{"id":87499,"date":"2009-09-03T00:00:00","date_gmt":"2009-09-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/amarjit-singh-alias-gola-and-vs-state-of-punjab-on-3-september-2009"},"modified":"2016-08-15T21:28:29","modified_gmt":"2016-08-15T15:58:29","slug":"amarjit-singh-alias-gola-and-vs-state-of-punjab-on-3-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/amarjit-singh-alias-gola-and-vs-state-of-punjab-on-3-september-2009","title":{"rendered":"Amarjit Singh Alias Gola And … vs State Of Punjab on 3 September, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Amarjit Singh Alias Gola And … vs State Of Punjab on 3 September, 2009<\/div>\n
            IN THE HIGH COURT OF PUNJAB AND HARYANA\n                        AT CHANDIGARH.\n\n\n                                 Crl. Appeal No.2156-SB of 2004\n                                 Date of Decision: 3.9.2009\n\n\n                  Amarjit Singh alias Gola and another.\n\n                                          ....... Appellants through Shri\n                                                 G.S.Sidhu and Shri\n                                                 Manvinder Sidhu,\n                                                 Advocates.\n\n                        Versus\n\n                  State of Punjab.\n\n                                         ....... Respondent through Shri\n                                                 B.B.S.Teji, Assistant\n                                                Advocate General, Punjab.\n\n\n      CORAM: HON'BLE MR.JUSTICE MAHESH GROVER\n\n                               ....\n\n\n            1. Whether Reporters of Local Newspapers may be allowed to\n               see the judgment?\n            2. To be referred to the Reporters or not?\n            3. Whether the judgment should be reported in the Digest?\n\n                               ....\n\nMahesh Grover,J.\n<\/pre>\n
            This appeal is directed against judgment of conviction and<\/p>\n
order of sentence dated 5.10.2004 passed by the Judge, Special Court,<\/p>\n
Bathinda (hereinafter described as `the trial Court’) whereby the appellants<\/p>\n
have been convicted under Section 15 of the Narcotic Drugs and<\/p>\n
Psychotropic Substances Act,1985 (for short, `the Act’) and sentenced to<\/p>\n
undergo rigorous imprisonment for ten years and to pay a fine of<\/p>\n
Rs.1,00,000\/- each and in default of payment of fine, to undergo further<\/p>\n
rigorous imprisonment for six months each.\n<\/p>\n
                          Crl.Appeal No.2156-SB of 2004<\/p>\n
                                      -2-<\/span><\/p>\n
                                      …..\n<\/p>\n
\n              The appellants were sent up for facing trial in a case registered<\/p>\n
under Section 15 of the Act vide F.I.R. No.54 dated 10.5.2003 at Police<\/p>\n
Station, Sadar, Bathinda. According to the case of the prosecution, on the<\/p>\n
day in question, a police patrol was present along with an independent<\/p>\n
witness -Harbans Singh in the area of village Naruana when they saw a<\/p>\n
tractor bearing registration No. PUK-7141 being driven by appellant no.1,<\/p>\n
whereas appellant no.2 was sitting on its right mudguard. Two gunny bags<\/p>\n
and one plastic bags were placed on the lift of the tractor. The investigating<\/p>\n
officer, i.e., Gurpreet Singh, suspecting some contraband being carried by<\/p>\n
them, accosted the appellants and apprised them that he wanted to search<\/p>\n
the bags and they had a right of the search being conducted in the presence<\/p>\n
of a gazetted officer or a Magistrate. Both the appellants wanted their<\/p>\n
search to be carried out before a gazetted officer and accordingly, Deputy<\/p>\n
Superintendent of Police – Shri Jaspal was intimated and he reached the<\/p>\n
spot. On search, poppy husk was recovered from the three bags. From each<\/p>\n
bag, two samples of 100 grams each were separated and residue poppy husk<\/p>\n
came to be 29 kilograms 800 grams in each bag. All the six samples were<\/p>\n
converted into parcels and similarly, the three bags were converted into<\/p>\n
parcels. All the parcels were sealed with the seal having impression of<\/p>\n
words “GS’. The sample seal, Exhibit P1, was separately prepared. The<\/p>\n
seal, after use, was handed over to A.S.I. Jugraj Singh and the entire case<\/p>\n
property including the sample seal were taken into possession vide memo<\/p>\n
Exhibit PC.     The personal search of appellant-Amarjit Singh yielded a<\/p>\n
currency note of Rs.100\/- which was also taken into possession vide memo
\n                         Crl.Appeal No.2156-SB of 2004<\/p>\n
                                      -3-<\/span><\/p>\n
                                      …..\n<\/p>\n
\nExhibit PD. Ruqa, Exhibit PF was sent to the police station on the basis of<\/p>\n
which formal F.I.R., Exhibit PF\/1 was recorded. The appellants were<\/p>\n
arrested. A site plan of the place of recovery was prepared and special<\/p>\n
report, Exhibit PL was sent to the higher officers.<\/p>\n
              The case property remained in the custody of the investigating<\/p>\n
officer which included the sample seal as well, as he was himself the<\/p>\n
Station House Officer of the Police Station.\n<\/p>\n
              On 11.5.2003, the investigating officer produced the case<\/p>\n
property including sample seal before the Area Magistrate and submitted<\/p>\n
an application for disposal of the same. The learned Magistrate allowed<\/p>\n
taking of three samples, i.e., second sample, from each bag, and sealed the<\/p>\n
samples which were taken in the court with the seal of the investigating<\/p>\n
officer having impression of `GS’ as well as the seal of the Magistrate<\/p>\n
having impression of `HPS’. Photographs of the contraband were taken and<\/p>\n
thereafter, order Exhibits PM\/1 and PM\/2          were passed directing the<\/p>\n
investigating officer to keep the case property in his possession.<\/p>\n
              On 12.5.2003, the sample parcels along with sample seal were<\/p>\n
sent to the Chemical Examiner through Constable Jangir Singh, who<\/p>\n
deposited the same in the same condition.         The spare sample parcels<\/p>\n
including the samples which were taken in the Court of the Magistrate,<\/p>\n
were produced during the trial along with the tractor. The Chemical<\/p>\n
Examiner, vide his report, Exhibit-PR, opined that the samples were of<\/p>\n
poppy husk.\n<\/p>\n
              A challan was presented against the appellants and they were
\n                         Crl.Appeal No.2156-SB of 2004<\/p>\n
                                      -4-<\/span><\/p>\n
                                      …..\n<\/p>\n
\naccordingly charge sheeted to which they pleaded not guilty and claimed<\/p>\n
trial.\n<\/p>\n
            The prosecution, in order to establish its case against the<\/p>\n
appellants, examined as many as four witnesses.<\/p>\n
            In their statements recorded under Section 313 of the Cr.P.C.,<\/p>\n
the appellants stated that they have been falsely implicated. Appellant no.1<\/p>\n
took the plea that on 9.5.2003, A.S.I. Jugraj Singh had brought the tractor<\/p>\n
from his fields in village Seikhu at about 8.00 P.M.; that on 10.5.2003 at<\/p>\n
about 10.00 A.M., he along with Sarpanch-Kartara Ram and his father-Jagjit<\/p>\n
Singh went to the police station where A.S.I. Jugraj Singh told them that he<\/p>\n
along with tractor will be released till noon and that the said A.S.I. had<\/p>\n
refused to pay the price of ten wheat bags which were purchased about a<\/p>\n
year back and that was the reason why he was involved in this case.<\/p>\n
Appellant no.2-Gurdeep Singh, on the other hand, stated that he was present<\/p>\n
in his house on 10.5.2003 at about 8.00 A.M.; that his father, Balbir Singh<\/p>\n
son of Jang Singh and Gamdoor Singh son of Bikkar Singh of village Gehri<\/p>\n
were also present there; that a police party came to his house and in the<\/p>\n
presence of the said persons, he was taken by them; that it was told that he<\/p>\n
was wanted by the police party and thereafter, this false case was foisted<\/p>\n
upon him; that he has no link or relationship with appellant no.1 and the<\/p>\n
tractor also did not belong to him.\n<\/p>\n
            In his defence, appellant no.1 examined DW3-Sewak Singh and<\/p>\n
DW5-Kartara Ram, whereas appellant no.2 produced DW1-Gamdoor Singh,<\/p>\n
DW2-Balbir Singh DW4-Constable Paramjit Singh, DW6-Rajinder Kumar
\n                          Crl.Appeal No.2156-SB of 2004<\/p>\n
                                       -5-<\/span><\/p>\n
                                       …..\n<\/p>\n
\nGupta and DW7-Jarnail Singh.\n<\/p>\n
             The trial Court, after appraisal of the entire evidence on record,<\/p>\n
found the appellants guilty of the             offence alleged against them and<\/p>\n
accordingly, passed the impugned judgment of conviction and order of<\/p>\n
sentence resulting in the filing of the instant appeal.<\/p>\n
             Learned counsel for the appellants contended that no<\/p>\n
independent witness was enjoined with the investigation even though as per<\/p>\n
the case of the prosecution, one Harbans Singh was with the police party.<\/p>\n
He has further contended that there is no explanation for not doing so. It<\/p>\n
was submitted that the whole case of the prosecution rests on the statements<\/p>\n
of the investigating officer and the Deputy Superintendent of Police which<\/p>\n
casts a serious doubt about the story put forward against the appellants. It<\/p>\n
was next submitted that the Deputy Superintendent of Police was merely a<\/p>\n
witness of the search, but the seizure was not effected in his presence as the<\/p>\n
alleged contraband was lying on the ground when he reached the spot.<\/p>\n
Besides, it was contended that the link evidence is totally missing as the seal<\/p>\n
was given to A.S.I.-Jugraj Singh, who retained the same in his possession<\/p>\n
for one day. Even the samples were given to him and thus, the possibility of<\/p>\n
the samples being tampered with cannot be ruled out, especially when the<\/p>\n
Deputy Superintendent of Police while appearing as PW1, stated that the<\/p>\n
CFS Form was prepared in the police station. It was lastly contended that<\/p>\n
the conscious possession of the contraband has not be proved because<\/p>\n
neither the ownership of the tractor was established nor the question the<\/p>\n
appellants being in conscious possession of the contraband was put to them
\n                        Crl.Appeal No.2156-SB of 2004<\/p>\n
                                    -6-<\/span><\/p>\n
                                    …..\n<\/p>\n
\nwhile recording their statements under Section 313 of the Cr.P.C.        In<\/p>\n
support of his contentions\/ submissions, learned counsel for the appellants<\/p>\n
placed reliance on Avtar Singh Versus State of Punjab, 2002(4) R.C.R.<\/p>\n
(Criminal) 180 (S.C.) and State of Punjab Versus Hari Singh & Ors., 2009<\/p>\n
(2) R.C.R. (Criminal) 144 (S.C.)= (2009) 4 S.C.C. 200.<\/p>\n
            On the other hand, learned counsel for the respondent-State<\/p>\n
contended that there is overwhelming evidence on record to show that the<\/p>\n
appellants were guilty of having committed an offence under Section 15 of<\/p>\n
the Act as the samples were seized in their presence and were<\/p>\n
simultaneously produced before the Magistrate, who also drew out the<\/p>\n
second samples and sealed the same with his own seal. In this view of the<\/p>\n
matter when entire procedure was followed, the appellants cannot escape<\/p>\n
from the conviction merely because of the fact that no independent witness<\/p>\n
was enjoined in the investigation. He further contended that there is no<\/p>\n
evidence on record from where it can be inferred that the police was<\/p>\n
inimical towards the appellants.\n<\/p>\n
            I have thoughtfully considered the rival contentions and have<\/p>\n
gone through the whole record.\n<\/p>\n
            The fore-most question that is to be determined is as to whether<\/p>\n
the appellants were in conscious possession of the contraband. If the<\/p>\n
statements recorded under Section 313 of the Cr.P.C. are to be seen,it<\/p>\n
becomes clear that the appellants were not confronted with the question that<\/p>\n
they were in conscious possession of the contraband. Learned counsel for<\/p>\n
the respondent-State had referred to the fact that appellant no.1 had taken
\n                          Crl.Appeal No.2156-SB of 2004<\/p>\n
                                       -7-<\/span><\/p>\n
                                       …..\n<\/p>\n
\nthe tractor on superdari and hence, conscious possession of the contraband<\/p>\n
should be inferred from that fact. Indeed, there is some evidence on record<\/p>\n
in the shape of an application of appellant no.1 for release of the tractor on<\/p>\n
superdari. Even if it is taken to be correct, the mere ownership of the tractor<\/p>\n
cannot be taken to construe conscious possession of the contraband. This<\/p>\n
has also to be seen in the context of the statement of appellant no.2, who<\/p>\n
categorically stated that he had no connection with appellant no.1 and he<\/p>\n
was not riding the tractor. No question was put to him that he was in<\/p>\n
conscious possession of the contraband. In this view of the matter, the<\/p>\n
observations of the Supreme Court made in Avtar Singh’s cased (supra)<\/p>\n
and Hari Singh’s case (supra) are attracted to the facts of the instant case.<\/p>\n
             In Avtar Singh’s case (supra), the Apex Court held in paragraph<\/p>\n
6 of the judgment as follows:-\n<\/p>\n
             “6. “Possession is the core ingredients to be established before<\/p>\n
             the 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
\n            Crl.Appeal No.2156-SB of 2004<\/p>\n
                        -8-<\/span><\/p>\n
                        …..\n<\/p><\/blockquote>\n
<\/blockquote>\n
possession of poppy husk. Assuming that poppy husk comes<\/p>\n
within the expression of 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 PW4- 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 (PW2), one person sitting in<\/p>\n
the cabin by the side of the driver and another person sitting in<\/p>\n
the back of the truck fled. No investigation has been directed to<\/p>\n
ascertain the role played by each of the accused and the nexus<\/p>\n
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
\n            Crl.Appeal No.2156-SB of 2004<\/p>\n
                        -9-<\/span><\/p>\n
                        …..\n<\/p>\n
\nsitting 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 be 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<\/p>\n
possession of the goods. For instance, if they are labourers<\/p>\n
engaged merely for loading and unloading purposes and there<\/p>\n
is nothing to show that the goods were at least in their<\/p>\n
temporary custody, conviction under Section 15 may not be<\/p>\n
warranted. At best, they may be abettors, but, there is no such<\/p>\n
charge here. True, their silence and failure to explain the<\/p>\n
circumstances in which they were travelling in the vehicle at<\/p>\n
the odd hours, is one strong circumstance that can be put<\/p>\n
against them. A case of drawing presumption under Section<\/p>\n
114 of the Evidence Act could perhaps be made out then to<\/p>\n
prove the possession of the accused, but, the fact remains that<\/p>\n
in the course of examination under Section 313 Cr.P.C., not<\/p>\n
even a question was asked that they were the persons in<\/p>\n
possession of poppy husk placed in the vehicle. The only<\/p>\n
question put to them was that as per the prosecution evidence,<\/p>\n
they were sitting on the bags of poppy husk. Strangely enough,<\/p>\n
even the driver was questioned on the same lines. The object of<\/p>\n
examination under Section 313, it is well known, is to afford an
\n            Crl.Appeal No.2156-SB of 2004<\/p>\n
                         -10-<\/span><\/p>\n
                         …..\n<\/p>\n
\nopportunity to the accused to explain the circumstances<\/p>\n
appearing in the evidence against him. It is unfortunate that no<\/p>\n
question was asked about the possession of goods. Having<\/p>\n
regard to the charge of which appellants were accused, the<\/p>\n
failure to elicit their answer on such a crucial aspect as<\/p>\n
possession, is quite significant. In this state of things, it is not<\/p>\n
proper to raise a presumption under Section 114 of the<\/p>\n
Evidence Act nor is it after to conclude that the prosecution<\/p>\n
established beyond reasonable doubt that the appellants were<\/p>\n
in possession of poppy husk which was being carried by the<\/p>\n
vehicle. The High Court resorted to the presumption under<\/p>\n
Section 35 which relates to culpable state of mind, without<\/p>\n
considering the aspect of possession. The trial Court invoked<\/p>\n
the presumption under Section 54 of the Act without<\/p>\n
addressing itself to the question of possession. The approach of<\/p>\n
both the courts is erroneous in law. Both the courts rested their<\/p>\n
conclusion on the fact that the accused failed to give<\/p>\n
satisfactory explanation for travelling in the vehicle containing<\/p>\n
poppy husk at an odd hour. But, the other relevant aspects<\/p>\n
pointed out above were neither adverted to nor taken into<\/p>\n
account by the trial Court and the High Court. Non-application<\/p>\n
of mind to the material factors has thus vitiated the judgment<\/p>\n
under appeal.”\n<\/p>\n
                         Crl.Appeal No.2156-SB of 2004<\/p>\n
                                     -11-<\/span><\/p>\n
                                     …..<\/p><\/blockquote>\n
            In Hari Singh’s case (supra), their Lordships have observed in<\/p>\n
paragraph 33 of the judgment as under:-\n<\/p>\n
            “33. At the same time it should be borne in mind that the<\/p>\n
            provision is not intended to nail him to any position, but to<\/p>\n
            comply with the most salutary principle of natural justice<\/p>\n
            enshrined in the maxim audi alteram partem. The word `may’ in<\/p>\n
            clause (a) of sub-section (1) in Section 313 of the Code<\/p>\n
            indicates, without any doubt, that even if the court does not put<\/p>\n
            any question under that clause the accused cannot raise any<\/p>\n
            grievance for it. But if the court fails to put the needed question<\/p>\n
            under clause (b) of the sub-section it would result in a handicap<\/p>\n
            to the accused and he can legitimately claim that no evidence,<\/p>\n
            without affording him the opportunity to explain, can be used<\/p>\n
            against him. It is now well settled that a circumstance about<\/p>\n
            which the accused was not asked to explain cannot be used<\/p>\n
            against him.”<\/p><\/blockquote>\n
            Besides, it has come in evidence that the seal remained with<\/p>\n
the investigating officer, who was also Station House Officer for one full<\/p>\n
day. There is no explanation as to why the seal remained in the custody of<\/p>\n
the investigating officer, who also happened to be the Station House<\/p>\n
Officer. This casts a serious doubt on the prosecution version.<\/p>\n
            That apart, it is also to be seen that it is the case of the<\/p>\n
prosecution that an independent witness, namely,        Harbans Singh, was
\n                         Crl.Appeal No.2156-SB of 2004<\/p>\n
                                     -12-<\/span><\/p>\n
                                     …..\n<\/p>\n
\npresent along with the police party, but he was neither enjoined with the<\/p>\n
proceedings of search and seizure nor he was examined at the time of trial.<\/p>\n
This aspect of the matter assumes more significance because according to<\/p>\n
the case of the prosecution, the independent witness was present. If he was<\/p>\n
present, it was incumbent upon the investigating officer either to have<\/p>\n
enjoined him with the entire recovery proceedings or to have explained as to<\/p>\n
why he did not do so. It is true that merely non-examination of an<\/p>\n
independent witness does not render the prosecution case untrustworthy, but<\/p>\n
at the same time, in the peculiar facts of this case when independent witness<\/p>\n
was present, his non-joining and non-examination at the trial, raises a<\/p>\n
question about the plausibility of the whole story.<\/p>\n
            On the basis of the above discussion, the appeal deserves to<\/p>\n
succeed.\n<\/p>\n
            Accordingly, the instant appeal is accepted, the impugned<\/p>\n
judgment is reversed and the appellants are acquitted of the charge against<\/p>\n
them.\n<\/p>\n
September 03,2009                               ( Mahesh Grover )\n\"SCM\"                                               Judge\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Amarjit Singh Alias Gola And … vs State Of Punjab on 3 September, 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Appeal No.2156-SB of 2004 Date of Decision: 3.9.2009 Amarjit Singh alias Gola and another. ……. Appellants through Shri G.S.Sidhu and Shri Manvinder Sidhu, Advocates. Versus State of […]<\/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-87499","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nAmarjit Singh Alias Gola And ... vs State Of Punjab on 3 September, 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\/amarjit-singh-alias-gola-and-vs-state-of-punjab-on-3-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Amarjit Singh Alias Gola And ... vs State Of Punjab on 3 September, 2009 - 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