Criminal Appeal No.1288-SB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ... Criminal Appeal No.1288-SB of 2002 Date of decision: March 19, 2008 Partap Singh ... Appellant Versus State of Punjab ... Respondent ... Present:` Mr.Anmol Rattan Sidhu, Senior Advocate with Mr. Vishaldeep Goyal, Advocate for the appellant. Ms Manjari Nehru, Deputy Advocate General, Punjab for the respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL ... HARBANS LAL, J This appeal is directed against the judgment/order of sentence dated 5.8.2002 passed by learned Special Judge, Ferozepur, whereby he convicted and sentenced Partap Singh 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 one year under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act' ). As set up by the prosecution, on 2.9.1993, in the early morning SI Major Singh, the then Incharge CIA Staff, Ferozepur, among other Criminal Appeal No.1288-SB of 2002 -2- officials including SI Sewa Singh, the then SHO Police Station Cantt.Ferozepur, happened to be present near the Canal Rest House at Ferozepur Cantt., divided the police officials into two sub-parties out of which one was headed by SI Major Singh and the other one by SI Sewa Singh. They set up Naka on the northern side of the road. In the meantime, one Tarlok Singh was also associated with the police party of SI Major Singh. It was about 5.00 A.M. When Mohindra Jeep was noticed approaching from the side of Canal Rest House. The same was made to stop. It was being driven by accused Partap Singh. Another person was sitting by his side on the front seat. Partap Singh was nabbed. The other occupant of the jeep made an endeavour to flee from there. He was overpowered by the police party of SI Sewa Singh and separate proceedings against him were taken. Partap Singh was suspected carrying some contraband. He was asked to tell whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. He reposed confidence in Sub Inspector Major Singh. His consent memo.,Exh. P1 was prepared. On search of the jeep, a gunny bag containing opium yielded from beneath the feet of the accused. When weighed, the same came to 5 Kgs. Out of which 10 grams of opium was separated to serve as sample and converted into a parcel. The residue was also made into a parcel. Thereafter, both the parcels were sealed with seal MS and seized vide recovery memo., Ex.P2, along with the jeep bearing registration No. DL-1C-2638. The sample seal was prepared. The accused Partap Singh was formally arrested. The currency notes worth Rs.370/- recovered from his personal search were taken into possession vide recovery memo., Exh.P3. Ruqa,Exh. P8 was sent to the Police Station. On its basis, formal FIR, Exh. P9 was registered. The rough Criminal Appeal No.1288-SB of 2002 -3- site plan, Exh.P10 showing the place of recovery was drawn. The parcels were handed over to SI Sewa Singh, the then SHO of Cantt. Ferozepur, who took the same into his custody vide memo., Exh.P11. On receipt of chemical examiner's report, Exh.P12 and after completion of investigation, the charge sheet was laid in the Court for trial of the accused. The accused was charged under Section 18 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 ASI Jalour Singh, PW-2 Constable Makhan Singh, PW-3 SI Wassan Singh, PW-4 SI Major Singh (Investigator), PW-5 SI Sewa Singh and closed its evidence by tendering into evidence the chemical examiner's report, Exh.P12. 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 has come up with the plea that he was detained by the police illegally and subsequently involved in this false case. He tendered in his defence, Exh. DA,DB, DC and DD. After hearing the learned Additional Public Prosecutor for the State, 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 therewith, he has come up in this appeal. I have heard Mr. Anmol Rattan Singh Sidhu, Senior Advocate, counsel for the appellant as well as Ms Manjari Nehru, Deputy Advocate General, Punjab, besides perusing the record with due care and circumspection. Mr.Anmol Rattan Sidhu, Senior Advocate, for the appellant Criminal Appeal No.1288-SB of 2002 -4- urged with great vehemence that as alleged by the prosecution Tarlok Singh, an independent witness was with the police party, but the seal MS after use, was handed over to ASI Jalour Singh without assigning any cogent reason and Tarlok Singh, PW has been given up by the prosecution as having been won over by the accused. Furthermore, the CFSL form was not prepared at the spot nor deposited in the Malkhana. As transpires from Exh. P12, the chemical examiner's report, the sample parcel was received in chemical examiner's office on 9.9.1993, i.e. after 6 days of recovery, whereas according to the Standing Instruction No.1/88 dated 15.3.1988, the sample parcel should be sent within 72 hours for chemical analysis.. These circumstances are cumulatively fatal to the prosecution case. As against this, Ms Manjari Nehru, Deputy Advocate General, Punjab, appearing for the State, maintained that the non-handing of the seal to the independent witness, does not affect the merits of the case as the chemical examiner's report, Exh. P12 brings out that the seals affixed on the sample parcel tallied with the sample seal. This contention merits rejection. In re: Gurjant Singh v. State of Punjab, 2007 (4) Recent Criminal Reports (Criminal) 226, the seal after use was not handed over to independent witness who had joined but remained with the official witness. Form No.29-M was also not filled at the spot. It was held that chances of tampering with property cannot be ruled out. In Gurjant Singh's case (supra), the samples were sent to the chemical examiner after 14 days and it was observed that it was a serious flaw in the link evidence. In re: Sukhdev Singh @ Sukha v. State of Punjab, 2006 (1) Recent Criminal Reports (Criminal) 4, the seal was given to SI of police and not to the independent witness. The Division Bench of this Court held that Criminal Appeal No.1288-SB of 2002 -5- the possibility of seal being tampered with, substance being changed and the containers being re-sealed, cannot be ruled out. In re: Buta Singh v. State of Punjab, 2006 (1) Recent Criminal Reports (Criminal) 835, as many as 18 bags of poppy husk were recovered. The prosecution failed to explain delay of 8 days in despatch of sample to the Forensic Science Laboratory for chemical analysis. It was held that such a delay is fatal and the same is also in violation of the Standing Instruction No.1/88 dated 15.3.1988 (Narcotic Control Bureau,New Delhi ). In re: Baldev Singh v. State of Punjab, 2005 (1) Recent Criminal Reports (Criminal) 823, the seal was given to an independent witness who was not examined. It was held that till the case property has not been despatched to the office of the Forensic Science Laboratory, the sale should not be available to the Prosecution Agency and in absence of such safeguard, the possibility of seal being tampered with, substance being changed and the containers being re-sealed, cannot be ruled out. Here in this case, the seal after use was given to ASI Jalour Singh and not to the independent witness Tarlok Singh. If Tarlok Singh had been examined, only then it could have been elicited from him as to after how many days,the seal was returned by him. The prosecution has not given any cogent and convincing explanation for preferentially giving the seal to a police official instead of an independent witness. The seal remained with the police official Jalour Singh, who has also been withheld by the prosecution. So, in such circumstances, it is very difficult to say as to on which date the seal was returned by him. The prosecution has not given any satisfactory explanation for non-production of Jalour Singh at the trial. Criminal Appeal No.1288-SB of 2002 -6- In re: Bhola Singh v. State of Punjab, 2005 (2) Recent Criminal Reports (Criminal) 520 also, the C.F.S.L form was not prepared at the spot nor deposited in the Malkhana. Filling up of such form at the spot is a very valuable safeguard to ensure that the sealed sample is not tampered with till its analysis by the Forensic Science Laboratory. It was held that such circumstance would be fatal to the prosecution case. In re: Dhagla Ram v. State of Punjab, 2005 (4) Recent Criminal Reports (Criminal) 172 also, the seals after use were handed over to an ASI who was a member of the raiding party and not to the independent witness who was joined at the time of investigation. The independent witness was not even examined. The conviction was set aside. In re: Bantapalli Durga Rao and others v. State of A.P, 2005 (4) Recent Criminal Reports (Criminal) 404, the delay in sending the samples for chemical analysis was not explained. The conviction was set aside. In re: Gurcharan Singh v. State of Punjab, 2006 (4) Recent Criminal Reports (Crimina) 681, the prosecution failed to prepare the C.F.S.L form at the spot. It was held inter-alia that it creates doubt about the credibility of the entire prosecution exercise. The concept of judicial precedent, as emerges out from the above discussed law, is that where the seal after use is not entrusted to an independent witness, who had joined investigation at the time of recovery, and he is not examined, the C.F.S.L form is neither filled at the spot nor deposited in the Malkhana, the sample parcel is sent beyond 72 hours of recovery for chemical analysis, cumulatively probabilizes tampering with the contents of sample parcel. Criminal Appeal No.1288-SB of 2002 -7- Mr.Sidhu further argued that as per prosecution version, the vehicle was being driven allegedly by the accused but the prosecution has not adduced any evidence to the effect that he was holding a driving license or that he was the owner of the jeep. Furthermore, the prosecution has not given any cogent explanation worth the name as to why two FIRs were registered though the recovery has been allegedly effected from the same vehicle. It has not been put to the accused in his statement under Section 313 of the Code of Criminal Procedure that he was found in possession of the alleged bags. Thus, in view of the observations rendered in Sukhdev Singh @ Sukha (supra), no offence is made out. To tide over these submissions, Ms Manjari Nehru, Deputy Advocate General, Punjab, agitated at the bar that in view of the provisions as enshrined in Section 35 as well as 54 of the Act, it is inferable that the accused was in conscious possession of poppy husk bags. This argument is hard to swallow. In re: State of Punjab v. Balkar Singh, 2004 Supreme Court Cases (Criminal) 838, the accused were alleged to have been found present at the place where from 100 bags of poppy husk were recovered. They were sitting on such bags, but failed to give any satisfactory explanation for being present there. It was held by the Apex Court that “merely by being found to be present at the place where the poppy husk bags were lying and the failure to give any satisfactory explanation for being so present, did not prove that the accused persons were in possession of the said poppy husk bags. In all fairness, the police should have conducted further investigation about the transportation of the poppy husk bags to the place of incident, ownership of poppy husk bags to prove that the accused was really in possession of said articles.” Criminal Appeal No.1288-SB of 2002 -8- In re: Avtar Singh v. State of Punjab, 2002(4) Recent Criminal Reports (Criminal) 180 (SC), the five accused were intercepted in the middle of the night travelling in a truck which was being driven by one of them. The truck was carrying 16 bags of poppy husk. One of the accused was sitting in the driver's cabin in the truck and three were sitting on the bags of poppy husk in the back of the truck. The Apex Court held as under :- “ 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 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 custodian of goods whether or not he as the proprietor. The persons who were merely sitting on the bags, in the absence of proof of any thing more, cannot be Criminal Appeal No.1288-SB of 2002 -9- 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 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 Criminal Appeal No.1288-SB of 2002 -10- 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 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 pointed out above were neither adverted nor taken into account by the trial Court and the High Court.” Harking back to the facts of the instant case, as alleged by the prosecution, the opium duly wrapped in a glazed paper was recovered from the plastic bag which was lying in between the feet of the accused. In re: Raj Kumar v. State of Punjab, 2005 (1) Recent Criminal Reports (Criminal) 70, the bag containing 8.250 Kgs. of opium was lying on the seat between the two appellants. Both the appellants had been charged for Criminal Appeal No.1288-SB of 2002 -11- possession of opium, but neither of them had been asked any question in their statements under Section 313 of Code of Criminal Procedure that they were in conscious possession of opium. It was held by the Division Bench of this Court that neither the presumption under Section 35 nor the presumption under Section 54 of the Act would be attracted. Further held that 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. In the present case, too such specific question has not been framed by the learned trial court. Sequelly, the presumptions under the said Sections were not available to the prosecution. Further, there being no evidence to the effect that the accused was holding driving license, it is very difficult to presume in the absence thereof that he was driving the alleged vehicle at the relevant time. Mr. Sidhu further canvassed at the bar that, as alleged by the prosecution, 10 grams of opium was separated to serve as sample, whereas according to the Standing Instruction of the Narcotic Control Bureau, in case of opium, sample of 25 grams ought to be drawn. Thus, the investigator acted in derogation of the stated instruction. Ms Manjari Nehru, Deputy Advocate General, Punjab could not controvert this contention in a successful manner. In re: Gurcharan Singh (supra), 8 Kgs. Of opium was recovered. Only one sample of 10 grams was taken, whereas the instructions mandated for two samples of 25 grams each. Instruction No.2.3 of Section II-General Procedure for Sampling, Storage Criminal Appeal No.1288-SB of 2002 -12- etc. Chapter 15 NARCOTICS reads as under :- “2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in case of opium, ganja and charas (hasish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous representative before the sample (in duplicate) is drawn. ” It is quite plain and patent from the aforequoted instruction that in case of opium, sample of 24 grams in each case is required for chemical test. Viewed in this background, the sample which was drawn herein was not in conformity with the afore-quoted instruction. As is borne out from the evidence of SI Major Singh, PW-4, Investigator, only one sample was drawn, whereas the provisions of Section 55 of the Act as well as Instruction No.2.2 ibid contemplates that the samples in duplicate should have been drawn. In re: Hawa Singh v. State of Haryana, 2005 (4)Recent Criminal Reports (Criminal) 292, only one sample of contraband was taken against mandatory provisions of Section 55 ibid. The conviction was set aside. Thus, in the instant case, the sample was not drawn in adherence to the mandatory provisions of Section 55 of the Act Criminal Appeal No.1288-SB of 2002 -13- as well as above mentioned standing instruction. In view of the infirmities catalogued above, this appeal succeeds and is accepted, setting aside the impugned judgment/order of sentence. The accused-appellant is hereby acquitted of the charged offence. ( HARBANS LAL ) JUDGE March 19, 2008 RS Whether to be referred to the Reporter ? Yes/No