-1- Criminal Appeal No.656 -SB of 2005 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH -.- Criminal Appeal No.656 -SB of 2005. Date of Decision: May 6, 2010. Gurdial 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. K.S. Dhaliwal, Advocate for the appellant. Mr. Kirat Singh Sidhu, Deputy Advocate General, Punjab for the State-respondent. -.- MOHINDER PAL, J. Appellant Gurdial Singh has filed this appeal against the judgment of conviction and the sentence order dated 05.2.2005 passed by the Judge, Special Court, Patiala, whereby the appellant was convicted under Section 15(c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred -2- Criminal Appeal No.656 -SB of 2005 to as `the Act') and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- in default 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 acceptance of this appeal and to acquit the appellant of the charge framed against him for the aforesaid offence. The facts of the prosecution case, in brief, are that on 22.11.2002, Assistant Sub Inspector Karan Singh along with other police officials was going from Banwala towards village Dutal. On reaching at T-Point Banwala, Mohinder Singh, an independent witness met them per chance. Assistant Sub Inspector Karan Singh was having a talk with Mohinder Singh when the accused-appellant was seen coming on foot from the side of village Dutal, through a Kacha Path, carrying a bag on his head. On seeing the police party, the accused dropped the bag from his head on the ground and tried to run away from the spot. In that process, the gunny bag was torn from one side and small quantity of poppy husk was scattered on the ground. The accused was apprehended by the police party. Two samples of 250 grams of poppy husk were separated. The remaining poppy husk, on weighment, was found to be 34 kg 500 grams. The sample parcels and the gunny bag were taken into possession after sealing the same with the seal of Assistant Sub Inspector Karan Singh bearing initials `KS'. Sample of the seal was also prepared (Exhibit P1). Seal after use was handed over the Mohinder Singh, -3- Criminal Appeal No.656 -SB of 2005 independent witness. On personal search of the accused, Rs.20 were recovered and taken into possession by the police. Ruqa (Exhibit PE) was sent to the Police Station through Constable-II Kulwinder Singh and on its basis First Information Report was registered by Assistant Sub Inspector Surinderpaljit Singh. Rough site plan was prepared showing the place of recovery. Appellant Gurdial Singh was arrested and ground of arrest were also supplied to him vide Memo (Exhibit PG). Information memo (Exhibit P.H) with regard to the arrest of the appellant was also prepared. Assistant Sub Inspector Karan Singh thereafter further interrogated the accused-appellant who disclosed that he had kept another gunny bag containing 35 kg of poppy husk buried in a pit in the fields. The accused offered to get the same recovered. Assistant Sub Inspector Karan Singh reduced the disclosure statement of the appellant in this regard into writing, which was thumb marked by the accused and attested by the P.Ws. Thereafter, the accused-appellant led the police party and got recovered one bag containing poppy husk from the disclosed place. Two samples of 250 gms each were separated. The poppy husk, on weighment, was found to contain 34 kg 500 grams. The sample parcels and the gunny bag containing residue poppy husk were taken into possession after sealing the same with the seal of Assistant Sub Inspector Karan Singh bearing initials `KS'. Site plan (Exhibit P.L) was prepared showing the place second recovery. After receipt of the report of Chemical Examiner and on -4- Criminal Appeal No.656 -SB of 2005 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-appellants, on two counts, i.e with regard to the first recovery and the second recovery. The appellant did not plead guilty to the charge and claimed a trial. In order to prove its case against the accused, the prosecution examined Head Constable Swatantarpal Singh (P.W.1), Head Constable Didar Singh (P.W.2), Assistant Sub Inspector Karan Singh (P.W.3), Head Constable Hardial Singh (P.W.4), Inspector Daljit Singh (P.W.5) and Head Constable Ram Dia (P.W.6). Mohinder Singh, an independent witness, was not examined and given up by the prosecution as having been won over by the accused. In his statement recorded under Section 313 of the Code of Criminal Procedure, the appellant stated as under:- “I am innocent. I have committed no offence. On 21.11.2002, I was called from my village in the presence of Bhajan Singh son of Dalip Sing, Sohan Singh son of Bachan sing and Mohan Singh son of Bahola Singh and falsely implicated in the present case”. In defence, the accused-appellant examined Sohan Singh (D.W.1). -5- Criminal Appeal No.656 -SB of 2005 Arguments of the learned counsel appearing for the appellant and the learned Deputy Advocate General, appearing for the State of Punjab, were heard and evidence was scrutinized with their help. As noticed above, recoveries of two bags of poppy husk, each containing 35 Kgs, have been effected from the accused from two different places. First recovery was effected when the appellant was spotted per chance by the police party while carrying a gunny bag on his head. He threw the bag on the ground and tried to run away from the spot. In this process, the bag was torn and poppy husk scattered on the ground. The accused-appellant was apprehended by the police. While in police custody, the accused-appellant suffered a disclosure statement and in pursuance thereof got recovered one another gunny bag containing 35 Kgs of poppy husk. Learned counsel for the appellant did not seriously challenge the first recovery from the appellant. However, with regard to the second recovery, learned counsel for the appellant argued that the prosecution has not been able to prove that the fields from where the second recovery of gunny bag containing poppy husk was allegedly made belonged to the accused. In his cross-examination, Assistant Sub Inspector Karan Singh admitted that he did not take any document into possession with regard to the ownership of the land from where the second recovery was made. In State of Punjab v. Balkar Singh and another, -6- Criminal Appeal No.656 -SB of 2005 2004 Supreme Court Cases (Cri.) 838, wherein the accused- respondents, who belonged to different villages as are the appellants in this case, 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 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 -7- Criminal Appeal No.656 -SB of 2005 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. In this view of the matter, the recovery of second bag containing 35 Kgs poppy husk allegedly made on the basis of the disclosure statement of the accused, is not proved on record. However, the prosecution has been able to prove the first recovery of one gunny bag containing 35 Kgs of poppy husk from the accused, which is non-commercial quantity. The appellant is stated to have undergone more than four years imprisonment in this case. He being held to be found in possession of 35 Kgs of poppy husk, a non-commercial quantity, I am of the opinion that the ends of justice will be -8- Criminal Appeal No.656 -SB of 2005 adequately met with if his sentence of rigorous imprisonment is confined to the period he has already undergone. I order accordingly. The fine of Rs.1,00,000/- awarded to the appellant by the trial Court is also reduced to Rs.5,000/-. In case he fails to deposit the fine, he shall undergo rigorous imprisonment for one month. The impugned judgment and sentence order passed by the trial Court are modified accordingly. Consequently, the appeal stands partly allowed, as indicated above, and is disposed of accordingly. ( MOHINDER PAL ) May 06, 2010. JUDGE ak