-1- Criminal Appeal No.904-SB of 2004 and Criminal Appeal No.1786-SB of 2004. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Appeal No.904-SB of 2004. Date of Decision: May 5 , 2010. Sadhu Singh ... Appellant VERSUS State of Punjab ... Respondent Criminal Appeal No.1786-SB of 2004. Jagsir Singh alias Seera ... Appellant VERSUS State of Punjab ... 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. S.S. Dhaliwal, Advocate, for appellant Sadhu Singh in Criminal Appeal No.904-SB of 2004. Ms. Priya Khurana, Advocate, amicus curiae, for appellant Jagsir Singh alias Seera in Criminal Appeal No.1786-SB of 2004. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- -2- Criminal Appeal No.904-SB of 2004 and Criminal Appeal No.1786-SB of 2004. MOHINDER PAL, J. This judgment will dispose of the afore-stated two appeals as they arise out of the same First Information Report. Criminal Appeal No.904-SB of 2004 has been filed by appellant Sadhu Singh whereas Criminal Appeal No.1786-SB of 2004 has been filed by appellant Jagsir Singh alias Seera against the judgment of conviction and the sentence order dated 20.4.2004 passed by the Judge, Special Court, Bathinda, whereby appellant Jagsir Singh alias Seera was convicted and sentenced under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and appellant Sadhu Singh was convicted and sentenced under Section 25 of the Act. Both the appellants were sentenced to undergo rigorous imprisonment for ten years and to pay Rs.1 lac, each, as fine, in default whereof to undergo further rigorous imprisonment for one and a half years. The facts of the prosecution case, in brief, are that on 27.5.2002, Sub Inspector Janak Singh along with other police officials was going for patrolling and `Nakabandi' in a private jeep for checking of suspected persons. `Naka' was held at the bridge of canal minor in the area of Village Salabatpura. Gurdev Singh, an independent witness, came there and was joined in the police party. At about 5 A.M, one Esteem Car came there from the side of Village Salabatpura. The Car was got stopped by the police by giving a signal. Accused-appellant -3- Criminal Appeal No.904-SB of 2004 and Criminal Appeal No.1786-SB of 2004. Jagsir Singh was driving the car. Gunny bags were found lying on the rear seat and dicky of the car. Sub Inspector Janak Singh told appellant Jagsir Singh that he suspected some intoxicating material in the bags and that search of the same was to be made. The accused-appellant Jagsir Singh was apprised of his right to be searched in the presence of a Magistrate or a Gazetted officer. The accused opted that search of the bags be made in the presence of a Gazetted Officer. Consent memo of appellant Jagsir Singh was prepared in this regard. Accordingly, Deputy Superintendent of Police Balbir Singh Khaira was summoned to the spot by the Investigating Officer. On reaching the spot, Deputy Superintendent of Police Balbir Singh Khaira disclosed his identity to the accused. Search of the bags was conducted in his presence. Upon search, poppy husk was recovered from the bags, which were eight in number. 250 grams of poppy husk was separated from each bag as sample. The samples and the remaining poppy husk contained in eight bags were separately sealed and taken into possession by the police. Each bag was found to contain 30 Kgs of poppy husk, including the samples. Rough site plan of the place of recovery was prepared. Ruqa was sent to the Police Station and on its basis formal F.I.R was registered against the accused. After registration of the case against-appellant Jagsir Singh was formally arrested and memo containing grounds of his arrest was prepared. Later on, accused-appellant Sadhu Singh was arrested -4- Criminal Appeal No.904-SB of 2004 and Criminal Appeal No.1786-SB of 2004. being owner of the car in which the contraband was being transported. After receipt of the report of the Chemical Examiner and on completion of investigation, challan against the accused was put in Court. Charge under Section 15 of the Act was framed against accused-appellant Jagsir Singh whereas charge under Section 25 of the Act was framed against accused-appellant Sadhu Singh. Both of them pleaded not guilty to the charge and claimed trial. At the trial, the prosecution examined Deputy Superintendent of Police Balbir Singh Khaira (P.W.1), Sub Inspector Janak Singh (P.W.2), Head Constable Partap Singh (P.W.3), Sukhjit Singh, Junior Assistant of District Transport Office, Sangrur (P.W.4) and Constable Sukhwinder Singh (P.W.5). Gurdev Singh, the independent witness, was given up by the prosecution as having been won over by the accused. In his statement recorded under Section 313 of the Code of Criminal Procedure, accused-appellant Jagsir Singh stated that he was innocent and had been falsely implicated in this case. He further stated that he had no concern with the car in question and had never been a driver of this car. Accused-appellant Sadhu Singh, in his statement recorded under Section 313 of the Code of Criminal Procedure, stated as under:- -5- Criminal Appeal No.904-SB of 2004 and Criminal Appeal No.1786-SB of 2004. “ I am innocent. I never handed over my car to Jagsir Singh nor same was ever used for transporting of poppy husk, as alleged by the prosecution. My car was brought by the police from my house and falsely involved the same in this case. I am General Secretary of political party Akali Dal Badal Group for District Sangrur since 1990. I also remained Chairman of Market Committee Bhadaur on behalf of my party during the ruling period of Akali Dal headed by Sh. Parkash Singh Badal. I also remained President of Municipal Committee Bhadaur from 1992 to 1997 from Akali Dal Party. I also remained President of Co-operative Society Bhadaur three times. I am Member of S.G.P.C as a Member of Akali Dal Badal Group. When the Congress party became the ruling party in Punjab, in order to pressurize me for leaving my original party Akali Dal Badal Group, the present case is planted upon me on my refusal. I never indulged in any such illegal activities.” Amar Singh (D.W.1) and Tarsem Lal (D.W.2) were examined by accused-appellant Sadhu Singh in his defence. Accused- -6- Criminal Appeal No.904-SB of 2004 and Criminal Appeal No.1786-SB of 2004. appellant Jagsir Singh tendered in evidence certified copy of F.I.R.No.28 dated 27.5.2002 (Exhibit D.A) and closed his defence evidence. The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case against the accused- appellants beyond reasonable doubt. The trial Court convicted and sentenced the accused-appellants, as mentioned above. I have heard the learned counsel for the parties and have gone through the records of the case. This case can be divided into two parts, one, regarding recovery of poppy husk from accused-appellant Jagsir Singh and, two, the role of accused-appellant Sadhu Singh in allowing his vehicle to be used for transporting poppy husk by appellant Jagsir Singh. While arguing the case qua accused-appellant Jagsir Singh, it has been submitted that no question with regard to conscious possession was put to accused-appellant Jagsir Singh while recording his statement under Section 313 of the Code of Criminal Procedure. It has been further argued that the only independent witness, namely, Gurdev Singh joined by the prosecution to witness the recovery was not examined and was given up as having been won over by the accused. It has been submitted that non-examination of the independent witness, namely, Gurdev Singh, has upset the balance of the prosecution -7- Criminal Appeal No.904-SB of 2004 and Criminal Appeal No.1786-SB of 2004. case, making the alleged recovery doubtful. According to the learned counsel, the police witnesses being interested in the success of the case, their statements should not be trusted without corroboration from an independent source. After giving a careful thought to the arguments raised by the learned counsel on behalf of accused-appellant Jagsir Singh, I do not find any force therein in the presence of cogent and trustworthy evidence put forth by the prosecution. Regarding the argument of learned counsel that no question with regard to conscious possession was put to accused-appellant Jagsir Singh, it may be mentioned that no hard and fast rule can be laid down to define what is or what is not “possession” of a narcotic substance. In the case of Madan Lal and another v. State of Himachal Pradesh, 2003 (4) R.C.R (Criminal) 100 wherein recovery of contraband was made from the search of a car in which five persons were travelling and one of them had stated that the contraband (i.e 820 grams charas contained in one steel container (dolu) in a black coloured bag, which was recovered from the said car) belonged to him, it was held by the Hon'ble Supreme Court that this statement of the accused was totally out of context and no credence could at all be attached to the statement because in his statement recorded under Section 313 of the Code of Criminal Procedure, he (the said accused) did not state that he alone was in possession of the contraband. In Madan Lal's case (supra), all the accused -8- Criminal Appeal No.904-SB of 2004 and Criminal Appeal No.1786-SB of 2004. were held responsible for possession. In Paras 20, 27 and 28, the Apex Court, in the said case, observed as under:- “ 20. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record is that all the accused persons were travelling in a vehicle and as noted by the Trial Court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle. 27. 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. 28. In the factual scenario of the present case not only possession but conscious -9- Criminal Appeal No.904-SB of 2004 and Criminal Appeal No.1786-SB of 2004. possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.” In the case of Avtar Singh v. State of Punjab, 2002(4) RCR (Criminal) 180, the Apex Court observed 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 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 (scarce?) after seeing the police and the -10- Criminal Appeal No.904-SB of 2004 and Criminal Appeal No.1786-SB of 2004. 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 abettors, 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.” In Megh Singh v. State of Punjab, (2003) 8 Supreme Court cases 666, the decision of the Apex Court in Avtar Singh's case (supra) was discussed in the following terms but the Court relying upon the principle of circumstantial flexibility, came to the conclusion that in the factual scenario of Megh Singh's case (supra), the accused had failed to show that his possession was not conscious. It was held as under:- -11- Criminal Appeal No.904-SB of 2004 and Criminal Appeal No.1786-SB of 2004. “ Once possession is established, the person who claims that it was not a conscious possession has to establish, 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.” In view of the above, it cannot be concluded that huge haul of eight bags of poppy husk contained in the car escaped notice of the accused. It was within special means of knowledge of the accused as to how eight bags of poppy husk were found in the car and to which destination they were being taken especially when appellant Jagsir Singh was the lone occupant of the car. Once possession of the contraband by the accused is established on record and the accused had been given sufficient opportunity under Section 313 of the Code of Criminal Procedure to explain the position, microscopic scrutiny of every judicial action cannot be permitted and the accused cannot be given benefit of hypothetical assumptions. Besides, it is well-settled that omission to bring the attention of the accused -12- Criminal Appeal No.904-SB of 2004 and Criminal Appeal No.1786-SB of 2004. to an inculpatory material does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. The facts and circumstances of the case, discussed above, do not show that any prejudice was caused to the accused in this case by not putting a particular question to the accused during examination under Section 313 of the Code of Criminal Procedure regarding conscious possession of the contraband. Under the circumstances, taking into account the totality of the evidence led on record by the prosecution, I have no hesitation in holding that accused-appellant Jagsir Singh was in conscious possession of the contraband. Insofar as non-examination of the independent witness Gurdev Singh, it is a matter of common knowledge that the independent witnesses, normally, do not support the prosecution case as they reside in the same area where the accused-persons reside and they fear to create ill-will and enmity with criminals. In this case, the official witnesses have fully supported the prosecution case and no material contradiction, worth the name, has been pointed out in their statements. The recovery in this case was made per chance. Merely the fact that the independent witness Gurdev Singh was not examined in this case, is not a sufficient ground to discard the testimonies of the official witnesses. It is well-settled that the prosecution story cannot be discarded on the ground that independent witness has not been examined. To cap it all, the fact of recovery of -13- Criminal Appeal No.904-SB of 2004 and Criminal Appeal No.1786-SB of 2004. eight bags of poppy husk, each containing 30 kilograms of poppy husk, from the accused, which cannot be planted by the police, weighs with the argument raised by the learned counsel with regard to the non-examination of any independent witness. In this case, there was complete compliance of the mandatory provisions of Section 50 of the Act as Deputy Superintendent of Police Balbir Singh Khaira, a Gazetted Officer, was called to the spot and the recovery of poppy husk was effected from accused -appellant Jagsir Singh in his presence. In view of the above, the prosecution has been able to prove its case against accused-appellant Jagsir Singh beyond all reasonable doubts. Learned counsel for appellant Sadhu Singh , who has been convicted and sentenced under Section 25 of the Act, contended that the evidence on record does not suggest that he (appellant Sadhu Singh) had knowingly parted with the vehicle to be used by accused-appellant Jagsir Singh in transporting the contraband poppy husk. Section 25 of the Act, for facility of reference, is reproduced as below:- “ 25. Punishment for allowing premises, etc., to be used for commission of an offence. - Whoever, being -14- Criminal Appeal No.904-SB of 2004 and Criminal Appeal No.1786-SB of 2004. 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.” A perusal of the above provisions of Section 25 of the Act shows that it is the basic ingredient for the commission of an offence under this Section that the owner of the vehicle must knowingly permit his vehicle to be used for the commission by any other person of an offence punishable under any provision of this Act . Needless to say, appellant Sadhu Singh was not in the car at the time of recovery of the contraband. No evidence was collected by the police during investigation to the effect that the contraband poppy husk was being transported in the Car of appellant Sadhu Singh under his (Sadhu Singh's) instructions. Appellant Sadhu Singh, in his statement recorded under Section 313 of the Code of Criminal Procedure has alleged that out of political rivalry he had been implicated in this case. Amar Singh (D.W.1), Municipal Councilor of Municipal Committee, Bhadaur and Tarsem Lal (D.W.2), Vice President of the said Municipal Committee have also appeared in Court to vouchsafe the -15- Criminal Appeal No.904-SB of 2004 and Criminal Appeal No.1786-SB of 2004. innocence of accused-appellant Sadhu Singh. In the absence of any evidence having been collected by the prosecution to the effect that the fact that the car of appellant Sadhu Singh was being used by appellant Jagsir Singh for transporting poppy husk was to the knowledge of appellant Sadhu Singh, it cannot be said that the accused-appellant Sadhu Singh is liable under Section 25 of the Act. In this view of the matter, the charge under Section 25 of the Act against appellant Sadhu Singh is not proved beyond every reasonable doubt. For the aforesaid reasons, Criminal Appeal No.904-SB of 2004 filed by appellant Sadhu Singh is accepted and he is acquitted of the charge framed against him by giving him the benefit of doubt by setting aside the impugned judgment of conviction and the sentencer order qua him. Criminal Appeal No.1786-SB of 2004 filed by appellant Jagsir Singh alias Seera is hereby dismissed. May 5, 2010. ( MOHINDER PAL ) ak JUDGE