-1- Criminal Appeal No.1702 -SB of 2003 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH -.- Criminal Appeal No.1702 -SB of 2003. Date of Decision: March 29, 2010. Gurbaksh Singh and another ...Appellants VERSUS State of Punjab ...Respondent 1. Whether the Reporters of Local Newspapers 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 ? CORAM :HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. Sant Pal Singh Sidhu, Advocate, for the appellants. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. Appellants Gurbaksh Singh and Nachhattar Singh have filed this appeal against the judgment of conviction and the sentence order dated 16.8.2003 passed by the learned Special Judge, Moga, whereby the appellants were convicted under Section 15 ( c ) of the Narcotic Drugs & Psychotropic Substances -2- Criminal Appeal No.1702 -SB of 2003 Act, 1985 (hereinafter referred to as `the Act') and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- each, in default whereof to undergo further rigorous imprisonment for one year. The prayer made in this appeal is to set aside the impugned judgment and the sentence order by way of acceptance of this appeal and to acquit the appellants of the charge framed against him under Section 15 of the Act. The facts of the prosecution case are that on 17.8.1996, a police party, headed by Assistant Sub Inspector Bhinder Singh, was going from Village Himmatpura to Village Machhike along side seepage drain in a private jeep in connection with patrolling. At that time, at about 2.30 P.M, when the police party reached at the bridge of seepage drain in the area of Village Himmatpura, Assistant Sub Inspector Bhinder Singh sighted the appellants sitting in the group of acacia trees near the bridge of seepage drain. On suspicion, both the appellants were apprehended by the police. They were found sitting on three gunny bags containing something. The Assistant Sub Inspector apprised the appellants of their right being searched in the presence of a Magistrate or a Gazetted officer. Both the appellants jointly reposed faith in the Assistant Sub Inspector. In this respect, consent memo of the appellants was prepared. Assistant Sub Inspector Bhinder Singh thereafter conducted search of the bags as per law. Poppy straw was found in each of the bag. From the bags, two samples each of 250 grams were drawn -3- Criminal Appeal No.1702 -SB of 2003 and their parcels were prepared. Remaining poppy straw in each bag was found 39-1/2 Kgs. The bags containing bulk poppy straw were sealed. All these parcels were thereafter taken into possession. The accused-appellants could not show any permit to keep the poppy straw in their possession. The appellants were arrested. Site plan was prepared showing the place of recovery. On receipt of the report of Chemical Examiner regarding contents of samples to be of Poppy straw and on completion of investigation of the case, challan was presented against the appellant in Court. Charge under Section 15 of the Act was framed against the appellants, to which he did not plead guilty and claimed trial. In order to prove its case against the accused, the prosecution examined Head Constable Gurcharan Singh (P.W.1), L. Constable Gurdev Singh (P.W.2), Head Constable Dalwinder Singh (P.W.3), Assistant Sub Inspector Bhinder Singh (P.W.4), Assistant Sub Inspector Nirotam Kumar (P.W.5) and Assistant Sub Inspector Ajmer Singh (P.W.6). In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused-appellants denied the prosecution allegations and pleaded false implication. Karnail Singh (D.W.1) was examined by the accused in their defence. I have heard Mr. Sant Pal Singh Sidhu, Advocate, appearing for the appellants and Mr. Vishal Munjal, Additional Advocate General, Punjab, appearing for the State and have gone -4- Criminal Appeal No.1702 -SB of 2003 through the records of the case. The learned counsel for the appellants, inter alia, argued that in this case conscious possession of contraband poppy straw by the appellants is not proved by the prosecution and it entitles the appellants to acquittal. He argued that merely being found to be present at the place where the poppy bags were found and the failure to give any satisfactory explanation for being so present did not prove that the accused were in possession of the said poppy bags. Both the appellants belong to different villages. In fairness, the police ought to have conducted further investigation as to the transportation of poppy bags to the place of incident, ownership of the poppy straw etc. to prove that the accused were really in possession of the said articles. In support of this argument, learned counsel for the appellants placed reliance on the authority reported as State of Punjab v. Balkar Singh and another, 2004 Supreme Court Cases (Cri.) 838. After giving my careful thought to the argument raised by learned counsel for the appellants, I find sufficient force in the same. In this case, the appellants were found sitting on three bags of poppy straw in the group of acacia trees near the bridge of seepage drain. There is no evidence on record to show the ownership of the poppy husk by the appellants. The police, in all fairness, should have conducted further investigation to prove that the appellants were really in possession of these bags. As noticed above, the case of the prosecution is -5- Criminal Appeal No.1702 -SB of 2003 consisted of only official witnesses. No doubt, the statements of the official witnesses cannot be discarded merely because of their official status, but when the exclusive possession of the accused over the contraband poppy husk has not been proved on record the statements of the police witnesses, who are interested in the success of the case, have to be scrutinized minutely particularly when there is no corroboration to their statements from an independent source. There is no evidence to prove the charge of transporting the contraband poppy husk to the place of recovery by the accused. No investigation was made by the police regarding the source of the contraband as to wherefrom it was brought and its destination. It casts a serious doubt on the prosecution version. In Balkar Singh's case (supra), wherein the accused-respondents, who belonged to different villages as are the appellants in this case, were alleged to have been found present at a place wherefrom about 100 bags of poppy straw were recovered, sitting on such bags, and failed to give any satisfactory explanation for being present at that place, it was held by the Hon'ble Supreme Court that merely by being found present at the place where the poppy bags were found and the failure to give satisfactory explanation for being so present did not prove that the accused persons were in possession of said poppy hags. Holding thus, the Apex Court dismissed the appeal of the State against the acquittal of the accused-respondents. Similar view was taken by a Division Bench of this Court in the case of Bikkar Singh v. State of Punjab, -6- Criminal Appeal No.1702 -SB of 2003 2006 (3) R.C.R (Criminal) 16 wherein the accused- appellant Balkar Singh was found sitting on 120 bags of poppy husk lying in a sugarcane field and it was held by this Court that custody and control of accused over the substance was not proved beyond doubt. For taking this view, reliance was placed by a Division Bench of this Court on the authority reported as State of Punjab v. Balkar Singh, 2004 Supreme Court Cases (Cri.) 838. In the case of State of Punjab v. Nachhattar Singh alias Bania, 2007 (3) RCR (Criminal) 1040: 2007 (3) P.L.R.122 , wherein the accused therein was found sitting on bags of poppy husk near a river and the police did not ascertain whether bags belonged to accused or not and how bags were transported to the place of recovery, it was held by a Division Bench of this Court that it was not sufficient to prove conscious possession of the accused. Accordingly, the appeal filed by the State against the acquittal of the accused therein was dismissed. Further, in the case of Sukhdev Singh alias Sukha v. State of Punjab, 2006 (1) R.C.R (Criminal) 4 : 2006 (1) Cri. C.C 934, where the accused was found sitting on six bags of poppy husk, it was observed by a Division Bench of this Court that the police should have conducted further investigation to prove that the accused was really in possession of these bags and the failure to give any explanation by the appellant therein for being present on that place itself does not prove that he was in possession -7- Criminal Appeal No.1702 -SB of 2003 of these articles. In view of the above, the charge under Section 15 of the Act against the appellants is not proved beyond every reasonable doubt. Resultantly, I accept this appeal and acquit the appellants of the charge framed against them by giving them the benefit of doubt by setting aside the impugned judgment of conviction and the sentencer order. ( MOHINDER PAL ) March 29, 2010. JUDGE ak