Crl.Appeal No.1943 SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.1943 SB of 2004 Date of decision: 30th May, 2009 Jasvir Kaur and another ..Appellants. Versus State of Punjab …Respondent CORAM: HON’BLE MR.JUSTICE HARBANS LAL Present: Mr.G.N.Malik, Advocate for the appellants. Mr.Manjari Nehru Kaul, Deputy Advocate General, Punjab ** JUDGMENT HARBANS LAL, J. This appeal is directed against the judgment/order of sentence dated 1st May, 2004, passed by the Court of learned Judge, Special Court, Sangrur, whereby he convicted and sentenced the accused/appellants Jasvir Kaur and her husband Pritam Singh to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- (one lac) each under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity ‘the Act’) and in default of payment of the same, the defaulter to further undergo rigorous imprisonment for one year. Crl.Appeal No.1943 SB of 2004 2 As the prosecution story goes, on 23.11.2001, Inspector Devinder Singh happened to be present at Police Station Malerkotala, where he received secret information to the effect that Pritam Singh and his wife Jasvir Kaur are in the habit of keeping and selling poppy husk in huge quantity by fetching the same from outside and in case, the raid is conducted at their house, then poppy husk in abundance could be recovered. On the basis of such information, formal FIR was registered. Thereafter, the aforesaid Inspector among other police officials in government vehicle Allwyan Nissan bearing registration PB-31B-7003 driven by Bant Singh proceeded to conduct the raid at the house of the accused. Kulchhinder Singh DSP Malerkotala was also associated with the police party. Karnail Singh Chowkidar was made to join the police party in the way. When the police party conducted raid, both the accused were found present in the house. On interrogation, accused Jasvir Kaur disclosed that her husband is working on trucks, who has now fled away from the spot and that she as well as her husband Pritam Singh have concealed 15 bags of poppy husk in the room adjoining their residential house beneath paddy straw and only she knew about it and the same can be got recovered by her. Pursuant to her disclosure statement, she got recovered 15 bags containing poppy husk. Two samples of 250 grams each were drawn from each bag and converted into parcels. The remainder of each bag when weighed came to 27 kgs. 500 grams, which were also made into parcels. All the parcels were sealed with seal bearing impression 'DS' belonging to the Investigator. The specimen seal impression was prepared. The seal after use was handed over to PW2 Crl.Appeal No.1943 SB of 2004 3 Karnail Singh. All the parcels were seized vide recovery memo. Accused Jasvir Kaur was put under arrest. The Investigator prepared the rough site plan showing the place of recovery, recorded the statement of the witnesses and on return to the police station, deposited the case property with MHC Karamjit Singh with seals intact. Inasmuch as, Pritam Singh accused could not be arrested, he was ultimately got declared a Proclaimed Offender. After completion of investigation, the charge-sheet was laid for trial of accused Jasvir Kaur. Jasvir Kaur accused was charged under Section 15 ibid, to which she did not plead guilty and claimed trial. In order to substantiate its allegations, the prosecution examined three witnesses, whereafter on 20.9.2002, supplementary challan was also presented in the court against Pritam Singh and thus, he alongwith his wife Jasvir Kaur was charge- sheeted under the aforesaid Section, to which they did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution has examined HC Karamjit Singh PW1, HC Paramjit Ram PW2, HC Amandeep Sharma PW3, SP(D) Kulchhinder Singh PW4, ASI Surinder Pal Singh PW5, Inspector Devinder Singh PW6 and closed its evidence. When examined under Section 313 of Cr.P.C., both the accused denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded innocence as well as false implication. They put-forth that accused Jasvir Kaur, Sinder Kaur wife of Chamkaur Singh, Buta Singh, Pal Singh and Darshan Singh were arrested from their house at about 3.00 A.M. on 24.11.2001 and Chamkaur Singh had moved Crl.Appeal No.1943 SB of 2004 4 telegrams to this effect to Hon'ble the Chief Justice, the learned Sessions Judge, Sangrur and Director General of Police. In their defence, they examined Pal Singh DW1, Sneh Lata DW2 Clerk in the office of learned District and Sessions Judge, Sangrur and closed their evidence by tendering the certified copies of the judgments Ex.DX and Ex.DY. After hearing the learned Additional Public Prosecutor for the State, learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced both the accused as noticed at the outset. Feeling aggrieved therewith, they have preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. To begin with Mr.G.N.Malik, Advocate appearing on behalf of the appellants strenuously urged that as is borne out from the evidence of Pal Singh DW1, he had moved telegrams to the higher authorities with regards to the whisking away of accused Jasvir Kaur alongwith others at 3.00 A.M. on 23.11.2001 and this fact is fortified by Sneh Lata DW2, who deposed from the record and on appreciating the evidence of these defence witnesses, there can be no escape from the finding that in fact the appellant Jasvir Kaur alongwith others was taken to the police station and subsequently, the cases were foisted upon her and others. Nay this, on the basis of the telegrams referred to by Pal Singh as well as Sneh Lata DWs in their evidence, accused Darshan Singh was acquitted vide Ex.DX, certified copy of the judgment in case FIR No.313 of 24.11.2001 and accused Sinder Kaur and her husband Chamkaur Singh @ Kaura were Crl.Appeal No.1943 SB of 2004 5 acquitted vide Ex.DY certified copy of the judgment in case FIR No.311 of 23.11.2001. Thus, to say the least of it, the learned trial court was not justified in not relying upon this telegram. As a matter of fact, Jasvir Kaur appellant was arrested by the police two days earlier to the alleged date mentioned in the FIR and it is because of this reason that the stated telegrams were sent to the high-ups. Further, as mentioned in the FIR, the alleged recovery of poppy husk was made in the presence of HC Amandeep Sharma, but to the utter dismay of the prosecution, she has testified that she was informed in the police station that one Jasvir Kaur has been apprehended and poppy husk has been recovered and she was asked to reach at Malerkotala. This leaves no scope for doubt that as a matter of fact, no recovery was effected in the alleged manner from of the appellant Jasvir Kaur. Apart from this, the statements of the prosecution witnesses are fraught with material discrepancies. The place of recovery was accessible to all and sundry and thus, conscious possession of Jasvir Kaur or Pritam Singh qua the alleged poppy husk has not been established. Worse still, it is own case of the prosecution that Pritam Singh appellant was not apprehended at the spot. There is no lucid evidence in proof of the fact that the person, who had allegedly escaped, was this man, particularly when no test identification parade was got arranged for his identification. To tide over these submissions, the learned State counsel argued that as regards identification of Pritam Singh appellant, it was told by his own wife Jasvir Kaur that escaper was her husband and this fact conclusively establishes his identity. She further pressed into service that Crl.Appeal No.1943 SB of 2004 6 there is plenty of evidence leading to prove that the room, from which the recovery was got effected from Jasvir Kaur appellant, was in the exclusive possession and that being so, the same, in no manner, could be accessible to all and sundry. I have given a deep and thoughtful consideration to the rival contentions. Initially, I take up the case of Jasvir Kaur appellant. Much capital has been sought to be made out of the evidence tendered by Pal Singh as well as Sneh Lata defence witnesses, apart from Ex.DX and Ex.DY, the certified copies of the judgments. Before proceeding further, it is pertinent to point out here that the judgments of which the certified copies are Ex.DX and Ex.DY have been delivered by the same Presiding Officer, who has delivered the impugned one. As would be apparent from Ex.DX and Ex.DY, the acquittal was not recorded on the solitary ground of the said telegram. A glance through these judgments would reveal that in those cases the copy of the telegram was produced and exhibited, whereas in the present one, it has been held back. However, the originals of Ex.DX and Ex.DY are not under challenge before this court at the moment and that being so, it is not desirable to comment adversely thereon, but the necessity has arisen to look into the findings qua the telegram recorded in these judgments, as the learned defence counsel herein is adequately relying thereupon. A careful delving therein would reveal that without assigning sufficient reason, such telegram amongst other circumstances was relied upon. In the present one, of course, it is in the evidence of Sneh Lata DW2 that “I have seen the original copy of telegram received in our office Crl.Appeal No.1943 SB of 2004 7 addressed to Hon’ble Sessions Judge, Sangrur to the effect that SHO, P.S. Malerkotala picked up my wife Sinder Kaur, son Joga Singh, cousin Pal Singh and Darshan Singh, one daughter in-law Javir Kaur, all are in illegal custody in P.S. Malerkotala and all of them were taken from my house at village Kasba Bharal at 3.00 A.M. today to implicate them in some false case.” but it is quint-essential to point out here that such telegram has neither been produced, nor exhibited either in the statement of Sneh Lata and Pal Singh DWs or anyone else and that being so, the court could not get the opportunity to look into the contents thereof. In the absence of a certified copy thereof, it is very difficult to believe that such telegram was issued by Chamkaur Singh @ Kaura son of Kehar Singh. A fortiori, it is in the cross-examination of Sneh Lata (sic) that “the telegram was received at 2.30 P.M. in the office on 23.11.2001. It is correct that there is overwriting on word digit 2 of time. I cannot say if digit 3 has been overwritten as digit 2.” This evidence speaks volumes, there being overwriting in this telegram. How, the same came to be introduced has been left in the womb of mystery. In view of such state of alleged telegram and particularly when the certified copy thereof has not been placed and proved on record, it would be very difficult to presume that the contents thereof as given by Sneh Lata DW are the same. To cap it all, as emanates from the evidence of Sneh Lata (sic), this telegram was sent by Chamkaur Singh s/o Kehar Singh, resident of village Kasba Bharal, Tehsil Malerkotala, District Sangrur, who has not been examined in defence and as its consequence, the prosecution has been deprived of its valuable right of cross-examination. He being the author of Crl.Appeal No.1943 SB of 2004 8 the FIR, should have been examined and only then, it could have been elicited from him as to under what circumstances, such telegram was moved by him. It is in the cross-examination of Pal Singh DW1 that “I do not have any enmity in the village. The police was not inimical to me, nor I had any enmity with the police. The police had never picked up me earlier. No resolution was passed in the village Panchayat about alleged false implication of the accused. Accused Pritam Singh is my son and accused Jasvir Kaur is my daughter in law.” The position which emerges out of this evidence is that appellants Pritam Singh and Jasvir Kaur are the son and daughter-in-law respectively of this defence witness, towards whom the police was not inimically disposed of. If it was so, where was the occasion for the police to rope in appellant Jasvir Kaur falsely by planting such a huge recovery of poppy husk. As per the testimony of Sneh Lata DW2, appellant Jasvir Kaur alongwith others was picked up from their house at 3.00 A.M. The F.I.R. Ex.P39, which was initially recorded on the basis of secret information came into being at 6.30 A.M and the same was received by the Illaqa Magistrate at 7.30 A.M. on 23.11.2001. As would be apparent on the face of Sneh Lata’s evidence, the telegram was received in the office of learned Sessions Judge, Sangrur at 2.30 P.M. It can be well construed to mean that it was got issued much after the recovery proceedings. Chamkaur Singh had enough time to coin the version before the telegram was got issued by him. If the appellant Jasvir Kaur alongwith others had been whisked away from their house at the wee-hours i.e. 3 A.M., in that eventuality, Chamkaur Singh in the normal course of conduct would have Crl.Appeal No.1943 SB of 2004 9 got issued the telegrams at the opening hours i.e. 10 A.M. of the Telegraph Office and said telegrams would have simultaneously reached in the office of the learned Sessions Judge, Sangrur and others. Thus, to me it appears that the story, as projected in the alleged telegram, has been fabricated and may be for that reason that the learned trial court subsequently in the case in hand disbelieved and discarded the same. It is a common- place experience that the Investigating Officer would have not afforded from his personal resources to plant such a huge recovery worth lacs in terms of money. More to the point, if Jasvir Kaur appellant had been arrested on trumped up charge, in all human probabilities, her husband, who remained at large for long or her father in law would have got transacted a resolution in the gram panchayat. Pal Singh (sic) has stated in categoric terms that no resolution was passed in the village panchayat about the alleged false implication of the case. The up-shot of this discussion is that the version as given in the alleged telegram is without substance and consequently, it cannot be accepted and thus rejected. Much has been said about the accessibility of the place of recovery to all and sundry. It is in the evidence of Devinder Singh Inspector PW6 that “during interrogation, accused Jasvir Kaur made a disclosure statement that she and her husband kept concealed 15 bags of poppy husk in the kotha adjoining to their residential house underneath the paralli and they only knew about this and that the same could be recovered at their instance”. It is in the cross-examination of this witness that “if the police party would have searched the house at its own, then the bags could not be Crl.Appeal No.1943 SB of 2004 10 recovered. The bags were lying in the kotha to the height of 6 feet underneath Paralli. In re: State of Himachal Pradesh versus Jeet Singh 1999(2) Recent Criminal Reports (Crl.), 167, the Hon’ble Apex Court has as under: “There is nothing in Section 27 of the Evidence Act, which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is open or accessible to others. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on the public places or kept hidden in a public office, the article would remain out of the visibility of the others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person, who hid it alone knows where it is, until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible Crl.Appeal No.1943 SB of 2004 11 to others.” Harking back to the facts of the present one, the bags having been got recovered from the room adjoining to the residential house of Jasvir Kaur appellant, by no stretch of speculation, it can be said that such bags were ordinarily visible to others and that being so, in view of the afore- extracted observations, it is immaterial that the concealed place was accessible to others. It could not be accessed by anyone else for the reason that it was in the exclusive possession of Jasvir Kaur. Consequently, this limb of arguments raised on behalf of the appellant Jasvir Kaur pales into insignificance. True that according to PW3 HC Amandeep Sharma, weighing scale was of iron having two pans and wooden rod, whereas SP(D) Kulchhinder Singh PW4 has stated that such scale was floor type and furthermore, according to the latter, the weighing scale was brought by ASI Devinder Singh, whereas Inspector Devinder Singh PW6 has testified that the same was brought by Constable Ranjit Singh, but on their face, these discrepancies are too minor to take serious note of. In re: Chuhar Singh and another vs. The State AIR 1955 Pepsu 81, it has been held that “contradictions or improvements in minor details cannot be regarded as very material or a positive proof of the mendacity of the witnesses and the whole case cannot be thrown out on their account. The court is to look to the broad outlines and main features of the case and to decide how far participation of the accused before it in the alleged offence or offences is established. The truth has always to be disengaged from falsehood.” The discrepancies are Crl.Appeal No.1943 SB of 2004 12 short comings from which no criminal case is free. The main thing to be seen is whether the same goes to the root of the matter or pertain to insignificant aspects thereof. Adverting to the so-called discrepancies, on their very face, these are immaterial and can be expected of any truthful witness. As is widely known, the human memory is prone to haze with the efflux of time. If a witness gives out a parrot version, by all probabilities, it will be presumed that he is a tutored witness. The pointed discrepancies do not strike at the root of the prosecution case. Karnail Singh Chowkidar has been given up on a specific pretext of his having been won over by the appellant. The possibility cannot at all be ruled out that the witness of the prosecution can later on join the hands with the accused and in that eventuality, the prosecution cannot be expected to produce the person as its own witness, who to in its own knowledge is not going to support its case. In re: Masalti versus State of U.P. AIR 1965 Supreme Court 202, it has been ruled as under: “Undoubtedly, the duty of the prosecution is to lay before the court all material evidence available to it which is necessary for unfolding its case, but it would be unsound to lay down it as a general rule that every witness must be examined, even though his evidence may not be very material or even if it is known that he has been won over or terrorised.” Coming to the instant case, if the matter is viewed in these afore –extracted observations, the prosecution cannot be blamed for having not examined Karnail Singh PW. Crl.Appeal No.1943 SB of 2004 13 As per Ex.P43, the Chemical Examiner’s report, the sample parcels were received in the office of Chemical Examiner on 27.11.2001. It is apt to be borne in mind that the recovery was effected on 23.11.2001. As per docket Ex.P3, the sample parcels were despatched on 26.11.2001. It indicates that these were despatched within a reasonable time. Thus, the possibility of tampering with their contents stands ruled out, when the matter is viewed in the light of Ex.PD, the affidavit of MHC Karamjit Singh with whom the case property was deposited and Ex.PC, the affidavit of Constable Paramjit Ram, who had carried the sample parcels to the office of Chemical Examiner. In re: Megh Singh versus State of Punjab 2003(4) Recent Criminal Reports (Crl.), 319 the Apex Court has ruled as under: “The expression ‘possession’ is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and others, AIR 1980 SC 52, to work out a completely logical and precise definition of “possession” uniformly applicable to all situation in the context of all statutes. The word ‘conscious’ means awareness about a particular fact. It is a state of mind which is deliberate or intended. Crl.Appeal No.1943 SB of 2004 14 As noted in Gunwantlal v. The State of M.P. (AIR SC 1956) possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power or control. The word ‘possession’ mean the legal right to possession (See Health v. Drown, 1972(2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother’s flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithnes, 1976(1) All ER 844 (QBD). Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in Madan Lal and anr. V. State of Himachal Pradesh, 2003(6) SCALE 483. In the factual scenario of the present case not only Crl.Appeal No.1943 SB of 2004 15 possession but conscious possession has been established. It has not been shown by the accused- appellant that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.” If the matter is looked in the background of the afore-extracted observations, the possession of appellant Jasvir Kaur having been established over the recovered bags of poppy husk, the onus in deed shifted on to her to prove that it was not in her conscious possession for the reason that how she came to be in their possession was within her special knowledge. She has not proved so. That being so, the presumption arising under Section 35 as well as 54 of the Act operates in favour of the prosecution. No other material point has been urged or agitated on behalf of Jasvir Kaur appellant. As a sequel of the above discussion, the appeal preferred by Jasvir Kaur fails and is dismissed. Coming to the case of Pritam Singh appellant, it is in the cross- examination of Inspector Devinder Singh PW6 that “I do not remember from how long distance accused had fled away on seeing the police