-1- Criminal Appeal No.1091-SB of 2005 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Appeal No.1091-SB of 2005. Date of Decision: May 14 , 2010. Harbhajan ... Appellant VERSUS State of Haryana ... Respondent CORAM : HON'BLE MR. JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr.J.S Gharuan, Advocate, for the appellant. Ms. Sushma Chopra, Additional Advocate General, Haryana for the State-respondent. -.- MOHINDER PAL, J. Harbhajan (appellant) has filed this appeal against the judgment of conviction dated 18.05.2005 and the sentence order dated 21.05.2005 passed by the Additional Sessions Judge, Hisar, whereby he was convicted under Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and sentenced to undergo rigorous imprisonment for a -2- Criminal Appeal No.1091-SB of 2005 period of ten years and to pay Rs.1 lac, as fine, in default whereof to undergo further rigorous imprisonment for a period of one year. Joginder Singh alias Minder and Gurmail Singh, co- accused of appellant Harbhajan, were acquitted by the trial Court. As per allegations of the prosecution, on 16.5.2000, Sub Inspector Ram Mehar along with other police officials was on patrol duty in a Government jeep bearing registration No. HR- 20D/7484. On reaching near Hanuman Mandir on Hisar road, Sub Inspector Ram Mehar saw a truck bearing registration No. PAT/2029 lying turned turtle. Ram Sarup and Naresh Kumar met Sub Inspector Ram Mehar there and told him that the truck in question turned turtle at about 9 P.M on 15.5.2000 after striking with the footpath. They told to the police that two persons namely Joginder Singh alias Minder and Gurmail Singh (acquitted-accused) came out of the said truck who told the owner's name of the truck as Harbhajan(accused- appellant). These persons allegedly informed the owner of the truck i.e appellant Harbhajan about the accident, but he did not turn up. Sub Inspector Ram Mehar suspected that some contraband was being carried in the truck and, therefore, he called Deputy Superintendent of Police Raj Gopal at the spot through a V.T. message. Deputy Superintendent of Police Raj Gopal, thereafter, reached the spot. In his presence, the bags which were lying scattered in and around the truck were checked by the police party. On checking, 197 bags containing white powder and twenty one bags containing `Choorapost' ( poppy husk) were found . Photographer -3- Criminal Appeal No.1091-SB of 2005 was called at the spot and photographs of the truck were taken. On weighment, each bag was found to contain 40 kgs of poppy husk. 500 grams of poppy husk were separated as sample from each bag. The samples and the remaining poppy husk contained in the bags were separately sealed and taken into possession by the police. The truck and 197 bags of white powder were also taken into possession by the police. Ruqa was sent to the Police Station and on its basis formal First Information Report was registered by Assistant Sub Inspector Raj Kumar. Rough site plan of the place of recovery was prepared. During investigation of this case, the accused were arrested. After completion of investigation and on receipt of the report of the Forensic Science Laboratory (Exhibit P.M), challan against the accused was presented in Court of Illaqa Magistrate who committed the case to the Court of Sessions. Charge was framed against Gurmail Singh and Joginder Singh (acquitted accused) for the offence punishable under Section 15 of the Act while charge under Section 25 of the Act was framed against Harbhajan Singh (accused-appellant). He did not plead guilty to the charge and claimed trial. In order to prove its case against the accused, the prosecution examined Sub Inspector Prem Singh (P.W.1), Constable Sahab Ram (P.W.2), Constable Dharam Singh (P.W.3), Shanti Sarup, Photographer (P.W.4), Head Constable Sua Ram (P.W.5), Ram Sarup (P.W.6), Assistant Sub Inspector Ramrup -4- Criminal Appeal No.1091-SB of 2005 (P.W.7), Inspector Ram Mehar (P.W.8), Jiwan Lal, Junior Assistant, office of District Transport Officer, Mansa (P.W.9), Naresh Kumar (P.W.10) and Deputy Superintendent of Police Raj Gopal (P.W.11). In his statement recorded under Section 313 of the Code of Criminal Procedure, appellant Harbhajan Singh stated as under:- “ I am innocent. Nothing has been recovered from my possession and I have been falsely implicated in this case. Joginder was not the driver of my truck on 16.5.2000. I had given my truck to Kashmir son of Hoshiar Singh resident of Dalel Singhwala, Tehsil and District Mansa to bring the sand from Sonepat on 10.5.2000 but later on I came to know that truck had turned turtle near Agroha with white powder. Nothing was recovered from the truck. I do not know where the driver had loaded the white powder and from where.” I have heard the learned counsel for the parties and have gone through the records of the case. Section 25 of the Act, for which offence the appellant has been found guilty by the trial Court, is reproduced herewith -5- Criminal Appeal No.1091-SB of 2005 for facility of reference:- “ 25. Punishment for allowing premises, etc., to be used for commission of an offence.- Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence.” The accused-appellant is, admittedly, the registered owner of the truck in which contraband poppy husk was being carried. Jiwan Lal (P.W.9), who was serving as Assistant in the office of the District Transport Officer, Mansa, proved from record that Truck No.PAT/2029 was in the name of appellant Harbhajan. After the truck was impounded by the police as contraband poppy husk was recovered therefrom, it was the appellant who had taken the truck on `Superdari'. The question which requires to be determined is - whether the appellant had knowingly permitted his truck to be used for the purpose of carrying of contraband or not. The appellant being the owner of the truck, was -6- Criminal Appeal No.1091-SB of 2005 required to know the nature of goods to be transported in his truck. Strangely enough, in his statement recorded under Section 313 of the Code of Criminal Procedure, appellant Harbhajan stated that he had given his truck to Kashmir Singh son of Hoshiar Singh resident of Dalel Singhwala, Tehsil and District Mansa to bring sand from Sonepat on 10.5.2000, but he (appellant) did not examine said Kashmir Singh in his defence nor produced any documentary evidence to prove that sand was to be transported in the truck. The facts and circumstances of the case, discussed above, clearly establish that the appellant had knowingly permitted his truck to be used for the commission of offence under the Act. Under the circumstances, the only conclusion which can be drawn in this case is that the appellant was in constructive possession of the contraband poppy husk though not in actual possession thereof. Resultantly, I do not find any merit in this appeal. The same is hereby dismissed. The truck in question is ordered to be confiscated to the State. May 14 , 2010. ( MOHINDER PAL ) ak JUDGE