Criminal Appeal No.732-DB of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Kulwant Singh APPELLANT VERSUS The State of Punjab RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE L.N.MITTAL Present:- Shri S.P.S.Sidhu, Advocate with Shri Kulwant Singh, Advocate for the appellant. Ms.Sonika Kapadia, Advocate, Amicus Curiae for the appellant (in Cr.A.895-DB of 2007. Shri Gurmail Singh, Advocate. Shri Satinder Singh Gill, Additional A.G. Punjab. MEHTAB S.GILL, J. We will be deciding Criminal Appeal No.732-DB of 2007 and Criminal Appeal No.895-DB of 2007 by this common judgment, as they arise out of the same judgment/order dated 1.8.2007 of the learned Special Judge, Moga whereby he convicted Kulwant Singh son of Bachittar Singh and Gurmail Singh son of Sadhu Singh under Section 15 of the Narcotic Drugs and Psychotropic Criminal Appeal No.732-DB of 2007 -2- Substances Act, 1985 (hereinafter referred to as the Act) and sentenced them to undergo RI for 12 years and to pay a fine of Rs.1,25,000/- each, in default, to further undergo RI for one year and six months. The case of the prosecution is unfolded by the Ruqa Ex.P6 sent by SI Sukhmander Singh, S.H.O., Police Station Nihansinghwala. In the Ruqa he stated that he along with the Assistant Sub Inspector, HC Raj Singh, HC Jasbir Singh, Constable Naib Singh, Constable Jagtar Singh and PHG Ranjit Singh were on patrol duty in Govt. Gypsy No.PB08-L-2280 driven by HC Satpal Singh. When they were going from the side of Village Khai on the kacha path towards Village Pakharwadh (Kishangarh), on the curve, Nirmal Singh son of Mahla Singh Harijan of Village Khai met them. They joined him in their party. The police patty proceeded to Village Pakharwadh. When they reached the semnala in the area of Village Khai, the police party saw that two persons were sitting on the bags lying on the northern bank of the semnala. On seeing the police party, one of the said persons ran through the semnala towards Village Pakharwadh. The Assistant Sub Inspector stopped the Jeep and came down and with the help of other officials apprehended the man sitting on the bags. He disclosed his name as Gurmel Singh alias Gela son of Sadhu Singh of Village Khai. The Assistant Sub Inspector then asked about the name of the other person who ran away. Nirmal Singh said that his name was kulwant Singh alias Kanta son of Bachittar Singh resident of Village Khai. SI Sukhmander Singh and the Assistant Sub Inspector asked Gurmel Singh that the bags seem to contain some intoxicant substance. He was asked as to whether he wanted to be searched by the Assistant Sub Inspector or by a Gazetted Officer. Gurmel Singh stated that his search be conducted by a Gazetted Officer. A memo was prepared by SI Sukhmander Singh and the Assistant Sub Inspector requested Raghbir Singh Sandhu, D.S.P., Baghapurana to reach the spot. The D.S.P. Baghapurana along with his Reader Gursewak Singh reached the spot on a Criminal Appeal No.732-DB of 2007 -3- Govt. Gypsy. The D.S.P. disclosed his identity to Gurmel Singh and asked whether he had confidence in him. Gurmel Singh stated that he had no objection if the bags are now searched. The D.S.P. directed the Assistant Sub Inspector to open the bags and check the same. The Assistant Sub Inspector then opened the mouths of the bags which were found to contain poppy husk. Thereafter out of each bag two samples each weighing 250 grams were separated and each of the remaining bags came to be 31 kg. 50 grams. Six bags and 12 parcels of samples were tied and converted into parcels and the same were sealed with the seal bearing “RS” attested by the D.S.P. Sample seal was prepared separately and it was attested by the D.S.P. The D.S.P. also sealed all the parcels with his seal “RS”. The seal after use was handed over to HC Raj Singh and the D.S.P. kept his seal with him. SI Sukhmander Singh along with the Assistant Sub Inspector then took all the six bags and 12 parcels of samples containing poppy husk duly sealed along with the sample seal, into his possession vide memo attested by the witnesses. On the basis of this ruqa, F.I.R. Ex.P7 was recorded. The prosecution to prove its case, brought into the witness-box ASI Ruldu Singh PW-1, Nirmal Singh PW-2, Constable Karnail Singh PW-3, HC Raj Singh PW-4, HC Sukhmander Singh PW-5, Constable Karnail Singh PW-6, Raghbir Singh D.S.P. PW-7, SI Sukhchain Singh PW-8 and Baljit Singh Photographer PW-9. Learned counsel for the appellants have argued that recovery was made from an open space i.e. semnala. This was government land. Anybody could have put the bags there and the appellants were falsely implicated in this case as Nirmal Singh PW-2 had a grievance against appellant Kulwant Singh. No specific question was put to the appellants when they were examined under Section 313 Cr.P.C. regarding the appellants being in conscious possession of the bags of poppy husk. This is a legal flaw which itself goes to the root of the case. Criminal Appeal No.732-DB of 2007 -4- The Investigating Officer was bound to go further into the aspect as to how the case property was lying there, who transported it and to come to a definite conclusion that the case property was of the appellants. No neighbouring land owners were questioned regarding the case property. Sitting itself on the bags does not prove conscious possession. In fact, as per the prosecution case, appellant Kulwant Singh was not arrested from the spot. He was not identified by appellant Gurmel Singh, but by Nirmal Singh PW-2. There are discrepancies in the statements of the official witnesses regarding the running away of Kulwant Singh. Some witness stated that appellants were wearing shoes, and some stated that appellant did not have the shoes. There was no need for the police party to run after Kulwant Singh. When he was running through the semnala, the police party being armed, could have fired in the air to stop him from running away. SI Sukhchain Singh PW-8 after using his seal, should have given it to the independent witness Nirmal Singh PW-2, so that no tampering could take place, but instead he handed it over to HC Raj Singh PW-4, who is junior to him. There was all likelihood of the samples being tampered with. Learned counsel for the State has argued that there was no need for the Investigating Officer to go deeply into the matter of conscious possession, as the appellants were sitting on the bags of poppy husk when one of them Gurmel Singh was apprehended while Kulwant Singh ran away. The poppy bags were lying near the semnala on government land. If it had been lying in somebody's private land, then the Investigating Officer was bound to question the owners of that land as to how the bags were lying there. But in the case in hand, since the appellants were sitting on these bags, the presumption is very clear that the possession of these bags was that of the appellants. Appellant Kulwant Singh ran away. This also pointed towards the guilt of the accused. There is no suggestion Criminal Appeal No.732-DB of 2007 -5- put to SI Sukhchain Singh PW-8 or ASI Ruldu Singh PW-1 regarding any tampering being done with the case property. The case property was produced before the J.M.I.C. SI Sukhchain Singh PW-8 moved an application Ex.P17 before the C.J.M. The C.J.M., Moga then passed the order Ex.P17/A and thereafter the case property was taken to the police station and deposited with the M.H.C. As per the F.I.R. Ex.P7 which gets corroboration from the statements of ASI Ruldu Singh PW-1 and SI Sukhchain Singh PW-8, all the appellants were sitting on the box. We have heard the learned counsel for the parties and perused the record with their assistance. Learned counsel for the appellants have laid much stress in their arguments that the recovery was made on the banks of the Semnala. The bags were allegedly lying in an open space on land which belonged to the State of Punjab. Appellants could not be held liable for the recovery of six bags of poppy husk. No specific question was also put under Section 313 Cr.P.C. regarding conscious possession. This argument of the learned counsel for the appellants does not cut much ice. As per the statement of ASI Ruldu Singh PW-1, the Investigating Officer, he along with the police party was on patrol duty and while going on the Kacha path leading to Village Pakharwadh, on reaching near the Kacha path, they joined Nirmal Singh PW-2 as an independent witness. When they reached in the area of Village Khai near the Semnala, they saw two persons sitting on bags on the side of the canal. One of them ran away, while the other was caught at the spot. The person who was caught, said that his name was Gurmel Singh. The independent witness Nirmal Singh PW-2 identified the person who ran away being appellant Kulwant Singh. Similarly, the other witness to the recovery HC Raj Singh PW-4 has Criminal Appeal No.732-DB of 2007 -6- also stated the same. It is clear from the statements of these witnesses that both the appellants were sitting on the bags of poppy husk and Kulwant Singh was identified by no other person, than the independent witness Nirmal Singh PW-2. The testimony of these witnesses could not be shattered in cross-examination. The bags were lying on government land. If they had been lying on land of which ownership was of a private person, then the argument of the learned counsel for the appellants would have had some weight that the Investigating Officer should have investigated further to find out as to how the bags were lying on the land of a private person. Then the owner of that land should have been questioned. After the recovery was made and the necessary formalities were gone through of taking of the samples, the case property was produced before SI Sukhchain Singh PW-8. SI Sukhchain Singh PW-8 further produced the case property before the C.J.M., Moga vide application Ex.P17. The C.J.M., Moga passed order Ex.P17/A that the case property be kept in custody in the Malkhana of the police station. The next senior person i.e. Raghbir Singh D.S.P. PW-7 knew about the recovery as he himself had gone when being asked as the appellants wanted to be searched in the presence of a Gazetted Officer. Question No.1 put to the appellants in their statements under Section 313 Cr.P.C. has clearly spelt out that they were sitting on the contraband in six bags and Kulwant Singh ran away, while Gurmel Singh was caught on the spot. The question is elaborate and clear as to whether the appellants were consciously in possession of six bags or not. Nothing more specific could have been asked from the appellants in their statements under Section313 Cr.P.C. With the above discussion and observations, we do not find any infirmity in the judgment of the learned trial Court. Conviction of the appellants is maintained. Sentence seems to be on the higher side. Sentence of the appellants is modified from 12 years RI to 10 years RI and fine is also reduced from Criminal Appeal No.732-DB of 2007 -7- Rs.1,25,000/- to Rs.1,00,000/-. With the above modification in sentence, both the appeals are dismissed. ( MEHTAB S.GILL ) JUDGE ( L.N.MITTAL ) March 16, 2009 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO