Criminal Appeal No. 1390-SB of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ... Criminal Appeal No. 1390-SB of 2005 Date of decision: March 19, 2008 Hansa alias Joginder Singh and another ... Appellant Versus State of Punjab ... Respondent ... Criminal Appeal No. 1476-SB of 2005 Amarjit Singh ... Appellant Versus State of Punjab ... Respondent ... Present: Mr. Harsh Aggarwal, Advocate for the appellant in Cr.A.No.1476-SB of 2005. Mr. S. S. Gill, Advocate for the appellant in Cr.A.No. 1390-SB of 2005. Ms Manjari Nehru, Deputy Advocate General, Punjab, for the respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL ... HARBANS LAL, J This judgment shall dispose of Criminal Appeal No. 1390-SB of 2005 preferred by Hansa alias Joginder Singh, as well as Paramjit Singh Criminal Appeal No. 1390-SB of 2005 -2- alias Pammi and another Criminal Appeal No. 1476-SB of 2005 filed by Amarjit Singh against the judgment/order of sentence dated 13.7.2005 rendered by the Court of learned Judge, Special Court, Sangrur, whereby he convicted and sentenced Hansa alias Joginder Singh, Paramjit Singh alias Pammi and Amarjit Singh accused-appellants to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, the defaulter to further undergo rigorous imprisonment for two years under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act'). Shortly put, the facts of the prosecution case are that on 22.8.2000, a police party headed by Inspector Gurdev Singh,SHO Police Station Sangrur, happened to be present near the Kairon Factory, Patiala on government vehicle no. PB-13-B-1576 in connection with patrolling and checking of vehicles. Meanwhile, one Tempo Tata 407 bearing registration No.PAW 4553 came from Patiala side. The same was signalled to stop. It was being driven by Amarjit Singh accused, whereas Hansa alias Joginder Singh and Paramjit Singh alias Pammi were sitting on the bags. When served with notice, they expressed their desire that the bags be searched in the presence of any Gazetted Officer. On receipt of message from the above mentioned Sub Inspector, the Assistant Superintendent of Police, Sangrur, Mr. R. K. Jaiswal came at the spot. He disclosed his identity to the accused. The accused expressed their faith in him. On his directions, the Sub Inspector carried out search of the Tempo. On search, 6 bags containing poppy husk were recovered. Two samples of 250 grams of poppy husk from each bag were drawn and converted into parcels. The remainder of each bag when weighed came to 34 Kg. 500 grams which was also made into parcels. Criminal Appeal No. 1390-SB of 2005 -3- Thereafter, all the parcels were sealed with the seal GS. The sample seal was prepared. The seal after use was handed over to ASI Massa Singh. The parcels along with Tempo were seized vide recovery memo. The certificate of registration of the Tempo which was in the name of one Amarjit Singh son of Harnek Singh, resident of Kherri Gillan along with driving licence was taken into possession. Ruqa was sent to the Police station. On its basis, formal FIR was registered. The Sub Inspector prepared the rough site plan showing the place of recovery. On return to the Police station, the Sub Inspector produced the case property, the accused and the witnesses before the SI/SHO Sukhwinder Singh, who after verification, put his seal SS on the case property. On his direction, SI deposited the case property with the MHC. On receipt of chemical examiner's report and after completion of investigation, the charge sheet was laid in the Court for trial of the accused Hansa Singh and Paramjit Singh. Initially the accused Hansa Singh and Paramjit Singh were charged. Later on, they both along with Amarjit Singh were charged under Section 15 of the Act to which they did not plead guilty and claimed trial. Additionally, the accused Amarjit Singh was also charged under Section 25 of the Act to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution has examined PW-1 HC Major Singh, PW-2 HC Jagmohan Singh, PW-3 Ashok Kumar Gupta, Advocate, Notary Public, PW-4 R. K. Jaiswal, ASP, PW-5 SI Sukhminder Singh, PW-6 Kuldip Kumar Stamp Vendor, PW-7 SI Gurdev Singh (Investigator), PW-8 Kash Kumar, PW-9 ASI Massa Singh and closed its evidence. When examined under Section 313 of the Code of Criminal Criminal Appeal No. 1390-SB of 2005 -4- Procedure, all the three accused denied the incriminating circumstances appearing in the prosecution evidence against them. Accused Paramjit Singh has come up with the plea that “ I and my wife Maya filed complaint against the police officials for demanding illegal gratification and due to that enmity, I and my cousin brother Hansa were falsely involved in this case. I was picked up by ASI Massa Singh from my house and falsely implicated in this case. ” The accused Hansa alias Joginder Singh has put forth that “ I was falsely implicated by the police. I was arrested by the Police from village Kherri Gillan, where I had gone to meet Paramjit Singh. No incriminating articles were recovered from me and Paramjit Singh.” The accused Amarjit Singh has pleaded that “ false case has been planted upon me. I was stopped near Ranbir College by some Head Guard officials and I was taken to the Police Station and false case has been planted upon me. ” In their defence, they examined DW-1 Nirbhai Singh, Octroi Clerk, Municipal Committee Office, Sangrur, DW-2 Krishan Kumar Munshi, New Tata Tempo Union 407, Sangrur, DW-3 Ramesh Kumar, Octroi Clerk, Municipal Committee, Sangrur, DW-4 Sohan Lal, Octroi Clerk, Municipal Committee, Banur, and DW-5 Nand Lal, Peon, Municipal Committee, Rajpura. Besides this, the accused Amarjit Singh has also tendered in evidence the inquiry report, Exh. D-1. Mr. Harsh Aggarwal, Advocate, appearing on behalf of the accused Amarjit Singh eloquently urged that a glance through the inquiry report, Exh.D-1 would reveal that the inquiry was conducted by SP (D), Sangrur, who found Amarjit Singh accused innocent with the observation that Hansa and Paramjit Singh (referring to the co-accused) at about 9.00 P.M. had asked for lift for going to Sangrur and he had given them lift Criminal Appeal No. 1390-SB of 2005 -5- against payment of Rs.250/- and, thus, the learned trial Court was not justified in recording conviction against Amarjit Singh accused. He has further argued that as emerges out of the defence evidence also, theTempo bearing registration no. PAW 4553 owned and driven by Amarjit Singh was despatched for Chandigarh for transporting 55 Potato bags from Sangrur and the same were unloaded at Chandigarh. Ms Manjari Nehru, Deputy Advocate General, Punjab, on behalf of the State, could not reconcile this contention in a successful manner. It is in the evidence of DW-1 Nirbhai Singh that Tempo No.PAW 4553 owned and driven by Amarjit Singh was despatched for Chandigarh for transporting 55 Potato bags at Chandigarh and the same were unloaded at Chandigarh and entry in this regard, Photo copy of which is DW1/A was made by him. Further, it is in the evidence of DW-2 Krishan Kumar, Octroi Clerk that on 22.8.2000, he had issued Receipt No. Exh.DW2/1 at 12.30 midnight regarding arrival of Tata Tempo bearing registration No. PAW 4553 after inspecting the material and on that day stone crusher was recorded along with 5 pieces of thread. It is in the evidence of Ramesh Kumar, DW-3 that the receipt, copy of which is Exh.DW3/A was issued by him in respect of Tempo No.PAW 4553 on 22.8.2000 with regard to SUTALI AND Crusher. This evidence, coupled with Ex.D-1, renders the prosecution case highly doubtful against Amarjit Singh accused. Mr. S. S. Gill, Advocate on behalf of the appellant Hansa Singh alias Joginder Singh as well as Paramjit Singh alias Pammi, emphatically argued that it is the prosecution case that they were sitting on the poppy Criminal Appeal No. 1390-SB of 2005 -6- husk bags but there is no evidence to the effect that they were owners of these bags and that being so, in view of the observations made by the Apex Court in re: Avtar Singh v. State of Punjab, 2002 (4) Recent Criminal Reports (Criminal) 180, they cannot be presumed to be owners of these bags and they could not be convicted merely because of their being present on the alleged bag and furthermore, their statutory statements recorded under Section 313 of the Code of Criminal Procedure are absolutely silent to the effect that the question of possession was put to them. Ms Manjari Nehru maintained that in view of the presumption arising under Section 35 as well as Section 54 of the Act, they are presumed to be in conscious possession of these bags. This contention merits rejection. In re: Avtar Singh (supra), the five accused were intercepted in the middle of the night travelling in a truck which was being driven by one of them. The truck was carrying 16 bags of poppy husk. One of the accused was sitting in the driver's cabin in the truck and three were sitting on the bags of poppy husk in the back of the truck. The Apex Court held as under :- “The word 'possession' no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together by the minimum requisite element which has to be satisfied in custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants – one of whom was driving the vehicle and other two sitting on the Criminal Appeal No. 1390-SB of 2005 -7- bags, were having such custody or control ? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be custodian of goods whether or not he as the proprietor. The persons who were merely sitting on the bags, in the absence of proof of any thing more, cannot be presumed to be in possession of the goods. For instance, if they are labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at least in their temporary custody, conviction under Section 15 may not be warranted. At best, they may be abettors, but there is no such charge here. True, their silence and failure to explain the circumstances in which they were travelling in the vehicle at the odd hours, is one strong circumstance that can be put against them. A case of drawing presumption under Section 114 of the Evidence Act could perhaps be made out then to prove the possession of the accused, but the fact remains that in the course of examination under Section 313, Cr. P. C not even a question was asked that they were the persons in possession of poppy husk, placed in the vehicle. The only question put to them was that as per the prosecution evidence, they were sitting Criminal Appeal No. 1390-SB of 2005 -8- on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. The object of examination under Section 313, it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption under Section 114 of the Evidence Act nor is it after to conclude that the prosecution established beyond doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. The High Court resorted to the presumption under Section 35 which relates to culpable state of mind, without considering the aspect of possession. The trial Court invoked the presumption under Section 54 of the Act without addressing itself to the question of possession. The approach of both the Courts is erroneous in law. Both the Courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for travelling in the vehicle containing poppy husk at an odd hour. But, the other relevant aspects pointed out above were neither adverted nor taken into account by the trial Court and the High Court.” In re: Raj Kumar v. State of Punjab, 2005 (1) Recent Criminal Appeal No. 1390-SB of 2005 -9- Criminal Reports (Criminal) 70, the bag containing 8.250 Kgs. of opium was lying on the seat between the two appellants. Both the appellants had been charged for possession of opium, but neither of them had been asked any question in their statements under Section 313 of Code of Criminal Procedure that they were in conscious possession of opium. It was held by the Division Bench of this Court that neither the presumption under Section 35 nor under Section 54 of the Act would be attracted. Further held that it is necessary for the trial Court to frame a specific question regarding the presumption which is sought to be raised either under Section 35 or Section 54 when examining the accused under Section 313 Cr. P.C and seeking his explanation. Unless this is done the presumption under Sections 35 and 54 cannot be used against the accused. Harking back to the facts of the current case, a close examination of the statements of the accused under Section 313 of the Code of Criminal Procedure would reveal that a specific question has not been framed by the learned trial Court regarding the presumption which is sought to be raised either under Section 35 or 54 of the Act. Consequently, in view of the afore-extracted observations, such presumption to the effect that the accused were in conscious possession of the bags cannot be drawn against them. Learned counsel for the appellants further argued that there is a delay of as many as 6 days in the despatch of the sample to the office of the Chemical Examiner though according to the Standing Instruction No.1/88 dated 15.3.1988 (Narcotic Control Bureau, New Delhi), the sample parcel should be sent within 72 hours and to add further to it, the seal after use remained in the custody of the Police official as no independent witness was Criminal Appeal No. 1390-SB of 2005 -10- joined and the C.F.S.L form was not prepared at the spot nor deposited in the Malkhana and all the circumstances are fatal to the prosecution case. To tide over this submission, Ms Manjari Nehru contended that as would be apparent from the Exh. PX, report of the Chemical Examiner, the seals on the sample parcels were intact when the same were received in the office of the Chemical Examiner and the same also tallied with the sample seal and, thus obviously, the possibility of tampering with the contents of the sample parcel is ruled out. This contention is hard to swallow. In re: Gurjant Singh v. State of Punjab, 2007 (4) Recent Criminal Reports (Criminal) 226, the seal after use was not handed over to independent witness who had joined but remained with the official witness. Form No.29-M was also not filled at the spot. It was held that chances of tampering with property cannot be ruled out. In Gurjant Singh's case (supra), the samples were sent to the chemical examiner after 14 days and it was observed that it was a serious flaw in the link evidence. In re: Sukhdev Singh @ Sukha v. State of Punjab, 2006 (1) Recent Criminal Reports (Criminal) 4, the seal was given to SI of police and not to the independent witness. The Division Bench of this Court held that the possibility of seal being tampered with, substance being changed and the containers being re-sealed, cannot be ruled out. In re: Buta Singh v. State of Punjab, 2006 (1) Recent Criminal Reports (Criminal) 835, as many as 18 bags of poppy husk were recovered. The prosecution failed to explain delay of 8 days in despatch of sample to the Forensic Science Laboratory for chemical analysis. It was held that such a delay is fatal and the same is also in violation of the Criminal Appeal No. 1390-SB of 2005 -11- Standing Instruction No.1/88 dated 15.3.1988 (Narcotic Control Bureau,New Delhi ). In re: Baldev Singh v. State of Punjab, 2005 (1) Recent Criminal Reports (Criminal) 823, the seal was given to an independent witness who was not examined. It was held that till the case property has not been despatched to the office of the Forensic Science Laboratory, the seal should not be available to the Prosecution Agency and in absence of such safeguard, the possibility of seal being tampered with, substance being changed and the containers being re-sealed, cannot be ruled out. Coming to the facts of the case in hand, the prosecution has not apportioned any reason worth the name for holding back the sample parcels for 6 days. As is borne out from the prosecution evidence, the C.F.S.L form was not prepared at the spot nor deposited in the Malkhana. The seal remained in the possession of the police official. In these premises, it is very difficult to say that the contents of the sample parcels were not changed. In view of the foregoing discussion, both these appeals i.e. Criminal Appeals No. 1390-SB of 2005 and 1476-SB of 2005 are accepted, setting aside the impugned judgment/order of sentence. The accused- appellants are hereby acquitted of the charged offence. ( HARBANS LAL ) JUDGE March 19, 2008 RS Whether to be referred to the Reporter ? Yes/No