Criminal Appeal No.2392-SB of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No.2392-SB of 2003 Date of decision: May 22, 2008 Mela Singh and another ... Appellants versus State of Punjab ... Respondent and Criminal Appeal No.45-SB of 2004 Karamjit Singh Appellant versus State of Punjab Respondent ... Present: Mr. Suresh Goyal, Advocate for the appellants in Cr.Appeal No.2392-SB-2003. Mr. Akshay Jain, Advocates for the appellant in Cr.Appeal No. 45-SB of 2004. Ms Manjari Nehru, Deputy Advocate General, Punjab for the respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL HARBANS LAL, J This judgment shall dispose of Criminal Appeal No.2392-SB of 2003 preferred by Mela Singh as well as Bikkar Singh, accused-appellants and Criminal Appeal No. 45-SB of 2004 filed by Karamjit Singh, accused- appellant against the judgment/order of sentence dated 10.11.2003 rendered by the Court of learned Special Judge, Barnala, whereby he convicted and sentenced all the three accused-appellants to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- and in default of payment of the same, the defaulter to further undergo rigorous imprisonment for six months under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, the Act ). Criminal Appeal No.2392-SB of 2003 -2- The facts in brief of the prosecution case are that on 15.7.2000, Nachhatar Singh SI/SHO, Police Station Tapa along with other police officials was proceeding from village Ghunas towards the side of Khuddi Khurd on the bank of the drain in an official gypsy in connection with patrolling and checking of duties of police officials. When they neared the garden of grapes close to the bridge of drain in the area of village Dhaula, Bhura Singh was spotted coming on cycle from afront. The SI started chattering with him. Meanwhile, one jeep came from the side of main road. On catching sight of the police gypsy, the jeep driver halted the jeep. He along with other occupants of the same, made an endeavour to escape through the aforesaid garden. On suspicion, the accused Mela Singh, Bikkar Singh and Karamjit Singh were overpowered. On checking of jeep bearing registration No. RRC 3150 some gunny bags were recovered. The Sub Inspector suspected the same containing contrabands. The accused were asked to tell as to whether they wanted to have search of the jeep before a Gazetted Officer or a Magistrate. They offered such search in the presence of a Gazetted Officer. On receipt of wireless message, DSP Balwant Singh came at the spot. On his directions, the Sub Inspector carried out search of the bags which were found to contain poppy husk. Two samples each weighing 250 grams of poppy husk were drawn from each bag and converted into parcels. The residue of each bag when weighed came to 39.500 Kg. which were also turned into parcels. All the parcels were sealed with seal NS and BS. The sample seals were prepared. The Sub Inspector after use handed over his seal to Bhura Singh PW, whereas the DSP retained his seal with him. All the parcels were seized vide recovery memo. Certificate of registration of the jeep was also taken into possession vide Criminal Appeal No.2392-SB of 2003 -3- separate recovery memo. On personal search of Karamjit Singh, currency notes worth Rs.350/- were recovered. The same were taken into possession. On personal search of Bikkar Singh, currency notes of Rs.100/- were recovered. These were seized vide separate memo. On personal search of Mela Singh, currency notes worth Rs.200/- were recovered. The Same were taken into possession. Ruqa was sent to the Police Station. On the basis of the same, formal FIR was recorded. The Sub Inspector prepared the rough site plan showing the place of recovery, recorded the statements of witnesses and on return to the Police Station, deposited the case property with MHC Pargat Singh. 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. All the three accused were charged under Section 15 of the Act to which they did not plead guilty and claimed trial. In order to substantiate its allegations, the prosecution examined PW-1 Nachhatar Singh SI, PW-2 Nazar Singh ASI, PW-3 Pargat Singh HC, PW-4 Balwant Singh DSP, PW-5 Hari Singh C-1 and closed its evidence by tendering the report of chemical examiner. When examined under Section 313 of the Code of Criminal Procedure, all the three accused denied the incriminating circumstances appearing in the prosecution evidence against them and pleaded innocence. Mela Singh, accused came up with the plea that he was brought from his house in the presence of Ajaib Singh and Gurdev Singh. Bikkar Singh accused put forth that he was arrested in the presence of Nand Singh and Surjit Singh from his house and this case was planted upon him. Karamjit Singh accused pleaded that he was brought from his house in the presence Criminal Appeal No.2392-SB of 2003 -4- of Maghar Singh Lamberdar and Jang Singh Panch and this case was foisted upon him. In defence, they examined Bhura Singh DW-1, Dr.Atul K.Singla, DW-2, Maghar Singh DW-3 and Nand Singh DW-4. 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 all the three accused- appellants as noticed at the outset. I have heard Mr.Suresh Goyal, Mr. Akshay Jain, Advocates appearing for the appellants as well as Ms Manjari Nehru, Deputy Advocate General, Punjab for the State besides perusing the record with due care and circumspection. Learned counsel for the appellants, making a short shrift of their arguments, contended that (a) as alleged by the prosecution, the recovery was effected within the view of Bhura Singh, independent witness, who has been given up by the prosecution for the reasons best known to it; (b) as proffered by the prosecution, the seal after use was made over to this witness Bhura Singh but due to his non-production at the trial, the accused have been deprived of their valuable right to cross-examine him; (c) the sample parcels were despatched for chemical analysis after 14 days which has not been explained, though according to the Standing Instruction No.1/88 dated 15.3.1988 of the Narcotic Control Bureau, New Delhi, the sample should have been despatched within 72 hours and furthermore, Form No.29 was neither prepared at the spot nor deposited in the Malkhana; (d) the accused-appellants got compared the thumb impression of Bhura Singh, PW on the consent memo. Exh. PD, recovery memo. Exh.PE, search memo. Exh.PH from Dr.Atul K.Singla, handwriting and finger prints expert DW, Criminal Appeal No.2392-SB of 2003 -5- who gave opinion that these documents do not bear the thumb impression of Bhura Singh and, thus, the entire prosecution case is smashed as this opinion speaks volumes of forgery of the thumb impression of the above mentioned witness on the alleged documents; (e) conscious possession of the accused-appellants qua the bags is not established; (f) the recovery has been allegedly effected within the area of Tapa, where DSP is posted, but as alleged by the prosecution,DSP Barnala was called to the spot and no reason has been apportioned for calling the DSP within whose jurisdiction the recovery was not effected and all these circumstances are fatal to the prosecution case. To tide over these submissions, Ms Manjari Nehru, Deputy Advocate General, Punjab maintained that prosecution is not expected to examine a witness, who, to its own knowledge, has joined hands with the accused and for this reason, Bhura Singh has not been examined. She further contended that a glance through the Chemical Examiner's report would reveal that the sample seals tallied with the seals affixed on the sample parcels and, thus, the alleged delay in sending the sample parcels to the office of the Chemical Examiner for analysis, is of no consequence and as regards the opinion of Dr. Atul K.Singla DW, he was bound to give the same in favour of the calling party. She further canvassed at the bar that may be that the DSP Tapa was not present at the headquarters on the date and time of recovery and for that reason DSP Barnala was called to the spot. She further argued that in view of the provisions as enshrined in Section 35 as well as 54 of the Act, the presumption is available in favour of the prosecution that the accused-appellants were found in conscious possession. I have well considered the rival contentions. Criminal Appeal No.2392-SB of 2003 -6- C-1 Hari Singh PW-5, who carried the sample parcels to the office of the Chemical Examiner, has stated in his cross-examination that “it is correct that in my statement, Exh.DC I had stated that the samples were given to me on 31.7.2000 by MHC Pargat Singh and I had not stated that the same were given to me by MHC Pargat Singh on 24.7.2000. I had redeposited the sample etc. with MHC Pargat Singh on 26.7.2000 after some objection was raised by the Chemical Examiner.” It is in his further cross-examination that “ I had also filed affidavit, Exh.DD which is on the record. I had not stated in Exh.DD that the samples were handed over to me on 25.7.2000 and taken to the Expert on 25.7.2000 or redeposited with the MHC.” HC Pargat Singh PW-3 with whom the case property was deposited, has stated in his cross-examination that “ I do not know as to which set of samples was sent to the Chemical Examiner. Whether it was the one bearing serial no. 125 or out of the case property, which bore serial nos. 1A to 5A. It is correct that the serial numbers of sample so sent to the Expert has been mentioned in my affidavit.” There is no gain saying the fact that the sample parcels were received in the office of the Chemical Examiner after 14 days though according to the instruction quoted by the learned counsel for the appellants, the sample parcel should reach the office of the FSL or the Chemical Examiner as the case may be, within 72 hours. Furthermore, there is no evidence to the effect that Form No.29-M was prepared at the spot and deposited in the Malkhana. The above discussed oral evidence coupled with these infirmities lead to an irresistible conclusion that the link evidence is not complete in this case. In re: Gurjant Singh v. State of Punjab, 2007 (4) Recent Criminal Reports (Criminal) 226, the samples were sent to the Criminal Appeal No.2392-SB of 2003 -7- Chemical Examiner after 14 days. Form No. 29 was neither prepared at the spot nor deposited with the Incharge of the Malkhana. The accused was acquitted inter alia on these grounds. In re: State of Punjab v. Jaswant Singh, 2002 (3) Recent Criminal Reports (Criminal) 548, the sample was deposited with the Chemical Examiner after 21 days of its recovery. The accused was acquitted inter alia on this ground by the Division Bench of this Court. Dr. Atul K. Singla, handwriting and finger prints expert DW-2 has solemnly affirmed as under :- “ In this case, I examined thumb impressions allegedly affixed by Sh. Bhura singh, marked as Q1 on the consent memo. Ex.PD, Q2 on a Recovery memo. Exh. PE, Q3 on a search memo. Exh.PH, Q4 on a search memo. PK and Q5 on a consent memo. Ex.PA, writings at point X in the upper right side portion of the consent memo. Ex.PD and ink of thumb impression marked as Q1 with respect to the ink of the thumb impression relating to Sh. Mela Singh and Sh. Bikkar Singh on the consent memo. Exh.PD. I am of the opinion that the thumb impression marked as Q1 on the consent memo. Exh. PD has not been affixed by the person, who has affixed the thumb impressions marked as Q2 to Q5. The thumb impressions marked as Q1 on the consent memo. Exh.PD has been affixed with different ink than the ink used for affixing the thumb impressions relating Criminal Appeal No.2392-SB of 2003 -8- to Sh. Mela Singh and Bikkar Singh on the same document. There is an overwriting at point X in the upper right corner of the consent memo. Ex.PD. The detailed reasons of my opinion are given in my report Ex. D1 and photocharts Ex.D2 to Ex.D6. The negatives are Ex.D7 to Ex.D14. My report and photocharts are signed by me. ” A glance through his cross-examination would reveal that he could not be shattered or shaken in any manner. He stood the test of cross- examination successfully. The prosecution has not adduced any evidence operating as rebuttal to his opinion. On perusing the reasoning assigned by him for arriving at the above mentioned opinion in the background of photographs Exh.D2 to D6 as well as report, Exh.D1, it transpires that no contrary view can be taken to his opinion. On the basis of his evidence, it is held that the thumb impression marked as Q-1 on the consent memo. Exh.PD is not of Bhura Singh PW. As is widely known, Science of Finger Prints is perfect, though Science of Handwriting is accurate but not perfect. In view of the above referred opinion evidence, it is held that the alleged consent memo. does not bear the thumb impression of Bhura Singh. So, the entire exercise of the Investigating Officer has to be looked upon with great suspicion. Bhura Singh, when examined as DW-1, has testified that “ I do not know the accused persons present in the Court. On 15.7.2000 I was not joined by the Police at any time. No statement was given by the accused. ” When he was cross-examined, no material favourable to the prosecution Criminal Appeal No.2392-SB of 2003 -9- could be elicited. Thus, he further wipes out the prosecution story. In re: Mangal Singh v. State of Punjab, 1999 (3) Recent Criminal Reports (Criminal ) 373, the independent witness was examined in defence. He had knocked down the prosecution story. The accused was acquitted. In re: Avtar Singh v. State of Punjab, 2002 (4) Recent Criminal Reports (Criminal) 180, the Apex Court observed 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.2392-SB of 2003 -10- 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.2392-SB of 2003 -11- 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.” 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 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 Criminal Appeal No.2392-SB of 2003 -12- the Division Bench of this Court that neither the presumption under Section 35 nor 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. Here in this case, as transpires from the statutory statement of the accused, no such question has been framed or put to the accused. Thus, in view of the observations rendered in re: Raj Kumar (supra), the presumption arising under Section 35 or 54 of the Act cannot be drawn in favour of the prosecution. In the result, this appeal succeeds and is accepted, setting aside the impugned judgment/order of sentence and all the three accused- appellants are hereby acquitted of the charged offence. ( HARBANS LAL ) JUDGE May 22, 2008 RS Whether to be referred to the Reporter ? Yes/No