appellants recorded<\/p>\n
under Section 313 of Cr.P.C would reveal that no specific question has been<\/p>\n
framed and put with regards to the conscious possession of the allegedly<\/p>\n
recovered poppy husk bags to the appellants, when they were being<\/p>\n
examined under Section 313 of Cr.P.C.            Therefore, their conscious<\/p>\n
possession is not established. To buttress this stance, she has sought to place<\/p>\n
abundant reliance upon the observations rendered in re: State of Punjab v.<\/p>\n
Surjit Singh,<\/a> 2008(1) Recent Criminal Reports (Criminal) 266, Amarjit<\/p>\n
Singh v. State of Haryana,<\/a> 2008(3) Recent Criminal Reports (Criminal)<\/p>\n
502,   Ramu v. State of Punjab,<\/a> 2008(3) Recent Criminal Reports<\/p>\n
(Criminal) 506 and Jarnail Singh v. State of Punjab, 2008(4) Recent<\/p>\n
Criminal Reports (Criminal) 294.\n<\/p>\n
            As against this, the learned State Counsel pressed into service<\/p>\n
that the recovery of poppy husk bags from the appellants well establishes<\/p>\n
their conscious possession qua these bags. I have well considered these<\/p>\n
submissions.\n<\/p>\n
            In re: State of Punjab v. Hari Singh and others<\/a>, (2009) 4<\/p>\n
Supreme Court Cases 200, it has been observed by the Supreme Court<\/p>\n
that “When the accused was examined under Section 313 Cr.P.C., the<\/p>\n
essence of accusation was not brought to his notice, more particularly, that
\n Criminal Appeal No.1530-SB of 2005                            -5-<\/span><\/p>\n
possession aspect, as was observed by this Court in Avtar Singh v. State of<\/p>\n
Punjab. The effect of such omission vitally affects the prosecution case.”<\/p>\n
In re: Avtar Singh v. State of Punjab, 2002(4) Recent Criminal Reports<\/p>\n
(Criminal) 180, the Apex Court has held as under:-\n<\/p>\n
            “Possession is the core ingredients to be established before the<\/p>\n
            accused in the instant case are subjected to the punishment<\/p>\n
            under Section 15. If the accused are found to be in possession<\/p>\n
            of poppy straw which is a narcotic drug within the meaning of<\/p>\n
            Clause (xiv) of Section 2, it is for them to account for such<\/p>\n
            possession satisfactorily; if not, the presumption under Section<\/p>\n
            54 comes into play. We need not go into the aspect whether the<\/p>\n
            possession must be conscious possession. Perhaps taking clue<\/p>\n
            from the decision of this Court in Inder Sain v. State of<\/p>\n
            Punjab,<\/a> 1983(2) SCC 372 arising under the Opium Act, the<\/p>\n
            learned trial Judge charged the accused of having conscious<\/p>\n
            possession of poppy husk. Assuming that poppy husk comes<\/p>\n
            within the expression poppy straw, the question, however,<\/p>\n
            remains whether the prosecution satisfactorily proved the fact<\/p>\n
            that the accused were in possession of poppy husk. Accepting<\/p>\n
            the evidence of PW-4 – the Head Constable, it is seen that<\/p>\n
            appellant No.3 (accused No.4) was driving the vehicle loaded<\/p>\n
            with bags of poppy husk. Appellants 1 and 2 (Accused Nos.1<\/p>\n
            and 2) were sitting on the bags placed in the truck. As soon as<\/p>\n
            the vehicle was stopped by ASI (PW-2), one person sitting in<\/p>\n
            the cabin by the side of the driver and another person sitting in
\n Criminal Appeal No.1530-SB of 2005                          -6-<\/span><\/p>\n
          the back of the truck fled. No investigation has been directed<\/p>\n
          to ascertain the role played by each of the accused and the<\/p>\n
          nexus between the accused and the offending goods. The word<\/p>\n
          `possession’ no doubt has different shades of meaning and it is<\/p>\n
          quite elastic in its connotation. Possession and ownership need<\/p>\n
          not always go together by the minimum requisite element<\/p>\n
          which has to be satisfied in custody or control over the goods.<\/p>\n
          Can it be said, on the basis of the evidence available on record,<\/p>\n
          that the three appellants – one of whom was driving the vehicle<\/p>\n
          and other two sitting on the bags, were having such custody or<\/p>\n
          control?   It is difficult to reach such conclusion beyond<\/p>\n
          reasonable doubt.      It transpires from evidence that the<\/p>\n
          appellants were not the only occupants of the vehicle. One of<\/p>\n
          the persons who was sitting in the cabin and another person<\/p>\n
          sitting at the back of the truck made themselves scarce after<\/p>\n
          seeing the police and the prosecution could not establish their<\/p>\n
          identity. It is quite probable that one of them could be the<\/p>\n
          custodian of goods whether or not he was the proprietor. The<\/p>\n
          persons who were merely sitting on the bags, in the absence of<\/p>\n
          proof of anything more, cannot be presumed to be in possession<\/p>\n
          of the goods.    For instance, if they are labourers engaged<\/p>\n
          merely for loading and unloading purposes and there is nothing<\/p>\n
          to show that the goods were at least in their temporary custody,<\/p>\n
          conviction under Section 15 may not be warranted. At best,<\/p>\n
          they may be abettors, but, there is no such charge here. True,
\n Criminal Appeal No.1530-SB of 2005                           -7-<\/span><\/p>\n
          their silence and failure to explain the circumstances in which<\/p>\n
          they were travelling in the vehicle at the odd hours, is one<\/p>\n
          strong circumstance that can be put against them. A case of<\/p>\n
          drawing presumption under Section 114 of the Evidence Act<\/p>\n
          could perhaps be made out then to prove the possession of the<\/p>\n
          accused, but, the fact remains that in the course of examination<\/p>\n
          under Section 313 Cr.P.C., not even a question was asked that<\/p>\n
          they were the persons in possession of poppy husk placed in the<\/p>\n
          vehicle. The only question put to them was that as per the<\/p>\n
          prosecution evidence, they were sitting on the bags of poppy<\/p>\n
          husk. Strangely enough, even the driver was questioned on the<\/p>\n
          same lines. The object of examination under Section 313, it is<\/p>\n
          well known, is to afford an opportunity to the accused to<\/p>\n
          explain the circumstances appearing in the evidence against<\/p>\n
          him. It is unfortunate that no question was asked about the<\/p>\n
          possession of goods. Having regard to the charge of which<\/p>\n
          appellants were accused, the failure to elicit their answer on<\/p>\n
          such a crucial aspect as possession, is quite significant. In this<\/p>\n
          state of things, it is not proper to raise a presumption under<\/p>\n
          Section 114 of Evidence Act nor is it after to conclude that the<\/p>\n
          prosecution established beyond reasonable doubt that the<\/p>\n
          appellants were in possession of poppy husk which was being<\/p>\n
          carried by the vehicle.      The High Court resorted to the<\/p>\n
          presumption under Section 35 which relates to culpable state of<\/p>\n
          mind, without considering the aspect of possession. The trial
\n Criminal Appeal No.1530-SB of 2005                              -8-<\/span><\/p>\n
            Court invoked the presumption under Section 54 of the Act<\/p>\n
            without addressing itself to the question of possession. The<\/p>\n
            approach of both the courts is erroneous in law. Both the<\/p>\n
            courts rested their conclusion on the fact that the accused failed<\/p>\n
            to give satisfactory explanation for travelling in the vehicle<\/p>\n
            containing poppy husk at an odd hour. But, the other relevant<\/p>\n
            aspects pointed out above were neither adverted to nor taken<\/p>\n
            into account by the trial Court and the High Court.          Non-<\/p>\n
            application of mind to the material factors has thus vitiated the<\/p>\n
            judgment under appeal.”<\/p><\/blockquote>\n
            Adverting to the present one, a meticulous perusal of the<\/p>\n
appellants’ statutory statement would reveal that the question of possession<\/p>\n
as was observed by the Supreme Court in Avtar Singh’s case (supra) was<\/p>\n
not put to them, while being examined under Section 313 of Cr.P.C. Thus,<\/p>\n
in view of Hari Singh and others’ case (supra), this omission vitally<\/p>\n
affects the prosecution case. To put it differently, it renders the prosecution<\/p>\n
case vulnerable on this aspect. In re: Kashmir Singh v. State of Punjab,<\/p>\n
2006(2) Recent Criminal Reports (Criminal) 477, the Full Bench of this<\/p>\n
Court has ruled that “no presumption can be raised against the accused<\/p>\n
person under Sections 35 or 54 of the NDPS Act or even under Section 114<\/p>\n
of the Evidence Act that he was in conscious possession of the alleged<\/p>\n
contraband unless a specific question has been put to him regarding<\/p>\n
conscious possession under Section 313 of Cr.P.C.”          In view of these<\/p>\n
observations, in the case at hand, a specific question was required to be<\/p>\n
framed and put to the appellants with regards to their being in conscious
\n Criminal Appeal No.1530-SB of 2005                            -9-<\/span><\/p>\n
possession of the recovered poppy husk bags, when they were being<\/p>\n
examined under the said Section. So, on viewing the matter in background<\/p>\n
of the afore-quoted law, the conscious possession of the appellants is not<\/p>\n
established.\n<\/p>\n
               As a sequel of the above discussion, this appeal is accepted,<\/p>\n
setting aside the impugned judgment\/ order of sentence. The appellants are<\/p>\n
hereby acquitted of the charged offence.\n<\/p>\n<\/p>\n
November 10, 2009                                 ( HARBANS LAL )\nrenu                                                   JUDGE\n\nWhether to be referred to the Reporter? Yes\/No\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-12905","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nHarjinder Singh And Another vs State Of Punjab on 10 November, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/harjinder-singh-and-another-vs-state-of-punjab-on-10-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Harjinder Singh And Another vs State Of Punjab on 10 November, 2009 - 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