Criminal Appeal No. 2041-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No. 2041-SB of 2002 Date of decision: 28th February, 2008 Hoshiar Singh ... Appellant Versus State of Haryana ... Respondent ... Present: Mr. K. S. Dhaliwal, Advocate with Mr.Baljinder Singh, Advocate for the appellant. Mr.Tarunveer Vashisht, Additional Advocate General, Haryana, for the respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL .. HARBANS LAL, J This appeal is directed against the judgment dated 25.10.2002/order of sentence dated 26.10.2002 passed by the Court of learned Special Judge, Kaithal, whereby he convicted and sentenced the accused-appellant to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in default of fine, to further undergo rigorous imprisonment for a period of two years under Section 15 of the Narcotic Drugs and Pychotropic Substances Act, 1985 ( for short, 'the Act'). Criminal Appeal No. 2041-SB of 2002 2 The facts giving rise to this case are that on 11.10.2000, the police party headed by ASI Roop Singh happened to be present at the turning point of Daba near Village Chaba on pucca road. He received secret information that the accused has kept gunny bags of poppy husk underneath the heap of Parali (paddy straw) in Panchayati land and was sitting on the same in wait of a vehicle to carry the gunny bags to Punjab and if some raid is conducted, he could be caught red handed along with poppy husk. On receipt of this information, ASI Roop Singh, in the company of other police officials, proceeded towards the disclosed place. they came across Devinder Singh of Ratta Khera. He was associated with the raiding party. Sat Pal and Amar Singh, Members Panchayat had also met the police party but they refused to join in the same. Thereafter, the police party including Devinder Singh went to the vacant Panchayati land near the fields of the accused, who was nabbed while sitting on the gunny bags. He was served with notice under Section 50 of the Act calling upon him to state as to whether he wanted to give search of the gunny bags in the presence of a Gazetted Officer or a Magistrate. In reply, he opted to get the search of the gunny bags carried out in the presence of a Gazetted Officer. Head Constable Raghbir Singh was sent to DSP Guhla with application. Om Parkash DSP, Guhla came at the spot. On his direction, Roop Singh ASI searched the gunny bags, which revealed poppy straw. Out of each gunny bag, 250 grams poppy husk was drawn to serve as sample and the same were converted into separate parcels. The remaining contents of each bag, when weighed, came to 37 Kgs. 250 grams. Each gunny bag was also turned into separate parcels. Thereafter, the sample parcels and residue parcels were sealed with seals OP and RS and taken into possession vide recovery memo. The DSP retained Criminal Appeal No. 2041-SB of 2002 3 his seal himself . The seal RS belonging to the Investigating Officer was handed over to HC Raghbir Singh after use. Ruqa was sent to the Police Station, where on its basis, formal FIR was recorded. The aforesaid ASI prepared the rough site plan showing the place of recovery with correct marginal notes, recorded the statements of the witnesses, arrested the accused and produced the case property, samples, accused and the witnesses before the SHO Karam Singh, who after verification, affixed his own seal KS on each parcel and gave a direction to the Investigating Officer to deposit the same with MHC. Accordingly, the Investigator deposited the case property, sample parcels, sample seals on the same day with MHC. The Investigator also prepared the report under Section 57 of the Act and forwarded the same to DSP, Guhla as well as S.P., Kaithal. On receipt of F.S.L. report, Exh. PJ 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 examined PW-1 SI Shamsher Singh, PW-2 HC Jai Pal, PW-3 SI Des Raj, PW-4 SI Karam Singh, PW-5 Constable Jati Ram, PW-6 DSP Om Parkash, PW-7 ASI Roop Singh (Investigator) and closed its evidence by tendering the F.S.L report, Exh. PA. On close of the prosecution evidence, when examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him. He put forth that the land from which the recovery has been effected does not belong to him; that his father Balkar Singh was murdered by Inder Criminal Appeal No. 2041-SB of 2002 4 Singh son of Tehal Singh of Village Chaba and other persons on 17.3.1998 as he (his father) had informed the police regarding holding of poppy straw by Tehal Singh and others and he was a witness in that case, FIR No. 118 of 1998 under Sections 302/307/323/148/149 of IPC, P.S., Guhla and in that case all the accused were convicted and alleged recovery was owned and possessed by Tehal Singh and his sons. He has further alleged that he was taken to Police Station by the police from his residence and his thumb impressions were obtained on blank paper in the Police Station. In defence, he examined DW-1 Karam Pal and DW-2 Devinder Singh. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has come up in this appeal. I have heard Mr. K.S.Dhaliwal, Advocate, counsel for the appellant, as well as Mr. Tarunveer Vashisht, Additional Advocate General, Haryana, besides going through the record with due care and circumspection. Mr. K.S.Dhaliwal, Advocate representing the appellant, making a short shrift of his arguments, maintained that (a) the alleged recovery has been effected in pursuance of the secret information, which has not been reduced into writing which amounts to flagrant violation of the mandatory provisions of Section 42 (2) of the Act; (b) the prosecution has not adduced evidence of sterling character in proof of the appellant being in conscious possession of the alleged bags and furthermore, the alleged place of recovery being Panchayati land is accessible to all and sundry and, thus, his exclusive possession and ownership of the bags is not established; Criminal Appeal No. 2041-SB of 2002 5 (c) allegedly Devider Singh, a public man, was also with the police party at the time of alleged recovery but the seal was handed over to HC Raghbir Singh though the law requires that the same should have been entrusted to the independent witness in the given circumstances; (d) only one sample was drawn though as per the requirements of law, two samples should have been drawn; (e) as per the cross-examination of HC Jai Pal, PW-2, the case property was deposited with Assistant MHC Bilasa Ram, who has neither been examined, nor his affidavit produced on record with the result, the link evidence is missing and all these flaws cumulatively deal a coup-de-grace to the prosecution edifice. To overcome these submissions, Mr. Tarunveer Vashisht, Additional Advocate General, Haryana, argued that the appellant is to be presumed to be the owner of the gunny bags as he has not accounted for their possession and as regards non-examination of Bilasa Ram, Assistant MHC in his place, HC Jai Pal has been examined. He further contended that this case being of huge recovery, should not be thrown out of hand merely because of the fact that the seal was not entrusted to the independent witness. I have well considered the rival contentions. As per the prosecution story, the appellant was found sitting on the gunny bags behind the heap of paddy waste. In re: State of Punjab v. Balkar Singh and another, 2004 (3) Supreme Court Cases 582, the accused was found sitting on bags containing poppy husk. He failed to give any satisfactory explanation for being present at that place. The Apex Court ruled that merely by being found to be present at the place where the poppy Criminal Appeal No. 2041-SB of 2002 6 bags were found and the failure to give any satisfactory explanation for being so present, did not prove that the accused persons were in possession of said poppy bags and that in fairness, the police should have conducted further investigation “ as to transportation of poppy bags to the place of incident,ownership of the poppy etc.” to prove that the accused was really in possession of the said articles. Further, in case Avtar Singh v. State of Punjab, 2002 (4) Recent Criminal Reports (Criminal) 180, 16 bags of poppy husk were recovered from a truck. Two accused were found sitting on the bags and one accused was nabbed while driving the truck. The Apex Court held that the prosecution has not proved that the accused had custody and control of bags and that the object of examination under Section 313 of the Code of Criminal Procedure is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. Their Lordships further laid down that 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. Coming to the present case, if the matter is viewed in the background of the above extracted observations, then it transpires that the appellant cannot be deemed to be in conscious possession of the poppy husk bags merely because that he was found sitting thereon and he has failed to furnish any satisfactory explanation for being so present there. The solemn affirmation of the Investigating Officer ASI Roop Singh is quite cryptic about the fact that on inquiry by him, the poppy husk bags were found to be the ownership of appellant and the same were transported by him to the place of alleged recovery. It is own case of the prosecution that the land on Criminal Appeal No. 2041-SB of 2002 7 which the bags were lying, vests in the Village Panchayat. Thus, the same is not the ownership of the appellant. May be, that some one had placed these bags in the Gram Panchayat land and, without knowing the contents thereof, the appellant being the abutter of nearby fields came over there and sat on the same. It is a matter of common knowledge that this land is accessible to all and sundry and that being so, by no stretch of speculation, the poppy husk bags can be deemed to be in the exclusive possession of the appellant. There is no gain saying the fact that as per the prosecution story the recovery has been allegedly effected in pursuance of secret information. In re: Directorate of Revenue and Another v. Mohammed Nisar Holia, 2008 (1) Recent Criminal Reports (Criminal) 241 (S.C), the recovery of contraband mandrix tablets was effected on receipt of secret information which was not reduced by the Officer in writing. Rather, he conveyed the same to another officer, who reduced it in writing. The Apex Court ruled that the secret information has to be reduced into writing by the officer who received the same. The accused, inter-alia, on this ground was acquitted. Her in this case, the Investigator did not reduce the secret information into writing nor forwarded the same to the immediate superior officials in adherence to the mandatory provisions of Section 42 (2) of the Act and, thus, he blatantly infracted this provision. As transpires from the evidence on record, the seal after use, was handed over to HC Raghbir Singh in the presence of Devinder Singh,DW-2, an independent witness who has deposed that nothing was recovered from the possession of the accused nor he was joined in any investigation and that ASI Roop Singh had met him in Police Post, Mehmudpur, where he got his signatures on the blank paper on the pretext to get the accused identified. Thus, Devinder Singh when Criminal Appeal No. 2041-SB of 2002 8 appeared in defence, demolished the prosecution case. In re: Bhola Singh v. State of Punjab, 2005 (2) Recent Criminal Reports (Criminal) 520, the seal was not given to independent witness but the same was kept by the Investigating Officer. This Court held that if seal remained with the police, the possibility of seal, contraband and the sample being tampered with, cannot be ruled out. It is in the examination-in-chief of HC Jai Pal, PW-2 that on 11.10.2000, he was posted as MHC at Police Station, Guhla and on that day, ASI Roop Singh deposited with him 12 bags of poppy husk, 12 sample parcels bearing seals of OP,RS and KS along with seal impressions. When he was confronted with entries in Roznamcha as well as Register No.19, he stated that it is no where mentioned in last column against Sr. No.1084 of Register No.19 that impressions of specimen seals were handed over to Constable Jati Ram for depositing the same with F.S.L Madhuban and that vide Serial No.25 dated 11.10.2000, the entry in Register No.2 (Roznamcha) was made by Assistant MHC, namely, Bilasa Ram through which the case property was deposited in the Malkhana. This piece of evidence leaves no room for doubt that indeed the case property was deposited in the Malkhana through Assistant MHC Bilasa Ram who has neither been examined nor his affidavit has been placed on record. Thus, the link evidence is palpably missing in this case. As noted supra, the seal RS, after use, was given to HC Raghbir Singh, who, as would be apparent from the record, has not been examined. Rather, he was given up as unnecessary on 10.7.2002. Thus, this flaw further counts against the prosecution. It is in the cross-examination of DSP Om Parkash, PW-6 that the seals on the case property are not decipherable. Criminal Appeal No. 2041-SB of 2002 9 In view of the preceding discussion, this appeal is accepted, setting aside the impugned judgment/order of sentence. The appellant is hereby acquitted of the charged offence. ( HARBANS LAL ) JUDGE 28th February, 2008 RS Whether to be referred to the Reporter ? Yes/No