Criminal Appeal No. 968-SB of 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No. 968-SB of 2000 Date of decision : February 6, 2008 Mukhtiar Singh ... Appellant Versus State of Haryana ... Respondent ... Present: Mr. Baljinder Singh, Advocate for the appellant. Mr. Sidharth Sarup, Assistant Advocate General, Haryana, for respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL HARBANS LAL, J This appeal has been directed against the judgment dated 17.7.2000/order of sentence dated 18.7.2000 rendered by the Court of learned Judge, Special Court, Karnal, whereby he convicted and sentenced the accused/appellant-Mukhtiar Singh to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/-and in default of payment of fine, to further undergo rigorous imprisonment for 3 years under Section 15 of The Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act' ) and acquitted his co-accused, namely, Jarnail Singh, Raj Singh and Tehal Singh of the charged offence. Criminal Appeal No. 968-SB of 2000 -2- Shortly put, the facts of the prosecution case are that, on 2.10.1995, police party headed by Sub-Inspector Pawan Kumar, happened to be present near Graveyard, Kachhwa Road, Karnal, being on patrol duty. The aforesaid Sub-Inspector received a secret information that the accused are habitual in dealing with poppy husk jointly and they are coming with poppy husk in tractor trolley and if a raid is conducted, they can be apprehended. On receipt of this information, Naka was set up. After a short while, a tractor trolley came from the side of Railway crossing. It was made to stop. The same was being driven by Mukhtiar Singh accused. He after having stopped the tractor trolley, made an attempt to escape. His co- accused fled away by jumping from the trolley. Mukhtiar Singh was intercepted. On interrogation, he disclosed his identity as well as names of his co-accused. The Sub-Inspector suspected poppy husk to be there in the trolley. He served a notice upon Mukhtiar Singh accused calling upon him to tell as to whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. He opted to be searched in the presence of a Gazetted Officer. On receipt of message, DSP came at the spot. On his direction, search of the trolley was conducted. 10 bags of poppy husk were recovered from beneath the sand loaded in the trolley. 200 grams of poppy husk was drawn from each bag to serve as sample and the same were converted into separate parcels. The residue of each bag, when weighed, came to 35 Kgs. The same were also turned into parcels. Thereafter, all the parcels were seized. On return to the Police Station, the Investigating Officer produced the accused, the case property and the witnesses before the S.H.O., who after verification, affixed his own seal on the parcels and thereafter the case property was deposited with the MHC. The remaining Criminal Appeal No. 968-SB of 2000 -3- three accused were also put under arrest. On receipt of F.S.L report and after completion of investigation, the charge sheet was laid in the Court for trial of the accused. All the four 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 PW1- Bachan Singh, PW2- Sukhbir Singh, PW3-Dharambir, PW-4 DSP Moti Lal, PW5-SI Jagir Singh, PW-6 SI Pawan Kumar and closed its 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 them and they pleaded innocence as well as false implication. They did not lead any defence evidence. 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 Mukhtiar Singh as noticed at the outset and acquitted the remaining accused. Feeling aggrieved with his conviction/sentence, he has preferred this appeal. I have heard Mr. Baljinder Singh, Advocate, counsel for the appellant as well as Mr. Sidharth Sarup, Assistant Advocate General, Haryana, for the State of Haryana, besides going through the record with due care and circumspection. Mr. Baljinder Singh, Advocate appearing on behalf of the appellant, maintained with full force that the recovery was allegedly effected in pursuance of the secret information, which as is borne out from the record, was not reduced into writing nor forwarded to the immediate Criminal Appeal No. 968-SB of 2000 -4- superior officials and, thus, the Investigator palpably infracted the mandatory provisions of Section 42 (2) of the Act. Mr. Sidharth Sarup, Assistant Advocate General, Haryana, on behalf of the State of Haryana, pressed into service that if the Investigator had not set up the Naka soon after the receipt of secret information and got busy in reducing the secret information into writing and sending the same to the immediate superior official, the accused might have escaped. This contention merits rejection. In re: Directorate of Revenue and another v. Mohammed Nisar Holia, 2008 (1) Recent Criminal Reports (Criminal) 241, recovery of contraband was effected on receipt of secret information. The information was not reduced by the Officer into writing, but conveyed the same to another office. The latter Officer reduced it into writing. The Apex Court observed that the information has to be reduced into writing by the Officer who received the same. Coming to the facts of the instant case, the prosecution has not apportioned any cogent reason for not reducing the secret information into writing or sending the same to the immediate superior official. It is in the cross-examination of Pawan Kumar Sub Inspector, PW-6 (Investigator) that “ I have not reduced the secret information into writing.” He has not explained as to what swayed him not to reduce the secret information into writing or to send the same to the immediate superior official in adherence to the mandatory provisions of Section 42 (2) of the Act. Thus, ostensibly this mandatory provision has been blatantly violated. It is further argued by Mr. Baljinder Singh, Advocate that there is a delay of as many as 18 days in the despatch of the sample parcels to the F.S.L for chemical analysis and to Criminal Appeal No. 968-SB of 2000 -5- add further to it, the C.F.S.L form was not filled at the spot and due to non- joining of an independent witness, the seal remained with the police official and these circumstances, when put together, probablises the possibility of the contents of the sample parcels being tampered with. Mr. Sidharth Sarup could not controvert this contention in a successful manner. It is in the cross-examination of Pawan Kumar SI, PW-6 (Investigator) that “ during that period 9-10 persons have come and I asked them to become witnesses and to join in that investigation, but none came forward. I cannot tell their names. However, I have mentioned their names in the Zimni. However, I have not taken any action against them.” If the persons whom he had asked to join in the investigation had refused to associate in the recovery proceedings, he was required to have initiated action against them. One thing is clear from this evidence that there was no dearth as to the availability of independent witnesses for being joined in the investigation. As per F.S.L report, the sample parcels were received in the Laboratory on 20.10.1995 though the recovery was allegedly effected on 2.10.1995. Thus apparently, the sample parcels were despatched to the Laboratory after a gap of 18 days though as per standing instruction no.1/88 dated 15.3.1988 of the Central Narcotic Control Bureau, the sample should be despatched within 72 hours. The seal after use remained with the police official. It is in the cross-examination of Pawan Kumar (sic) that “ I have not seen the case property today outside the Court. It is correct that the gunny bags produced today are in torn condition. However, the gunny bags were again put in new gunny bags over which mad (item) number is written. However, case number etc. is not written on new gunny bags.” The witness Criminal Appeal No. 968-SB of 2000 -6- has deposed that 4 gunny bags have the description of cases mentioned over the gunny bags. It is in his further cross-examination that “ Although gunny bags are sealed but from the lower side, the entire gunny bags have torn. On the remaining 6 bags the entire gunny bags have been spoiled. Only some pieces of bags were there. ” As per this evidence, the gunny bags containing poppy husk were put into new gunny bags. The prosecution has not produced any DDR showing that the original gunny bags containing poppy husk were put into new gunny bags. The above condition of the case property speaks volumes of the fact that the possibility of the contents of the same having been tampered with, cannot be ruled out. This circumstance, coupled with delay of 18 days in the despatch of sample to the Laboratory, remaining of the seal in the custody of police official, non-preparation of C.F.S.L form at the spot, is fatal to the prosecution case. In re: Buta Singh v. State of Punjab, 2006 (1) Recent Criminal Reports (Criminal) 835, the prosecution had failed to explain the delay of 8 days in despatch of samples to F.S.L for chemical examination. It was held by this Court that this delay is fatal as the same is in violation of the standing instruction no.1/88 dated 15.3.1988 issued by Narcotic Control Bureau, New Delhi. In re: Avtar Singh v. State of Punjab, 2007 (4) Recent Criminal Reports (Criminal) 898, as many as 30 bags of poppy husk were recovered. The sample was sent to the Laboratory after 17 days. The seals remained with the police. When the case property was produced in the Court, the seals on some of the bags were partially broken. It was held that the prosecution has failed to explain this aspect of the matter completely. The conviction was set aside. It is further maintained by Mr. Baljinder Singh, Advocate that Criminal Appeal No. 968-SB of 2000 -7- the conscious possession of the appellant qua the alleged poppy husk bags is not established. Mr. Sidharth Sarup could not refute this contention in any l manner. In re: Avtar Singh v. State of Punjab, 2002 (4) Recent Criminal Reports (Criminal) 180, a truck was intercepted carrying 16 bags of poppy bags driven by Balbir Chand and other 4 men were travelling in it. Two of passengers escaped while other two Swarna Ram and Swatantra Kumar were found sitting in the truck. The accused were arrested. The Hon'ble Supreme 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 Criminal Appeal No. 968-SB of 2000 -8- 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 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 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 Criminal Appeal No. 968-SB of 2000 -9- 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 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. Non-application of mind to the material factors has thus vitiated the judgment under appeal. ” Reverting back to the facts of the instant case, the appellant Criminal Appeal No. 968-SB of 2000 -10- Mukhtiar Singh was allegedly driving the tractor trolley. He made an attempt to escape, but he was nabbed. If the matter is looked in the background of the above extracted observations rendered by the Apex Court, it is difficult to say that the appellant was in custody or control of the bags. It is not put to the appellant in his statutory statement that he was found in conscious possession of the bags. He has also not been charged under Section 8 of the Act for carrying offensive goods. Merely because he was driving the tractor trolley, he cannot be presumed to be in intelligent and conscious possession of the alleged bags of poppy husk. 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 February 6, 2008 RS Whether to be referred to the Reporter ? Yes/No