Punjab-Haryana High Court
State Of Punjab vs Nachhattar Singh @ Bania on 26 February, 2007
Equivalent citations: (2007)147PLR122
Author: Mehtab S. Gill
Bench: Mehtab S. Gill
JUDGMENT Arvind Kumar, J.
1. The State of Punjab has preferred the instant appeal against the judgment dated 23.3.2006 passed by Presiding Officer, Special Court, Sangrur by dint of which the trial Court acquitted the respondent from the offence punishable under Section 15 of Narcotic Drugs and Psychotropic Substances Act (for brevity, the Act).
2. According to the prosecution allegations, on 11.5.2004 the police party headed by A.S.I. Gurmail Singh apprehended the respondent and recovered poppy husk equivalent to 62-1/2 Kg. from the pits near the bridge of canal in the area of village Roopaheri, contained in two plastic bags, upon which he was sitting. One independent witness Harjit Singh was also joined in the investigation. The contraband was sealed and taken into police possession. The respondent was arrested and thereafter on completion of usual formalities of investigations, final report was filed in the Court against the respondent for the trial.
3. After commitment of the challan, the trial Court framed charges under Section 15 of the Act against the respondent.
4. During the trial, the prosecution examined as many as six official witnesses. The evidence of prosecution consists of testimonies of recovery witness PW.1 H.C. Jagdev Singh and PW.4 A.S.I. Gurmail Singh, the investigating officer; and formal witnesses PW.2 Const. Gurjant Singh, PW.3 A.S.I. Gurcharan Singh, PW.5 H.C. Ajaib Singh and PW.6 Inspector Sewa Singh. Besides, report of chemical examiner was tendered by the prosecution in its evidence.
5. When examined Under Section 313 Cr.P.C. the case of the respondent was of total denial and false implication.
6. The respondent examined two witnesses namely DW.1 Amarjit Kaur and DW.2 Gurmail Singh.
7. The learned trial court, on appreciation of evidence led by the prosecution, held that the prosecution has failed to connect the accused with the alleged recovery and accordingly, as said above, acquitted him of the charge framed.
8. We have heard learned State counsel as well as learned Counsel for the respondent and have gone through the judgment of the trial court and find ourselves in total agreement with the findings recorded therein.
9. Conscious possession is the core ingredient to be established before the accused is subjected to punishment under this Act. It is well settled, as held in Syed Mohd. Syed Umer Syed and Ors. v. State of Gujarat that unlawful possession is sine qua non for conviction under the Act and that fact has to be established by the prosecution beyond reasonable doubt. Though possession has not been defined in the Act but has been judicially construed to be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity of the object. There are two essential elements of possession; firstly, the corpus- the element of physical control and secondly, the animus or intent with which such control is exercised. It is for the prosecution to establish that the accused was found in conscious and intelligent possession of the contraband. In the instant case, it is evident that the respondent was sitting on plastic bags, in the pits, near the bridge of canal minor. This is not suffice to prove conscious possession. Merely by sitting on the bags, in absence of proof of anything more, does not infer that he was in conscious possession of those bags. The investigating agency had not tried to ascertain whether the bags containing poppy husk were belonging to the accused or not? In a way, it had not adduced any evidence to show the ownership of poppy husk. There was no investigation as to how those bags of poppy husk were transported to the place of recovery. Moreover, no efforts had been made to trace out the origin of contraband. The police should have conducted further investigation to prove that the respondents was really in conscious possession of those bags. There is nothing to establish that the place from where the poppy husk was recovered was belonging to the respondent, rather, admittedly, the place of recovery was a Government place, feasible and accessible to general public. In State of Punjab v. Balkar Singh and Anr. , in the similar circumstances, when the accused were found sitting on the bag whereof poppy husk was recovered, considering the factum of absence of any proof with regard to ownership of that contraband, it was held that, in absence of any satisfactory explanation by the accused for being present on that place, does not prove that they were in conscious possession of those contrabands. Therefore, in the light of this evidence, the learned trial court has rightly held that the prosecution has failed to prove conscious possession of the contraband.
10. There is yet staggering circumstances, which has shaken the very foundation of the prosecution case. It is well settled that till the case property has not been dispatched to the office of Chemical Examiner/Forensic Science Laboratory, the seal should not be available to the prosecuting agency and in absence of such safeguard, the possibility of seal being tampered with, substance being changed and the containers being re-sealed cannot be ruled out. This is a safeguard, which is to be maintained for sanctity of the search. However, in the instant case, though as per the case of the prosecution, an independent witness Harjit Singh had been joined during the investigation, but despite that the seal was handed over to PW.1 H.C. Jagdev Singh, an official and subordinate to PW.4 A.S.I. Gurmail Singh, the investigating officer. Thus, where the seal remained with the police after the use, it creates doubt in the mind of the court of tampering with the sample. The judgment in Baldev Singh v. State of Punjab 2005 (1) R.C.R. (Cri.) (P&H) 823 squarely covers this issue.
11. The another flaw in the prosecution case is that the independent witness namely Harjit Singh, who joined in the investigation, was not examined by the prosecution due to the reasons best known to it. By his non-examination, the trial court has rightly drawn an adverse inference against the prosecution.
12. The things do not rest here. The case of the prosecution comes under the clouds of doubt when PW.I H.C. Jagdev Singh, one of the recovery witness to the alleged recovery, showed his ignorance with regard to the spot proceedings and showed his ignorance in his cross-examination, when asked about material particulars of the investigations conducted at the spot, after the alleged recovery. The trial Court also noticed major discrepancies crept into statements of both the recovery witnesses. The trial court adequately and rightly dealt with all these points before passing the order of acquittal.
13. In view of the discussion made above, the impugned judgment is neither perverse nor there is any error of law. No interference is called for. The appeal is accordingly dismissed.