{"id":156893,"date":"2009-03-25T00:00:00","date_gmt":"2009-03-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/criminal-appeal-no-347-sb-of-2002-vs-state-of-punjab-on-25-march-2009"},"modified":"2018-02-10T11:18:41","modified_gmt":"2018-02-10T05:48:41","slug":"criminal-appeal-no-347-sb-of-2002-vs-state-of-punjab-on-25-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/criminal-appeal-no-347-sb-of-2002-vs-state-of-punjab-on-25-march-2009","title":{"rendered":"Criminal Appeal No. 347-Sb Of 2002 vs State Of Punjab on 25 March, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Criminal Appeal No. 347-Sb Of 2002 vs State Of Punjab on 25 March, 2009<\/div>\n
Criminal Appeal No. 347-SB of 2002                              1\n\n\n\n\n      In the High Court of Punjab and Haryana, at Chandigarh.\n\n\n\n1.                             Criminal Appeal No. 347-SB of 2002\n\n                                       Date of Decision: 25.3.2009\n\n\nLeela Singh and Sukha Singh\n                                                      ...Appellants\n                              Versus\nState of Punjab\n                                                     ...Respondent\n\n2.                             Criminal Appeal No. 355-SB of 2002\n\n\nBudhu\n                                                       ...Appellant\n                              Versus\nState of Punjab\n                                                     ...Respondent\n\n\n3.                             Criminal Appeal No. 395-SB of 2002\n\n\nSurjit Singh\n                                                       ...Appellant\n                              Versus\nState of Punjab\n                                                     ...Respondent\n\n4.                             Criminal Appeal No. 400-SB of 2002\n\n\nMangu\n                                                       ...Appellant\n                              Versus\nState of Punjab\n                                                     ...Respondent\n Criminal Appeal No. 347-SB of 2002                                     2\n\n\n\n\n                                  AND\n\n5.                               Criminal Appeal No. 1058-SB of 2002\n\n\nDarshan Singh\n                                                              ...Appellant\n                                 Versus\nState of Punjab\n                                                           ...Respondent\n\n\nCORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.\n\n\nPresent: Mr. Surinder Singh Siao, Advocate\n         for the appellants (In Criminal Appeal\n         No. 347-SB of 2002).\n\n          Mr. Gurcharan Singh, Advocate\n          for the appellant (In Criminal Appeal\n          No. 355-SB of 2002).\n\n          Mr.S.K. Bawa, Advocate\n          for the appellant (In Criminal Appeal\n          No. 395-SB of 2002).\n\n          Mr. R.S. Chauhan, Advocate\n          for the appellant (in Criminal Appeal\n          No. 400-SB of 2002).\n\n          Mr. Deepak Arora, Advocate\n          for the appellant (In Criminal Appeal\n          No. 1058-SB of 2002).\n\n          Mr. Mehardeep Singh, Assistant Advocate\n          General, Punjab, for the State.\n\n\nKanwaljit Singh Ahluwalia, J. (Oral)\n<\/pre>\n
          Inspector Ram Kumar, Station House Officer, Police Station<\/p>\n
Malerkotla, had sent a ruqa to Police Station for registration of the case.<\/p>\n
On 28.10.1999 he was present at seepage drain in the area falling in<\/p>\n
the revenue estate of village Naudharani along with companion officials
\n Criminal Appeal No. 347-SB of 2002                                   3<\/span><\/p>\n
for holding nakabandi. The police party was having an official vehicle<\/p>\n
Allwyn Nissan bearing No. PB-13-B-7003. They saw one truck bearing<\/p>\n
registration No. PAT 9644. The truck was signalled to stop. On seeing<\/p>\n
the police party, truck driver became nervous and made an attempt to<\/p>\n
reverse the vehicle. The police party on basis of suspicion apprehended<\/p>\n
the truck. Leela and Sukha, caste Saini, residents of Indra Basti, Sunam,<\/p>\n
jumped from the truck and ran away. Truck driver was interrogated. He<\/p>\n
disclosed his name as Darshan Singh, resident of Ghanauli, Police<\/p>\n
Station Rupnagar. The person sitting along with the driver gave his<\/p>\n
name as Budhu son of Nuri Ram, caste Saini, resident of Ward No. 8,<\/p>\n
Malaud, Police Station Payal, District Ludhiana. Two persons sitting on<\/p>\n
the bags, loaded in the truck disclosed their names as Surjit Singh son<\/p>\n
of Pritam Singh, resident of Patti Sherpur and Mangu Singh son of<\/p>\n
Sarwan Singh, resident of Khalil Path Sherpur, Police Station Sherpur,<\/p>\n
District Sangrur. Inspector Ram Kumar told them that he suspected that<\/p>\n
bags loaded in the truck contained narcotic substance and he wanted to<\/p>\n
search them. An offer was given that in case they desire, they can get<\/p>\n
themselves searched from Magistrate or some Gazetted Officer. Upon<\/p>\n
which, persons apprehended stated that they wanted to get themselves<\/p>\n
searched from some Gazetted Officer. Inspector Ram Kumar prepared<\/p>\n
the consent memos of Darshan Singh, Budhu, Surjit Singh and Mangu<\/p>\n
Singh on which they appended their signatures in the presence of<\/p>\n
witnesses. For effecting the search of the vehicle a request was sent to<\/p>\n
Surinder Singh Saini, Deputy Superintendent of Police, Malerkotla.<\/p>\n
Surinder Singh Saini, Deputy Superintendent of Police, Malerkotla,<\/p>\n
arrived at the spot. On the request made by the Inspector, he agreed to
\n Criminal Appeal No. 347-SB of 2002                                     4<\/span><\/p>\n
conduct the search. The bags loaded in the truck were counted. They<\/p>\n
were found to be 20 in numbers. Two samples of 250 grams each were<\/p>\n
drawn from each bag. The residue was weighed and was found to be 39<\/p>\n
Kgs. 500 grams.        Necessary formalities, in accordance with the<\/p>\n
procedure prescribed for preparing the samples and taking into<\/p>\n
possession the bags of poppy husk, were carried out. Eight quintals of<\/p>\n
poppy husk was recovered from the accused. The matter was<\/p>\n
investigated and report was submitted under Section 173 Cr.P.C.<\/p>\n
against six accused, out of which Darshan Singh, Budhu, Surjit Singh<\/p>\n
and Mangu Singh were arrested at the spot and Leela Singh and Sukha<\/p>\n
allegedly had escaped from the place of recovery.<\/p>\n
          After the charge was framed, evidence was led, before the<\/p>\n
findings of the Court below and arguments raised this Court are dealt<\/p>\n
with and discussed, it will be pertinent to notice that all the six accused<\/p>\n
were convicted and sentenced by the Court of Judge, Special Court,<\/p>\n
Sangrur, under Section 15 of the Narcotic Drugs and Psychotropic<\/p>\n
Substances Act, 1985 (hereinafter to be referred as `the Act’) to ten<\/p>\n
years rigorous imprisonment and a fine of Rs.1,00,000\/- each, in default<\/p>\n
to further undergo rigorous imprisonment for one year each. The truck<\/p>\n
belonging to Darshan Singh was also confiscated.<\/p>\n
          Aggrieved against the conviction and sentence, five appeals<\/p>\n
have been preferred.\n<\/p>\n
          Criminal Appeal No. 347-SB of 2002 has been filed by Leela<\/p>\n
Singh and Sukha Singh, who were not arrested at the spot.<\/p>\n
          Criminal Appeal No. 355-SB of 2002 has been preferred by<\/p>\n
Budhu son of Nuri Ram.\n<\/p>\n
 Criminal Appeal No. 347-SB of 2002                                 5<\/span><\/p>\n
          Criminal Appeal No. 395-SB of 2002 has been preferred by<\/p>\n
Surjit Singh son of Pritam Singh.\n<\/p>\n
          Criminal Appeal No. 400-SB of 2002 has been preferred by<\/p>\n
Mangu Singh son of Sarwan Singh.\n<\/p>\n
          Criminal Appeal No. 1058-SB of 2002 has been preferred by<\/p>\n
Darshan Singh.\n<\/p>\n
          By this common judgment, all the five appeals shall be<\/p>\n
decided together.\n<\/p>\n
          All six accused were charged by the Court of Judge, Special<\/p>\n
Court, Sangrur on 3.2.2000 that on 28.10.1999 at about 11.15 A.M. all<\/p>\n
the six accused were found in possession of 20 bags containing 40<\/p>\n
Kgs. poppy husk in each bag, in the area of village Naudharani without<\/p>\n
any authority of law and thereby were liable for prosecution under<\/p>\n
Section 15 of the Act.\n<\/p>\n
          Karnail Singh, Head Constable, appeared as PW.1. He stated<\/p>\n
that from 28.10.1999 to 3.11.1999 he was posted as Moharrir Head<\/p>\n
Constable in Police Station Malerkotla. He further stated that he was<\/p>\n
Incharge of the Malkhana. He tendered into evidence his affidavit Ex.PA<\/p>\n
to prove link evidence to the effect that samples and case property for<\/p>\n
the period they remained in Malkhana, were not tampered with.<\/p>\n
          Manjit Singh, Constable, appeared as PW.2. He tendered into<\/p>\n
evidence his affidavit Ex.PB. In cross-examination, he admitted that on<\/p>\n
the night intervening 1.11.1999\/2.11.1999 he was present in the Police<\/p>\n
Station and the samples were submitted with him.<\/p>\n
          Parkash Chand, Reader to the Sub Divisional Judicial<\/p>\n
Magistrate, Malerkotla, appeared as PW.3.          He stated that on
\n Criminal Appeal No. 347-SB of 2002                                   6<\/span><\/p>\n
29.10.1999, he was posted as Reader in the Court of the Sub Divisional<\/p>\n
Judicial Magistrate, Malerkotla. Satnam Singh, Assistant Sub Inspector,<\/p>\n
produced before the Court, case property belonging to the present case<\/p>\n
which was attested by the Sub Divisional Judicial Magistrate, Malerkotla,<\/p>\n
and he identified his signatures.\n<\/p>\n
           Surinder Singh Saini, Deputy Superintendent of Police,<\/p>\n
appeared as PW.4. He stated that on 28.10.1999 while he was posted<\/p>\n
as Deputy Superintendent of Police, Malerkotla, he received wireless<\/p>\n
message from Inspector Ram Kumar, Station House Officer, Police<\/p>\n
Station Malerkotla. He reached at the spot where Inspector Ram Kumar<\/p>\n
along with other police officials and PW. Gurdial Singh and four accused<\/p>\n
Darshan Singh, Budh Singh, Surjit Singh and Mangu Singh             were<\/p>\n
present along with truck No. PAT-9644. He disclosed his identity.<\/p>\n
Search of the truck was conducted. 20 gunny bags containing poppy<\/p>\n
husk were recovered. Samples were drawn. Thereafter, weight of each<\/p>\n
gunny bag was fond to be 39 Kgs. 500 grams. He stated that he has not<\/p>\n
seen the case property in the Court. In the wireless message received,<\/p>\n
names of the accused were not disclosed. When the message was<\/p>\n
received he was in his office. Place of recovery from his office was at a<\/p>\n
distance of 3 Kms. No search warrant for search of truck was obtained.<\/p>\n
He had not recorded any separate consent memo of the accused.<\/p>\n
Documents regarding ownership were not seen by him as they may<\/p>\n
have been seen by Inspector Ram Kumar. Scales and weights were<\/p>\n
already with the Investigating Officer.    The scale was spring like<\/p>\n
balance.   He stated in the Court that he was unable to name each<\/p>\n
individual accused.\n<\/p>\n
 Criminal Appeal No. 347-SB of 2002                                   7<\/span><\/p>\n
         Inspector Ram Kumar, Investigating Officer, appeared as<\/p>\n
PW.5. He reiterated      what was stated in the FIR. However, in<\/p>\n
examination-in-chief, he has stated that he returned to the Police<\/p>\n
Station, handed over the case property to Karnail Singh, Assistant<\/p>\n
Moharrir Head Constable. He was declared hostile by the Public<\/p>\n
Prosecutor and was cross-examined by him. In cross-examination, he<\/p>\n
admitted that he had given option to the accused to get themselves<\/p>\n
searched from the Gazetted Officer or a Magistrate. He further stated<\/p>\n
that inadvertently in his examination-in-chief he has stated that he had<\/p>\n
only given option to get themselves searched from the Gazetted Officer.<\/p>\n
During cross-examination, he admitted that he is in custody in case<\/p>\n
under Section 302 IPC. He further stated that place of recovery was at<\/p>\n
a distance of 3 Kms. from the Police Station. He further stated that<\/p>\n
before apprehending the truck, no other vehicle passed from the place<\/p>\n
of occurrence. He further stated that nakabandi was started at 12.30<\/p>\n
A.M. and the truck came at the spot at 6.00 A.M. He admitted that no<\/p>\n
special report was sent to the police. He further stated that Sukha and<\/p>\n
Leela were known to him when he was posted at Sunam earlier in the<\/p>\n
year 1992. He further stated that none of the accused was owner of the<\/p>\n
truck. He admitted that Om Parkash, Assistant Sub Inspector,         had<\/p>\n
returned the seal on the same day to him at Police Station. During<\/p>\n
cross-examination, he further stated that he had no secret information<\/p>\n
regarding the arrival of the truck of the accused. He further stated that<\/p>\n
weights and small scales were with him. Spring balance scale was<\/p>\n
arranged at the spot.\n<\/p>\n
         Sukhjinder Singh appeared as PW.6. He stated that he sold
\n Criminal Appeal No. 347-SB of 2002                                    8<\/span><\/p>\n
truck No. PAT-9644 to Darshan Singh for Rs.1,92,000\/-.<\/p>\n
          Om Parkash, Assistant Sub Inspector, appeared as PW.7. He<\/p>\n
corroborated testimony of PW.5 Inspector Ram Kumar.        He stated that<\/p>\n
Inspector Ram Kumar, Investigating Officer, had handed over the seal<\/p>\n
to him. In cross-examination, he stated that Bira Singh, Head Constable<\/p>\n
brought spring type scale from Malerkotla.\n<\/p>\n
          Joginder Singh, Assistant Sub Inspector, appeared as PW.8.<\/p>\n
He stated that on 8.12.1999 accused Sukha and Leela had surrendered<\/p>\n
before him.\n<\/p>\n
          Satnam Singh, Assistant Sub Inspector, appeared as PW.9<\/p>\n
and stated that he obtained the case property from Karnail Singh,<\/p>\n
Assistant Moharrir Head Constable and produced the same before the<\/p>\n
Court of Illaqa Magistrate.\n<\/p>\n
          Prosecution closed its evidence.\n<\/p>\n
          All the incriminating evidence was put to accused under<\/p>\n
Section 313 Cr.P.C.\n<\/p>\n
          Accused Mango stated that all the six accused are related to<\/p>\n
each other and they have been falsely implicated in this case. They<\/p>\n
were arrested from their house.\n<\/p>\n
          Similar stand was taken by the other accused.\n<\/p>\n
          In defence no witness was examined.\n<\/p>\n
          Arguments were raised before the trial Court that Section 50 of<\/p>\n
the Act has not been complied with as in examination-in-chief, PW.5<\/p>\n
Inspector Ram Kumar, Investigating Officer,      has stated that partial<\/p>\n
option was given at the time of search and recovery. Another argument<\/p>\n
raised before the trial Court was that provisions of Section 42 of the Act
\n Criminal Appeal No. 347-SB of 2002                                       9<\/span><\/p>\n
have not been complied with. Recovery of truck was effected between<\/p>\n
sunset and sunrise and no search warrant was obtained. It was further<\/p>\n
urged that seal after use was handed over to PW.7 Om Parkash,<\/p>\n
Assistant Sub Inspector and not to independent witness. Another<\/p>\n
argument raised was that all the four accused who were found sitting on<\/p>\n
the bags cannot be attributed conscious possession as they were<\/p>\n
innocent passengers in the truck. The trial Court negated all these<\/p>\n
arguments and held accused to be guilty of the offence and as stated<\/p>\n
earlier had sentenced them resulting into filing of the appeals.<\/p>\n
          I have heard Mr. Gurcharan Singh, Mr. Surinder Singh Siao,<\/p>\n
Mr.   Deepak    Arora     and   Mr.   S.K.   Bawa,   Advocates     for   the<\/p>\n
accused\/appellants and Mr. Mehardeep Singh, Assistant Advocate<\/p>\n
General, Punjab, appearing for the State.\n<\/p>\n
          It has been urged before me by counsel for the accused that<\/p>\n
in statements under Section 313 Cr.P.C. it was not mentioned to them<\/p>\n
that poppy husk was loaded in the truck.\n<\/p>\n
          To fortify their submissions, they have placed reliance upon<\/p>\n
Single Bench judgment of this Court rendered in Bhola Singh v. State<\/p>\n
of Punjab 2005(2) Recent Criminal Reports 520. To further support<\/p>\n
this argument, reliance has been placed upon Dalbir Singh alias Beera<\/p>\n
v. The State of Punjab<\/a> 2008(2) Criminal Court Cases 086. In para 9<\/p>\n
of the judgment rendered in Dalbir Singh alias Beera’s case (supra),<\/p>\n
the legal position has been noticed as under:-\n<\/p>\n
                    “7.         The learned counsel for the appellants<\/p>\n
                    have challenged the case of the prosecution on the<\/p>\n
                    ground that the prosecution has miserably failed to
\n Criminal Appeal No. 347-SB of 2002                                        10<\/span><\/p>\n
                 prove     that   the   accused     were     in    conscious<\/p>\n
                 possession of the contraband, allegedly recovered<\/p>\n
                 from them. Once the conscious possession of the<\/p>\n
                 contraband stuff is not proved, it cannot be easily<\/p>\n
                 said that the recovery of the poppy husk in the<\/p>\n
                 present case relates to the accused. In support of<\/p>\n
                 their contention reference was made to a Full Bench<\/p>\n
                 Decision of this Court in case Kashmir Singh v.<\/p><\/blockquote>\n
\n                 State of Punjab and Karam Singh v. State of<\/p>\n
                 Punjab,     2006(3)    Criminal     Court        Cases   08<\/p>\n
                 (P&amd;H) (FB): Criminal Appeals No. 407 and<\/p>\n
                 408-DB of 1999, the Full Bench has dealt in detail<\/p>\n
                 with Sections 35 and 54 of the NDPS Act and<\/p>\n
                 observed that unless the accused is put in the<\/p>\n
                 statement under Section          313 Cr.P.C., that they<\/p>\n
                 were in conscious possession of the contraband, the<\/p>\n
                 order of conviction and sentence cannot be recorded<\/p>\n
                 against the accused.     It is the fundamental right of<\/p>\n
                 the accused to know the case of the prosecution to<\/p>\n
                 enable him develop his defence.\n<\/p><\/blockquote>\n
                 8.         “It has been further observed that in any<\/p>\n
                 prosecution for an offence under the Act, which<\/p>\n
                 requires a culpable mental state of the accused, the<\/p>\n
                 Court shall presume the existence of such mental<\/p>\n
                 state but it shall be a defence for the accused to<\/p>\n
                 prove the fact that he had no such metal state with
\n Criminal Appeal No. 347-SB of 2002                                           11<\/span><\/p>\n
                 respect to the act charged as an offence in that<\/p>\n
                 ‘prosecution, as provided in Section 35 of the Act.<\/p>\n
                 For the purpose of this section a fact is said to be<\/p>\n
                 proved only when the Court believes it to exist<\/p>\n
                 beyond a reasonable doubt and not merely when its<\/p>\n
                 existence is established by a preponderance of<\/p>\n
                 probability”. Section 54 reads as under:-<\/p>\n
                 “Presumption from possession of illicit articles –<\/p>\n
                 In trials under the Act, it may be presumed, until and<\/p>\n
                 until the contrary is proved, that the accused has<\/p>\n
                 committed an offence under this Act in respect of –<\/p>\n<\/blockquote>\n
                 (a)        any        narcotic   drug     or      psychotropic\n\n                 substances or controlled substance;\n\n                 (b)        any opium poppy, cannabis plant or coca\n\n<\/pre>\n
                 plant growing on any land which he cultivated;<\/p>\n<\/blockquote>\n
                 (c)        any apparatus specially designed or any<\/p>\n
                 group of utensils            specially adopted for the<\/p>\n
                 manufacture of any narcotic drug or psychotropic<\/p>\n
                 substance or controlled substance;\n<\/p><\/blockquote>\n
                 (d)        any material which have undergone any<\/p>\n
                 process towards the manufacture of a narcotic drug<\/p>\n
                 or psychotropic substance or controlled substance,<\/p>\n
                 or any residue left of the materials from which any<\/p>\n
                 narcotic   drug        or   psychotropic        substance    or<\/p>\n
                 controlled substance has been manufactured, for the<\/p>\n
                 possession       of     which    he     fails    to   account
\n Criminal Appeal No. 347-SB of 2002                                  12<\/span><\/p>\n
                 satisfactorily”.\n<\/p><\/blockquote>\n
                 9.         The learned counsel for the appellant<\/p>\n
                 referred to the judgment of the Supreme Court in<\/p>\n
                 Madan Lal and another v. State of H.P., 2004(1)<\/p>\n
                 Apex       Court Judgments 260(S.C.): 2004(2)<\/p>\n
                 Criminal Court Cases 361 (S.C. ): 2003 SCC (Crl.)<\/p>\n
                 1664, wherein it was held as under:-\n<\/p><\/blockquote>\n
                 “The word “possession” means the legal right to<\/p>\n
                 possession. The expression “possession” is a<\/p>\n
                 polymorphous term which assumes different colours<\/p>\n
                 in different contexts. It may carry different meanings<\/p>\n
                 in contextually different back grounds. Possession<\/p>\n
                 in a given case need not be physical possession but<\/p>\n
                 can be constructive, having power and control over<\/p>\n
                 the article in the case in question, while the person<\/p>\n
                 to whom physical possession is given holds it<\/p>\n
                 subject to that power or control”.\n<\/p><\/blockquote>\n
                 “The word “conscious” means awareness about a<\/p>\n
                 particular fact. It is a state of kind “Once possession<\/p>\n
                 is established, the person who claims that it was not<\/p>\n
                 a conscious possession has to establish it, because<\/p>\n
                 how he came to be in possession is within his<\/p>\n
                 special knowledge. Section 35 of the Act gives a<\/p>\n
                 statutory recognition of this possession because of<\/p>\n
                 the presumption available in law. Similar is the<\/p>\n
                 position in terms of Section 54 where also
\n Criminal Appeal No. 347-SB of 2002                                           13<\/span><\/p>\n
                   presumption      is   available    to   be        drawn   from<\/p>\n
                   possession of illicit articles”.\n<\/p><\/blockquote>\n
                   At the end of this judgment, the Full Bench further<\/p>\n
                   observed that the accused is to be given an<\/p>\n
                   opportunity to rebut the presumption as envisaged in<\/p>\n
                   Section 313 of the Code of Criminal Procedure”.<\/p><\/blockquote>\n
         Counsel for the appellants further relied upon judgment<\/p>\n
rendered in State of Punjab v. Nachhattar Singh<\/a> alias Bania 2007(3)<\/p>\n
Recent Criminal Reports 1040, the decision rendered by a Division<\/p>\n
Bench of this Court. Para 9 of the judgment reads as under:-<\/p>\n
                   “9.        Conscious      possession         is     the   core<\/p>\n
                   ingredient to be established before the accused is<\/p>\n
                   subjected to punishment under this Act. It is well<\/p>\n
                   settled, as held in Syed Mohd. Syed Umer Syed<\/p>\n
                   and Others v. State of Gujarat, 1995(2) RCR<\/p>\n
                   (Criminal) 388: JT 1995 (3) SC 489 that unlawful<\/p>\n
                   possession is sine qua non for conviction under the<\/p>\n
                   Act and that fact has to be established by the<\/p>\n
                   prosecution beyond reasonable doubt. Though<\/p>\n
                   possession has not been defined in the Act but has<\/p>\n
                   been judicially construed to be conscious and<\/p>\n
                   intelligent possession and not merely the physical<\/p>\n
                   presence of the accused in proximity or even in<\/p>\n
                   close proximity of the object. There are two essential<\/p>\n
                   elements of possession; firstly, the corpus – the<\/p>\n
                   element of physical control and secondly, the
\n Criminal Appeal No. 347-SB of 2002                                  14<\/span><\/p>\n
                 animus or intent with which such control is<\/p>\n
                 exercised. It is for the prosecution to establish that<\/p>\n
                 the accused was found in conscious and intelligent<\/p>\n
                 possession of the contraband. In the instant case, it<\/p>\n
                 is evident that the respondent was sitting on plastic<\/p>\n
                 bags, in the pits, near the bridge of canal minor. This<\/p>\n
                 is not suffice to prove conscious possession. Merely<\/p>\n
                 by sitting on the bags, in absence of proof of<\/p>\n
                 anything more, does not infer that he was in<\/p>\n
                 conscious    possession     of   those    bags.   The<\/p>\n
                 investigating agency had not tried to ascertain<\/p>\n
                 whether the bags containing poppy husk were<\/p>\n
                 belonging to the accused or not? In a way, it had not<\/p>\n
                 adduced any evidence to show the ownership of<\/p>\n
                 poppy husk. There was no investigation as to how<\/p>\n
                 those bags of poppy husk were transported to the<\/p>\n
                 place of recovery. Moreover, no efforts had been<\/p>\n
                 made to trace out the origin of contraband. The<\/p>\n
                 police should have conducted further investigation to<\/p>\n
                 prove that the respondents was really in conscious<\/p>\n
                 possession of those bags. There is nothing to<\/p>\n
                 establish that the place from where the poppy husk<\/p>\n
                 was recovered was belonging to the respondent,<\/p>\n
                 rather, admittedly, the place of recovery was a<\/p>\n
                 Government place, feasible and accessible to<\/p>\n
                 general public. In State of Punjab v. Balkar Singh
\n Criminal Appeal No.<\/span><\/a> 347-SB of 2002                                   15<\/p>\n
                  and another, 2004 SCC (Crl.) 838, in the similar<\/p>\n
                  circumstances, when the accused were found sitting<\/p>\n
                  on the bag whereof poppy husk was recovered,<\/p>\n
                  considering the factum of absence of any proof with<\/p>\n
                  regard to ownership of that contraband, it was held<\/p>\n
                  that, in absence of any satisfactory explanation by<\/p>\n
                  the accused for being present on that place, does<\/p>\n
                  not prove that they were in conscious possession of<\/p>\n
                  those contrabands. Therefore, in the light of this<\/p>\n
                  evidence, the learned trial Court has rightly held that<\/p>\n
                  the prosecution has failed to prove conscious<\/p>\n
                  possession of the contraband”.\n<\/p>\n
         Besides this, much stress has been raised upon following four<\/p>\n
arguments:-\n<\/p>\n
         a)       Seal used for taking into possession samples and<\/p>\n
                  case property was not handed over to the<\/p>\n
                  independent witness but to PW.7 Om Parkash,<\/p>\n
                  Assistant Sub Inspector, who in the Police Station<\/p>\n
                  had returned the same to PW.5 Inspector Ram<\/p>\n
                  Kumar. It has been nowhere stated that seal was<\/p>\n
                  returned after the case property has been deposited<\/p>\n
                  in the Malkhana or produced before the Sub<\/p>\n
                  Divisional Judicial   Magistrate.   Therefore, it has<\/p>\n
                  been canvassed before me that there was always<\/p>\n
                  opportunity with the police to change the samples.<\/p>\n
                  To ensure that samples are not altered, changed or
\n Criminal Appeal No. 347-SB of 2002                                    16<\/span><\/p>\n
                    tampered as safeguard seal should have been<\/p>\n
                    handed over to the independent witness;<\/p>\n<\/blockquote>\n
          b)        Samples were entrusted to PW.2 Constable Manjit<\/p>\n
                    Singh who had not directly proceeded for depositing<\/p>\n
                    the same to the Chemical Examiner but had<\/p>\n
                    remained in the Police Line, Sangrur. Therefore, the<\/p>\n
                    possibility of tampering with the samples during that<\/p>\n
                    period could not be ruled out;\n<\/p><\/blockquote>\n
          c)        Section 42 of the Act has not been complied with.<\/p>\n<\/blockquote>\n
                    No search warrant was obtained as search was<\/p>\n
                    carried between sunset to sunrise. Therefore,<\/p>\n
                    Section 42 being mandatory, prosecution is bound to<\/p>\n
                    suffer;\n<\/p><\/blockquote>\n
          d)        Provisions of Section 50 of the Act were not<\/p>\n
                    complied    with.   In   examination-in-chief   PW.5<\/p>\n
                    Inspector Ram Kumar had stated that only option<\/p>\n
                    given to the accused was to get themselves<\/p>\n
                    searched under Section 50 of the Act.<\/p><\/blockquote>\n
          To controvert these submissions, Mr. Mehardeep Singh,<\/p>\n
Assistant Advocate General, Punjab, has stated that the accused have<\/p>\n
stated in their statement under Section 313 Cr.P.C. that they all are<\/p>\n
related. Therefore, while travelling in one truck, it can be safely<\/p>\n
presumed that they knew that bags contained narcotic substance. It has<\/p>\n
been further urged that for effecting a search from vehicle, Section 50 of<\/p>\n
the Act is not to be applied and Section 42 of the Act is not attracted<\/p>\n
when search is conducted from a moving vehicle. It has been submitted
\n Criminal Appeal No. 347-SB of 2002                                      17<\/span><\/p>\n
that in case of recovery from a vehicle Section 43 of the Act is attracted.<\/p>\n
          I have given my thoughtful consideration to the rival<\/p>\n
submissions advanced by counsel for the parties.<\/p>\n
          Admittedly, Leela and Sukha were not arrested at the spot. It<\/p>\n
has been stated that even though police party was present along with<\/p>\n
many companion police officials, escape of these two accused from the<\/p>\n
spot is unnatural, improbable and unconvincing.<\/p>\n
          According to prosecution version, Leela and Sukha, Surjit and<\/p>\n
Mango were sitting on the gunny bags in the rear of the truck whereas<\/p>\n
Darshan Singh was driving the truck and Budhu was sitting along with<\/p>\n
him. It was incumbent upon the prosecution to give a reasonable<\/p>\n
explanation as to how Leela and Sukha escaped from the spot. The<\/p>\n
Investigating Officer has stated that he knew Leela and Sukha earlier.<\/p>\n
This statement was to save the prosecution from the discharge from the<\/p>\n
onus that the identity of the accused is to be proved at the spot.<\/p>\n
Possibility that the investigating Officer knew them earlier and that is<\/p>\n
why he introduced them in the occurrence as additional accused cannot<\/p>\n
be ruled out.\n<\/p>\n
          The Investigating Agency is bound to ensure minimum<\/p>\n
safeguards and comply with the mandatory provisions of search and<\/p>\n
seizure and how to furnish accused with the grounds of arrest. A<\/p>\n
consent memo is to be prepared. He is to be made aware that the police<\/p>\n
officer suspect that some contraband article is to be recovered, by<\/p>\n
following a convenient route that accused had accused had escaped,<\/p>\n
the Investigating Agency absolved itself from following these essential<\/p>\n
mandatory provisions. Therefore, as abundant caution taking into
\n Criminal Appeal No. 347-SB of 2002                                  18<\/span><\/p>\n
consideration that Leela and Sukha were not arrested at the spot,<\/p>\n
benefit of doubt is to be granted to them. Hence, Criminal Appeal No.<\/p>\n
347-SB of 2002 is accepted. Leela and Sukha are acquitted of the<\/p>\n
charges.\n<\/p>\n
           This Court cannot loose sight of the fact that 20 bags were<\/p>\n
loaded in the truck. Therefore, certain persons are required to load,<\/p>\n
unload and reload bags in the vehicle. Therefore, besides the driver<\/p>\n
Darshan Singh and his companion who was in the cabin of the truck<\/p>\n
Surjit Singh and Mangu were required to facilitate loading and unloading<\/p>\n
of the bags of poppy husk. In this context, submissions raised by<\/p>\n
counsel for the appellants are to be appreciated.<\/p>\n
           A perusal of 313 Cr.P.C. statements of the accused reveal<\/p>\n
that accused Mangu and Surjit Singh were told that they were sitting on<\/p>\n
gunny bags. It was thereafter another question was brought to the notice<\/p>\n
of accused that gunny bags contained poppy husk. They had raised no<\/p>\n
plea in 313 Cr.P.C. statements that they were       innocent travellers.<\/p>\n
Rather they stated that they were arrested from their house. Therefore,<\/p>\n
it cannot be said that they were not made aware that their possession of<\/p>\n
the gunny bags was conscious. Sections 35 & 54 of the Act operate<\/p>\n
against them. Therefore, observations of Full Bench of this Court in<\/p>\n
Kashmir Singh’s case (supra) are not of any help to the appellants<\/p>\n
Darshan Singh, Budhu, Surjit Singh and Mangu. Neither Section 50 nor<\/p>\n
Section 42 of the Act are attracted in the present case. The recovery<\/p>\n
was made from the vehicle. Therefore, Sections 50 & 42 of the Act are<\/p>\n
not attracted. In case of a recovery from the vehicle Section 43 of the<\/p>\n
Act shall apply. Therefore, it cannot be said that there is a breach of
\n Criminal Appeal No. 347-SB of 2002                                   19<\/span><\/p>\n
mandatory provisions of Sections 50 & 42 of the Act. Section 43 of the<\/p>\n
Act is directory in nature not mandatory and the same has been<\/p>\n
complied with.\n<\/p>\n
          Argument that the seal was not handed over to the<\/p>\n
independent witness or PW.2 Constable Manjit Singh had not directly<\/p>\n
proceeded to the Chemical Examiner are devoid of merits. PW.2<\/p>\n
Constable Manjit Singh was not cross-examined on this aspect. No plea<\/p>\n
was raised during cross-examination that the samples were tampered<\/p>\n
with.   Rather cross-examination of PW.1 Karnail Singh, Head<\/p>\n
Constable, and PW.2 Manjit Singh, Constable will show that only a<\/p>\n
general suggestion has been put that they have sworn false affidavits. It<\/p>\n
was incumbent upon the appellants to lay minimum foundation to state<\/p>\n
that by non handing over of the seal and not taking the samples<\/p>\n
straightway to the Chemical Examination, a prejudice has been caused<\/p>\n
to them. No explanation was sought from the witnesses. Therefore, the<\/p>\n
contention raised cannot be accepted.\n<\/p>\n
          Thus, I have no no hesitation to conclude that appellants<\/p>\n
Darshan Singh, Surjit Singh Budhu and Mangu are guilty of the offence<\/p>\n
and the appeals filed on their behalf are dismissed.<\/p>\n
                                           (Kanwaljit Singh Ahluwalia)
\n                                                                Judge
\nMarch 25, 2009
\n“DK”<\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Criminal Appeal No. 347-Sb Of 2002 vs State Of Punjab on 25 March, 2009 Criminal Appeal No. 347-SB of 2002 1 In the High Court of Punjab and Haryana, at Chandigarh. 1. Criminal Appeal No. 347-SB of 2002 Date of Decision: 25.3.2009 Leela Singh and Sukha Singh …Appellants Versus State of Punjab […]<\/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-156893","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nCriminal Appeal No. 347-Sb Of 2002 vs State Of Punjab on 25 March, 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\/criminal-appeal-no-347-sb-of-2002-vs-state-of-punjab-on-25-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Criminal Appeal No. 347-Sb Of 2002 vs State Of Punjab on 25 March, 2009 - 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