IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 651-SB of 2002 Date of decision: 5th May, 2010 Surinder Singh … Appellant Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. R.P. Dhir, Advocate for the appellant. Mr. J.S. Bhullar, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. Surinder Singh appellant has directed the present appeal against the judgment dated 22nd February, 2002 rendered by Special Judge, Jalandhar, whereby the appellant was held guilty of an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, ‘the Act’). He was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1.00 lakh, in default of payment of fine to further undergo rigorous imprisonment for three months. The prosecution allegation against the appellant is that on 13th December, 1999, at 7.40 p.m. five bags of poppy husk each weighing 40 kilograms were recovered from a Maruti van bearing registration No.DNB-3267 at village Nangal Fateh Khan, where SHO Swarandeep Singh along with his police officials held a nakabandi. The said Maruti van was being driven by Avtar Singh co-accused of the appellant, whereas the Criminal Appeal No.651-SB of 2002 appellant was sitting at the back seat. He sent a ruqa Ex.PE to the Moharrir Head Constable Sadar, Jalandhar, on the basis of which formal FIR Ex.PE/1 was registered. It was stated in the ruqa that Inspector Swarandeep Singh PW-2, along with his companion police officials, had held a nakabandi at 5.00 p.m. in village Nangal Fateh Khan. At that time, from village Nauli, one white coloured Maruti van bearing registration No.DNB-3267 came and the same was apprehended. The driver of the van disclosed his name as Avtar Singh son of Sewa Singh resident of Pathralia, Police Station Bullowal. The person sitting on the back seat disclosed his name as Surinder Singh alias Chhinda son of Hazara Singh Caste Rajput, resident of Daroli Kalan, Police Station Adampur. The inspector told them that he suspected some contraband article being carried in their Maruti van and in case they desired, search of their person and the Maruti van could be got conducted before a Gazetted Officer or a Magistrate. Both the accused consented to get themselves searched from a Gazetted Officer. A separate memo to this effect was prepared, on which the accused had appended their signatures and a wireless message was relayed to Rajpal Singh, Deputy Superintendent of Police, Headquarter. At the spot, Piara Singh former Sarpanch of village Nurpur and Gurnam Singh present Sarpanch of village Muzaffarpur arrived. They also joined the investigation. After some time, Deputy Superintendent of Police on a Govt. Gypsy reached at the spot, along with his gunman. On the asking of the Deputy Superintendent of Police, the accused gave consent that search be conducted by him. From the Maruti van, five bags of poppy husk each weighing 40 kilograms, were recovered. From each bag, a sample of 250 grams was drawn and the remaining poppy husk in each bag weighing 39 kilograms and 750 grams was also taken into custody as case property. A seal of ‘SDS’ was affixed on each sample parcel and the case property, and the seal after use was handed over to 2 Criminal Appeal No.651-SB of 2002 SI Sangram Singh. Thereafter, Deputy Superintendent of Police had affixed his seal on each of the parcels containing the samples and the case property. A recovery memo was prepared and ruqa was sent to the Police Station for registration of a case under Section 15 of the Act, as the accused could not justify the possession. The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted to the Court of Special Judge, Jalandhar, who on 13th March, 2000, charged the present appellant and his co-accused Avtar Singh for an offence punishable under Section 15 of the Act. The charge stated that on 13th December, 1999 at 7.40 p.m. in the area of village Nangal Fateh Khan, the accused were found in possession of 200 kilograms of poppy husk. The appellant and his co-accused Avtar Singh pleaded not guilty and claimed trial. On 3rd November, 2000 Avtar Singh was declared as a proclaimed offender and the trial proceeded against the present appellant. Mr.R.P. Dhir, Advocate appearing for the appellant, has stated that later- on Avtar Singh had been acquitted of the charges. Constable Satnam Singh PW-1 and MHC Harjinder Singh PW-3 tendered their affidavits as Ex.PA and Ex.PJ respectively to prove link evidence. MHC Harjinder Singh PW-3 in his cross examination, stated that the samples and the case property were deposited with him on 13th December, 1999. The samples were sent on 22nd December, 1999 and he had prepared form No.29. Inspector Swarandeep Singh SHO PW-2 reiterated as to what was stated in the ruqa Ex.PE, on the basis of which formal FIR Ex.PE/1 was registered. He deposed regarding apprehension of the Maruti van, offer made to the accused, recording of their consent, requisitioning the services of the DSP, his arrival, search and seizure, preparation of the samples and recovery of the poppy husk, the details of which have been 3 Criminal Appeal No.651-SB of 2002 given while noticing contents of ruqa Ex.PE. This witness further stated that on 14th December, 1999, he had produced the accused along with the case property and samples before the Duty Magistrate Mr.M.P.S. Pahwa and on receipt of report of the Chemical Examiner Ex.PH, Inspector Jagjit Singh had forwarded the challan to the Court for trial of the accused. In cross examination, this witness stated that he had seen the case property in the Court. He further stated that out of five bags, three bags contained seals and two others were having no seals. The three bags contained chits of particulars of the case and two bags were having no such chits. However, he denied the suggestion that the case property produced did not pertain to the case in which the accused were tried. This witness further stated that the writing was commenced at 5.45 p.m. Both the independent witnesses came at the spot by chance on scooter and cycle. They arrived at the spot at 5.30 p.m. the DSP also came there at 5.30 p.m. He further stated that he had not informed the Magistrate or any Gazetted Officer of the department as required under Section 42 of the Act. This witness further stated in cross examination that the case property was produced before the Magistrate on the next day, but the Magistrate had not appended his signatures on the same. The suggestion that the present appellant was falsely implicated as he had given some application to the police officials, was denied. SI Sangram Singh PW-6 was a member of the police party, which had effected the search. He corroborated the testimony of Inspector Swarandeep Singh SHO PW-2 regarding search, seizure and recovery. However, he denied the suggestion that the signatures of the witnesses on the recovery memo were obtained in the Police Station. He further admitted that owner of the vehicle was Avtar Singh accused, who was declared as a proclaimed offender and that the place of recovery was a thoroughfare. 4 Criminal Appeal No.651-SB of 2002 DSP Rajpal Singh appeared as PW-5 and deposed that the accused had reposed trust in him. He had conducted search of the Maruti van and recovery of five gunny bags containing poppy husk was effected. In his presence, samples were drawn and he had affixed his seal on the case property and the samples. The defence failed to elicit any favourable answer in the cross examination of this witness. Kuldip Singh Clerk from the DTO office appeared as PW-4 to prove ownership of the Maruti van. According to this witness, the Maruti van was in the name of one Charanjit Singh son of Samittar Singh. Thereafter, prosecution closed its evidence and statement of the accused appellant under Section 313 Cr.P.C. was recorded and all incriminating circumstances were put to him. He denied the same and pleaded false implication. The appellant stated that he was falsely implicated at the instance of Jatinder Singh DSP (Rural), Jalandhar, as he was inimical towards the appellant. Mr.R.P. Dhir, Advocate appearing for the appellant has stated that prosecution has failed to prove conscious possession of the appellant. It is stated that Avtar Singh co-accused, who was declared as proclaimed offender and was subsequently acquitted of the charge, was driving the Maruti van. According to SI Sangram Singh PW-6, the Maruti van was owned by Avtar Singh co-accused proclaimed offender. According to Kuldip Singh Clerk from the office of DTO, Hoshiarpur PW-4, as per the registration certificate, the Maruti van was registered in the name of one Charanjit Singh. It is contended that the appellant was neither the driver nor the owner of the Maruti van, he was merely sitting on the rear seat. Therefore, it cannot be imputed to him that he knew that the gunny bags contained poppy husk. It is further contended that the investigating agency has made no effort to gather any evidence to the effect that the contraband article was owned by the appellant or was entrusted to him in 5 Criminal Appeal No.651-SB of 2002 any form or was under his control or he was in possession of the same. It is urged that it was incumbent upon the investigating agency to find out as to from where the bags containing poppy husk originated, from whom they were obtained, who had loaded them in the Maruti van and who was transporting them. Therefore, it is submitted that in these circumstances, presumption against the accused appellant, as envisaged under Section 35 and 54 of the Act, cannot be invoked. In support of this argument, counsel for the appellant has relied upon ‘State of Punjab v. Balkar Singh and another’ 2004 SCC (Criminal) 838; ‘Bhola Singh v. State of Punjab’ 2005(2) RCR (Criminal) 520; ‘Ramu v. State of Punjab’ 2008(3) RCR (Criminal) 506; ‘Jasbir Singh v. State of Haryana’ 2008(3) RCR (Criminal) 42 and ‘Jaswinder Singh v. State of Punjab’ 2009(1) RCR (Criminal) 425 to say that it is imperative for the Court to specifically ask the accused in his statement recorded under Section 313 Cr.P.C. that he was in conscious possession of the contraband article. To find out as to whether the accused was acquainted with the fact that he was in conscious possession of a contraband article, it will be pertinent to notice questions No.1, 2, 3 and 4 and answers thereto recorded in the statement of the appellant under Section 313 Cr.P.C., which read as under: “Q: It is in evidence against you that on 13.12.99 the police party, headed by SHO Swaran Deep Singh was holding Nakabandi at the crossing of village Fateh Khan, at about 5 PM. You along with Surinder Singh co-accused,came on maruty van No.DNB 2567, from village Nauli, at that time you was driving the vehicle and Surinder Singh was sitting on the back seat. The van was stopped and you both wer apprehended, what have you to say. A: It is incorrect. Q: You and accused Surinder Singh were interrogated and also enquired as to whether you wanted to searched before G.O. or a Magistrate, and you desired that search of vehicle be conducted in the presence of Gazetted 6 Criminal Appeal No.651-SB of 2002 Officer. Your consent memo Ex.PB and Ex.PC were recorded separately, and you both signed the same, attested by the PWs. A: It is incorrect. Q: It is further in evidence against you that the Halka DSP Raj Pal Singh was informed on wireless message. In the meantime, Piara Singh Ex-Sarpanch and Gurnam Singh Sarpanch of Muzafarpur came at the spot and were joined with the police party. DSP Raj Pal Singh reached at the spot. He interrogated you and your co-accused and had also given offer as to whether you and your co-accused wanted to be searched before a Magistrate or G.O. and you both reposed confidence in him? A: It is incorrect. Q: That the search of the bag was conducted. Five gunny bags containing poppy husk were recovered from the bags. Sample of 250 gms from each bag was taken out and remaining poppy husk on each bag, weighed with came to be 39 kgs, 750 gms and put in the same bags. The sample and the gunny bags Ex.P2 to Ex.P6 were sealed with the seal bearing impression SDS and RPS and sample seal was taken. The sample, case property gunny bag Ex.P2 to P6 and sample seal were taken into possession vide memo Ex.PD. A: It is incorrect.” This Court had considered the above said legal proposition in Criminal Appeal No.40-SB of 2002 titled as ‘Swaran Singh v. State of Punjab’ decided on 17th March, 2010, in which this Court had noticed the questions put to the accused Swaran Singh and held that it is not necessary that the word ‘conscious possession’ ought to be used in statement under Section 313 Cr.P.C. It will be necessary to reproduce the following portion of the judgment rendered in Swaran Singh’s case (supra) to show the questions asked, observations made and conclusions arrived in that case: “To answer the first question, it is necessary to refer to the statement of the accused recorded under Section 313 7 Criminal Appeal No.651-SB of 2002 Cr.P.C. Question Nos.3, 4 and 5 and answers thereto made in the statement read as under: ‘Q.No.3. That the SI told you that there was suspicion of some intoxicant material with you and the search was to be conducted and if you so desired, the search could be conducted before Gazetted Officer or Magistrate. You replied that the search be conducted before a Gazetted Officer. Consent memo Ext.PC was recorded which was signed by you and attested by ASI Gurmit Singh. Ans. It is incorrect. Q.No.4. That the SI then sent message to DSP Shahkot who reached the spot. Malkiat Singh, PW also reached the spot by chance and he was joined with the party. Then in the presence of the DSP the SI searched the trolley which resulted into the recovery of 25 bags of poppy husk. Ans. It is incorrect. Q.No.5. That a sample of 250 grams of poppy husk was separated from each bag and made into parcels. The remaining poppy husk in each bag was weighed which came to be 34 kgs. 750 gms. The same was allowed to remain in the respective bag and those were made into separate parcels. Then the samples and the bags were separately sealed with seal bearing impression BS of the DSP and taken into possession vide memo Ext.PD attested by the PWs. Ans. It is incorrect.’ A perusal of these questions shows that it was brought to the notice of the accused that he is in possession of some intoxicant material. It was further told to him that the search had resulted into recovery of poppy husk from 25 bags. The accused was also acquainted with the fact that a sample of 250 grams of poppy husk was separated from each bag and remaining poppy husk weighing 34 kilograms and 750 grams was taken into possession. Once, it is disclosed to the accused in his statement recorded under Section 313 Cr.P.C. that poppy husk has been recovered, is it necessary to say in 8 Criminal Appeal No.651-SB of 2002 exact words that the possession of the accused was conscious. The statement of the accused recorded under Section 313 Cr.P.C. is a statement without oath. The object of this statement is to make the accused aware of incriminating circumstances. When the accused is told that a contraband article, as in the present case poppy husk, has been recovered, he is made aware that he is in possession of something which is not legally permissible. It is at that stage for the accused to say that his possession was not conscious and he was transporting the contraband article without knowing its contents. Merely because the words ‘conscious possession’ were not used, the statement recorded under Section 313 Cr.P.C. will not be rendered a nullity. A perusal of the conclusion arrived at in Kashmir Singh’s case (supra) makes it apparent that an opportunity should be given to the accused to rebut the presumption regarding his possession. Therefore, in the humble opinion of this Court, it is not necessary that the words ‘conscious possession’ should also be used in the statement under Section 313 Cr.P.C. A reference can be made to Hari Singh’s case (supra), where in para 17 it was observed by their Lordships as under: ‘17. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. This possession was highlighted in Madan Lal and Anr. V. State of Himachal Pradesh, 2003(4) RCR (Criminal) 100 : 2004(1) Apex Criminal 426 : (2003(6) SCALE 483).’ A perusal of the above observation makes it clear that the prosecution has to establish the possession. It is for the person, who claims himself to be not in a conscious 9 Criminal Appeal No.651-SB of 2002 possession, to establish as to how he came into possession, as the same is within his special knowledge. Counsel for the appellant has made reference to para 18 of Hari Singh’s case (supra), which reads as under: ‘18. In the present case, though, there was evidence regarding conscious possession, but, unfortunately, no question relating to possession, much less conscious possession was put to the accused under Section 313 Cr.P.C. The questioning under Section 313 Cr.P.C. is not an empty formality.’ This Court is of the opinion that the view formulated by the Full Bench of this Court in Kashmir Singh’s case (supra) is being misunderstood. It is not imperative for the Presiding Officer to use the words ‘conscious possession’ in the statement of accused under Section 313 Cr.P.C. If the charge and the statement under Section 313 Cr.P.C. state that the accused was found in possession of poppy husk or a contraband article and recovery of the same was effected and the samples were drawn, as it was done in the present case, the requirement of law is fulfilled. It is not a case where recovery was effected from many persons. Once the accused is made aware of his possession of a contraband article, it is for him to say and explain that he never knew the contents of the article, which was found in his possession. Therefore, the first question is answered against the appellant.” In the context of observations made in Swaran Singh’s case (supra), it is to be noticed that in the present case, appellant was made aware that he was traveling in a Maruti van, from which recovery of five bags of poppy husk was effected. At that stage it was for the appellant to divulge that he never knew that the bags contained poppy husk, once the accused was told that from the vehicle, in which he was traveling, contraband article had been recovered. It was for him to rebut the presumption under Section 35 and 54 of the Act. Therefore, this 10 Criminal Appeal No.651-SB of 2002 contention of the counsel for the appellant is rejected. However, this Court cannot become oblivious of the fact that in the ruqa Ex.PE, it was stated that Piara Singh former Sarpanch of village Nurpur and Gurnam Singh present Sarpanch of village Muzaffarpur had joined the investigation. They were independent witnesses. It has come in the testimony of SI Sangram Singh PW-6 that the place of recovery was a thoroughfare. Both Piara Singh and Gurnam Singh were given up as won-over by the Public Prosecutor. It is a case of the prosecution that the seal after use was not handed over to the independent witnesses. Furthermore, form No.29 was not prepared at the spot. It was later-on prepared by Moharrir Head Constable Harjinder Singh. The samples were sent on 22nd December, 1999, i.e. after a delay of nine days. On 14th December, 1999, when the samples were produced before the Illaqua Magistrate, the same were not signed by the Illaqua Magistrate, as per the testimony of Inspector Swarandeep Singh PW-2. When the case property was produced in the Court, out of five bags two bags had no seals and these two bags contained no chits also. Counsel for the State has not denied that this very set of witnesses have not been believed qua Avtar Singh co-accused, who was later on tried and acquitted. As stated earlier, SI Sangram Singh PW-6 had stated that the Maruti van belonged to Avtar Singh. Be that as it may, it is a fact that Avtar Singh was driving the vehicle. In these circumstances, no implicit reliance can be placed upon the testimony of official witnesses. The Court has to look forward for corroboration from the independent source. It cannot be ruled out that the independent witnesses were given up on the false pretext of won-over. Where the Court cannot repose full confidence in the official witnesses, then the circumstances which have been enumerated above, namely that form No.29 was not prepared at the spot; seal was not handed over to the independent witnesses; there was a 11 Criminal Appeal No.651-SB of 2002 delay in sending the sample and non-examination of the independent witnesses erode the reliability of the witnesses. In the present case, credibility of the witnesses is in doubt. Therefore, as a matter of abundant caution, the appellant is granted benefit of doubt and is hereby acquitted of the charges. Present appeal is accepted and the impugned judgment of conviction and sentence is set aside. [KANWALJIT SINGH AHLUWALIA] JUDGE May 5, 2010 rps 12