Punjab-Haryana High Court
Rajinder Singh vs State Of Punjab on 5 May, 2010
Criminal Appeal No. 616 SB of 2003(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 616 SB of 2003(O&M)
Date of decision: 5 -5-2010
Rajinder Singh ......... Appellant
Vs
State of Punjab .........Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present: Mr. Jagjit Singh, Advocate, for the appellant
Mr. R.S.Rawat, Assistant Advocate General, Punjab
HARBANS LAL, J.
This appeal is directed against the judgment dated 28.1.2003/order of sentence dated 29.1.2003 passed by the court of learned Judge Special Court, Bathinda whereby he convicted and sentenced the accused Rajinder Singh to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1.00 lac under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, the Act) and in default of payment of fine to further undergo rigorous imprisonment for two years.
As the prosecution story goes on 4.12.2000 ASI Gurdev Singh amongst other police officials was proceeding in Government canter towards village Kothaguru being on patrol duty. When the police party reached at the bus stand, meanwhile, Som Nath alias Somi came across the police party. He was associated with the police party. When the police party was going towards village Kalyana from village Kothaguru via kacha path, Criminal Appeal No. 616 SB of 2003(O&M) 2 one contessa car bearing registration No. DL-ICF-3589 was spotted approaching on the bank of the canal minor near the bridge. The car was made to stop. Rajinder Singh alias Kaka was driving the car whereas Baljinder Singh alias Binder was sitting by his side. Three gunny bags were lying on the rear seat of the car. Suspecting the contents of these bags to be some contraband the accused were apprised of their right that if they so desire, they can have search of the bags in the presence of a Gazetted Officer or a Magistrate. They opted to have their search in the presence of a Gazetted Officer. On receipt of wireless message, Amrik Singh DSP Rampura Phul came at the spot. On his direction, the search of the gunny bags was carried out. Their contents were found to be poppy husk. 250 grams of poppy husk was drawn from each bag to serve as sample and converted into parcels. The residue of each bag when weighed came to 39.750 Kgs which was also turned into parcels. All these parcels were sealed with seal G.S. and taken into possession. Ruqa was sent to the Police Station, where on its basis formal F.I.R. was registered. The aforesaid car was also seized. The accused were arrested. After completion of investigation, the charge-sheet was laid in the Court for trial of the accused.
The accused Rajinder Singh was charged under Section 15 of the Act to which he did not plead guilty and claimed trial. In respect of accused Baljinder Singh, the learned Public Prosecutor made statement that he being juvenile, his challan shall be presented in the court of learned Chief Judicial Magistrate, Bathinda. In order to bring home guilt against the accused, the prosecution examined NSR S.P. Amrik Singh PW-1, ASI Gurdev Singh PW-2, Constable Jaswant Singh PW-3, SI Gurdeep Singh PW-4 and closed its evidence after tendering the report of the Chemical Criminal Appeal No. 616 SB of 2003(O&M) 3 Examiner.
When examined under Section 313 Cr.P.C., the accused Rajinder Singh denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. He put forth that the case has been planted on him with regard to 'begar' of car by the police. He did not adduce any evidence in his defence.
After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
Mr. Jagjit Singh Advocate on behalf of the appellant canvassed at the bar that Som Nath alias Somi an independent witness to whom the seal after use was allegedly entrusted, has not been examined and thus, the appellant has been deprived of his right to cross-examine this witness. He further puts that challan against Baljinder Singh juvenile has not been presented before the Board of Juvenile Justice as yet. The conscious possession of the appellant qua the alleged poppy husk has not been established by the prosecution. The owner of the vehicle has neither been challaned under Section 25 of the Act, nor joined in the investigation. He has relied upon State of Punjab Vs. Surjit Singh 2008(1)Recent Criminal Reports(Criminal) 266, Gian Singh and another Vs. State of Punjab 2007(3)Recent Criminal Reports(Criminal)796, State of Haryana Vs. Virsa Singh 2008(1)Recent Criminal Reports(Criminal)487, Avtar Criminal Appeal No. 616 SB of 2003(O&M) 4 Singh Vs. State of Punjab 2007(4)Recent Criminal Reports(Criminal) 898,Gian Singh Vs. State of Punjab2006(2)Recent Criminal Reports (Criminal)611, Karnail Singh s/o Gurbachan Singh r/o Khijrabad, District Karnal Vs. State of Haryana 2008(3)Recent Criminal Reports (Criminal)543, Dalbir Singh alias Beera Vs. The State of Punjab 2008 (1)Recent Criminal Reports(Criminal)1050 and Kashmir Singh Vs The State of Punjab 2010(1)Recent Criminal Reports(Criminal)437.
To controvert these submissions, the learned State counsel maintained that the appellant being a driver of the vehicle was well aware of the contents of the bag being carried in the vehicle. Thus, his conscious possession qua these bags is well established. He further pressed into service that the case of the prosecution may not be thrown out of hand, merely because of non-examination of the independent witness.
I have well considered the rival contentions.
It is in the cross-examination of ASI Gurdev Singh PW-2 the Investigator that "the car is not in running condition at present. xx xx Seals of two bags are in broken condition and on the one bag is partially broken and is not legible. One bag is in torn condition which is minor, however, polythene paper which is inside the gunny bag is intact." It is inferable from this evidence that the case property was not in the same state as was allegedly recovered from the vehicle. The seals of two bags being in torn condition and on the third one, being partially broken and not readable, it is very difficult to say that the bags produced in the court as the case property were the same which were recovered from the vehicle. Furthermore, one bag being in torn condition, polythene paper had been duly inserted in the Criminal Appeal No. 616 SB of 2003(O&M) 5 hole existing therein. Thus, the possibility of tampering with its contents cannot be ruled out. May be that the contents of poppy husk were taken out and some other material was poured inside the bag through the existing hole. In Avtar Singh's case(supra)which was also a case under Section 15 of the Act, when the case property was produced in the court, the seals of some of the bags were partially broken. It was held by this Court that the prosecution has failed to explain this aspect of the matter completely. The conviction was set aside. In the present one too, the prosecution has failed to explain as to under what circumstances the seals affixed on the case property got broken or how the stated hole came to occur in one of the bags.
At the fag end of his cross-examination, Amrik Singh PW-1 the then D.S.P. now S.P. has stated that " there is no date underneath my signatures." A meticulous perusal of Ex.PC the recovery memo, Ex.PD the memo regarding seizure of car, Ex. PE the memo regarding personal search of the accused Rajinder Singh, Ex.PF the memo regarding personal search of accused Baljinder Singh alias Binder would reveal that these documents do not bear the date under the signatures of this witness. It is in his cross- examination that "the place of recovery is a thorough fare, but none passed by our side till we remained at the spot," whereas ASI Gurdev Singh (sic) has stated that "When the accused was arrested no person passed by our side, however, persons passed after the apprehension of the accused, but they were not asked to join the investigation." It is also in the cross- examination of the former that "the bags were taken out from the car by the accused and thereafter, the search of the bags was conducted" whereas according to the latter "the bags were taken out from the car at 4.00 p.m. by him and other police officials." It is further in the evidence of the former Criminal Appeal No. 616 SB of 2003(O&M) 6 that "Spring balance was arranged after my reaching at the spot" though according to the latter "The spring balance was arranged before the arrival of the DSP at the spot." These discrepancies when looked in the background of the absence of the date under the signatures of the said D.S.P. on the aforementioned documents, it transpires that this DSP was not present on the spot. May be that his signatures were obtained while he was sitting in his office. In such circumstances, it would be very difficult to believe that the recovery was effected within the view of this DSP. As alleged by the prosecution, the seal after use was made over to Som Nath alias Somi, a public man who has not been examined. In Satnam Singh Vs. State of Punjab 1996(3)Recent Criminal Reports(Criminal)396 (P&H) it has been held that "when the prosecution alleged that a material witness has been won over by the accused, it is still necessary that such witness must be produced and examined at the trial to reveal the truth especially when the seal is allegedly entrusted to him after use." If the said witness had been tendered for cross-examination, it could have been wrenched out as to after how many days the seal was returned by him. There could be every possibility that the samples were tampered with by getting back the seal from this witness and a similar view has been taken by the Division Bench of this Court in Surjit Singh's case(supra). As surfaces in the cross- examination of ASI Gurdev Singh Investigator that "My statement was recorded by SHO. However, I did not record his statement at any stage of the investigation." As testified by S.I. Gurdeep Singh PW-4 that "On 4.12.2000 ASI Gurdev Singh produced before me the accused present in the court Rajinder Singh and Baljinder Singh @ Bhinder Singh alongwith six Criminal Appeal No. 616 SB of 2003(O&M) 7 parcels of poppy husk containing bulk and samples alongwith sample seal bearing the seal impression G.S." If the case property was verified by Gurdeep Singh, he was bound to make statement before the Investigator Gurdev Singh in this regard. Queerly enough that the statement of the Investigating Officer was recorded by Gurdeep Singh(sic) though as per law his statement should have been recorded under Section 161 of Cr.P.C. by the Investigator. To me it appears that the cart has been put before the horse. It gives an inkling that the case property in fact was neither produced before Gurdeep Singh(sic) nor the same was verified by him. So the provisions of Section 55 ibid have not been adhered to in a manner as provided by law. Thus the appellant has been materially prejudiced. In Karnail Singh's case (supra) it has been held by this Court that intentional and deliberate breach of the provisions of Section 55 certainly caused prejudiced to the accused.
In Ex.PD, vide which the Contessa car was allegedly seized, it has been mentioned with specificity that this vehicle stands transferred in the name of Darshan Singh son of Gurcharan Singh resident of Charik, District Moga. If the name of the registered owner of this vehicle had surged to the surface during investigation it was obligatory upon the Investigator to have joined him in the investigation to ascertain as to under what circumstances he had parted with the possession of this vehicle. If it had been found during investigation that the said owner had given this vehicle to the appellant knowingly for use of transportation of the contraband, he ought to have been challaned under Section 25 of the Act. The record is silent about the joining of its owner in the investigation for the reasons best known to the Investigating Officer. So, palpably the investigation is also faulty.
Criminal Appeal No. 616 SB of 2003(O&M) 8
In Kashmir Singh Vs. State of Punjab 2006(2) Recent Criminal Reports(Criminal) 477, the Full Bench of this Court has observed as under:-
"12. When the Trial Judge records the statement of an accused person under Section 313 Cr.P.C. with regard to the circumstances which have appeared in evidence against him, the learned judge gives the accused an opportunity to explain those circumstances. The accused generally denies the prosecution case against him, but it is an opportune moment for him to plead any type of defence that he may like to take. Therefore, by extending the provisions of Section 313 Cr.P.C. and on first principles of fair trials as well, there is need to give every accused person an opportunity to explain the case against him. Wheresoever the presumption under Sections 35 & 54 is to be raised, it would be advisable for the Trial Court to frame a question under S. 313 Cr.P.C. in order to give the accused a fair opportunity to rebut the presumption, but it is strange that Trial Court do not give the accused this opportunity. Unless the accused have been given the opportunity to prove that he had no such mental state as presumed under S.35 or that he had satisfactorily accounted for the possession which was being presumed against him under Section 54, the respective presumptions cannot be raised against the accused.
19. For the above reasons, we would answer the question raised by stating that no presumption under Section 35 and 54 should be used against the accused unless he has been given an Criminal Appeal No. 616 SB of 2003(O&M) 9 opportunity to rebut the presumptions in his statement under Section 313 Cr.P.C. by being called upon to explain the circumstances which give rise to the presumptions. Thereafter, the accused should be given an opportunity to lead to the presumptions. Thereafter the accused should be given an opportunity to lead evidence in defence in support of his stand. However, there is no real or apparent conflict regarding the correct meaning of "possession" which needs to be resolved."
In State of Punjab Vs. Hari Singh and Others 2009(2) Recent Criminal Reports (Criminal) 143 it has been observed by the Apex Court as under:-
"19. For the above reasons, we would answer the question raised by stating 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 Cr.P.C. by being called upon to explain the circumstances which give rise to the presumptions. Thereafter the accused should be given an opportunity to lead evidence in defence in support of his stand. However, there is no real or apparent conflict regarding the correct meaning of "possession"
which needs to be resolved."
In view of the afore-quoted law, it was obligatory upon the learned trial Court to have framed a specific question with regards to conscious possession and put the same to the appellant, while he was being examined under Section 313 of Cr.P.C. To the utter dismay of the prosecution, a glance through statutory statement of the appellant would Criminal Appeal No. 616 SB of 2003(O&M) 10 reveal that it has no where been put to him that he was in conscious possession of the recovered poppy husk bags. In this way, his conscious possession is not established. Sequelly, the presumption arising under Section 35 or 54 of the Act does not operate in favour of the prosecution.
No other material point has been agitated or raised by either counsel.
For the reasons indicated above, this appeal succeeds and is accepted by setting aside impugned judgment/order of sentence. The accused-appellant is hereby acquitted of the charged offence by giving him benefit of reasonable doubt.
Since the appeal has been decided, all pending Criminal Miscellaneous,if any, also stand disposed of.
(HARBANS LAL) JUDGE May 5, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No