Criminal Appeal No. 238-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Criminal Appeal No. 238-SB of 2001 Date of decision : January 9, 2008 Baldev Singh Vs. State of Punjab CORAM: Hon'ble Mr. Justice Kanwaljit Singh Ahluwalia. Present: Mr.Vikram K.Chaudhri, Advocate, for the appellant. Mr. Mehardeep Singh, AAG, Punjab. K.S. Ahluwalia, J. (Oral) Baldev Singh appellant has been convicted by the learned Judge, Special Court, Kapurthala under Section 18 of the Narcotic Drugs & Psychotropic Substances Act ( hereinafter to be referred as `the Act') and has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/-, in default of payment of which to further undergo RI for one year. The accused-appellant was prosecuted in case FIR No. 176 dated 21-9-1999 registered by the police of police station Kotwali-Kapurthala. It is stated in the FIR that on 21.9.1999 Inspector Gurmukh Singh along with his companion police officials was present at metalled road, Mundi Mour in connection with special nakabandi. At about 4-30 AM he spotted a man coming on a Criminal Appeal No. 238-SB of 2001 -2- scooter. He was directed to stop and was apprehended. He disclosed his name as Baldev Singh son of Kundal Singh. An offer for search was given to him in consonance with Section 50 of the Act. From the gloves box of his scooter, 5 Kgs of opium was recovered, out of which 100 grams was taken as sample. After completion of investigation, report under Section 173 Cr.P.C. was submitted. The learned Judge, Special Court charged the appellant under Section 18 of the Act, to which he pleaded not-guilty and claimed trial. The prosecution examined as many as 5 witnesses: PW1 Ram Partap Constable tendered his affidavit Exhibit P1 to prove link evidence. PW 2 ASI Sukhdev Singh proved ruqqa Exhibit P2 and the formal FIR Exhibit P3. He stated that the case property and the sample were produced before him. PW 3 DSP Darshanjit Singh Dhindsa, in whose presence search, seizure and recovery was effected. PW 4 is Gurmukh Singh Inspector, who not only carried out investigation but had effected recovery from the appellant. PW 5 HC Satpal, being a witness of formal nature, tendered his affidavit (Exhibit P9) to substantiate the link evidence. All incriminating evidence was put to the accused in his statement under Section 313 Cr.P.C. He pleaded false implication on the ground that the police were inimical to him. Criminal Appeal No. 238-SB of 2001 -3- In defence he examined DW1 Kashmir Singh,Member Panchayat to vouchsafe his antecedents and to further state that he was forcibly taken from his house. DW2 Suridner Kaur is another Member Panchayat, who also corroborated the version of DW1. DW3 Balwinder Singh, additional Moharrir Head Constable, police station Kotwali, Kapurthala stated that as per entry in a case titled `State Vs. Baldev Singh', the case property and the sample had only one seal bearing impression `DS'. However, in cross-examination he conceded that entry No.203, sought to be proved from him, is not in his hand. Sh. Chowdhri while assailing the judgment of the Court below has vehemently contended that in this case Section 42 of the Act is attracted and the same being mandatory, has not been complied with as no information in the form of ruqa was sent to the superior officers, especially when the Investigating Officer had got a secret information. Confronted by this Court that since the recovery is from the gloves box of scooter, Section 42 will not be attracted, Mr. Chowdhri has been candid enough to say that in that event Section 42 will not be attracted. However, he is in agreement that it is only Section 42, which is mandatory and Section 43 is directory in nature. The learned counsel has also brought to the notice of this Court various admissions of the witnesses to the effect that no Criminal Appeal No. 238-SB of 2001 -4- independent witness was joined. This Court while appreciating the evidence is conscious of the fact that recovery in the instant case was effected in wee hours of the morning i.e. at 4-30 AM in the month of September when there are less chances of availability of witnesses at the place of recovery. Sh. Chawdhri persisted with his arguments and has submitted that it was incumbent upon the investigating/prosecuting agency to prove ownership of the scooter. According to him, no body has been examined from the office of Registration Authority to prove as to who was owner of the scooter. Building his argument further, Mr. Chowdhri has stated that it is quite possible that in case a scooter is borrowed, the person who is apprehended, may not be aware or having a conscious mental state regarding possession of contraband, especially when the recovery was effected from the gloves box. Relying upon a Full Bench judgment of this Court in Kashmir Singh Vs. State of Punjab, 2006(2) RCR ( Criminal) 477 he states that in the circumstances of the case statement of the accused recorded under Section 313 Cr.P.C. will assume importance. I have gone through the statement under Section 313 Cr.P.C. Questions No.3,4 & 5 recorded therein are reproduced below: Q.3 That IO told you that he suspected that you were carrying some contraband article and your search is to be conducted and asked you whether you wanted to Criminal Appeal No. 238-SB of 2001 -5- get your search conducted before a gazetted officer or a Magistrate and your agreed that your search was to be conducted before the DSP? Q.4 That when the Dicky of the scotter was searched, it contained opium wrapped in a glazed paper? Q.5 That 100 grams of opium was separated as a sample and the remaining opium weighed 4 kgs. 900 grams? On a pointed query put by this Court that from the reading of these questions, conscious possession of accused- appellant is proved, Mr. Chowdhri repudiates the same and states that it is the culpable mental state of the accused, which is to be proved and a question to this effect should have been put to him. He has read para 8 of the judgment in Kashmir Singh's case ( supra), wherein reliance has been placed upon the observations of Hon'ble Apex Court in Avtar Singh Vs. State of Punjab, 2002(4) RCR ( Crl.) 180, which reads 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 Criminal Appeal No. 238-SB of 2001 -6- 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 scare after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be custodian of goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything 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 a bettors, 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. It was also held that: A case of drawing presumption under Section 114 of the Evidence Act would 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 evidence against him. It is unfortunate that no question was asked about the Criminal Appeal No. 238-SB of 2001 -7- 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 reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. The High Court resorted to 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 to nor taken into account by the trial court and the High Court. Non- application of mind to the material factors has thus vitiate the judgment under appeal.” It was a case where truck owner Amrik Singh, who was acquitted as there was no proof that he knowingly allowed the vehicle to carry poppy husk. I am afraid, these observations will be of no help to the appellant, as in that case there were 3 occupants of the truck, who had escaped. From the reading of the observations of the Apex Court, it is evident that in that case number of the accused was the factor from which the Court inferred that only one person may not be in conscious possession of the contraband article as the Criminal Appeal No. 238-SB of 2001 -8- same cannot be said to be in his exclusive custody or control. In the instant case the appellant is the sole accused. Once the possession has been established, it is for the person, who has been found to be in possession, to discharge the onus of proving that he was not in conscious possession. No cross examination has been made to dispel conscious possession of the appellant. No plea has been taken in the statement under Section 313 Cr.P.C. that the appellant was not in conscious possession of the contraband, nor any evidence to this effect has been led in defence. Thus, this Court cannot come to the rescue of the appellant. At this stage, Mr. Chowdhri has stated that entry No. 203, which was sought to be proved from DW3 Balwinder Singh, Additional Moharrir Head Constable, police station Kotwali, Kapurthala, shows that in Register No. 19, it has been stated that there was only one seal, but in the Court two seals have been found. The deposition of DW3 is to be taken in entirety. In cross examination he has admitted that entry No. 203 is not in his hand. Therefore, this argument of Mr. Chowdhri also falls. In view of the foregoing discussion, the present appeal, being devoid of any merit, is dismissed. [Kanwaljit Singh Ahluwalia] Judge January 9, 2008. `ask'