Crl.Appeal No.2352-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.2352-SB of 2004 Date of Decision: 17th August, 2009 Jit Singh and others …Appellants Versus State of Punjab …Respondent CORAM: HON’BLE MR.JUSTICE HARBANS LAL Present: Mr.Balwinder Singh, Advocate for Mr.HPS Rakhra, Advocate for the appellants Mr.Arshvinder Singh, Deputy Advocate General, Punjab ** JUDGMENT HARBANS LAL, J. This appeal is directed against the judgment/ order of sentence dated 28.10.2004 rendered by the learned Judge, Special Court, Bathinda, whereby he convicted and sentenced the accused Jit Singh, Ashok Kumar and Harish Kumar to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 lac each under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity ‘the Act’) and in default of payment of fine, the defaulter to further undergo rigorous imprisonment for six months. The facts in brief are that on 17.4.2003, Sub Inspector Gurprit Singh amongst other police officials happened to be present on the bridge of Canal minor in the area of village Jodhpur Romana being on patrolling and checking of vehicles. Kulbir Singh s/o Jarnail Singh a public man was Crl.Appeal No.2352-SB of 2004 2 associated with the police party. Around 9 A.M. a Fiat Car bearing registration No.DL-3CD-8020 being driven by accused Jit Singh was intercepted. The accused Ashok Kumar was sitting on the front seat beside the driver. The accused Harish Kumar was seated on the rear seat. One gunny bag lay on the rear seat of the car. Suspecting the contents of such bag to be some contraband, the accused were offered to have search of the vehicle in the presence of a Gazetted Officer. Jaspal DSP(D) came at the spot. He also apprised the accused of their right to have search of the car in the presence of any other Gazetted Officer or a Magistrate. They reposed confidence in him and opted to have search of the car in his presence. On search of the car, one gunny bag placed on rear seat and another gunny bag kept in the dicky of the car were recovered. Their contents were to be poppy husk. When weighed the contents of each bag come to 40 kgs. Two samples of 200 grams each were drawn from each bag to serve as samples, which were converted into separate parcels. The remainder was allowed to remain in the respective bags, which were also turned into parcels. Thereafter, all these parcels were sealed with seal ‘GS’ and taken into possession alongwith sample seal and the aforementioned car. On personal search of the accused Jit Singh, currency notes worth Rs.150 /- were recovered, whereas nothing was recovered from personal search of accused Ashok Kumar and Harish Kumar. Ruqa was sent to the police station, where on its basis formal FIR was recorded. The accused was arrested. After completion of investigation, the charge-sheet was laid in the Court for trial of the accused. The accused were charged under Section 15 of the Act, to Crl.Appeal No.2352-SB of 2004 3 which they did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined SI Gurprit Singh Investigator PW1, DSP Jaspal PW2, Constable Ravinder Kumar PW3, Jatinder Singh PW4. On close of the prosecution evidence, when examined under Section 313 Cr.P.C., all the accused denied the incriminating circumstances appearing in the prosecution evidence against them and pleaded innocence and false implication. In their defence, they examined HC Jangir Singh DW1, Gurjant Singh DW2, Lambardar Gurdeep Singh DW3 and closed their defence by tendering Ex.DB, copy of FIR dated 28.2.2003. After hearing the learned Additional Public Prosecutor for the State, learned defence counsel and examining the evidence on the record, the learned trial Court convicted and sentenced all the three accused as noticed at the outset. Feeling aggrieved with their conviction/sentence, they have preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. On behalf of the appellants, it has been argued that in fact, Kulbir Singh s/o Jarnail Singh PW is a stock witness, as is being evidenced by two FIRs i.e. Exs.DA and DB. He further puts that a glance through these FIRs would reveal that these were got registered by Gurprit Singh SI Investigator by showing that the recovery has been effected within the view of this public man Kulbir Singh. This gives an inkling that this witness is in the stock of this Investigator. In such circumstances, the working of this Investigator cannot be deemed to be above-board. As a matter of fact, wife of the accused/appellant Jit Singh was operated upon by Dr.Thukral, who Crl.Appeal No.2352-SB of 2004 4 removed her kidney without her consent or knowledge and sold the same to someone. Mr.Thukral being a prominent doctor was pressurising the appellant Jit Singh to withdraw the case registered against him. The co- accused Ashok Kumar as well as Harish Kumar had been supporting Jit Singh appellant at the time of registration of the case against Dr. Thukral. Thus, at the instance of this doctor, this case has been registered against the appellants with the help of stock witness Kulbir Singh. This apart, there is delay of as many as four days in the despatch of the sample parcels to the Chemical Examiner. The question regarding conscious possession has also not been put to the accused appellants at the time of their examination under Section 313 of Cr.P.C in view of the ratio laid down by the Full Bench of this Court in re: Kashmir Singh vs. State of Punjab 2006(2) Recent Criminal Reports (Crl.) 477. To tide over these submissions, the learned State counsel pressed into service that the recovery having been effected from the car, the conscious possession of the appellants stands abundantly established. I have given a deep and thoughtful consideration to the rival contentions. DW2 Gurjant Singh has stated in nutshell that “on 17.4.2003, police took away Jit Singh accused from the village in his presence as also within the view of Lambardar Gurdeep Singh though nothing was recovered from him. After the death of his (Jit Singh) brother, his wife had got married with Jit Singh. Dr.Thukral operated upon her and her kidney was removed regarding which a criminal case was registered against the said doctor. The police also pressurized Jit Singh and his wife to compromise the matter. Jit Singh refused and that is why the present case was registered against Jit Crl.Appeal No.2352-SB of 2004 5 Singh. Harish Kumar and Ashok Kumar are running Kiryana Shops in the village. They were also supporting Jit Singh. Nothing was recovered from these persons.” A glance through his cross-examination would reveal that no suggestion has been put to this defence witness that Dr.Thukral had not operated upon the wife of the appellant Jit Singh or that her kidney was not removed by the said doctor or that no such case was registered against the said doctor. It is an accepted rule of law that in the absence of cross- examination on a fact, such fact shall be deemed to have been admitted by the party cross-examining the witness. So, it has to be presumed that the fact regarding registration of the case against Dr.Thukral has been admitted. Much to the same effect is the testimony of Lambardar Gurdeep Singh DW3, who has also not been cross-examined on the stated fact. To add further to it, as would be apparent from Ex.DA, copy of FIR No.132 dated 15.12.2002, registered under Section 18 of the Act as well as Ex.DB copy of FIR No.25 dated 28.2.2003 registered under Section 15 of the Act, these were got registered by Gurdeep Singh Investigator in the present case by showing that the recovery has been effected in the presence of Kulbir Singh s/o Jarnail Singh Jat r/o Gali No.1, Hazur Kapur Colony, Bathinda. He is the same person in whose presence the present recovery is alleged to have been effected. When these facts are put together, it goes a long way in proving that the recovery indeed has not been effected in the alleged manner. The prosecution has not couraged to examine Kulbir Singh PW with the result, the appellants have been deprived of their valuable right to cross-examine him. The reason for withholding this witness may be that if he is produced at the trial, it could be elicited Crl.Appeal No.2352-SB of 2004 6 from him that he is a stock witness of Gurprit Singh Investigator. The defence version assumes greater importance for the reason that the recovery is shown to have been effected within the view of aforesaid Kulbir Singh, who has been cited as a recovery witness in Ex.DA and Ex.DB. When the defence version competes in probability with the prosecution version, the former has to be believed. In re: Kashmir Singh (supra), the full Bench of this Court has observed that “there is presumption that the accused was in conscious possession. This presumption, however, will not apply unless an opportunity is given to the accused to rebut and explain, the presumption by putting question under Section 313 Cr.P.C. There is presumption of culpable mental state and conscious possession on the part of the accused under Sections 35 and 54 of the NDSP Act. The presumptions are, however, rebuttable. These presumptions will not be available to the prosecution unless trial judge gives an opportunity to the accused to rebut the presumption by putting question under Section 313 of Cr.P.C. Therefore, the accused should be given an opportunity to lead evidence in defence in support of his stand. A fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.” Adverting to the facts of the instant case, a glance through the statutory statement of the accused recorded under Section 313 of Cr.P.C. would reveal that no specific question has been put to either appellant with regard to their being in conscious possession of the recovered bags of poppy husk. In the absence thereof, it is very difficult to say that the prosecution has demonstrated the conscious possession of the appellants qua these bags. Crl.Appeal No.2352-SB of 2004 7 As a sequal of the above discussion, this appeal is accepted, setting aside the impugned judgment/ order of sentence. The accused / appellants are hereby acquitted of the charged offence. 17th August, 2009 (HARBANS LAL) gsv JUDGE Whether to be referred to the Reporter? Yes/No