Crl. Appeal No.969-SB of 2002, Crl. Appeal No.1274-SB of 2002 & 1 Crl. Appeal No.793-SB of 2006. IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision: December 22, 2006 (1) Criminal Appeal No.969-SB of 2002 Ram Paul Singh Vs. State of Punjab (2) Criminal Appeal No.1274-SB of 2002. Gurcharan Singh Vs. State of Punjab (3) Criminal Appeal No.793-SB of 2006 Amarjit Kaur Vs. State of Punjab CORAM: Hon'ble Mr. Justice Virender Singh Present: Mr. R.S. Mamli, Advocate, for Appellant Ram Paul Singh. Mr. G.S. Bhatia, Advocate, for Appellant Gurcharan Singh. Mr. JS Bains, Advocate, for Appellant Amarjit Kaur. Mr. M.S. Sidhu, Sr. Deputy Advocate General, Punjab for the respondent in all the three cases. Virender Singh, J. Vide this judgment, I shall be disposing of all the aforesaid three appeals in which the appellants are stated to be in custody. They stand convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (for short to be referred to as 'the Act'), vide impugned judgment of learned Special Judge, Moga, dated 8.4.2002 and have been Crl. Appeal No.969-SB of 2002, Crl. Appeal No.1274-SB of 2002 & 2 Crl. Appeal No.793-SB of 2006. sentenced to undergo R.I. for ten years each and to pay a fine of Rs.1.00 lac each, in default of payment of fine to further undergo R.I. for one year, for allegedly keeping in their conscious possession 5 bags of poppy husk when they were apprehended by Joginder Singh (PW2) who along with his other police officials was present on the bridge of canal minor in the area of village Nathuwala on 8.5.1997 at about 9.00 P.M. in the area falling within the jurisdiction of Police Station Baghapurana (District Moga) while travelling in a jeep Commander Make bearing registration No.UP-80B- 9222. Aggrieved by the impugned judgment of conviction and sentence, they have preferred the present three appeals separately. I may mention here that Amarjit Kaur had filed her separate appeal (Appeal No.973-SB of 2006) with a delay of 1392 days which was condoned keeping in view the fact that the other two appeals filed by her co-accused stood already admitted. Gurcharan Singh appellant who had filed his appeal through jail and is being represented by Mr. Bhatia as Amicus-Curiae. In brief, the case of the prosecution is that on 8.5.1997 when Inspector/SHO Joginder Singh along with other police officials was present on the bridge of canal minor situated on Mudhki-Baghapurana Road in connection with Nakabandi, at 9.00 P.M. he saw a jeep coming from the side of Mudhki, bearing registration No.UP-80B-9222. It was got stopped with the help of torch light. Appellant Ram Paul Singh was seen on the Crl. Appeal No.969-SB of 2002, Crl. Appeal No.1274-SB of 2002 & 3 Crl. Appeal No.793-SB of 2006. steering of the jeep while other two appellants were sitting besides him. S.I. Joginder Singh wanted to search the vehicle in question and, therefore, apprised all the appellants of their rights with regard to the search being conducted in the presence of a Gazetted Officer or a Magistrate but all the three reposed confidence in him. Three different consent memos were prepared in this regard. Lady Constable Mohinderjit Kaur and Paramjit Kaur from Moga were called who arrived at the spot after some time. Thereafter, the search of the jeep was conducted which led to the recovery of five bags containing poppy husk. 250 grams of poppy husk were separated from each bag as a sample and the remaining poppy husk on weighment in each bag turned out to be 35 Kgs. All the five samples and the five gunny bags were then converted into parcels with the seal bearing the seal inscription 'JS' (Inspector Joginder Singh). The case property along with jeep were taken to the Police Station vide separate recovery memos which was attested by the police officials. The personal search of all the three appellants was conducted. A ruqa was sent to the police station upon which formal FIR was registered in P.S. Baghapurana. Registration certificate of the jeep was also taken into possession vide separate recovery memo. The sample of the seal was retained by the police. The rough site plan of the place of recovery was also prepared. All the three appellants were intimated of the grounds of their arrest vide arrest memos. On the following day i.e. 9.5.87, Inspector Joginder Singh produced all the appellants, the case property alongwith the jeep before the Ilaqa Magistrate, Crl. Appeal No.969-SB of 2002, Crl. Appeal No.1274-SB of 2002 & 4 Crl. Appeal No.793-SB of 2006. Moga and made a formal request for obtaining the orders with regard to depositing of the case property and after obtaining the requisite orders, the case property was deposited with MHC of Police Station Baghapurana. A special report was sent to D.S.P. Nihal Singh Wala (camp at Baghapurana). After the receipt of the report from FSL, the investigation was completed and all the three appellants were challaned. They were charged under Section 15 of the Act by the learned Special Judge. The prosecution in order to prove the charge, had produced the following witnesses:- PW-1 Jagsir Singh son of Tara Singh- He was the owner of the jeep in question and stated that he had purchased it from one Gurpal Singh of village Panuala and got the same transferred in his name. He further stated that he had neither given the jeep to any one nor it was used as taxi. He was declared as a hostile by the prosecution when he was confronted with his previous statement. PW-2 Inspector Joginder Singh (SI/SHO of P.S. Baghapurana)- He is the Investigating Officer of this case. The investigation conducted by him has already been alluded to by me in the preceding para. PW-3 ASI Harpreet Singh- He is also a witness to the recovery and had reiterated the case of the prosecution with regard to all the formalities completed at the spot. PW-4 Head Constable Sukhwant Singh- He is a witness of formal nature who tendered his affidavit Ex.PM to prove the link evidence. PW-5 Tara Chand LC No.198-Moga- He is also a witness of link Crl. Appeal No.969-SB of 2002, Crl. Appeal No.1274-SB of 2002 & 5 Crl. Appeal No.793-SB of 2006. evidence who was handed over five sample parcels for depositing the same with the Director of Forensic Science Laboratory. PW-6 Constable Khem Chand – He had handed over the special report to the senior police officials including Ilaqa Magistrate. PW-7 Mahesh Kumar Clerk of DTO Office Moga- He had proved the ownership of Jeep No.UP-80B-9292 which stood in the name of Jagsir Singh son of Tara Singh, resident of Langiana (District Faridkot). PW-8 ASI Ranjit Singh - He had proved the receipt of the special report sent by Joginder Singh, the Investigating Officer. The prosecution had also tendered the report of the FSL. The stand taken by the appellants is of false implication. Ram Paul Singh appellant pleaded that he never remained as driver of the jeep. Gurcharan Singh appellant also pleaded false implication stating that he was not the occupant of the jeep. So was the plea of Amarjit Kaur appellant. In defence, Iqbal Singh son of Karnail Singh (DW1) stepped into the witness-box for Ram Paul Singh appellant and deposed that the police party came to the village and picked up Ram Paul Singh from there and when they approached Harpreet Singh ASI, who had come to the village, it was disclosed that a jeep was taken into custody and the police was suspecting Ram Paul Singh to be the driver of the said jeep. Chowkidar Hakam Singh son of Bara Singh (DW2) also deposed in favour of Ram Paul Singh in the same manner. Baljinder Singh son of Gopal Singh, Member Panchayat (DW3) Crl. Appeal No.969-SB of 2002, Crl. Appeal No.1274-SB of 2002 & 6 Crl. Appeal No.793-SB of 2006. deposed that after Ram Paul Singh appellant was lifted by the police, he alongwith others had approached the police and they were told that he will be let off after investigating the matter. However, he was subsequently involved in this case. After appreciating the entire evidence, all the three appellants have now stand convicted and sentenced as indicated above. I have heard Mr. R.S. Mamli, Advocate representing appellant Ram Paul Singh, Mr. G.S. Bhatia, Advocate representing appellant Gurcharan Singh and Mr. J.S. Bains, Advocate representing appellant Amarjit Kaur and Mr. M.S. Sidhu, Senior Deputy Advocate General, Punjab. With their assistance, I have also gone through the entire record. Taking the lead and defending the case of Ram Paul Singh appellant, Mr. Mamli at the very outset submits that the conscious possession of Ram Paul Singh driver is not proved to the hilt. Simply because he was on the steering of the vehicle, it cannot be presumed that he was aware of the fact as to what was being carried in the jeep. He then submits that no doubt he has pleaded that he was not the driver of the said jeep but assuming for the sake of argument even if the case of the prosecution is taken as it is qua him, still it can not be said that he had the possessory title over the five bags. There is every possibility that the said bags allegedly recovered from the jeep could be of the other two accused or may be one of them who were also travelling in the said jeep. The conscious possession is the core ingredient under the Act and in the absence Crl. Appeal No.969-SB of 2002, Crl. Appeal No.1274-SB of 2002 & 7 Crl. Appeal No.793-SB of 2006. of the said proof, the conviction cannot be maintained. Mr. Mamli while relying upon a latest judgment of this Court rendered by Full Bench in Kashmir Singh Vs. State of Punjab, 2006 (2) RCR (Crl.) 477 submitted that even otherwise no specific question was put to Ram Paul Singh or as a matter of fact to other two appellants also with regard to conscious possession while recording their statement under Section 313 Cr.P.C. and, therefore, no presumption under the Act can be drawn against them. According to Mr. Mamli, there is another flaw in the case of the prosecution which dents it to a great extent. The Investigating Officer had shown a favour to Jagsir Singh (PW1), the owner of the vehicle by not investigating the case in the right direction. Rather on the other hand, he was shown in the list of the witnesses and ultimately he did not support the case of the prosecution during trial. As per the record produced by concerned official of DTO Office, Moga, the jeep in question was registered in the name of aforesaid Jagsir Singh son of Tara Singh and the Investigating Officer was very much aware of this fact as he had recorded the statement of the said official under Section 161 Cr.P.C. during investigation. Therefore, it was incumbent upon him to carry out the investigation in the right of direction to bring it to a logical end. According to learned counsel, aforesaid Jagsir Singh should have been booked under section 25 of the Act and once it is not done, it can safely be inferred that a favour has been shown to him which in turn adversely affects the entire case of the prosecution. Crl. Appeal No.969-SB of 2002, Crl. Appeal No.1274-SB of 2002 & 8 Crl. Appeal No.793-SB of 2006. Mr. Mamli then submits that not only the aforesaid flaw weaken the case of the prosecution, the recovery effected in this case is not getting corroboration from any independent witness and this lacuna may also be considered against the prosecution. Mr. Mamli lastly submits that after effecting the recovery, the seal used in this case was kept by the police throughout and, therefore, chances of tampering with the case property cannot be ruled out. The delay in sending the sample in the present set of circumstances would, therefore, assume importance as the entire case property which included the sample, remained with the police only till the sample reached the hands of Analyst. In order to shatter the case of the prosecution on the aspect of link evidence, Mr. Mamli then submits that may be a sample seal chit was prepared at the spot as stated by the Investigating Officer, but it was never deposited with the MHC Sukhdev Singh by him as is clear from his affidavit Ex.PM and, therefore, possibility of the same being prepared subsequently cannot be ruled out. In the same strain, the learned counsel submits that even the FSL Form was not prepared at the spot and all these infirmities have been taken as serious flaws as per various latest judgments of this Court. On the basis of the aforesaid submissions, Mr. Mamli prays for acquittal of Ram Paul Singh appellant. Mr. Bhatia while adopting the argument advanced by Mr. Mamli on the point of conscious possession and the other flaws with regard to the link evidence, further submits that the case property when produced Crl. Appeal No.969-SB of 2002, Crl. Appeal No.1274-SB of 2002 & 9 Crl. Appeal No.793-SB of 2006. before the Court was in torn condition and, therefore, could not be identified. He then submits that the affidavits tendered by the prosecution witnesses are discrepant with regard to the link evidence, the collective effect of which would be that the case of the prosecution is not free from doubt against any of the appellant. He has also drawn my attention to certain discrepancies crept in the statements of the official witnesses to the recovery. Mr. Bains virtually adopts the arguments advanced by the other two counsel. Repudiating the submissions advanced on behalf of the appellants, Mr. Sidhu submits that there is no reason to disbelieve the statements of the official witnesses who were incidentally present at a Naka and noticed the jeep coming from a particular direction. He then submits that no convincing explanation has been put forth by the appellants in their defence except three defence witnesses produced by Ram Paul Singh appellant who stated that he was picked up by the police from his house, which in any case cannot be of any help to him as no grouse/resentment was shown in writing from his side moving the higher/superior officials. According to the learned counsel, there could not be any reason for the Investigating Officer to implicate them falsely in a case of such type of recovery in which a lady (Amarjit Kaur) was also found involved in transporting the contraband. Therefore, none of the appellants has any escape in this case and their conviction as recorded by the trial Court, Crl. Appeal No.969-SB of 2002, Crl. Appeal No.1274-SB of 2002 & 10 Crl. Appeal No.793-SB of 2006. deserves to be upheld. After hearing rival contentions of the learned counsel of either side and going through the record, I am of the considered view that the prosecution has not been able to prove its case against any of the appellants and as such all the three appellants deserve acquittal. I am taking up all the aspects of the case collectively while entering into a detailed discussion. The conscious possession of the Narcotic is the core ingredient to be established before the accused is subjected to punishment under the Act. The prosecution has to prove the intelligent possession and the culpable state of mind. Even close proximity of the object, cannot be said to be enough for the purpose of maintaining the conviction. While dealing with aspect elaborately, their Lordships of Apex Court in Avtar Singh Vs. State of Punjab, 2002 (4) R.C.R. (Criminal) 180 while setting aside the conviction as maintained by this Court, in a case where recovery of 16 bags from a truck and two persons were sitting on the back and one on the steering of the truck, have observed that the word 'possession' no doubt has different shape of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together, but the minimum requisite elements which has to be satisfied, is the custody or control over the goods. For reference the relevant para of the aforesaid judgment is reproduced as under:- “ Possession is the core ingredients to be established before the accused in the instant case subjected to the punishment under Section 15. If the accused are found to be in possession of Crl. Appeal No.969-SB of 2002, Crl. Appeal No.1274-SB of 2002 & 11 Crl. Appeal No.793-SB of 2006. poppy straw which is a narcotic drug within the meaning of Clause (xiv) of Section 2, it is for them to account for such possession satisfactorily; if not, the presumption under Section 54 comes into play. We need not go into the aspect whether possession must be conscious possession. Perhaps taking clue from the decision of this Court in Inder Sain v. State of Punjab, 1983(2) SCC 372 arising under the Opium Act, the learned trial Judge charged the accused of having conscious possession of poppy husk. Assuming that poppy husk comes within the expression poppy straw, the question, however, remains whether the prosecution satisfactorily proved the fact that the accused were in possession of poppy husk. Accepting the evidence of PW-4- the Head Constable, it is seen that appellant No.3 (accused No.4) was driving the vehicle loaded with bags of poppy husk. Appellants 1 and 2 (Accused Nos. 1 and 2) were sitting on the bags placed in the truck. As soon as the vehicle was stopped by ASI (PW-2), one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and the offending goods. 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 Crl. Appeal No.969-SB of 2002, Crl. Appeal No.1274-SB of 2002 & 12 Crl. Appeal No.793-SB of 2006. 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. 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 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 Crl. Appeal No.969-SB of 2002, Crl. Appeal No.1274-SB of 2002 & 13 Crl. Appeal No.793-SB of 2006. 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 vitiated the judgment under appeal.” The onus to prove the absence of culpable mental state lies on the accused. In Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, (2000) 2 SCC 523, their Lordships of the Apex Court while dealing with this issue have observed that the burden of proof cast on the accused under Section 35 of the Act can be discharged through different modes. One is that he can rely on the materials available in the prosecution evidence. Next is that he can elicit answers from the prosecution witnesses through cross- examination to dispel any such doubt and he may also adduce some other evidence when he is called upon to enter his defence. In other words, if circumstances appearing in the prosecution case or in the prosecution Crl. Appeal No.969-SB of 2002, Crl. Appeal No.1274-SB of 2002 & 14 Crl. Appeal No.793-SB of 2006. evidence are such as to give reasonable assurance to the court that the accused could not have the knowledge or the required intention, the burden cast upon him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter his defence. While dealing with the presumption envisaged under Sections 35 and 54 of the Act, this Court in its Full Bench judgment rendered in Kashmir Singh Vs. State of Punjab, 2006(2) RCR (Crl.) 477 has observed that the presumptions envisaged under the Act are questions of fact depending upon the case and it appears to be very difficult to lay down any specific mode and method in which the presumption can be raised. The facts in each case are different and the witnesses testify differently. Finally, it was observed that no presumption under Sections 35 and 54 should be used against the accused unless he has been given an opportunity to rebut the presumptions in his statement under Section 313 of the Code of Criminal Procedure by being called upon to explain the circumstances which give rise to the presumptions. I am taking up the case of Ram Paul Singh driver first of all, keeping in view the guidelines enunciated by the aforesaid decision. The evidence collected by the prosecution during investigation was that Jagsir Singh son of Tara Singh (PW1) was the owner of the jeep No.UP80-B9222 in which the contraband was being