Crl. Appeal No.74-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.74-SB of 2004 Date of Decision : February 22, 2008 Nachhattar Singh @ Kuku, ....Appellant S/o Bhag Singh, R/o Village Kothaguru, Distt. Bathinda. Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. T.S.Sangha, Sr. Advocate with Mr. Narinder Singh, Advocate for the appellant. Mr. O.P.Dabla, AAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 19.12.2003, and the order of sentence dated 20.12.2003, rendered by the Judge, Special Court, Bathinda, vide which it convicted the accused/appellant Nachhattar Singh @ Kuku, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him, to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of 1 ½ years. 2. The facts, in brief, are that on 9.10.2001, Om Parkash, ASI, alongwith other police officials, was present at the main gate of grain market Bhagta Bhaika, in connection with checking of suspected persons. Jeet Singh, public witness, met the police party, and he was joined. Thereafter, the police party was going towards Gurdwara Gandusar Sahib from Kothaguru, and when it reached near the drain, and was going on katcha passage at a distance of Crl. Appeal No.74-SB of 2004 2 60/70 karams from the bridge of drain, in the area of Village Kothaguru, the accused was seen sitting on the gunny bags. On seeing the police party, the accused tried to slip away, but he was apprehended, on the basis of suspicion. The gunny bags were two in number. On search, the same were found containing 30 Kgs. 250 grams poppy-husk each. A sample of 250 grams was taken out of each bag, and the remaining poppy-husk, was put in the same gunny bags. The sample, and the remaining poppy-husk, were converted into parcels, duly sealed, and taken into possession. Sample seal was prepared. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Statements of the witnesses were recorded. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to him. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty and claimed usual trial. 4. The prosecution, in support of its case, examined Jagjit Singh Gill, DSP, (PW-1), Om Parkash, ASI, (PW-2), Jaswinder Singh, Constable, (PW-3), and Parhlad Singh, SI, (PW-4). Thereafter, the Addl.P.P. for the State, closed the prosecution evidence, after giving up Jeet Singh, public witness, as won over, by the accused. 5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that he was taken from house, in the presence of Manjit Kaur, Sarpanch, and Ruldu Ram, Nambardar. He, however, examined Manjit Kaur, (DW-1), and Ruldu Singh, (PW-2). Thereafter, he closed the defence evidence. 6. After hearing the Addl. P.P. for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, Crl. Appeal No.74-SB of 2004 3 convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant. 8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, contended that the case of the prosecution was highly improbable. He further contended that the place of the alleged recovery, was a katcha passage, leading to the fields. He further contended that from that place, a vehicle could be visible, from a distance of 300/400 karams, but surprisingly enough, the accused did not run away to escape the dragnet of law. The submission of the Counsel for the appellant, in this regard, appears to be correct. Jagjit Singh Gill, DSP, (PW-1), during the course of cross-examination, stated that the place of alleged recovery, was at a distance of 60/70 karams, from the drain bridge. He also admitted that the place of recovery is a Pahi (passage) leading to the fields, but is a motorable path. He also stated that it is correct that a coming vehicle was visible from a distance of 300/400 karams from the spot. Had the accused been found sitting on the gunny bags, containing poppy-husk, a contraband, on seeing the police party from a distance of 300/400 karams, in the natural course, he would have certainly tried to run away to escape the dragnet of law. There is nothing, in the evidence, that he tried to run away, on seeing the police party, from a distance of 300/400 karams. No person, if he has an opportunity to run away, would fall in the trap of law, especially, when he knows that he is in possession of a contraband. The case of the prosecution was, thus, most improbable and unnatural. The submission of the Counsel for the appellant, in this regard, carries substance, and is accepted. Crl. Appeal No.74-SB of 2004 4 10. It was next submitted by the Counsel for the appellant, that the prosecution miserably failed to prove that the accused was found in conscious possession of two bags, containing poppy-husk. The alleged recovery of bags, containing poppy-husk, was effected from a public passage. In the public passage, any person, could keep the bags, containing poppy-husk, with a view to escape the dragnet of law, and after finding an appropriate opportunity, by concealing his presence, could take away the same. Even, if the story of the prosecution is taken, as correct, for the sake of arguments, though not admitted, the accused might be sitting on the gunny bags, lying in the passage, with a view to take rest. No investigation was conducted by the Investigating Officer, to find out, as to whom the said bags belonged, especially when the same were lying in the public passage. It is, no doubt, true that once the possession of an accused, in respect of contraband is proved, then the onus shifts on to him, to prove that he was not in conscious possession thereof. In the instant case, the alleged place of recovery, being a public path, through which, a number of persons were passing, even the physical or constructive possession or control over the gunny bags of the accused, could not be said to have been proved. The Counsel for the appellant, however, placed reliance on Sukhdev Singh @ Sukha Vs. State of Punjab 2006(1) RCR (Criminal) 4 (P & H) (D.B.), to support his contention. In the said authority, the accused was found sitting on 6 gunny bags, containing poppy-husk. It was held that it was not proved, that he was in conscious possession of the bags. It was further held that failure to give any explanation by the appellant, for being present at that place, itself, did not prove that he was in possession of these articles. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. Since, the possession of gunny bags, containing poppy-husk, in relation to the accused, was not proved, the presumption under Sections 35 and 54 of the Act, could not operate. No offence, therefore, was committed by the Crl. Appeal No.74-SB of 2004 5 accused/appellant. The trial Court did not take into consideration, this aspect of the matter, and, thus committed an error. 11. It was next contended by the Counsel for the appellant, that even it was not proved by the prosecution through cogent and convincing evidence that actually the raiding party was present, at the spot, and the alleged recovery was effected. Om Parkash, ASI, (PW-2), during the course of cross- examination stated that the police party started from police post Bhagta Bhaika at about 10.30 AM, after making entry in the DDR. He further stated that he did not remember that he had signed the DDR, at the time of departure, from the police post. He further stated, during the course of cross-examination, that the log-book of the Government vehicle, was filled up, by the driver. He further stated during the course of cross-examination, that he did not make any entry, in the roznamcha regarding his arrival. No copy of the DDR, in which the alleged departure was recorded, by these witnesses, nor copy of the log- book of that day was produced on record. Had Om Parkash, ASI, recorded his departure report in the DDR, while leaving the police post, for conducting raid, he would have certainly recorded his arrival report also, when he arrived, in the Police Station. This all makes the case of prosecution suspicious. This gives rise to an impression, that the police party did not go to the spot, nor any recovery, as alleged by the prosecution witnesses, was effected. 12. The seal after use was handed over by Om Parkash, ASI (PW-2), Investigating Officer, to Gurdershan Singh, HC, and not to Jeet Singh, public witness. It means that the seal of Om Parkash, ASI, which was used by him, remained with a junior official of the Police Station. The sample, in this case, was sent to the office of the Chemical Examiner on 12.10.2001, whereas the alleged recovery was effected on 9.10.2001. During the period of 3 days, there was every possibility of tampering with the case property, and changing the contents of the parcels. Had any explanation been furnished by Om Parkash, Crl. Appeal No.74-SB of 2004 6 ASI, as to under what circumstances, the seal after use, was handed over to his junior police official, despite availability of an independent witness, the matter would have been considered in the light thereof. In the absence of any explanation, the Court cannot coin any of its own, to fit in with the prosecution case. It is the duty of prosecution to prove beyond a reasonable doubt, that none tampered with the sample, till it reached the office of the Chemical Examiner. From the aforesaid fact of handing over the seal to a junior police official by Om Parkash, ASI, despite the availability of an independent witness, it was clearly proved, that there were chances of tampering with the case property. As such, the case of the prosecution also became doubtful. 13. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are not based on the correct appreciation of evidence, and law, on the point. The trial Court failed to take into consideration the aforesaid material aspects of the case, as a result whereof, miscarriage of justice occasioned. The judgment of conviction and the order of sentence, are liable to be set aside. 14. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction dated 19.12.2003, and the order of sentence dated 20.12.2003, are set aside. The appellant shall stand acquitted of the charge framed against him. He is discharged of the bail bonds. February 22, 2008 (SHAM SUNDER) Vimal JUDGE