Criminal Appeal No.251-SB of 2005 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH -.- Criminal Appeal No.251-SB of 2005 Date of Decision: May 06, 2010 Karamjit Singh ...Appellant VERSUS State of Punjab ...Respondent 1. Whether the 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 ? CORAM :HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr.S.S.Gill, Advocate, for the appellant. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. Appellant Karamjit Singh has filed this appeal against the judgment of conviction and the sentence order dated 24.01.2005 passed by the Judge, Special Court, Sangrur, whereby he was convicted under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/-, in default Criminal Appeal No.251-SB of 2005 2 whereof to undergo further rigorous imprisonment for two years. The prayer made in this appeal is to set aside the impugned judgment and the sentence order by way of acceptance of this appeal and to acquit appellant Karamjit Singh of the charge framed against him under Section 15 of the Act. The facts of the prosecution case are that on 17.09.2003, a police party headed by Sub Inspector Sukhram Singh, while on patrol duty in a Government vehicle were going on main road Sangrur towards Patiala road and when they have gone about 500 yards from the main road, then they saw accused sitting under the tree on the right side of the passage, which leads to the fields. The accused was sitting on the gunny bags. On suspicion, he stopped the vehicle and accused on seeing them started moving towards the paddy fields. The appellant was apprehended on suspicion. The Sub Inspector, having become suspicious, told the accused that he wanted to check the gunny bags. Sub Inspector Sukhram apprised the accused of his right being searched in the presence of a Magistrate or a Gazetted officer. The appellant opted for his search to be made in the presence of Sub Inspector himself. The search of gunny bags, which were two in number was thereafter made. The gunny bags were found to contain poppy husk. Two samples of 250 grams from each bag were separated and the remaining poppy husk in each bag was found to be 34-1/2 Kgs. Their parcels were prepared and sealed. The bags containing poppy husk were also sealed. All these parcels were thereafter taken into possession. The accused-appellant could not show any permit to keep the poppy husk in his possession. The appellant was arrested. The Investigating Officer Criminal Appeal No.251-SB of 2005 3 sent intimation in writing to the Police Station and on its basis the instant case was registered. Site plan was prepared showing the place of recovery. The Investigating Officer recorded the statements of the witnesses. On receipt of the report of Chemical Examiner, vide which the samples were opined to be of poppy husk and on completion of investigation of the case, challan was presented against the accused in Court. Charge under Section 15 of the Act was framed against the accused, to which he did not plead guilty and claimed trial. In order to prove its case against the accused, the prosecution examined Sub Inspector Sukhminder Singh (P.W.1), Sub Inspector Sukhram Singh (P.W.2), Head Constable Satnam Singh (P.W.3), Head Constable Ram Chand (P.W.4), Assistant Sub Inspector Ajaib Singh Incharge, Malkhana (P.W.5), Assistant Sub Inspector Birbal Singh (P.W.6) and Constable Amrik Singh (P.W.7). In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused-appellant denied the prosecution allegations and pleaded false implication. He further stated that he was arrested from Village Munshiwala in the presence of Sham Lal. Police planted false case against him at the instance of Bhagwan Dass, who was looser in Panchayat elections from Sarpanch Sham Lal. In defence, the appellant examined Head Constable Balwinder Singh (D.W.1) and Sham Lal Sarpanch (D.W.2). Trial Court after scrutinizing the evidence led on record and hearing the learned counsel for the parties, convicted and sentenced the appellant as stated above. Criminal Appeal No.251-SB of 2005 4 I have heard the learned counsel for the parties and have gone through the records of the case. Learned counsel for the appellant has submitted that the poppy husk has been recovered from the passage, which was thoroughfare and the appellant merely standing near to the place of recovery cannot be said to be in conscious possession of the contraband. He has further argued that the case property was not produced in the Court during trial. Finally, it has been argued that there is delay of seven days in sending the samples to the laboratory for the purposes of chemical examination. ` These arguments have been controverted by the State counsel on the ground that the appellant was in conscious possession of the contraband as he was sitting on the bags and then he tried to run away after seeing the police. Had he not been in the conscious possession of the contraband then, there was no need for the appellant to have run away from the place of occurrence. Regarding delay, it has been submitted that the delay is not fatal to the case of the prosecution till the samples reached the laboratory in a sealed condition. Finally, it has been argued that judgment of the trial Court requires to be upheld as the accused has been rightly convicted in this case. Admittedly, recovery of contraband has been effected from the passage, which is apparent from the F.I.R and the site plan. Even PW2 Sukhram, the Investigating Officer has also stated in many words that when they have gone ahead about 500 yards from the main road, then they saw accused sitting under the tree on the right side of the passage, which leads to the fields. The accused was sitting on the gunny bags. On suspicion, he stopped the vehicle and accused on seeing them started moving towards the Criminal Appeal No.251-SB of 2005 5 paddy fields. On the basis of suspicion, he was apprehended, consent was obtained and, thereafter, recovery has been effected. Now, the question remains whether the accused found at the place of occurrence with two gunny bags containing 70 kgs. of poppy husk was in conscious possession of this contraband. Similar matter has been dealt by the Apex Court in case of State of Punjab Vs. Balkar Singh and another, 2004 SCC (Criminal) 838 wherein it has been held that merely being found to be present at the place where poppy husk was found and failure to give any satisfactory explanation for being so present did not prove that accused was in conscious possession of the said poppy bags. In the case reported as State of Punjab v. Balkar Singh and another, 2004 Supreme Court Cases (Cri.) 838, wherein the accused-respondents, who belonged to different villages, were alleged to have been found present at a place wherefrom about 100 bags of poppy straw were recovered, sitting on such bags, and failed to give any satisfactory explanation for being present at that place, it was held by the Hon'ble Supreme Court that merely by being found present at the place where the poppy bags were found and the failure to give satisfactory explanation for being so present did not prove that the accused persons were in possession of said poppy hags. Holding thus, the Apex Court dismissed the appeal of the State against the acquittal of the accused-respondents. Similar view was taken by a Division Bench of this Court in the case of Bikkar Singh v. State of Punjab, 2006 (3) R.C.R (Criminal) 16 wherein the accused-appellant Balkar Singh was found sitting on 120 bags of poppy husk lying in a sugarcane field and it was held by this Court that custody and control of Criminal Appeal No.251-SB of 2005 6 accused over the substance was not proved beyond doubt. For taking this view, reliance was placed by a Division Bench of this Court on the authority reported as State of Punjab v. Balkar Singh, 2004 Supreme Court Cases (Cri.) 838. In the case of State of Punjab v. Nachhattar Singh alias Bania, 2007 (3) RCR (Criminal) 1040: 2007 (3) P.L.R.122 , wherein the accused therein was found sitting on bags of poppy husk near a river and the police did not ascertain whether bags belonged to accused or not and how bags were transported to the place of recovery, it was held by a Division Bench of this Court that it was not sufficient to prove conscious possession of the accused. Accordingly, the appeal filed by the State against the acquittal of the accused therein was dismissed. Further, in the case of Sukhdev Singh alias Sukha v. State of Punjab, 2006 (1) R.C.R (Criminal) 4 : 2006 (1) Cri. C.C 934, where the accused was found sitting on six bags of poppy husk, it was observed by a Division Bench of this Court that the police should have conducted further investigation to prove that the accused was really in possession of these bags and the failure to give any explanation by the appellant therein for being present on that place itself does not prove that he was in possession of these articles. Apart from the point of conscious possession, it appears that certain formalities have been done while sitting in the police station in this case. The consent memo Ex.P2, the grounds of arrest memo Ex.P6, compliance of Section 57 Ex.P8 and the recovery memo are supposed to be written and signed at the same time. A perusal of the paper used for writing these documents shows that different type of papers had been used. One of Criminal Appeal No.251-SB of 2005 7 the paper is very old while the other is new. One of the paper Ex.P2 i.e. the consent memo seems to have been written on an old paper while the other documents are on different papers. The pen used for making writing on all these documents is also different. The signatures of the witnesses are different and the signs have been affixed with different pens. This also creates doubt in the mind of the Court whether the mandatory provisions required to be followed under the Act has been followed in this case. Furthermore, case property has not been produced in the Court during trial. Learned counsel for the appellant has also referred to the delay in sending the samples to the laboratory. That argument will not be of any use to the appellant in view of the decision of this Court in Jaswant Singh @ Jassa Vs. State of Haryana 2005(1) R.C.R. (Criminal) 802 wherein it has been held that the delay in sending the samples to the Chemical Examiner is not fatal to the case of the prosecution if the seals are intact when the samples reaches the laboratory. However, keeping in view the violation of mandatory provisions of the Act, the appeal succeeds. The judgment of the trial Court is reversed. The appellant is acquitted of the charge framed against him by giving him the benefit of doubt by setting aside the impugned judgment of conviction and the sentence order. ( MOHINDER PAL ) May 06, 2010. JUDGE jt