IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) Crl. Appeal No.1168-SB of 2003 Gurinder Singh and another. ....... Appellants through Shri K.S.Boparai, Advocate. Versus State of Punjab. ....... Respondent through Shri B.B.S.Teji, Assistant Advocate General. (2) Crl. Appeal No.1221-SB of 2003 Narinderjeet Singh. ....... Appellant through Shri B.S.Kathuria, Advocate. Versus State of Punjab. ....... Respondent through Shri B.B.S.Teji, Assistant Advocate General. Date of Decision: 2.9.2009 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? .... Crl.Appeal No.1168-SB of 2003 -2- .... Mahesh Grover,J. This common judgment will dispose of the above mentioned two appeals which have been directed against judgment and order dated 19.4.2003 vide which the Additional Sessions Judge -cum- Judge, Special Court, Jalandhar (hereinafter described as ``the trial Court') has convicted and sentenced the appellants 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 fine, to further undergo rigorous imprisonment for six months. On 24.3.1997, Angrez Singh, Sub Inspector/ Station House Officer, Police Station, Phillaur along with some other police officials was present at the bridge drain on the road leading to Village Thala in the area of village Khanpur in connection with special nakabandi. At about 4.30 A.M., a truck bearing registration no. HYX 4287 came from the side of village Thala which was signaled to stop. Its driver tried to abscond, but the attempt was foiled. The truck was being driven by -appellant-Narinderjeet Singh while appellants-Gurinder Singh and Mohinder Singh were sitting by his side. A question was put to them if they wanted themselves to be searched in the presence of a Magistrate or a gazetted officer, but they expressed their confidence in the Station House Officer. Their consent memos, Exhibits PB to PD, were prepared which were signed by them. On search of the truck, eighteen bags, Exhibits P1 to P18, containing poppy husk, were found therein regarding which the appellants could not produce any licence. Eighteen samples of 250 grms were separately from each of the bags and Crl.Appeal No.1168-SB of 2003 -3- .... the remaining contraband weighed 34 Kgs. and 750 grams in each bag. The samples and the bags were sealed with the seal of `AS' and the seal, after use, was handed over to Bahadur Singh, A.S.I. Separate seal impressions were also prepared at the spot. The samples, bags, truck and sample seal were taken in possession vide memo Exhibit-PE. Ruqa,Exhibit PF, was sent to the police station upon which formal F.I.R. was recorded by M.H.C. Amarjit Singh. A rough site plan of the spot was prepared and after completion of necessary investigation, challan under Section 173 of the Cr.P.C. prepared prima facie finding the complicity of the appellants in the commission of offence punishable under Section 15 of the Act. They were accordingly charge sheeted by the trial Court. The prosecution, in order to prove its case, examined as many as six witnesses. In their statements recorded under Section 313 of the Cr.P.C., the appellants pleaded innocence and denied the charge against them. The trial Court, after appraisal of the entire evidence on record, convicted and sentenced the appellants in the manner noticed hereinabove resulting in the instant appeals. Learned counsel for the appellants contended that there was no conscious possession of the appellants over the contraband established by evidence on record. He further contended that the owner of the truck, namely, Rajinder Kumar, was not joined in the investigation and nor arrayed as an accused. Therefore, whether the appellants were in conscious possession of the contraband or not could not be established by the Crl.Appeal No.1168-SB of 2003 -4- .... prosecution. Moreover, no question was put to the appellants regarding their conscious possession of the contraband while recording their statements under Section 313 of the Cr.P.C. It was next contended that during the course of trial, the appellants were not identified in Court by any of the prosecution witnesses and the link evidence was also missing. According to the learned counsel, the possibility of misuse of the seal which was handed over to a police official, could not be ruled out as no independent witness was joined and this casts a serious aspersion on the case of the prosecution. Lastly, it was urged that in the event of this Court coming to a conclusion that the appellants' plea did not merit any attention, then their case deserves to be considered leniently because they have already undergone five years six months' imprisonment out of total sentence of ten years awarded to them. Reliance was placed on judgments reported as Avtar Singh Versus State of Punjab, 2002(4) R.C.R. (Criminal) 180 (S.C.); Kashbir Singh Versus State of Punjab, 2006(2) R.C.R. (Criminal) 477 (P&H) (F.B.); Sukhdev Singh and another Versus State of Punjab, 2006(4) R.C.R. (Criminal) 263 (P&H) (D.B.) and Gurmit and others Versus State of Haryana, 2008(4) R.C.R. (Criminal) 412 (P&H) (S.B.). On the other hand, learned counsel for the respondent-State contended that it was a case of chance recovery and, therefore, no independent witness could be enjoined. It was next contended that option was given to the appellants as a measure of compliance of Section 50 of the Act to which they expressed confidence in the police officials, who thereafter, conducted the search. Learned counsel for the respondent-State Crl.Appeal No.1168-SB of 2003 -5- .... argued that there was absolutely no material on record on the basis of which it could be concluded that the findings recorded by the trial Court are erroneous. I have thoughtfully considered the rival contentions/ submissions and have gone through the record. The first question that crops up for consideration is as to whether the appellants were in conscious possession of the contraband or not. If the evidence on record is to be seen, then in the opinion of this Court, the prosecution has failed to establish this aspect of the matter beyond any shadow of doubt. In Avtar Singh Versus State of Punjab, 2002(4) R.C.R. (Criminal) 180 (S.C.) , the Supreme Court held as under:- “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 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 Crl.Appeal No.1168-SB of 2003 -6- .... 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 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 Crl.Appeal No.1168-SB of 2003 -7- .... 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 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 Crl.Appeal No.1168-SB of 2003 -8- .... 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 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 Hari Singh & Ors., 2009(2) R.C.R. (Criminal) 144 (S.C.)= 2009(4) S.C.C. 200, the Apex Court laid down as Crl.Appeal No.1168-SB of 2003 -9- .... under:- At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word `may' in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.” As is evident from the law laid down by the Supreme Court, possession is the core ingredients to be established before an accused is subjected to punishment under Section 15 of the Act. If an accused is 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 him to account for such possession satisfactorily, if not, the presumption under Section 54 of the Act comes into play. True, the silence and failure of the appellants to explain the circumstances in which they were travelling in the vehicle in the early hours of the morning, is one of strong circumstance that can be put against Crl.Appeal No.1168-SB of 2003 -10- .... them. A case of drawing presumption under Section 114 of the Evidence Act could perhaps be made out, but then to prove the possession of the appellants, the fact remains that in the course of examination under Section 313 of the Cr.P.C., not even a question was put to them that they were the persons in possession of the poppy husk placed in the vehicle. Concededly, the truck did not belong to the appellants. As mentioned above, one of them was merely driving and the other two were sitting by his side. It was, therefore, incumbent upon the prosecution to establish that the contraband which was recovered from the truck either belonged to the appellants or they were in control of the bags knowing fully well that the same contained such a contraband. The owner of the truck was never arrayed as an accused and was not even examined by the prosecution. It could have gone a long way to establish the case of the prosecution. This is, therefore, a glaring lapse on the part of the prosecution. That apart, the testimony of PW5-S.I.Bahadur Singh, who was associated with the search, stated during his cross-examination that no specific number was placed on the bags and samples indicating that a particular sample had been taken from a specific bag. When the case property was shown to this witness in the Court, he stated that he had not seen the number mark and the contraband was poppy powder and not poppy heads and if the statement of PW6-Kulshinder Singh, S.P. (D) is to be perused, then he has stated in his cross-examination that he had attested the recovery memo which had already been prepared prior to his reaching the spot. This implies that the search had already been completed and even the Crl.Appeal No.1168-SB of 2003 -11- .... option memos given to the appellants had been prepared prior thereto. Since the recovery was not effected in the presence of a gazetted officer, it violated the provisions of Section 50 of the Act. But this can be explained partially to the effect that it was a chance recovery,but still the provisions of Section 50 of the Act had to be complied with which have been given a complete go-bye. Besides, PW6-Kulshinder Singh has further stated in his cross- examination that all the bags were numbered from 1 to 18, but he did not remember whether the case property which was produced in the Court was bearing number 1 to 18 or not. He did not remember as to whether the samples were numbered as bags were. This is another lapse on the part of the prosecution. Not only the statements of the prosecution witnesses are at variance with each other, but whether the case property was the same which was seized from the appellants or not, has not clearly been established. If the case property cannot be identified and linked to the one which was seized during the course of search, then obviously the appellants deserve the benefit of doubt. Another serious lapse on the part of the prosecution is that the seal of the Investigating Officer was handed over to the other police official from where the possibility of its being misused cannot entirely be ruled out. Having regard to the aforesaid premise that has been set out in the above discussion, I am of the opinion that the appeals of the appellants deserve to be accepted. Crl.Appeal No.1168-SB of 2003 -12- .... Accordingly, the instant appeals are allowed, the conviction and sentence of the appellants are set aside and they are acquitted of the charge against them. September 02,2009 ( Mahesh Grover ) “SCM” Judge