Crl.Appeal No.340 SB of 1999 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.340 SB of 1999 Date of decision: 14th February, 2008 Kulwant Singh ..Appellant. Versus State of Haryana …Respondent CORAM: HON’BLE MR.JUSTICE HARBANS LAL Present: Mr.Atul Lakhanpal, Advocate for the appellant. Mr.Neeraj Bhutani, Assistant Advocate General Haryana ** HARBANS LAL, J. This appeal is directed against the judgment dated 19th March, 1999/order of sentence dated 22nd March, 1999 passed by the Court of learned Additional Sessions Judge, Hisar, whereby he convicted and sentenced the appellant/accused Kulwant Singh to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- (one lac) and in default thereof, to further undergo rigorous imprisonment for two year under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for short ‘the Act’). The facts in brief of the prosecution case are that on 27th April, Crl.Appeal No.340 SB of 1999 [2] 1993, Sub Inspector Ajaib Singh (PW7) was posted as Reader to the Superintendent of Police, Hisar, when a secret information was received regarding presence of poppy husk in the area of Dhani Piranwali. A message was conveyed to Assistant Sub Inspector Madan Lal (PW8) in CIA Staff premises. A police party including SI Ajaib Singh PW7 was constituted. The same proceeded towards Dhani Piranwali. On the way, when the police party neared Bagla turning, Baljit Singh PW came across the police party. He was also joined in the police party. When they neared Pipalwali Johri in the area of Dhani Piranwali, three persons were found sitting on the bags, out of whom Makhan Singh son of Piara Singh and Makhan Singh son of Inder Singh (proclaimed offenders) escaped. While the third one i.e. Kulwant Singh accused was over-powered. Suspecting the bags containing contraband, notice Ex.PE was served upon him apprising him of his right to be searched before a Gazetted Officer or a Magistrate. Vide his reply Ex.PF, accused reposed confidence in the Investigating Officer. The bags were 40 in number. On their search, each was found containing poppy husk. 200 grams of poppy husk was drawn from each bag to serve as sample. The remainder of each bag, when weighed came to 39 kgs. 800 grams in each bag. Samples as well as the residue were converted into parcels and sealed with seal ‘ML’. The seal after use was handed over to Baljit Singh PW. The case property was seized vide recovery memo Ex.PG. Ruqa was sent to the police Station, where on its basis formal FIR was recorded. The Investigating Officer prepared the rough site plan Ex.PH, showing the place of recovery, recorded the statements of the witnesses and informed the DSP Crl.Appeal No.340 SB of 1999 [3] (Headquarters) Inder Dutt, who came at the spot. He also verified the facts and affixed his own seal ‘ID’ on the sample parcels as well as the case property. Thereafter, the police party proceeded towards the Village Dhani Piranwali in search of the other two accused, who had escaped. They could not be found. On return to the police station, the case property, accused and the witnesses were produced before the Inspector Prem Singh PW9, who again verified the facts and directed that the case property be deposited with the MHC. On receipt of the report Ex.PJ and after completion of investigation, the charge-sheet against Kulwant Singh, Makhan Singh son of Piara Singh and Makhan Singh son of Inder Singh was laid in the Court of learned Additional Chief Judicial Magistrate, Hisar, who vide his order dated 29th September, 1994, committed the case to the Court of Sessions for their trial. On commitment, all the three accused were charged under Section 15 of the Act, to which they did not plead guilty and claimed trial. In order to substantiate its allegations, the prosecution has examined DSP Inder Dutt PW1, Inspector Rajinder Singh PW2, ASI Attar Singh PW3, SI Hans Raj PW4, HC Om Parkash PW5, Constable Surajmal PW6, SI Ajaib Singh PW7, ASI Madan Lal PW8, Inspector Prem Chand PW9 and closed its evidence. When examined under Section 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. As revealed by the record, the accused Makhan Singh son of Piara Singh and Makhan Singh son of Inder Singh absented themselves Crl.Appeal No.340 SB of 1999 [4] from the proceedings before the trial Court and they were declared Proclaimed Offenders. In defence, the accused examined Baljit Singh DW1. After hearing the learned Public Prosecutor for the State, learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with the same, the appellant Kulwant Singh has preferred this appeal. I have heard the learned counsel for the parties and have gone through the record with due care and circumspection. Mr.Atul Lakhanpal, Advocate appearing on behalf of the appellant urged with great eloquence that as per prosecution case, the appellant alongwith others was noticed sitting on the bags. There is no evidence in proof of his being owner of the bags as well as the place at which the alleged bags were lying. There is also no evidence as to how the bags were transported to the alleged place nor it has been put to the appellant when examined under Section 313of Cr.P.C. that he was in conscious possession of the alleged bags. On examining these these circumstances in the background of the observations made by the Apex Court in re: State of Punjab vs. Balkar Singh and another, AIR 2004 Supreme Court, 4606, it transpires that the conscious possession of the appellant is not established. To controvert these submissions, Mr.Neeraj Bhutani, Assistant Advocate General, Haryana maintained that it is a case where the accused have been actually found to be in possession of the bags and they could not Crl.Appeal No.340 SB of 1999 [5] account for the possession of the same, therefore, only they can be treated to be in actual possession of the bags. He has sought to place abundant reliance upon the observations rendered in re: Avtar Singh vs. State of Punjab 2002(4) Recent Criminal Reports (Crl.) 180. I have well considered the rival contentions. In case Avtar Singh (supra) 16 bags of poppy husk were recovered from a truck. Two accused were found sitting on the bags and one accused was driving the truck. It was held that the prosecution has not proved that the accused had custody and control over the bags. It was further observed that object of examination under Section 313 of Cr.P.C. is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. In paragraph no.6 of the judgment, it has been observed that the persons, who are merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of goods. 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 of Cr.P.C. not even a question was asked that they were the persons in possession of poppy husk placed in the vehicle. It was further observed that the High Court resorted to the presumption under Section 35 of the Act, 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. Further, in Balkar Singh and another (supra), the accused were Crl.Appeal No.340 SB of 1999 [6] found sitting on the bags of poppy husk. The recovery was made from a field in the village. The accused persons belonged to different villages. There was no investigation by the police as to how bags of poppy husk were transferred to that place. There was also no evidence as to ownership of poppy husk. The Apex Court ruled that mere failure by the accused to give any satisfactory explanation for being present at that place by itself does not prove that they were in possession of those articles. Coming to the facts of the present case, the prosecution has not established on the record that the accused had custody and control of the bags or that he was the owner of the bags. There is also no evidence as to how the bags were transferred to that place. When examined under Section 313 of Cr.P.C., the only question put to the appellant is that he alongwith other accused, namely, Makhan Singh son of Piara Singh and Makhan Singh son of Inder Singh were sitting on the bags. It is not put to him that he was found in conscious possession of the bags. In view of the above-extracted observations, the presumption arising under Section 35 of the Act, which relates to culpable state of mind also cannot be drawn without considering the aspect of possession. It is further argued by the learned counsel for the appellant that the raid was conducted on the basis of secret information, which in view of the provisions as enshrined in Section 42 of the Act ought to have been reduced in to writing by the Investigator Madan Lal ASI, who is absolutely silent in this behalf. Thus, the mandatory provisions of Section 42(2) of the Act have not been complied with. As against this, Mr.Neeraj Bhutani, Assistant Advocate General, Crl.Appeal No.340 SB of 1999 [7] Haryana pressed into service that this information was sent within 72 hours in the form of FIR. This contention has no legs to stand upon. The Investigator has no where stated that the secret information was reduced into writing by him and the same was sent to the immediate official superior within 72 hours. Had he got registered the case merely on the basis of secret information before proceeding to the alleged place of recovery that could have been deemed to be the compliance of this mandatory provision of law. As is borne out from the prosecution evidence, the FIR was got registered after recovery. Thus, palpably the mandatory provisions of Section 42(2) of the Act have been given a go bye. Mr.Lakhanpal further assailed the prosecution edifice by urging with great eloquence that the recovery in this case was allegedly effected on 27th April, 1993 whereas according to the FSL report, the samples were received in the Laboratory on 25th May, 1993, obviously after a gap of 27 days, though, according to the observations rendered by the Division Bench of this Court in re: Parminder Singh vs. State of Haryana 2006(4) Recent Criminal Reports (Crl.), 495(DB), the sample should have been sent for chemical analysis within 72 hours. The prosecution has not given any explanation for withholding the sample for such a long time. He further contended that in re: State of Punjab vs. Jaswant Singh 2002(3) Recent Criminal Reports (Crl.), 548, the sample was deposited with the Chemical Examiner after 21 days of recovery. The Division Bench of this Court was pleased to hold that the delay is fatal. To overcome these submissions, Mr.Bhutani submitted that as Crl.Appeal No.340 SB of 1999 [8] would be apparent from the FSL report, seals of the sample parcel were intact and tallied with the specimen seal impression when the same were received in the laboratory and this documentary evidence rules out the possibility of tampering with the contents of the sample parcels. I have well considered the rival contentions. Of course, here in this case, the seal after use was allegedly handed over to Baljit Singh PW, an independent witness but when he appeared in defence as DW1 deposed that on 27th April, 1993 no recovery was effected from the possession of Kulwant Singh in his presence by ASI Madan Lal and that no seal was handed over to him after use by ASI Madan Lal in this case. It is in his cross-examination, that the police obtained his signatures on blank papers. Thus, the prosecution version is nullified by this defence evidence. It was obligatory upon the prosecution to explain as to under what circumstances the sample was withheld for 27 days. This circumstance is fatal to the prosecution case. Strangely enough that DSP Inder Dutt was called after completion of the recovery proceedings. In view of the foregoing discussions, this appeal succeeds and is accepted by setting aside the impugned judgment/order of sentence. The appellant is hereby acquitted of the charged offence. His bail bonds shall also stand discharged. 14th February, 2008 (Harbans Lal) gsv Judge Whether to be referred to the Reporter? Yes/No