Criminal Appeal No. 1280-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1280-SB of 2003 Date of Decision: 17.02.2010 1. Makhan Singh son of Inder Singh, Agriculturist, aged 34 years r/o Peerawali, District Hisar. 2. Makhan Singh son of Pyara Singh, Agriculturist, aged 34 years r/o Peerawali, District Hisar. ... Appellants Versus State of Haryana. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. S.P.S. Sidhu, Advocate, for the appellants. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for the respondent – State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, dated 31.05.03, and the order of sentence, dated 05.06.03, rendered by the Court of Additional Sessions Judge, Bhiwani, vide which, it convicted the accused (now appellants), for the offence, punishable under Section 15 (c) of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the Act only), and sentenced them to undergo Rigorous Imprisonment for a period of ten years each, and to pay a fine of Rs. 1 lac each, and, in default of payment thereof, to further undergo rigorous imprisonment, for a Criminal Appeal No. 1280-SB of 2003 2 period of one year each, for having been found in possession of 373 kgs and 500 gms of poppy husk, without any permit or licence, which falls within the ambit of commercial quantity. 2. The facts, in brief, are that, on 04.03.93, Dilbag Singh, Assistant Sub Inspector, alongwith other Police officials and Jagdish, driver of private jeep No. HR-20A-3938, had held a picket in the area of Dhani Net Ram. At about 2.15 AM, on the night intervening 03/04.03.93, lights of a vehicle, were seen, from the side of Rampura. When the vehicle came near the place, where the picket, had been held, it was found to be a Maruti car. It was signalled to stop, but the driver of the car, did not stop it. Jeep No. HR-20A-3938, was parked, on the road, just in front of the Maruti car, and then number of the same was noticed, as CHK-8192. Thereafter, the driver of the car, started reversing the car and after stopping the same for a while, two persons alighted therefrom and fled. Even after hectic chase, they could not be arrested, as they disappeared, in the darkness. It was further stated that the driver of the said car was clean shaven, of medium height and a young person, whereas, the other occupant of the car, was having light beard. He was also a young person. Search of the Maruti car, was conducted. Nine bags, each containing 41 ½ kgs poppy husk, were found, in the said Maruti car. Two samples of 500 gms from each of the nine bags, were separated, and the remaining poppy husk, was put in the same bags. The bags and the samples, were converted into parcels, duly sealed, and taken into possession, alongwith the car, vide a Criminal Appeal No. 1280-SB of 2003 3 separate recovery memo. Ruqa was sent, to the Police Station, on the basis whereof, the first information report, was registered. Site plan was prepared. The accused were arrested. After the completion of investigation, they were challaned. 3. On their appearance, in the Court of the Committing Magistrate, the accused, were supplied the copies of documents, relied upon by the prosecution. 4. After the case was received by commitment, in the Court of Sessions, charge under Section 15 of the Act, was framed, against the accused, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Ram Mehar, Constable (PW1), Jasbir Singh Kapoor (PW2), Neki Ram (PW3), Subhash Chander (PW4), Inder Singh (PW5), Suresh (PW6), Ami Singh (PW7), Bakhtawar Singh (PW8), Ram Dhari, Constable (PW9), Dilbag Singh, Sub Inspector (PW10), the Investigating Officer, Raghunath Singh, Sub Inspector (PW11), Jagdish (PW12), Ranbir Singh, Sub Inspector (Retired) (PW13), Vinod Bansal, Ahlmad (PW14), Ram Rattan, Inspector (PW15), and, Maya Ram, Senior Assistant (PW16). Thereafter, the Public Prosecutor, for the State, closed the prosecution evidence. 6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution Criminal Appeal No. 1280-SB of 2003 4 evidence. They pleaded false implication. They, however, did not lead any evidence, in defence. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 8. Feeling aggrieved, the instant appeal, has been filed by the appellants. 9. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 10. The Counsel for the appellants, at the very outset, submitted that the prosecution, miserably failed, to prove the identity of the accused, as the perpetrators of crime, beyond a reasonable doubt. He further submitted that, since the identity of the accused, was not proved, beyond a reasonable doubt, they did not stand connected with the instant case. The submission of the Counsel for the appellants, in this regard, appears to be correct. The alleged recovery, from the car, was effected, at mid-night, when there was complete darkness. According to the prosecution story, both the accused, succeeded in running away. Both the accused, were not earlier known to the Investigating Officer, or any other official of the Police party, which had held a picket, at that place. No identification parade, during the course of investigation, was held, to pin-point the identity of the accused, as the perpetrators of crime. Both the accused, were arrested, much after the alleged recovery. There was no other evidence, on the Criminal Appeal No. 1280-SB of 2003 5 record, to prove, that the accused, were the perpetrators of crime. Their identification, for the first time, in the Court, by the Investigating Officer, therefore, was hardly of any significance and value. It was held in Budhsen and Another Vs. State of U.P., AIR 1970 SC, 1321, that facts which establish the identity of an accused person, are relevant under Section 9. As a general rule, the substantive evidence of a witness is a statement made in the Court. The evidence of mere identification of the accused person, at the trial, for the first time, is from its very nature, inherently of a weak character. The evidence, in order to carry conviction, should ordinarily clarify, as to how, and, under what circumstances, the witness came to pick out the particular accused person, and the details of the part, which the accused played, in the crime, in question, with reasonable particularity. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses, in the Court, as to the identity of the accused, who are strangers to them, in the form of earlier identification proceedings. There may, however, be exceptions to this general rule, when, for example, the Court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades, belong to the investigation stage. They are generally held, during the course of investigation, with the primary object of enabling the witnesses, to identify persons, concerned, in the Criminal Appeal No. 1280-SB of 2003 6 offence, who were not previously known to them. This serves to satisfy the Investigating Officers of the bona fides of the prosecution witnesses, and also to furnish evidence, to corroborate their testimony, in the Court. Identification proceedings, in their legal effect, amount simply to this: that certain persons are brought to jail, or some other place, and they make statements, either express or implied, that certain individuals whom they point out are persons, whom they recognize, as having been concerned in the crime. The same do not constitute substantive evidence. These parades are essentially governed by Section 162 Cr.P.C. The principle of law, laid down, with regard to test identification parade in Ramanathan Vs. The State of T.N. AIR 1978 Supreme Court 1204 was as under :- “Identification parades have been in common use for a very long time, for the object of placing a suspect in a line up with other persons for identification is to find out whether he is the perpetrator of the crime. This is all the more necessary where the name of the offender is not mentioned by those who claim to be eye-witnesses of the incident but they claim that although they did not know him earlier, they could recall his features in sufficient details and would be able to identify him if and when they happened to see him. The holding of a test identification in such cases is as much in the interest of the investigating agency or the prosecution as in the interest of the suspect or the accused. For while it enables the investigating officer to ascertain the correctness or otherwise of the claim of those witnesses who claim to have seen the perpetrator of the crime and their capacity to identify him and thereby fill the gap in the investigation regarding the identity of the culprit, it saves the suspect or the accused Criminal Appeal No. 1280-SB of 2003 7 form the sudden risk of being identified in the dock by the self same witnesses during the course of the trial. The line up of the suspect in a test identification parade is therefore a workable way of testing the memory and veracity of witnesses in such cases and has worked well in actual practice.” The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. Since the identity of the accused, as perpetrators of crime, was not proved, they were not connected with the instant case. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence, to the accused. 11. The Counsel for the respondent, however, submitted that Maruti car No. CHK-8192, wherefrom, the recovery of nine bags of poppy husk, was effected, belonged to Makhan Singh son of Inder Singh one of the appellant. He further submitted that, since the car, in question, belonged to Makhan Singh son of Inder Singh, and was found containing the poppy husk, it was for him, to explain, as to how, the same came there. He further submitted that this circumstance, was sufficient, to prove the identity of the accused, as the perpetrators of crime. The submission of the Counsel for the respondent, in this regard, does not appear to be correct. Jasbir Singh Kapoor, PW2, stated that he purchased car No. CHK-8192, in the year 1988, from Hind Motors, Chandigarh, and then, he sold the same, in the month of October, 1988, to Inder Singh Bishnoi son of Bhup Singh Bishnoi, resident of Criminal Appeal No. 1280-SB of 2003 8 Sarangpur, District Hisar. He, however, did not produce any document, regarding his ownership, in respect of the car and sale thereof. Neki Ram, PW3, stated that he purchased car No. CHK-8192, from Inder Singh son of Bhup Singh Bishnoi, and, on 05.02.93, he sold the same to Ami Singh Jyot Ram resident of Bodiwali, District Hisar, and, an affidavit, was given by him. He also did not produce either the original affidavit or copy thereof, to show, that he actually purchased the said car. He also did not produce any document regarding the sale thereof. Subhash Chander, PW4, workshop owner, stated that, on 28.02.93, Ami Singh and Makhan Singh, came to him, and asked for purchase of the car. He further stated that Makhan Singh, purchased car No. CHK- 8192, and the amount of sale consideration, was settled, at Rs. 64,000/-. He further stated that Rs. 1,000/-, were given, in advance, and, Rs. 13,000/-, were given, on 02.03.93. The remaining amount, was to be given, on or before 22.03.93, when the registration certificate of the car, was to be got changed. He also did not produce any document, showing that, actually this car, was sold, in favour of Makhan Singh and Ami Chand. He did not produce any other record, showing that, such a car came to his workshop and he repaired the same and repair charges, were paid, by Makhan Singh. Inder Singh, PW5, stated that, he purchased the car, in question, in the year 1988, from Jasbir Singh, and sold the same, to Neki Ram son of Hem Raj. He did not produce any document i.e. the affidavit or the receipt or copies thereof, to prove, that he was actually the owner of the said car, and sold the same. Even Criminal Appeal No. 1280-SB of 2003 9 registration certificate or the copy thereof, was also not produced by him to prove his ownership. Suresh, PW6, a workshop owner, stated that, Subhash, another workshop owner told him, that he had settled the sale consideration of car No. CHK-8192, at Rs. 64,000/-, and some amount in advance, had been paid. He further stated that he did not know, as to whom, the car was handed over. Ami Singh, PW7, stated that, he purchased the car, in question, from Neki Ram son of Hem Raj, and then, he sold the same, to Makhan Singh. He further stated that the earnest money of Rs. 13,000/-, was given, to him. He further stated that the balance amount, was not paid, to him. He also did not produce any document, showing that, he actually sold the car, in favour of Makhan Singh, and received a particular amount. No document, with regard to the handing over of the car, to Makhan Singh, was also produced by him. Even the registration certificate, if the same was, in his name, or, in the name of somebody else, was not produced by him. The prosecution, did not produce the registration certificate of the car, showing that, Makhan Singh son of Inder Singh, was the registered owner thereof. In case, Makhan Singh son of Inder Singh, was the registered owner of the car, in question, then certainly, an official of the Registering Authority, could be produced alongwith the record, to depose, as to who was the registered owner of the same, as per their record. In the absence of production of the best available evidence, with regard to the ownership of the car, in question, and the sale thereof, it could not, by any stretch of imagination, be said, that it was Criminal Appeal No. 1280-SB of 2003 10 Makhan Singh son of Inder Singh, who was the owner thereof. The car, in question, wherefrom, the alleged recovery of poppy husk, was effected, therefore, did not stand connected with Makhan Singh son of Inder Singh. The submission of the Counsel for the respondent, that, on account of the recovery of car, which belonged to Makhan Singh son of Inder Singh, the identity of the accused, stood proved, being devoid of merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellants, that the conscious possession of the accused, in relation to the contraband, was not proved, and, as such, they did not commit any offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellants, in this regard, appears to be correct. The accused, were not apprehended, at the spot. They allegedly succeeded, in running away. Their identity, as stated above, as the perpetrators of crime, was not established, by the prosecution, beyond a reasonable doubt. Ownership of the car, in relation to the accused, was also not proved. Under these circumstances, by no stretch of imagination, it could be said, that the accused, were in possession of the car, containing poppy husk. Since the possession of the accused or their control, in relation to the contraband or their connection with the car, as also the contraband, did not stand proved, the question of their being in conscious possession of the same, did not at all arise. No doubt, statutory presumption, under Sections 35 and 54 of the Act, could operate, had the prosecution, been able to prove, beyond a reasonable Criminal Appeal No. 1280-SB of 2003 11 doubt, that the accused, were either in physical or constructive possession or were having control over the contraband, lying in the car. Since the physical or constructive possession, in relation to the contraband, or control of the accused, with regard to the said contraband, was not proved, the question of operation of statutory presumption, under the aforesaid Sections, against them, did not at all arise. In Parminder Singh Vs. State of Haryana, 2006 (4), RCR, 495, the accused, was standing near the car, in which, the opium was lying. The car, did not belong to the accused. On seeing the Police party, he ran away. Under these circumstances, a Division Bench of this Court, held that, the accused, could not be said to be in conscious possession of the opium, lying in the car. In State of Punjab Vs. Balkar Singh, 2004(3), SCC, 582, the accused, were found, sitting on one hundred bags of poppy husk, lying in the fields. They were acquitted by the High Court, on the ground, that their possession, in respect of the bags, containing poppy husk, was not proved, and, as such, statutory presumption, under Sections 54 and 35 of the Act, could not operate, against them, that they were in conscious possession thereof. The State, feeling aggrieved, filed a Criminal Appeal, in the Apex Court. The Apex Court, held that, the mere fact that the accused were allegedly found to be sitting, on the bags, containing poppy husk and their failure to give any satisfactory explanation, for being so present, did not prove that they were in possession of the said poppy husk bags, especially when they belonged to different villages, and no investigation had been Criminal Appeal No. 1280-SB of 2003 12 conducted, by the Investigating agency, as to how the bags containing poppy husk were found lying, at that place. Para 3 of the said judgment reads as under : “3, We heard the counsel for the appellant. The High Court by the impugned judgment stated that the prosecution failed to prove that these respondents were in conscious possession of the poppy husk recovered by the police. The evidence by the prosecution consisted of the testimoney of PW1 Balbir Singh and PW2 ASI JarnailSingh. Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in Village Lohgarh. The respondents belonged to different villages. The respondent Balkar Singh is a resident of Village Bira Bedi in District Hisar while respondent Munish Chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present at that place itself does not prove that the were in possession of these articles. Though the respondents raised a Criminal Appeal No. 1280-SB of 2003 13 plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any infirmity in the judgment passed by the High Court. 13. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the present case. The submission of the Counsel for the appellants, to the effect, that the appellants, were not found, in conscious possession of the poppy husk, allegedly recovered, from the car, and thus, no offence punishable under Section 15 (c) of the Act, was constituted, carries substance, and deserves to be accepted. 14. No other point, was urged, by the Counsel for the parties. 15. In view of the above discussion, it is held, that the judgement of conviction and the order of sentence, are not based, on the correct reading and due appreciation of evidence, as also the law, on the point. Had the trial Court, taken into consideration, the aforesaid infirmities and lacunae, it would have certainly come to the conclusion, that the prosecution, had failed, to prove its case, beyond a reasonable doubt. The findings of the trial Court, recording conviction and awarding sentence, to the accused (now appellants), are perverse and illegal, and, as such, liable to be set aside. Criminal Appeal No. 1280-SB of 2003 14 16. For the reasons recorded above, the appeal, is accepted. The judgement of conviction and the order of sentence, rendered by the trial Court, are set aside. The appellants, are acquitted of the charge framed against them. If the appellants, are on bail, they shall stand discharged of their bail bonds. If they are in custody, they shall be set at liberty at once, if not required, in any other case. 17. The concerned Chief Judicial Magistrate, shall comply with the judgment, forthwith and send the compliance report, within a period of 15 days, from the date of receipt of a copy of the same. 17.02.2010 (SHAM SUNDER) Amodh JUDGE