IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Appeal No. 2110-SB of 2004 Date of Decision: 27.8.2009 Baldev Singh and another. ....... Appellants through Shri S.S.Sidhu, Advocate. Versus State of Punjab. ....... Respondent through Shri H.S.Brar, Additional Advocate General. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This appeal is directed against judgment and order dated 17.9.2004 of the Judge, Special Court, Mansa (hereinafter described as `the trial Court') whereby the appellants have been convicted and sentenced under Section 15 of the Narcotic Drugs and Psychotropic Substances Act,1985 (for short, `the Act') to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for one year. On 2.7.1999, Sub Inspector – Balbir Singh of Police Station, Jaurkian along with other police officials was going in government canter Crl.Appeal No.2110-SB of 2004 -2- .... no. PB-31-6612 towards village Meean, Jherianwali and had reached at bus stand, Raipur in connection with detecting persons with suspicious antecedents. From bus stand, Raipur, Darshan Singh, Sarpanch of village Tandian was joined with the police party which then proceeded through village Raipur towards kacha passage running parallel to the pavement of canal minor in its right side leading to the agricultural fields. When the police party had covered about 1-1/2 kilometers of distance, then on the right side of the passage near a tube-ell in a vacant space, two persons were spotted sitting on five bags and on seeing their vehicle, tried to run away. The Sub Inspector managed to stop the canter and with the help of police officials, apprehended those persons, who, on enquiry, disclosed their names as Baldev Singh and Pal Singh alias Pal (appellants herein). He then told them that the five bags lying in their possession were suspected to be having some intoxicants and the same were required to be searched. He further told them that they had a right to be searched in the presence of a gazetted officer. Upon this, both of them desired to be searched by a gazetted officer. Their consent memos were accordingly prepared and through a wireless message, Amarjit Singh, Deputy Superintendent of Police, Sub Division, Sardulgarh was requested to reach the spot. The facts of the case were disclosed to him. Thereafter, the Deputy Superintendent of Police arrived at the spot and gave an option to the appellants to be searched in his presence. The appellants then consented to their search in his presence and accordingly, consent memos were again prepared. The Sub Inspector in the presence of Deputy Superintendent of Police conducted the Crl.Appeal No.2110-SB of 2004 -3- .... search of five bags. The same were found containing poppy straw. Two samples of 100 grams each were taken out from each bag. The bags were numbered as 1 to 5. On weighing, each of the bags was found having 35 kilograms of poppy straw. The samples and the bags were sealed with the seal bearing impression of letters `BS'. A sample seal was separately prepared. The seal, after use, was handed over to Darshan Singh- Sarpanch. The case property was taken into possession vide a separate recovery memo. A ruqa was sent to the Police Station on the basis of which a formal F.I.R. was recorded. On personal search of the appellants, currency notes of Rs.50/- were recovered from Baldev Singh which were also taken into possession vide a separate recovery memo. The appellants were arrested. Statements of the witnesses were recorded by the Sub Inspector. On 3.7.1999, the appellants and the case property were produced in the Court of Illaqa Magistrate. Thereafter, the case property was deposited in the malkhana of the police station as there was no space in the judicial malkhana. The samples were sent to the Forensic Science Laboratory, Punjab and after receipt of its report, the challan was presented against the appellants. Finding a prima facie case, the trial Court charge sheeted the appellants for an offence punishable under Section 15 of the Act to which they pleaded not guilty and claimed trial. In order to establish its case, the prosecution examined as many as four witnesses and gave up Darshan Singh-Sarpanch (independent witness) as having been won over by the appellants. Crl.Appeal No.2110-SB of 2004 -4- .... In their statements recorded under Section 313 of the Cr.P.C., the appellants pleaded false implication. In defence, Darshan Singh – Sarpanch was examined as DW1 and Nek Singh- Lambardar of village Raipur was produced as DW2. After appraisal of the entire evidence on record, the trial Court convicted and sentenced the appellants vide the impugned judgment resulting in the filing of the instant appeal. Learned counsel for the appellants, with reference to the evidence on record, contended that the appellants were found sitting on five bags in the vacant space which was near the passage and, therefore, the conscious possession of the contraband has not been established. He further contended that looking at the statements of the prosecution witnesses including the site plan of the place of occurrence, it is evident that the vacant place was adjoining to the fields of appellant-Baldev Singh,but since neither the ownership of the field nor of the contraband was established, the question of conscious possession was not proved and, therefore, the appellants are entitled to acquittal on this score alone. Learned counsel for the appellants submitted that the testimony of PW3-Sub Inspector Balbir Singh reveals that the contraband which was seized from the appellants on 2.7.1999 was produced before the Illaqa Magistrate on 3.7.1999 and the samples were sent to Forensic Science Laboratory on 5.7.1999 for examination and during this period, the case property as well as the samples remained in his custody implying that the possibility of tampering with the case property and samples could not be ruled out. Besides this, PW3 stated Crl.Appeal No.2110-SB of 2004 -5- .... that the seal which was handed over to Darshan Singh- Sarpanch was taken back after about 5/6 days. He referred to the statement of PW4- Sub Inspector- Harbhajan Singh, who was Assistant Sub Inspector at the relevant time and was a member of the police party, who allegedly apprehended the appellants, to contend that when the case property was produced before the Court at the time of trial, the seals thereon were not decipherable and it means that the case property had been tampered with and in this view of the matter, the link evidence is missing and, therefore, the benefit thereof should go to the appellants. In support of his contentions/ submissions, learned counsel for the appellants placed reliance on State of Punjab Versus Balkar Singh and another, 2004 S.C.C. (Criminal) 838; Ritesh Chakarvarti Versus State of Madhya Pradesh, 2006(4) R.C.R. (Criminal) 480 (S.C.); Surjan Singh alias Kala Versus State of Punjab, 2005 (4) R.C.R. (Criminal) 897 (P&H) and Tarsem Singh Versus State of Punjab, 2005(4) R.C.R. (Criminal) 300 (D.B.). On the other hand, learned counsel for the respondent-State contended that from the site plan, it can be straight-away inferred that the appellants were in conscious possession of the contraband as the fields of appellant- Baldev Singh were adjoining to the place of recovery. He further contended with reference to the seal, that the provisions of Section 54 of the Act are not mandatory and, therefore, no prejudice has been caused to the case of the appellants for the simple reason that even if the samples were sent after some time, the same were received by the Forensic Science Laboratory with intact seals. It was argued by the learned counsel Crl.Appeal No.2110-SB of 2004 -6- .... for the State that the conviction and sentence recorded by the trial Court are perfectly justified in the given circumstances of the case. I have thoughtfully considered the rival contentions and have gone through the whole record. It is to be noticed that it was a case of chance recovery. However, this fact is not relevant or germane because according to the case of the prosecution, the appellants were found sitting on five bags in a vacant area and near to the fields of appellant-Baldev Singh. It is not the case of the prosecution that the bags were placed in the fields of appellant-Baldev Singh and both the appellants were sitting thereon so as to imply that the contraband belonged to them. Since the consistent testimony of the prosecution witnesses is that the place of recovery was vacant and the appellants were merely found sitting on the case property, it was incumbent upon the investigating officer to have established by some record their conscious possession over it. In Avtar Singh Versus State of Punjab, 2002(4) R.C.R. (Criminal) 180 (S.C.) , their Lordships of the Supreme Court laid down in paragraph 6 of the judgment as under:- “6. “Possession is the core ingredients to be established before the accused in the instant case are subjected to the punishment under Section 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of Clause (xiv) of Section 2, it is for them to account for such possession satisfactorily; if not, the presumption under Section Crl.Appeal No.2110-SB of 2004 -7- .... 54 comes into play. We need not go into the aspect whether the possession must be conscious possession. Perhaps taking clue from the decision of this Court in Inder Sain v. State of Punjab, 1983(2) SCC 372 arising under the Opium Act, the learned trial Judge charged the accused of having conscious possession of poppy husk. Assuming that poppy husk comes within the expression of poppy straw, the question, however, remains whether the prosecution satisfactorily proved the fact that the accused were in possession of poppy husk. Accepting the evidence of PW4- the Head Constable, it is seen that appellant No.3 (accused No.4) was driving the vehicle loaded with bags of poppy husk. Appellants 1 and 2 (Accused Nos. 1 and 2) were sitting on the bags placed in the truck. As soon as the vehicle was stopped by ASI (PW2), one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and the offending goods. 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. Can it be said, on the basis of the evidence available on record, that the three appellants – one of whom was driving the vehicle Crl.Appeal No.2110-SB of 2004 -8- .... 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 persons 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 be 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 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 Crl.Appeal No.2110-SB of 2004 -9- .... 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 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 the Evidence Act nor is it after 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 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 Crl.Appeal No.2110-SB of 2004 -10- .... pointed out above were neither adverted to nor taken into account by the trial Court and the High Court. Non-application of mind to the material factors has thus vitiated the judgment under appeal.” In State of Punjab Versus Balkar Singh and another (supra), their Lordships of the Apex Court observed as follows:- “...... the presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any infirmity in the judgment passed by the High Court.” In the instant case, as observed earlier, the prosecution has Crl.Appeal No.2110-SB of 2004 -11- .... failed to establish the conscious possession of the appellants over the contraband. The conscious possession obviously means that a person is having control over a contraband of which he is accused of in possession. The prosecution, in this case, has failed to prove that the appellants were exercising control over the contraband seized. Therefore, the story as put forward by it cannot be termed to be free from any blemish. That apart, the case property when produced in the Court was found to be having seals which were not decipherable. That being so, the possibility of the case property being tampered with cannot be ruled out. Moreover, the case property and the samples remained in possession of the investigating officer and the samples were sent for examination after a delay of three days. Having regard to the aforesaid, I am of the considered opinion that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. Accordingly, this appeal is accepted, the impugned judgment is reversed and the conviction & sentence awarded to them are set aside. August 27,2009 ( Mahesh Grover ) “SCM” Judge