Punjab-Haryana High Court
Daljit Singh vs The State Of Haryana on 25 January, 2010
Criminal Appeal No.1057 SB of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.1057 SB of 2002
Date of decision:25-1-2010
Daljit Singh .........Appellant
Vs
The State of Haryana .........Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present: Shri G.S.Sidhu, Advocate, for the appellant
Shri Tarunveer Vashisth, Addl. Advocate General, Haryana
HARBANS LAL, J.
This judgment shall dispose of Criminal Appeal No. 1057 SB of 2002 filed by Daljit Singh @ Dhallu, Criminal Appeal No. 1164 SB of 2002 moved by Duni Singh and Criminal Appeal No. 1165 SB of 2002 preferred by Kartara Ram accused, as having arisen from the judgment/order dated 4.6.2002 passed by the court of learned Additional Sessions Judge, Sirsa whereby he convicted and sentenced Daljit Singh, Duni Singh and Kartara Ram accused to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.1.00 lac each under Section 15 of the Narcotic Drgus and Psychotropic Substances Act, 1985(for short, the Act) and in default of payment of fine, the defaulter to undergo further imprisonment for a period of 2 years.
As set up by the prosecution, on 9.3.1997 Atma Nand SI/SHO of Police Station Sadar Sirsa alongwith other police officials apprehended the accused while they were travelling in a jeep. There were five bags lying in the jeep. Suspecting their contents to be contraband, the Sub Inspector Criminal Appeal No.1057 SB of 2002 2 served notice under Section 50 of the Act. The accused offered to have their search before a Magistrate. Accordingly Om Parkash Naib Tehsildar, Sirsa was called to the spot. A sample weighing 100 grams was drawn from each bag and the same were converted into parcels. The residue of each bag when weighed came to 39Kgs 900 grams which was also turned into parcel. The parcels were sealed and taken into possession. Accused were arrested. After completion of investigation, the charge-sheet was laid in the court for trial of the accused.
The accused Daljit Singh @ Dhallu, Duni Singh, Kartara Ram and Mukhtiar Singh were charged under Section 15 of the Act to which they did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW-1 Maha Singh Head Constable, PW- 2 Nihal Singh Head Constable, PW-3 Om Parkash Naib Tehsildar, PW-4 Atma Nand, Sub Inspector and closed its evidence by tendering Ex.PG report of the Forensic Science Laboratory.
When examined under Section 313 Cr.P.C. all the accused accused denied the incriminating circumstances appearing in the prosecution evidence against them. The accused Kartara Ram has put forth as under:-
"I am innocent. Nothing was recovered by the police from me. My son is married in village Mallekan. I had come to see my relatives at village Mallekan on that day. I used to visit Mallekan to help Mangal Singh. Mangal Singh had enmity in the village Mallekan and at the instance of opposite party of Mangal Singh, I have been falsely implicated in this case. I have no connection with the jeep in question from which Criminal Appeal No.1057 SB of 2002 3 alleged contraband was recovered which was found unclaimed by the police."
Daljit Singh pleaded as under:-
" I am innocent. Nothing was recovered by the police from me. I have been falsely implicated in this case. I have no connection with the jeep in question from which alleged contraband was recovered which was found unclaimed by the police. I alongwith Mukhtiar Singh was in drunken condition and apprehended from Mushabwala."
Duni Singh pleaded as under:-
"I am innocent. Nothing was recovered by the police from me. I used to visit village Mallekan with Kartara to help Mangal Singh. Mangal Singh had enmity in the village Mallekan and at the instance of opposite party of Mangal Singh, I have been falsely implicated in this case. I have no connection with the jeep in question from which alleged contraband was recovered which was found unclaimed by the police.
Mukhtiar Singh pleaded as under:-
"I am innocent. Nothing was recovered by the police from me. I alongwith Daljit Singh was in drunken condition and were apprehended from Musahabwala barrier when they quarrelled with the police. I have been falsely implicated in this case. I have no connection with the jeep in question from which alleged contraband was recovered which was found unclaimed by the police."
At the stage of defence, the accused Mukhtiar Singh absented Criminal Appeal No.1057 SB of 2002 4 from the proceedings and ultimately, he was declared a proclaimed offender. The accused Daljit Singh, Duni Singh and Kartara Ram did not adduce any evidence in their 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 Daljit Singh @ Dallu, Kartara Ram and Duni Singh as noticed at the outset. Feeling aggrieved with their conviction and sentence, they have preferred these appeals.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
Om Parkash Verma, Tehsildar PW-3 has testified in his examination-in-chief that " Those four persons might be the accused present in the court." This piece of evidence can be interpreted to mean that he was not self confident that the persons who were present as accused in the Court are the same who were arrested at the spot. On the basis of this shaky evidence, it is very difficult to conclude that the accused were identified by this witness. To ensure their identity, it was obligatory upon the Public Prosecutor who was conducting the case to get this witness declared hostile so as to enable him to elicit during his cross-examination as to whether or not they were the same persons. Atma Nand S.I. PW-4 Investigator has testified that "On seeing the police jeep, the said jeep turned back, but it hit the kikkar tree. I apprehended all the accused present in the court with the help of other police officials. xx xx Jeep is in a broken condition and is in damaging condition and is not in a position to drive and produce before the court." If this story is assumed to be true and correct for a little while, the accused present in all probabilities, would have sustained some injuries on Criminal Appeal No.1057 SB of 2002 5 their respective bodies, which is not the case of the prosecution. Furthermore, the jeep has not been produced. It is in his cross-examination that " It is correct that the four bags are fully filled and the fifth bag is in torn condition and is carrying 8/10 kgs. poppy husk in it. The seals on the bags are not visible and are in broken condition." It is inferable from this evidence that from the fifth bag 29 kg 900 gms poppy husk was missing. It is not the case of the prosecution that due to rat problem or any other problem this loss has ensued. It was obligatory upon the concerned Mohar Head Constable to have entered the reasons for this loss in the Daily Diary Register and other relevant registers after having informed the concerned authorities. Furthermore, the seals on the bags being invisible and in broken condition, it is not possible to say that the bags produced as case property in the court were the same as were recovered from the alleged jeep. It is also in cross-examination of the Investigator that "No body had stayed near us though persons were passing from that side. We remained on the spot for about 4/5 hours." Of course, as alleged by the prosecution Om Parkash Verma Tehsildar was joined in the investigation, but he was an official witness. To lend independent corroboration to the statements made by the official witnesses, some passerby should have been joined as there was no dearth with regard to their availabilty. As surfaces in the cross-examination of the Investigator, the seal was returned to him after 2/3 days of the recovery, whereas the sample parcels were dispatched on 19.3.1997 as reflected in Ex.PG the report of the Forensic Science Laboratory. It tends to show that the seal was returned to the Investigating Officer, when the sample parcels were still lying in the Police Station. If so, the possibility of their contents being tampered with cannot be ruled out. Criminal Appeal No.1057 SB of 2002 6
A glance through Ex.PD would reveal that composite notice has been served upon all the four accused under Section 50 of the Act. As per the contents of this notice, all the four accused were offered to be searched in the presence of a Gazetted Police Officer or Magistrate. In Nimma Ram Vs. State of Punjab 1999(2) Recent Criminal Reports (Criminal)449 joint statement of all the three accused was recorded by the Investigating Officer that they wanted to give search in the presence of a Gazetted Officer . It was held that joint statement is not permissible and thus Section 50 of the Act has not been complied with, which was mandatory. In Gurnam Singh Vs. State of Punjab 1998(2) Recent Criminal Reports (Criminal) 7 Investigating Officer gave offer of search before Magistrate or Gazetted Officer of police department. It was held that it was partial offer The Investigating Officer only confined the offer of search before Gazetted Officer of police department and thus the provisions of Section 50 of the Act have not been complied with. In Union of India Vs. Shah Alam and Another 2009(3) Recent Criminal Reports(Criminal) 158 recovery of heroin from bag of accused on receipt of secret information was effected. Person of accused was also searched, but no recovery was effected from personal search. It was held that provisions of Section 50 might have not been complied with so far search of bags was concerned, but because person of accused was also concerned, it was obligatory to comply with the provision of Section 50 of the Act. In case Abdul Rahiman Vs. State of Kerala 2002 (3) Recent Criminal Reports(Criminal) 404 the accused was given choice of search before a Gazetted Officer or Senior Officer. There was no offer of search before a Magistrate. The Supreme Court held that the offer is not valid under Section 50 of the Act and conviction was set aside. If the matter Criminal Appeal No.1057 SB of 2002 7 is viewed in the background of these authorities, the provisions of Section 50 in stricto senso have not been complied with by the Investigating Officer.
In case Avtar Singh Vs. State of Punjab 2002(4) Recent Criminal Reports(Criminal) 180, the accused were travelling in a truck belonging to accused No.5 in the small hours of 7.8.1989. The vehicle was carrying 16 bags of poppy husk being driven by Balbir Chand appellant No.3. One person, who was sitting in the front seat by the side of the driver and another person sitting on the back side of the truck ran away leaving the vehicle. The Apex Court held that "A case of drawing presumption under Section 114 of the Evidence Act could 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 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 were being carried by the vehicle. The High Court resorted to the presumption under Section 35 which relates to culpable state of mind, Criminal Appeal No.1057 SB of 2002 8 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 aspect 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." In Raj Kumar Vs. State of Punjab 2005(1) Recent Criminal Reports(Criminal) 70 a bag containing opium lying between Raj Kumar and Hawa Singh's seat was recovered. The Division Bench of this Court held that both the accused have been charged for possession of opium, but neither of them had been asked any question in their statements under Section 313 Cr.P.C. that he was in conscious possession of opium. Therefore, neither presumption under Section 35 nor the presumption under Section 54 of the Act would be attracted. Adverting to the instant one, a glance through the statutory statements of all the appellants would reveal that the mere words put to them are that " five bories were found lying in the jeep from which chura post was recovered." It has no where been put to either appellant that he was in conscious possession of the recovered poppy husk bags. In view of Raj Kumar's case(supra) as well as Avtar Singh's case (supra) conscious possession of the appellants qua of the recovered poppy husk bags has not been established by the prosecution. As regards Kartara Ram appellant, he would have been charged alternatively for transporting the offensive goods without permit or authorization as required by law, but to the utter dismay of the prosecution he has not been charged under the Criminal Appeal No.1057 SB of 2002 9 said Section.
As per the certificate of Registration relating to the jeep in question, one Charanji Lal is the registered owner. Section 25 of the Act reads as under:-
"25. Punishment for allowing premises, etc. to be used for commission of an offence.--Whoever, being 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."
In view of his statutory provision, it was obligatory upon the investigator to have challaned said Charanji Lal, who appears to have not been joined even in the investigation for the reasons best known to the investigator.
For the reasons indicated above, all these appeals succeed and are accepted by setting aside impugned judgment/order of sentence. All the accused/appellants are hereby acquitted of the charged offence by giving them benefit of reasonable doubt. Duni Singh and Kartara Ram are stated to be in custody. They be released forthwith, if not required in any other case.
(HARBANS LAL) JUDGE January 25, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No