Crl. Appeal No. 365-SB of 1997 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 365-SB of 1997 Date of decision. 23.07.2008 Takhat Singh son of Santokh Singh, cultivator, r/o village Luharmajra, Tehsil Nabha, District Patiala. ....... Appellant Versus The State of Punjab ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. T.S. Sangha, Senior, Advocate with Mr. Narinder Singh, Advocate for the appellant. Mr. S.S. Bhullar, DAG, Punjab the respondent. **** Sham Sunder, J. This appeal is directed against the judgment of conviction and the order of sentence dated 18.03.1997, rendered by the Court of Additional Sessions Judge, Patiala, vide which it convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be as the 'Act' only) and sentenced him to undergo RI for a period of 10 years and to pay a fine of Rs. 1 lac, in default of payment of fine to undergo further rigorous imprisonment, for a period of three months. Crl. Appeal No. 365-SB of 1997 2 2. The facts, in brief, are that on 24.09.1994 ASI Sucha Singh of Police Station Sadar, Samana along with H.C. Gurdev Singh and other police officials, set out for checking of suspected persons, and when they were going from the side of village Chhohat towards Paharpur, and reached on the minor canal bridge, in the jurisdiction of village Chhohat, Darshan Singh son of Makhan Singh , met them. When they were busy in talking to him, one person was found sitting on the road side but suddenly slipped, went inside the nearby paddy field, and sat down. This created suspicion. The police party followed him. He was apprehended while sitting by the side of three filled bags. He told his name as Takhat Singh son of Santokh Singh. Search of the bags, in accordance with the provisions of law, was conducted by ASI Sucha Singh. From each bag, 250 of grams poppy, husk was taken out as a sample. The remaining poppy husk, on weighment, was found to be 34 Kgs 750 grams, in each bag. The samples and the remaining poppy husk, were converted into separate parcels, duly sealed, and taken into possession. Seal after use was handed over to Darshan Singh, PW. The accused was arrested. The site plan was prepared. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. Crl. Appeal No. 365-SB of 1997 3 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was framed against the accused, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Jaipal Singh, Inspector, (PW-1), Kuldip Singh, Constable, (PW-2), Satnam Singh, MHC, (PW-3), Sucha Singh, ASI, (PW-4), and Gurdev Singh, Head Constable, ( PW-5 ) Thereafter, the Addl. P.P for the State, closed the prosecution evidence. 5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He stated that he was brought from his house, kept in illegal custody, for two days, and then falsely involved in the instant case. 6. In defence, Darshan Singh, eye witness, who was given up by the prosecution, as having been won over by the accused, was examined as DW1. He also examined Sohan Singh, Lamberdar of village Loharmajra. Thereafter, the accused closed his defence evidence. Crl. Appeal No. 365-SB of 1997 4 7. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, and record of the case, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 8. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused-appellant. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. The learned Counsel for the appellant, at the very outset, submitted that the prosecution miserably failed to prove that the accused was found in conscious possession of three bags, each containing 35 Kgs poppy husk. He further submitted that, as per the prosecution case, the appellant was found sitting at some distance of the bags and was not found sitting on the bags. He further submitted that no evidence was collected by the investigating agency, during the course of investigation, as to whom the fields, in which the bags containing poppy husk were lying belonged. The submission of the Counsel for the appellant, in this regard, appears to be correct. In the first instance, the Crl. Appeal No. 365-SB of 1997 5 appellant was seen sitting on the road side, by the Investigating Officer. On seeing the police party, as per the prosecution story, the appellant went inside the fields and was found sitting near the bags. Admittedly, he was not found sitting on the bags. The bags were lying in a paddy crop field. The mere fact that the accused was found sitting near the bags, did not prove his physical or constructive possession or control over the same. If the accused,being perplexed for, whatsoever, may be the reason, on seeing the police party, went inside the paddy crop field, where already the bags were lying and sat near by the same, then it did not mean that he was found in conscious possession thereof. Since the possession of the bags, containing poppy husk in relation to the appellant, was not proved, the question of operation of statutory presumption under the provisions of Sections 35 and 54 of the Act, did not at all arise. The statutory presumption under Sections 35 and 54 of the Act, could only operate if the accused was either found in the physical possession of the bags, containing poppy husk, or in constructive possession thereof, or in control over the same. During the course of cross-examination, it was stated by ASI Sucha Singh that it was a harvesting season of paddy crop at the relevant time.A number of persons were working there, in the nearby fields at that time. Thus, the possibility could not be ruled out, that any Crl. Appeal No. 365-SB of 1997 6 of those persons, kept the bags, containing poppy husk, in the paddy crop field. As stated above, there is no proof on the file that the accused-appellant was the owner of the field where the bags containing poppy husk, referred to above, were lying. Had he been proved to be the owner of the fields, it would have been said, that he was having some connection with the bags containing poppy husk. In those circumstances, it was for him to explain, as to why, and under what circumstances, the bags containing poppy husk, were found lying in his fields. From the evidence, produced by the prosecution, the appellant-accused was not connected with the bags, containing poppy husk, lying in the paddy crop fields. It was thus, not a case in which the accused-appellant was required to furnish an explanation as to how those bags containing poppy husk were lying in the paddy crop field, belonging to some other person. In Sukhdev Singh alias Sukha v. State of Punjab 2006 (1) RCR ( Criminal ) 4 ( DB) ( P&H), the accused was found sitting over six bags of poppy husk. It was held by the Division Bench that since the police had not conducted further investigation, to prove that the accused was really in possession of these bags, his failure to give any explanation for being present at that place in itself, did not prove that he was in possession of these articles. In these circumstances, it was held by the Division Bench that Crl. Appeal No. 365-SB of 1997 7 the accused was not found in conscious possession of the bags, containing poppy husk, and as such did not commit any offence punishable under Section 15 of the Act. Ultimately, the appellant was acquitted. In State of Punjab vs. Balkar Singh 2004 SCC (Crl.) 838, the accused were allegedly found present at the place wherefrom about 100 bags of poppy husk were recovered. The question arose whether it was proof enough of “conscious possession” of the prohibited substance. It was held by the Apex Court, that merely by being found to be present, at the place, where the poppy husk bags were lying and the failure to give any satisfactory explanation, for being so present, did not prove that the accused were in possession of the said poppy husk bags, especially when they belonged to different villages. Ultimately, the appellant was acquitted. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts and circumstances of the instant case. In the instant case, mere presence of the accused-appellant near the bags, containing poppy husk, did not prove his possession in respect thereof. Even otherwise, the appellant belongs to village Luharmajra , Tehsil Nabha, whereas the bags were found lying in the paddy crop field in the area of village Chhohat. The appellant, thus, was not found in conscious possession of the bags, containing poppy husk, referred to Crl. Appeal No. 365-SB of 1997 8 above. The trial Court was wrong in holding otherwise. The appellant, therefore, did not commit any offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellant, in this regard, being correct, is accepted. 11. The Counsel for the respondent, however, stated that the appellant was found in conscious possession of the bags, containing poppy husk, referred to above, as he failed to furnish any explanation, as to how he was present near the bags, aforesaid. He further submitted that the statutory presumption under Sections 35 and 54 of the Act operated against him, that once he was found in possession of the bags, containing poppy husk, he was in conscious possession thereof, and it was for him, to rebut that presumption. He further submitted that the accused failed to rebut the statutory presumption. The submission of the Counsel for the respondent, does not appear to be correct. As stated above, the appellant-accused was only found sitting near the bags, in the paddy crops field, which did not belong to him, and no evidence was produced by the prosecution, to whom those fields belonged. ASI Sucha Singh, while appearing in the witness box, stated that it was paddy harvesting season and a number of persons were working in the fields nearby. Since the accused-appellant was not found either in physical possession or in constructive possession or in control over the Crl. Appeal No. 365-SB of 1997 9 bags containing poppy husk, which were lying at an open and accessible place, visible to all and sundry, presumption under Sections 35 and 54 of the Act, did not operate against him. The presumption under the aforesaid Sections, could only operate against him, had he been proved to be in physical or constructive possession or in control over the bags, containing poppy husk. In these circumstances, the presumption, under the aforesaid provisions of law, did not operate, and the question of rebutting the same, did not at all arise. The principle of law, laid down, in Sukhdev Singh alias Sukha and State of Punjab's cases ( supra ) is fully applicable to the instant case. In this view of the matter, the submission of the Counsel for the respondent, that the accused-appellant, was found in conscious possession of the bags, containing poppy husk, being without merit, must fail, and the same stands rejected. 12. It was next contended by the Counsel for the appellant, that the case property when produced, in the Court, did not stand connected with the instant case, in any manner. He further submitted that, there was no mark of identification on the case property. He further submitted that under these circumstances, it could not be said that the bags containing poppy husk, referred to above, produced in the Court, related to the instant case or some other case. The Crl. Appeal No. 365-SB of 1997 10 submission of the Counsel for the appellant, in this regard, appears to be correct. ASI Sucha Singh when appeared in the witness box as PW4, during the course of cross-examination, stated that there was no identification slip, on the bags, and the seals thereof were also in broken condition. It is, no doubt, true that the slips, which were pasted on the bags, containing FIR No. could undergo the process of decay, or could get removed, during the course of transit. Sucha Singh, ASI, did not state even a single word, that any entry with regard to the same, was made in the DDR or in any other documents. He also did not state even a single word, as to under what circumstances, the slips were not found in existence on the bags, and how the seals got broken. It was the duty of the prosecution to produce the case property in the Court, and get it identified, from the witnesses as the one which was recovered from the possession of the accused. In this case, the prosecution miserably failed to get identified the case property as the same as was recovered from the accused. No doubt, the case property is only a corroborative piece of evidence, yet it has got great importance. It is the recovery of contraband, which constitutes an offence under the Act. When it is not proved, in the Court, that the contraband recovered, related to the case, then certainly a doubt is cast on the prosecution case. In the peculiar facts and circumstances Crl. Appeal No. 365-SB of 1997 11 of the case, non-proof of the connection of the case property with the accused, certainly affected the merits of the case. The trial Court, however, failed to take into consideration, this important fact, as a result whereof, miscarriage of justice occasioned. 13. No other point, was urged, on behalf of the appellant. 14. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the Court below, are not based on the correct appreciation of evidence, and law, on the point, and the same are liable to be set aside. 15. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction and the order of sentence dated 18.03.1997, are set aside. The appellant shall stand acquitted of the charge, framed against him. If he is on bail, he shall stand discharged of his bail bonds. If he is in custody, he shall be set at liberty, at once, if not required in any other case. The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment, with due promptitude. July 23, 2008 (SHAM SUNDER) dinesh JUDGE