Crl.Appeal No.508 SB of 2004 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.508 SB of 2004 Date of decision: 7th February, 2008 Puran Singh ..Appellant. Versus The State of Punjab …Respondent CORAM: HON’BLE MR.JUSTICE HARBANS LAL Present: Mr.Rahul Vats, Advocate for the appellant. Mr.Shilesh Gupta, Deputy Advocate General, Punjab ** HARBANS LAL, J. This appeal is directed against the judgment/order of sentence dated 13th February 2004 passed by the learned Judge, Special Court, Sangrur, whereby he convicted and sentenced the appellant/accused 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 ( hereinafter to be referred as ‘the Act’). Shorn of all unnecessary details, the prosecution version is that on 18th December, 2001, the police party headed by Sub Inspector Darbara Crl.Appeal No.508 SB of 2004 [2] Singh was proceeding from village Banga to village Jhambochau on the katcha rasta in Allwyn Nissan bearing registration No.PB-13B-1601 driven by Constable Nirmal Singh No.1278. When the police party neared the bridge of canal minor, Chuhar Singh PW met the police party. He was joined in the police party. When the police party reached the bridge of drain Jhambochau, the accused was noticed sitting on bags, on left side under the bridge. On catching sight of the police party, he tried to conceal his presence under the bridge. He was apprehended on suspicion. The aforementioned SI told the accused that it was suspected that there were some intoxicants in the bags, which were to be searched. He was made aware of his right to be searched in the presence of a Gazetted Officer or a Magistrate. The accused replied that he wanted to get his personal search as well as the search of the gunny bags carried out in the presence of DSP Moonak. His statement was recorded. DSP Moonak Mr.Inder Mohan Singh was called at the spot through a wireless message. On his arrival, he introduced himself to the accused that be being DSP was a Gazetted Officer. The accused reposed confidence in him. As per directions of the DSP, the aforementioned SI conducted the search of the bags which were found to contain poppy husk. When weighed, the contents of each bag came to 35 kgs of poppy husk. Two samples of 250 grams each were drawn from each bag. 10 samples parcels and 5 bags containing residue were converted into parcels sealed with seal ‘DS’. The specimen seal impression was prepared. The seal after use was handed over to PW Chuhar Singh. The case property alongwith sample parcels were seized vide separate recovery memo. Ruqa Crl.Appeal No.508 SB of 2004 [3] was sent to the police station Moonak, where on its basis formal FIR was registered. On return to the police station, the case property was deposited with MHC Satwinder Singh. 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. The accused was charged under Section 15 of the Act, to which he did not plead guilty and claimed trial. In order to substantiate its allegations, the prosecution has examined DSP Inder Mohan Singh PW1, HC Satwinder Singh PW2, SI Mela Singh PW3, Constable Major Singh PW4, Inspector Darbara Singh PW5 and closed its evidence by giving up Chuhar Singh PW as having been won over by the accused and PWs MHC Tejinder Singh, Constable Lal Chand, HC Gulshan Singh being unnecessary. 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. He put-forth that this recovery has been planted upon him at the instance of MHC Satwinder Singh and that he was arrested from his house in the presence of his family members. He examined Piara Singh DW1, Amar Singh DW2, Sukhdev Singh DW3, HC Chand Singh DW4, Sukhwinder Kaur DW5, Chuhar Singh DW6, HC Satwinder Singh DW7, Bohar Singh DW8 and closed his defence. 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. Crl.Appeal No.508 SB of 2004 [4] Feeling aggrieved with the same, the appellant 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.Rahul Vats, Advocate appearing on behalf of the appellant urged with great eloquence that as alleged by the prosecution, the accused was found sitting on the bags, which in no manner amounts to conscious possession, in view of the observations rendered in re:State of Punjab vs. Balkar Singh and another. (2004) 3 Supreme Court Cases 582. To tide over this submission Mr.Shilesh Gupta, Deputy Advocate General, Punjab canvassed at the bar that the appellant was found sitting on the gunny bags containing poppy husk and that being so, he has presumed to be in conscious possession of the same. I am unable to pesuade myself to agree with this submission. In re:Avtar Singh vs. State of Punjab 2002(4) Recent Criminal Reports (Crl.) 180, it has been held by the Hon’ble Supreme Court that “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. 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 Crl.Appeal No.508 SB of 2004 [5] that they were the persons in possession of poppy husk placed in the vehicle. The object of examination under Section 313 of Cr.P.C., it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him.” Adverting to the facts of the case in hand, it is the prosecution case that the accused was spotted sitting on the gunny bags on left side under the bridge and on seeing the police party, he tried to conceal his presence under the bridge. When examined under Section 313 of Cr.P.C., no question has been put to the appellant that he was in conscious possession of the poppy husk. The words put to him are that he was sitting on the bags. In re:Balkar Singh and another (supra) relied upon by Mr.Vats, also the accused was found sitting on bags of poppy husk. He had failed to give any satisfactory explanation of being present at that place. It was held that being found to be present at the place where the poppy husk was found and the failure to give any satisfactory explanation for being so present, did not prove that the accused persons were in the possession of said poppy bags. It was further observed that the police should have conducted further investigation as to transportation of poppy bags to place of incident, ownership of the poppy husk etc. to prove that the accused were really in possession of the said articles. Coming to the facts of instant case, there is no evidence as to how the bags were transported to the place of incident or that during enquiry, the same were found to be the ownership of the appellant. Crl.Appeal No.508 SB of 2004 [6] In re: Hari Singh vs. State of Punjab 2006(1) Recent Criminal Reports (Crl.), 738 referred to by Mr.Vats, the bags were lying in the field and accused were sitting on the bags. There was no evidence to show that the bags were stacked by the accused persons and they or some close connected with them were owner of the field. It was held that it cannot be said that the accused were in custody or possession of the bags. In view of the preceding discussion, it is held that the prosecution has not been able to establish the conscious possession of the appellant qua the bags containing poppy husk allegedly recovered from the stated place. Mr.Vats further argued that the recovery is alleged to have been effected on 18th December, 2001 whereas the samples were received in the laboratory on 1st January, 2002 and thus, there is a delay of 13 days in the despatch of the sample. He has maintained that in re: Buta Singh vs. State of Punjab, 2006(1) Recent Criminal Reports (Crl.) 835, prosecution had failed to explain the delay of 8 days in despatch of the samples to FSL for chemical examination. The same was held to be fatal, with the further observation that such a delay is also violative of the standing instruction No.1/88 dated 15th March, 1988 of the Narcotic Control Bureau, New Delhi. As against this, Mr.Gupta contended that a glance through the FSL report Ex.PX would reveal that the sample seal affixed on the sample parcels tallied with the specimen seal impression and that being so, the possibility of contents of the sample parcel being tampered with stands Crl.Appeal No.508 SB of 2004 [7] ruled out. This contention does not find favour with me. In view of the standing instructions referred to by Mr.Vats, the sample parcel has to be despatched to the chemical examiner within 72 hours, whereas in the instant case, there is unexplained delay of 13 days in sending the same to the chemical examiner. Inspector Darbara Singh PW5 Investigator has stated that the sample seal Ex.P1 was separately prepared but he is absolutely silent about deposit of the same with MHC Satwinder Singh. In re: Parminder Singh vs. State of Haryana 2006(4) Recent Criminal Reports (Crl.), 495(DB), the samples were sent to the Chemical Laboratory after a gap of 25 days. It has been held that according to Narcotic Control Bureau Instructions, the sample parcel should be deposited within 72 hours with the Chemical Examiner. In the instant case, the prosecution has not offered any explanation for withholding the sample parcel for such a long time. Therefore, the possibility of the contents of the sample parcel being tampered with cannot be ruled out. In view of the forgoing discussion, 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. 7th February, 2008 (Harbans Lal) gsv Judge Whether to be referred to the Reporter? Yes/No