Criminal Appeal No. 1336-SB of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No. 1336-SB of 2005 Date of decision: 5th March, 2008 Baldev Singh ... Appellant Versus State of Punjab ... Respondent ... Present: Mr. Sant Pal Singh Sidhu, Advocate for the appellant. Mr. S. S. Bhullar, Deputy Advocate General, Punjab for respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL HARBANS LAL, J This appeal has been directed against the judgment dated 23.7.2005/order of sentence dated 25.7.2005 rendered by the Court of learned Judge, Special Court, Moga, whereby he convicted and sentenced accused-appellant Baldev Singh to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default thereof, to further undergo rigorous imprisonment for six months under Section 15 of The Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act' ). The factual matrix of the prosecution case is that on 5.10.2002, SI Harinder Singh, S.H.O. Police Station, Baghapurana, accompanied by other police officials, was proceeding towards Villages Alamwala, Criminal Appeal No. 1336-SB of 2005 -2- Langeeana Nawan, Jaimal Wala etc. on Govt. Gypsy bearing registration No. PB-08-2206 being driven by Constable Paramjit Singh, in connection with search of suspects and patrolling. When the Police party reached Bus Stand of Village Alamwala, Gurtej Singh son of Ajit Singh, resident of Male Shah met the police officials. He was also co-opted in the Police party. Thereafter, they started towards the Village Langeeana. When the Police party reached the twin bridge of drain, from where a passage leads to Village Jaimal Wala, they saw the accused sitting on the bags in between 2 Kikar trees. He was holding a plastic Dibba in his hand. On catching sight of the Police party, he got perturbed which aroused suspicion in the mind of the Sub Inspector, who apprehended the accused. The Sub Inspector told the accused that the contents of the bag were suspected to be some intoxicants. He was informed about his right to get the search of these bags made in the presence of some Gazetted Officer or a Magistrate. The accused offered the bag to be searched in the presence of some Gazetted Officer. His consent memo. was prepared. On receipt of wireless message, Harjit Singh Pannu, DSP, Baghapurana came at the spot. He disclosed his identity to the accused. He also told the accused that the contents of the bags were suspected to be some intoxicants. He also apprised the accused of his right to get the bags searched in the presence of some other Gazetted Officer or a Magistrate. Another consent memo was prepared. On the instructions of the aforesaid DSP, the Sub Inspector carried out search of 4 bags, which were found to contain poppy husk. A sample of 250 grams of poppy husk was drawn from each bag. All the 4 simples drawn from the bags were converted into separate parcels. The residue of each bag, when weighed, came to 34 Kg. 750 grams. The same were also made into parcels. Thereafter, all the Criminal Appeal No. 1336-SB of 2005 -3- parcels were sealed with the seals HS and HSP. The sample seal was prepared. The seal HS was entrusted to Gurdev Singh, independent witness. The DSP retained his own seal with him. The sample bags, Dabba plastic, along with sample seal were seized vide memo. On personal search of the accused, currency notes worth Rs.150/- were recovered. The same were also taken into possession. The Sub Inspector sent Ruqa to the Police Station. On its basis, formal FIR was recorded. The accused was put under arrest. On receipt of Chemical Examiner's report and after completion of investigation, the charge sheet was laid in the Court for trial of the accused. The accused was charged under Section 15 of the Act, to which he did not plead guilty and claimed trial. In order to substantiate its allegations, the prosecution has examined PW-1 Constable Joginder Singh, PW-2 ASI Dilbagh Singh, PW-3 SI Harinder Singh, PW-4 Harjeet Singh Pannu,DSP, PW-5 MHC Komal Singh, PW-6 Constable Baljinder Singh and closed its evidence. When examined under Section 313 of the Code of Criminal Procedure, the accused denied the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. He put forth that he was picked up by the Police party on 4.10.2002 at 9.00 P.M. from his house in the presence of Panchayat and that nothing was recovered from him and later on, he was falsely implicated in this case. In defence, he examined Labh Singh, DW-1 and also tendered in evidence, Exh. D-2, certified copy of the list of witnesses and the certified copy of the statement of Gurtej Singh, Exh.D-3. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, Criminal Appeal No. 1336-SB of 2005 -4- the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with his conviction/sentence, he has preferred this appeal. I have heard Mr. Sant Pal Singh Sidhu, ,Advocate appearing on behalf of the appellant and Mr. S. S. Bhullar, Deputy Advocate General, Punjab, for the State of Punjab, besides going through the record with due care and circumspection. Mr. S.P.S. Sidhu, Advocate for the appellant, assiduously contended that the conscious possession of the appellant is neither established nor put to him in his statutory statement under Section 313 of the Code of Criminal Procedure. Thus, the prosecution evidence falls short of establishing the charged offence in view of the observations made by the Apex Court in re: Avtar Singh and others v. State of Punjab, 2002 (4) Recent Criminal Cases 682 and State of Punjab v. Balkar Singh and another, (2004) 3 Supreme Court Cases 582. Mr. S. S. Bhullar, Deputy Advocate General, Punjab, countered this argument by urging that the appellant being present on the bags, is sufficient to presume his conscious possession as he has not accounted therefor. This contention merits rejection for the discussion to follow hereunder. In re: Avtar Singh and others (supra), 640 Kgs. of poppy husk was recovered without valid permit or license. One person who was sitting on the front seat of the driver and another person sitting on the back side of the truck had run away leaving the vehicle. The other two sitting at the back and the driver of the vehicle were apprehended on the spot. The Apex Court held as under :- Criminal Appeal No. 1336-SB of 2005 -5- “ 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 but the minimum requisite element which has to be satisfied is 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 the custodian of goods whether or not he was the proprietor. The persons who were merely sitting on the bags in the absence of proof of any thing 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 Criminal Appeal No. 1336-SB of 2005 -6- 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 S. 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 Evidence Act nor is it safe to conclude that the prosecution established Criminal Appeal No. 1336-SB of 2005 -7- 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 of the Act which relates to culpable state of mind, without considering the aspect of possession. The trial Court invoked the presumption under S. 54 of the Act without addressing itself to the question of possession. The approach of both the Courts is erroneous in law.” Further, in Balkar Singh and another's case (supra), the accused was found sitting on the bags in a field. The Apex Court observed that “the police did not make any investigation as to how 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of poppy husk. 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. ” Adverting to the facts of the case in hand, the Investigating Officer did not make any investigation as to how the bags of poppy husk were transported to the place of recovery. The prosecution also did not adduce any evidence to show that the bags were ownership of the appellant. The failure of the appellant to give any satisfactory explanation for being present Criminal Appeal No. 1336-SB of 2005 -8- on that place ipso facto does not establish his custody and control over the bags. A meticulous perusal of the statutory statement of appellant under Section 313 of the Code of Criminal Procedure would reveal that the only question put to him was that he was found sitting on the bags. It has no where been put to him that he was in possession of the bags of poppy husk. The object of examination under Section 313 of the Code of Criminal Procedure is to afford an opportunity to the accused to explain the incriminating circumstances appearing against him in the prosecution evidence. In view of the observations extracted from Avtar Singh and others case (supra), it was for the trial Court to put to the appellant that he was found in possession of the bags, when he was being examined under Section 313 of the Code of Criminal Procedure. The tenor of the judgment delivered in Avtar Singh and others case (supra) is that the persons who were merely sitting on the bags, in the absence of any thing more, cannot be presumed to be in possession of the same. Thus, if the matter is viewed in the background of the observations made by the Hon'ble Supreme Court in the afore-quoted case, the appellant cannot be deemed to be the owner of the poppy husk bags merely because he was found sitting thereon. It was imperative upon the Investigator to inquire into question of ownership of the bags as well as the mode of transportation of the same to the alleged place of recovery. As is borne out from the prosecution evidence, he did not take the pains to go into these questions. There is no gain saying the fact that the alleged place is open and accessible to all and sundry. May be that some one else had placed the bags there and the appellant suddenly came and sat on the bags without becoming aware of their contents. In view of Avtar Singh and others case (supra), presumption under Section 35 as well Criminal Appeal No. 1336-SB of 2005 -9- as 54 of the Act, also cannot be drawn against the appellant. Gurtej Singh, an independent witness to whom the seal after use was made over, has been given up on the pretext of his having been gained over by the appellant. It was incumbent upon the prosecution to have produced him at the trial. Only on his examination, it could have been elicited whether or not the seal was entrusted to him and after how many days the same was returned by him. If the same was taken back from him before the despatch of the sample parcel for chemical analysis, in that eventuality, the possibility of the sample parcel being tampered with, cannot be ruled out as the C.F.S.L form in this case was neither prepared at the spot nor deposited in the Malkhana. In view of the reasons recorded above, this appeal is accepted, setting aside the impugned judgment/order of sentence. The appellant Baldev Singh is hereby acquitted of the charged offence. ( HARBANS LAL ) JUDGE 5th March, 2008 RS Whether to be referred to the Reporter ? Yes/No