Criminal Appeal No.877-SB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No.877-SB of 2001 Date of decision: May 06, 2008 Malkit Singh ... Appellant Versus State of Punjab ... Respondent ... Present: Mr. Bikramjit Arora, Advocate for the appellant. Ms Manjari Nehru, Deputy Advocate General, Punjab, for the respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL ... JUDGMENT: HARBANS LAL, J This appeal is directed against the judgment /order of sentence dated 18.7.2001 passed by the Court of learned Special Judge, Rupnagar, whereby he convicted and sentenced Malkit Singh accused to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for two years under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act' ). The minimal facts of the prosecution case are that on Criminal Appeal No.877-SB of 2001 2 21.2.1997, SI Gurvinder Pal Singh among other police officials by going in government Allwyn Nissan Vehicle bearing registration No. PB-12A-4826 driven by SPO Daljit Singh carried out checking of duties of Police Posts. Thereafter, they associated with them ASI Malvinder Singh, Incharge Police Post, Arkhali and other police officials. They set up Naka near river Saimphalpur near the gate for the night dominance operation. It was 5.30 A.M. when they were chattering with Sarpanch Harpal Singh of Mianpur. Meanwhile, the accused Malkit Singh was spotted coming from the side of aforesaid village carrying something on a Rickshaw Rehri. He halted his Rehri at some distance and made an attempt to turn back. The Police by directing the search light towards the accused, asked him to stop. Accordingly, he stopped. On being questioned about the contents of gunny bags on the Rickshaw Rehri, he got perplexed and disclosed that it was fresh poppy husk. On receipt of wireless message, Joginder Kumar DSP came at the spot. He asked the accused to tell as to whether he wanted to have the search before a Judge. He expressed his faith in him. The gunny bags, 7 in number, were unloaded. Their contents were found to be poppy husk. When weighed, the contents of 3 bags came to 26 Kg.500 Grams whereas of the 4 bags, turned out to 24 Kg. 500 Grams. Two samples of 250 grams were drawn from each bag to serve as sample and converted into parcels. The residue of poppy husk in each bag was also made into a parcel. The sample seal was prepared. All the parcels were sealed with the seal MS and the chits of aforementioned DSP. All the parcels were seized vide recovery memo. The Rickshaw Rehri was also taken into possession vide separate recovery memo. The Investigator sent Ruqa to the Police Station, where on its basis, formal FIR was registered. He prepared the Criminal Appeal No.877-SB of 2001 3 rough site plan showing the place of recovery. 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. To bring home guilt against the accused, the prosecution has examined PW-1 MHC Nikka Ram, PW-2 Harpal Singh Sarpanch, PW-3 SI Gurvinderpal Singh, PW-4 Joginder Kumar DSP, PW-5 Constable Harnek Singh and closed its evidence. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him. He put forth that his cousin brother had contested the election against Jeet Singh Sarpanch who was elected and he is a police informer. At his instance, he has been falsely involved in this case. In his defence, he examined Gurcharan Singh, Member Panchayat of Village Dhanauri, DW-1 and Mohan Singh, Member Panchayat,DW-2. After hearing the learned Additional Public Prosecutor, the 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 his conviction/sentence, he has preferred this appeal. I have heard Mr. Bikramjit Arora, Advocate for the appellant, as well as Ms Manjari Nehru, Deputy Advocate General, Punjab for the State, besides going through the record with due care and circumspection. Mr.Bikramjit Arora, Advocate appearing on the behalf of the appellant assailing the prosecution case, urged with great eloquence that there is a delay of as many as 14 days in sending the sample to the Chemical Criminal Appeal No.877-SB of 2001 4 Examiner, whereas according to standing instruction no.1/88 dated 15.3.1988 of Narcotic Control Bureau, New Delhi, the same should have been despatched within 72 hours and furthermore C.F.S.L report was neither prepared at the spot nor deposited in the Malkhana, rather the same came into being on 6.3.1997, whereas the alleged recovery was effected on 21.2.1997.To add further to it, the conscious possession of the accused qua the poppy husk bags is not established and Harpal Singh, the alleged independent witness, when examined as PW-2, did not lend sustenance to the prosecution case and in these premises,the prosecution edifice crumbles down like a house of cards. As against this, Ms Manjari Nehru, Deputy Advocate General, Punjab, for the State of Punjab, contended that as is being evidenced by the Chemical Examiner's report, the sample seal tallied with the seals affixed on the sample parcels when received in the office of the Chemical Examiner and, thus, the possibility of tampering with the contents of the sample parcels, stands ruled out. She further pressed into service that Harpal Singh PW-2, an independent witness might have joined hands with the accused and it is because of this reason that he did not render support to the prosecution case. As regards conscious possession, she has submitted that in view of the provisions as enshrined in Section 35 as well as 54 of the Act, presumption arises that the accused was in conscious possession and he has failed to rebut such presumption. These contentions merit rejection for the reasons to be recorded hereinafter. Harpal Singh PW-2 when examined by the learned Additional Public Prosecutor after being declared hostile, did not budge even an inch from his firm stand or in other words no material favourable to the Criminal Appeal No.877-SB of 2001 5 prosecution could be elicited from him. Thus, his testimony deals a striking blow to the prosecution edifice. There is no gain saying the fact that there is a delay of as many as 14 days in sending the sample to the office of the Chemical Examiner though as per the instruction quoted by the learned counsel for the appellant, the sample parcel ought to have been despatched within 72 hours. Form No. M-29 was filled on 6.3.1997 though it was required to be filled at the spot. The same was also not deposited in the Malkhana. On perusing the evidence of Gurvinderpal Singh SI, PW-3, the Investigator as well as Joginder Kumar DSP, PW-4, it transpires that they have no where stated that the seal after use was handed over to Harpal Singh. These circumstances are cumulatively fatal to the prosecution case. It is only in the cross-examination of the aforesaid DSP that the seal after use was handed over to Harpal Singh. It is also in his cross-examination that “ I did not affix my seal as I was not having the same with me at that time. SHO also did not affix his seal on the case property. I did not know whether the SHO was having his seal with him at that time or not.” The investigator Gurvinderpal Singh (sic) has testified that the sample and the remaining poppy husk were turned into parcels and sealed with seal impression MS. The prosecution has not disclosed as to whom this seal did belong. The initials of this seal being MS could be neither of Gurvinderpal Singh SHO PW-3 nor of Joginder Kumar DSP, PW-4. Furthermore the above extracted cross-examination of Joginder Kumar (sic) belies the sealing of the sample parcels or the residue parcels as according to him, the SHO did not affix his seal on the case property. This causes a dent in the prosecution case. In Avtar Singh and others vs. State of Punjab, 2002(4) Recent Criminal Reports (Crl.) 180, the Apex Court observed as under: Criminal Appeal No.877-SB of 2001 6 “…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 but 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 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 person 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 the custodian of goods whether or not he was the proprietor. The persons, who were merely sitting on the bags, in the absence of proof of anything 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 Criminal Appeal No.877-SB of 2001 7 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 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 the 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 Evidence Act nor is it safe to conclude that the prosecution established beyond reasonable 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 Criminal Appeal No.877-SB of 2001 8 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 to nor taken into account by the trial Court and the High Court.” In re: Raj Kumar vs. State of Punjab, Hawa Singh vs. State of Punjab, 2005(1) Recent Criminal Reports (Crl.), 70, the jeep was being driven by Raj Kumar while Hawa Singh was seated by his side on the front seat. There was a bag lying between Raj Kumar and Hawa Singh. On search of the bag 8.250 kgs. poppy was recovered. The Division Bench of this Court held as under: “In the present case 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 Cr.P.C. that they were in conscious possession of opium. Therefore, neither the presumption under Section 35 nor the presumption Criminal Appeal No.877-SB of 2001 9 under Section 54 of the Act would be attracted. Section 35 provides that in any prosecution for an offence under the Act which requires a culpable mental state of the accused (conscious possession), the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he has no such mental state with respect to the act charged as an offence in that prosecution. There is an explanatory clause which states that “ culpable mental state” includes “intention, motive, knowledge of a fact and belief in or reasons to believe, a fact.” Section 54 states that in trials under the Act it may be presumed unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of (a) any narcotic drug.............. (b) ..................... (c) .................. (d) ................ for the possession of which he fails to account satisfactorily. It would, therefore, be apparent that presumption of culpable mental state and presumption of possession can be raised against accused persons Criminal Appeal No.877-SB of 2001 10 but where these presumptions are raised the accused has a right to rebut the presumptions by pleading in his defence that he has no such mental state with respect to the act charged as an offence or that he has been able to satisfactorily account for the possession. Accused can give his counter explanation. 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. Consequently, in the present case, the presumptions were not available to the prosecution. Furthermore, the prosecution had failed to prove that either Raj Kumar (driver) or Hawa Singh (passenger ) were in possession of the opium recovered from the bag which was lying in-between them on the seat of the jeep.” On the analogy of the above extracted observations, it was necessary for the trial Court to frame a specific question regarding presumption, which is sought to be raised either under Section 35 or Section 54 of the Act when the accused were examined under Section 313 of Cr.P.C., so as to seek their explanation. A glance through their statutory Criminal Appeal No.877-SB of 2001 11 statements would reveal that no such specific question has been framed by the learned trial Court. Sequelly, in the instant case, the presumptions arising under the aforementioned Sections are not available to the prosecution. It further emanates from their statutory statements that it has nowhere been put to them that they were in possession of the bags. Consequently, their conscious possession is not established qua the bags by the prosecution. In view of the infirmities enumerated hereinbefore, this appeal is accepted, setting aside the impugned judgment/order of sentence. The accused-appellant is hereby acquitted of the charged offence. ( HARBANS LAL ) JUDGE May 06, 2008 RS Whether to be referred to the Reporter ? Yes/No