-1- Criminal Appeal No.1890 -SB of 2004 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH -.- Criminal Appeal No.1890 -SB of 2004. Date of Decision: May 12, 2010. Leela Ram ...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. D.S. Dalee, Advocate for the appellant. -2- Criminal Appeal No.1890 -SB of 2004 Mr. Vishal Munjal, Additional Advocate General, Punjab for the State-respondent. -.- MOHINDER PAL, J. Appellant Leela Ram has filed this appeal against the judgment of conviction and the sentence order dated 17.7.2004 passed by the Judge, Special Court, Patiala, 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 whereof to undergo further rigorous imprisonment for one year. 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 Leela Ram of the charge framed against him under Section 15 of the Act. The facts of the prosecution case are that on 17.4.2002, Inspector Manjit Singh, Incharge, CIA Staff, Samana along with other police officials was present at bus stand Dhainthal. Darshan Singh, an -3- Criminal Appeal No.1890 -SB of 2004 independent witness met the police party per chance who was joined in the police party. In the meanwhile, a secret information was received by Inspector Manjit Singh that accused-appellant Leela Ram was selling poppy husk in the area of Badshahpur and if a raid was conducted, poppy husk could be recovered from the accused- appellant. Believing the information to be reliable, Inspector Manjit Singh sent 'ruqa' to the Police Station through Constable Sher Singh and on its basis formal First Information Report was registered. A wireless message was, thereafter, sent to Deputy Superintendent of Police, Patiala to reach at the spot. Thereafter, a raid was conducted and accused-appellant was found sitting on three bags and was apprehended. Inspector Manjit Singh told the accused that he suspected some contraband in the bags and search of the same was required. Inspector Manjit Singh 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 a Gazetted Officer. Dissent memo in this regard was prepared. In the meantime, Deputy Superintendent of -4- Criminal Appeal No.1890 -SB of 2004 Police Kashmira Singh reached at the spot and disclosed his identity to the accused. On directions of Deputy Superintendent of Police Kashmira Singh , search of the bags was conducted. The bags were found to contain poppy husk. Two samples of 250 grams were separated from each bag. The poppy husk, on weighment, was found to be 34.500 Kgs in the bags. Their parcels were prepared and sealed. The bags containing poppy husk were also sealed. All these parcels were thereafter taken into possession. On personal search of the accused, Rs.95/- were recovered. Ground of arrest was prepared in this regard. The appellant was formally arrested. Site plan was prepared showing the place of recovery. On receipt of the report of Chemical Examiner, vide which the samples were opined to be of poppy heads (Chura Post) 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. -5- Criminal Appeal No.1890 -SB of 2004 In order to prove its case against the accused, the prosecution examined Constable Narinder Singh (P.W.1), Deputy Superintendent of Police Kashmira Singh (P.W.2), Inspector Manjit Singh (P.W.3) and Head Constable Udham Singh (P.W.4). In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused-appellant denied the prosecution allegations and pleaded false implication. In defence, the appellant examined Darabara Singh (D.W.1), Bucha Singh alias Ranjit Singh (D.W.2). I have heard Mr. D.S. Dalee, Advocate, appearing for the appellant and Mr. Vishal Munjal, Additional Advocate General, Punjab, appearing for the State-respondent and have gone through the records of the case. The learned counsel for the appellant, inter alia, argued that in this case conscious possession of contraband poppy husk by the appellant is not proved by the prosecution and it entitles the appellant to acquittal. He argued that merely being found present at the place where the gunny bags -6- Criminal Appeal No.1890 -SB of 2004 containing poppy husk were found and the failure to give any satisfactory explanation for being so present did not prove that the accused was in possession of the said poppy bags. According to the learned counsel, in fairness to the accused, the police ought to have conducted further investigation as to the transportation of poppy bags to the place of incident, ownership of the poppy husk etc. to prove that the accused-appellant was really in possession of the said articles. After giving my careful thought to the argument raised by learned counsel for the appellant, I find sufficient force in the same. In this case, the appellant was allegedly found sitting on gunny bags in an open space i.e `Kacha path' near the fields. There is no evidence on record to show the ownership of the poppy husk by the appellant. The police out to have conducted further investigation to prove that the appellant was really in possession of these bags, which was not done. As noticed above, the case of the prosecution is consisted of only official witnesses. No doubt, the statements of the official witnesses -7- Criminal Appeal No.1890 -SB of 2004 cannot be discarded merely because of their official status, but when the exclusive possession of the accused over the contraband poppy husk has not been proved on record the statements of the police witnesses, who are interested in the success of the case, have to be scrutinized minutely particularly when there is no corroboration to their statements from an independent source. There is no evidence to prove the charge of transporting the contraband poppy husk to the place of recovery by the accused. No investigation was made by the police regarding the source of the contraband as to wherefrom it was brought and its destination. It casts a serious doubt on the prosecution version. 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 -8- Criminal Appeal No.1890 -SB of 2004 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 -9- Criminal Appeal No.1890 -SB of 2004 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. -10- Criminal Appeal No.1890 -SB of 2004 In view of the above, the charge under Section 15 of the Act against the appellant is not proved beyond all reasonable doubts. Resultantly, I accept this appeal and acquit the appellant 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 12, 2010. JUDGE ak