Punjab-Haryana High Court
Swaran Singh vs State Of Punjab on 17 March, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 40-SB of 2002
Date of decision: 17th March, 2010
Swaran Singh
... Appellant
Versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Ashok Giri, Advocate for
Mr. Balram Singh, Advocate for the appellant.
Mr. J.S. Bhullar, Assistant Advocate General, Punjab
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Swaran Singh in the present appeal has challenged his conviction and sentence recorded by the Judge, Special Court, Jalandhar on 5th December, 2001. The trial Judge found the appellant guilty of offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, 'the Act') and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1.00 lakh, in default of payment of fine to further undergo rigorous imprisonment for two years. It is reported that the appellant had completed the entire sentence in this case but is detained in another case bearing FIR No.122 dated 20.04.2003.
Counsel for the appellant has contended that even though the appellant has undergone the entire sentence but he will contest the case on merits, as the appellant after registration of the present case, was falsely implicated in another case also. Qua the second FIR, the appellant Criminal Appeal No.40-SB of 2002 2 had filed Criminal Appeal No.360-SB of 2007, which has been ordered to be heard along with the present appeal, as in that appeal, the appellant has filed an application under Section 482 Cr.P.C. praying that the sentence awarded upon him in both the cases be ordered to run concurrently. Criminal Appeal No.360-SB of 2007 shall be decided separately.
In the present case, sentence awarded to the appellant came to an end on 21st June, 2009, but in the second case the benefit of sentence undergone by the appellant in this case from 5th November, 2006 to 22nd June, 2009 has not been extended by the jail authorities.
The appellant was named as an accused in case FIR No.41 dated 16.04.1999 registered at Police Station Nakodar under Section 15 of the Act. The FIR Ex.PF/1 was recorded on the basis of a ruqa Ex.PF sent by SI Ram Dutt PW-3. It was stated therein that SI Ram Dutt, along with his companion police officials, was present at bus stand Nihaluwal for holding nakabandi. At that time from the side of Lohian, at about 2.00 a.m. on the night intervening 15th and 16th April, 1999, a young sikh man came on a tractor trolley. A signal was given and the tractor trolley was stopped. Upon interrogation, the tractor driver disclosed his name as Swaran Singh alias Foji son of Chanan Singh, caste Bazigar, resident of village Jattan, Police Station Nakodar. Suspecting some contraband article, an offer was made to the accused by the Investigating Officer to get himself searched in the presence of a Magistrate or a Gazetted Officer. The accused gave his consent and opted to get himself searched in the presence of a Gazetted Officer. The Investigating Officer informed the DSP, Shahkot to arrive at the spot to conduct the search. Baljit Singh, DSP, Sub Division, Shahkot, along with his staff, arrived at the spot in a Government Gypsy. At that time, one Malkiat Singh son of Ujagar Singh also arrived at the spot and was joined as an independent witness. Search of the tractor trolley Criminal Appeal No.40-SB of 2002 3 was conducted and 25 gunny bags each containing 35 kilograms of poppy husk were recovered. From each bag 250 grams of poppy husk was drawn for samples. According to the procedure prescribed, the sample and the case property was sealed with the seal 'BS' of the DSP. The Investigating Officer had also put his seal and the specimen was handed over to the DSP. Since the accused failed to show any valid permit or licence, in the ruqa it was stated that a case be registered against the appellant.
The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted against the accused appellant.
The Court of Special Judge, Jalandhar framed charge against the appellant on 29th July, 1999. The charge stated that on 16th April, 1999 at about 2.00 a.m., within the area of village Nihaluwal, the appellant was found in possession of 875 kilograms of poppy husk and thereby he had committed an offence under Section 15 of the Act. The appellant pleaded not guilty and claimed trial.
Prosecution examined MHC Jaswinder Singh as PW-1, who tendered his affidavit Ex.PA to prove link evidence. In cross examination, he stated that the case property was deposited by him at the night.
Constable Bhajan Lal PW-2 tendered his affidavit Ex.PB. SI Ram Dutt appeared as PW-3. He reiterated as to what was stated in the ruqa Ex.PF and proved search and seizure of the tractor trolley and the case property. He also deposed regarding preparation of the samples. The gunny bags, which contained poppy husk, were exhibited as Ex.P1 to P25. This witness had also prepared rough site plan and carried personal search of the accused. It will be pertinent to mention here that in the ruqa Ex.PF and the statement made in the Court, no registration number of the tractor had been mentioned. In cross Criminal Appeal No.40-SB of 2002 4 examination, this witness stated that he had affixed a chit containing the particulars of the case, but due to rain the same had fallen. However, in the ruqa Ex.PF and the recovery memo, no mention was made regarding affixation of the chit. It was further stated that the tractor trolley was without any registration number. Even the engine had no number. This witness investigated regarding ownership of the tractor trolley. Except interrogation of the accused, he had not recorded statement of anybody else regarding ownership of the tractor trolley.
DSP Baljit Singh, in whose presence search was conducted, appeared as PW-4.
Thereafter, prosecution closed its evidence and statement of the accused under Section 313 Cr.P.C. was recorded.
However, no witness was examined in defence.
Mr. Ashok Giri, Advocate appearing for the appellant, has raised following arguments for consideration of this Court:
The appellant was apprehended when he was driving the tractor trolley, which was allegedly loaded with 25 gunny bags containing poppy husk. Counsel has submitted that at the most, the appellant can be held responsible for transporting the contraband article and could have been charged under Section 8 and not under Section 15 of the Act. It is stated that a grave prejudice has been caused to the appellant by framing a wrong charge.
That it is not the case of the prosecution that the appellant knew that the gunny bags contained poppy husk, therefore, conscious possession of the appellant cannot be inferred, especially when no question to this effect was put to the appellant in his statement recorded under Section 313 Cr.P.C. Reference has been made to a Division Bench judgment of this Court rendered in 'Sukhdev Singh v. State of Punjab' Criminal Appeal No.40-SB of 2002 5 2006(4) RCR (Criminal) 263 in support of the above said two contentions. It will be pertinent to mention here that in Sukhdev Singh's case (supra), reliance was placed upon a Full Bench decision of this Court rendered in 'Kashmir Singh v. State of Punjab' 2006(2) RCR (Criminal) 477, wherein it was held that before any presumption under Section 35 and Section 54 is invoked against the accused, a specific question ought to be put to the accused that he was in a 'conscious possession' of the contraband article.
In support of this argument, further reliance has been placed upon 'State of Punjab v. Hari Singh' 2009(2) RCR (Criminal) 143. It is further submitted that Malkiat Singh, who was joined as an independent witness, had not been examined by the prosecution and has been withheld from the Court. It is further submitted that PW-3 SI Ram Dutt had not handed over the seals to the independent witness but to DSP Baljit Singh PW-4. The DSP had also not handed over the seals to anybody else, but had retained the same. Thus, the counsel has submitted that both the seals put on the case property and the samples by the DSP and the Investigating Officer remained in possession of the DSP Baljit Singh PW-4 and thus, there was every possibility of tampering with the seals and the sealed samples.
Counsel has submitted that in view of the above arguments, the affidavit Ex.PB sworn by Constable Bhajan Lal PW-2 assumes importance, as he had taken the samples from MHC on 21st April, 1999 and had deposited the same in the laboratory on the same day.
Referring to the testimony of MHC Jaswinder Singh, it has been stated that the same were deposited with this witness on 16th April, 1999 and were entrusted to Bhajan Lal PW-2 on 21st April, 1999. Thus, according to the counsel, there was a delay in sending the samples and Criminal Appeal No.40-SB of 2002 6 for six days they remained in the police malkhana. Counsel has submitted that the samples and the seals were with the police and a possibility that they were changed cannot be ruled out.
Counsel has further referred to the statement made by DSP, PW-4.
It has further been urged that no effort was made to prove the ownership of the tractor trolley. No person was examined from the company/dealer, from whom the tractor was allegedly purchased, to prove as to who had purchased the tractor. Learned counsel has submitted that even though it is assumed that neither the registration number nor the engine number was there on the tractor, yet the investigation should have been taken to the logical conclusion to prove the ownership of the tractor.
Thus, counsel for the appellant has submitted that the prosecution has miserably failed to connect the appellant with the tractor trolley and the recovery.
Lastly, it has been submitted that the specimen of the seals were not sent to the Chemical Examiner for comparison of the seals on the samples.
From the above arguments raised, following three questions can be formulated for consideration of this Court:
(a) Whether the prosecution, for proving 'conscious possession' of the appellant, has followed the statutory procedure prescribed and acknowledged by the courts ?
(b) Whether there is any possibility of the samples being tampered with ?
(c) Whether by not framing the charge under Section 8 of the Act, any prejudice has been caused to the appellant or not ?Criminal Appeal No.40-SB of 2002 7
To assist this Court to arrive at a right answer, Mr.J.S. Bhullar, Assistant Advocate General, Punjab, has contended that PW-3 SI Ram Dutt and PW-4 DSP Baljit Singh are not inimical towards the present appellant and, therefore, their testimonies should be given due credence. Counsel for the State has further submitted that when the appellant was released on parole, he was arrested in another FIR and thus from his conduct and antecedents, it can be inferred that he was engaged in transportation of the poppy husk.
To answer the first question, it is necessary to refer to the statement of the accused recorded under Section 313 Cr.P.C. Question Nos.3, 4 and 5 and answers thereto made in the statement read as under:
"Q.No.3. That the SI told you that there was suspicion of some intoxicant material with you and the search was to be conducted and if you so desired, the search could be conducted before Gazetted Officer or Magistrate. You replied that the search be conducted before a Gazetted Officer. Consent memo Ext.PC was recorded which was signed by you and attested by ASI Gurmit Singh.
Ans. It is incorrect.
Q.No.4. That the SI then sent message to DSP Shahkot who reached the spot. Malkiat Singh, PW also reached the spot by chance and he was joined with the party. Then in the presence of the DSP the SI searched the trolley which resulted into the recovery of 25 bags of poppy husk.
Ans. It is incorrect.
Q.No.5. That a sample of 250 grams of poppy husk was separated from each bag and made into parcels. The remaining poppy husk in each bag was weighed which came to be 34 kgs. 750 gms. The same was allowed to remain in the respective bag and those were made into separate parcels. Then the samples and the bags were separately sealed with seal bearing impression BS of the DSP and taken into possession vide memo Ext.PD attested by the PWs. Criminal Appeal No.40-SB of 2002 8
Ans. It is incorrect."
A perusal of these questions shows that it was brought to the notice of the accused that he is in possession of some intoxicant material. It was further told to him that the search had resulted into recovery of poppy husk from 25 bags. The accused was also acquainted with the fact that a sample of 250 grams of poppy husk was separated from each bag and remaining poppy husk weighing 34 kilograms and 750 grams was taken into possession. Once, it is disclosed to the accused in his statement recorded under Section 313 Cr.P.C. that poppy husk has been recovered, is it necessary to say in exact words that the possession of the accused was conscious. The statement of the accused recorded under Section 313 Cr.P.C. is a statement without oath. The object of this statement is to make the accused aware of incriminating circumstances. When the accused is told that a contraband article, as in the present case poppy husk, has been recovered, he is made aware that he is in possession of something which is not legally permissible. It is at that stage for the accused to say that his possession was not conscious and he was transporting the contraband article without knowing its contents. Merely because the words 'conscious possession' were not used, the statement recorded under Section 313 Cr.P.C. will not be rendered a nullity. A perusal of the conclusion arrived at in Kashmir Singh's case (supra) makes it apparent that an opportunity should be given to the accused to rebut the presumption regarding his possession. Therefore, in the humble opinion of this Court, it is not necessary that the words 'conscious possession' should also be used in the statement under Section 313 Cr.P.C. A reference can be made to Hari Singh's case (supra), where in para 17 it was observed by their Lordships as under:
Criminal Appeal No.40-SB of 2002 9
"17. 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. This possession was highlighted in Madan Lal and Anr. V. State of Himachal Pradesh, 2003(4) RCR (Criminal) 100 : 2004(1) Apex Criminal 426 : (2003(6) SCALE 483)."
A perusal of the above observation makes it clear that the prosecution has to establish the possession. It is for the person, who claims himself to be not in a conscious possession, to establish as to how he came into possession, as the same is within his special knowledge.
Counsel for the appellant has made reference to para 18 of Hari Singh's case (supra), which reads as under:
"18. In the present case, though, there was evidence regarding conscious possession, but, unfortunately, no question relating to possession, much less conscious possession was put to the accused under Section 313 Cr.P.C. The questioning under Section 313 Cr.P.C. is not an empty formality."
This Court is of the opinion that the view formulated by the Full Bench of this Court in Kashmir Singh's case (supra) is being misunderstood. It is not imperative for the Presiding Officer to use the words 'conscious possession' in the statement of accused under Section 313 Cr.P.C. If the charge and the statement under Section 313 Cr.P.C. state that the accused was found in possession of poppy husk or a contraband article and recovery of the same was effected and the samples were drawn, as it was done in the present case, the requirement of law is Criminal Appeal No.40-SB of 2002 10 fulfilled. It is not a case where recovery was effected from many persons. Once the accused is made aware of his possession of a contraband article, it is for him to say and explain that he never knew the contents of the article, which was found in his possession. Therefore, the first question is answered against the appellant.
Mr. Ashok Giri, appearing for the appellant, has relied upon a judgment of Division Bench of this Court rendered in 'Parminder Singh v. State of Haryana' 2006(4) RCR (Criminal) 495, wherein it was held that where the sample is sent after 25 days and the instructions of Narcotic Control Bureau that the parcel of sample be deposited within 72 hours, is not adhered to, conviction is liable to be set aside. Further reliance has been placed upon 'Malkiat Singh alias Kala v. State of Punjab' 2009(1) RCR (Criminal) 353, where the samples were sent after five days and the acquittal was recorded. Various other judgments to similar effect have been cited by counsel for the appellant. They are 'Balwinder Singh v. State of Haryana' 2009(2) RCR (Criminal) 730; 'Darshan Singh v. State of Punjab' 2006(2) RCR (Criminal) 913; 'Gian Singh v. State of Punjab' 2006(2) RCR (Criminal) 611; and 'Buta Singh v. State of Punjab' 2006 (1) RCR (Criminal) 835.
No doubt, the delay in sending the sample and not handing over the seals to the independent person are the circumstances which cause dent in the prosecution case, but they in themselves are not sufficient to record acquittal of the accused. The delay depends on facts and circumstances of each case. In those cases, where the testimony of official witnesses aspires confidence, there is no need for the Court to look for safeguards. Where the Court is not in a position to place implicit reliance upon the testimony of witnesses, it may consider these circumstances as having eroded the prosecution case. Therefore, the first Criminal Appeal No.40-SB of 2002 11 and the foremost duty of the Court is to appraise the testimony of the witnesses. Where the witnesses are wholly reliable, the delay in lodging of the FIR is not per-se fatal. Similarly, where the testimony of witnesses aspire confidence, simply because the sample was sent late and the seal was not handed over to the independent witness, will not be sufficient to throw the testimony of the witnesses to the wind. Therefore, the second question is also answered against the appellant.
This Court has no hesitation to opine that the testimony of SI Ram Dutt PW-3 and DSP Baljit Singh PW-4 is trustworthy and aspire confidence.
Now it is time to deal with the legal issue raised before this Court. The charge stated that on 16th April, 1999 at about 2.00 a.m., the appellant was found in possession of 875 kilograms of poppy husk and thus, he had committed offence under Section 15 of the Act. A perusal of Section 15 of the Act reveals that anybody, who produces, possesses, transports, imports, exports, purchases the poppy straw, is said to have committed the offence. So, Section 15 of the Act makes transportation and possession equally liable for punishment. Furthermore, para 13, 15 and 16 of the judgment rendered in Hari Singh's case (supra) makes it explicitly clear that the possession is polymorphous term, which assumes different colours in different contexts. A person who transports can also be considered in possession of the article until he specifically pleads that the transportation was an innocent act and he never knew the contents of the article stored. Therefore, this Court shall make reference to Section 464 Cr.P.C. and hold that in facts and circumstances of the present case, no failure of justice has occurred and no prejudice was caused to the appellant.
It has been submitted that the testimony of SI Ram Dutt should be discarded, as he had stated that he had affixed chits containing Criminal Appeal No.40-SB of 2002 12 particulars of the case, but due to the rains same had fallen. Further, a perusal of his cross examination makes it apparent that the Illaqua Magistrate, who affixed the seal on each bag, had signed the bags and had affixed his rubber stamp. Once, the case property was produced before the Illaqua Magistrate, who had appended his signatures, the mere fact that by efflux of time, the gum or adhesive applied to the chits had withered away will not go to the advantage of the appellant.
Thus, there is no merit in the present appeal and the same is hereby dismissed.
[KANWALJIT SINGH AHLUWALIA] JUDGE March 17, 2010 rps