Punjab-Haryana High Court
Manjit Kaur vs State Of Punjab on 14 January, 2019
Bench: A. B. Chaudhari, Harnaresh Singh Gill
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-No.1041-DB OF 2009
DATE OF DECISION : 14th JANUARY, 2019
Manjit Kaur
.... Appellant
Versus
State of Punjab
.... Respondent
CRA-D-No.36-DB OF 2010
Gurmeet Singh
.... Appellant
Versus
State of Punjab
.... Respondent
CORAM : HON'BLE MR. JUSTICE A. B. CHAUDHARI
HON'BLE MR. JUSTICE HARNARESH SINGH GILL
****
Present : Mr. Ashok Giri, Advocate for the appellant-Manjit Kaur.
Mr. Sunil Kumar Chahal, Advocate for
Mr. R. P. Dhir, Advocate for appellant-Gurmeet Singh.
Mr. K. K. Thakur, Advocate Legal Aid Counsel
for the appellant-Gurmeet Singh.
Mr. H. S. Sullar, Deputy Advocate General, Punjab.
****
A. B. CHAUDHARI, J.
1. Being aggrieved by the judgment and order dated
21.11.2009 passed by Judge, Special Court, Jalandhar in Sessions Case
No.180 of 2007, by which the appellant Manjit Kaur wife of Guru Sant
Parkash Singh in CRA-D- No.1041-DB of 2009 and Gurmeet Singh son
of Naranjan Singh in CRA-D-No.36-DB of 2010 were convicted for
offence punishable under Section 15 of Narcotics Drugs & Psychotropic
Substances Act (in short, NDPS Act) and sentenced to undergo rigorous
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imprisonment for a period of twelve years each and fine of `1,00,000/-
each and in default of payment of fine to further undergo rigorous
imprisonment of one year each, the present two appeals were filed by
them.
FACTS:
2. Briefly stated, the prosecution case was that on 13.07.2004
SI, SHO Onkar Singh of Police Station Bhogpur along with other police
personnel were holding a naka at G. T. Road turning Bholath. He
received secret information that Gurmeet Singh alias Jeeta and Karnail
Singh (PO) were running a trade of selling poppy husk and were having
large quantity thereof stored at the residence of Manjit Kaur at village
Bhatnura Lubana. With this information they proceed to conduct raid at
the residence of Manjit Kaur where DSP Sarwan Singh also reached.
Under the supervision of DSP they conducted the raid when they caught
red handed accused Gurmeet Singh who was stacking the bags. Karnail
Singh alias Suba however ran away from the house of Manjit Kaur.
Thereafter search was conducted in the supervision of DSP. Poppy husk
weighing 39 kilograms and 500 grams was found from which sample was
drawn. All the samples and bags were then taken into police possession
and site plan of the house of Manjit Kaur was prepared from where 13
bags of poppy husk were recovered. Thereafter the usual procedure of
collection of sample and sending them to FSL was undertaken. The
investigation was completed and the challan was presented before the
Court. The trial Court thereafter framed the charge under Section 15 of
the NDPS Act on 21.10.2004 and since the appellants did not plead guilty
they were tried. Manjit Kaur was later on arrested on 29.09.2005 and
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supplementary challan was filed against her. PW-9 SI Onkar Singh, who
lodged the FIR and completed the investigation, was also examined by
the prosecution. Learned trial Court after hearing the arguments
convicted the appellants as stated above.
ARGUMENTS:
3. In support of the appeals, the learned counsel for the
appellants in both these appeals made the submission that admittedly
PW-9 SI Onkar Singh of police station Bhogpur had held naka at G.T.
Road Bholath and had lodged the FIR Exhibit PA/1 with ruqa Exhibit
PA. Admittedly, after lodging FIR it was PW-9 SI Onkar Singh
investigating officer, who throughout conducted the investigation and
also filed the challans. He also tendered his evidence before the Court
confirming these facts. The counsel for the appellants, therefore argued
that the decision in the case of Mohan Lal Vs. State of Punjab, AIR
2018 SC 3853 would squarely apply in the present appeal and both the
appellants should be acquitted.
4. The next contention raised by learned counsel for the
appellant-Manjit Kaur is that neither she was found in her alleged house
nor it is the case of the prosecution that she was arrested from the spot or
that she was having conscious possession of the contraband. It is the case
of the prosecution that it was Gurmeet Singh who was found on the spot
stacking the bags of poppy husk. According to the learned counsel for
the appellant-Manjit Kaur, there is no iota of evidence on record that the
house in which the contraband was found, belonged to her or it was not
even remotely shown that she was in possession of the said house. The
prosecution did not collect any evidence to that effect and therefore, it
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was wholly wrong and illegal on the part of the trial Court to convict her
in the absence of any evidence. The learned counsel for appellant-
Gurmeet Singh submitted that procedure under Section 50 of NDPS Act
was not followed and at any rate the appellant-Gurmeet Singh was
entitled to be acquitted. They therefore prayed for allowing the appeals.
5. Per contra, learned counsel for the State submitted that the
impugned judgment and order clearly reveal reasons for recording of
conviction of both the appellants. He supported the reasons given by the
trial Court for coming to the conclusion about the complicity of both the
appellants. He, therefore, prayed for dismissal of the appeal.
CONSIDERATION:
6. The operative order was pronounced on 14.01.2019 by this
Court and reasons were to follow. The judgment has been thereafter
written by us in the 3rd week of February 2019. By that time the
judgment of Supreme Court dated 11.02.2019 in the case of Varinder
Kumar Vs. State of Himachal Pradesh in Criminal Appeal Nos. 2450-
2451 of 2010 was pronounced.
7. In Varinder Kumar (supra) the 3 Judges' Bench of the
Supreme Court clarified the decision in the case of Mohan Lal (supra).
It is for this reason we have incorporated the dicta in case of Varinder
Kumar (supra) in the present case, though the operative part was
pronounced on 14.01.2019.
8. At the outset, it is necessary to consider the submission
made by learned counsel for the appellants based on the three judges'
decision of the Apex Court in the case of Mohan Lal (supra). It was
held in the said decision that if the police officer who lodged the FIR
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and completed the investigation and filed the chargesheet then the trial
will be vitiated. However, the decision in the case of Mohan Lal
(supra) came for further consideration before the three Judges' Bench
and it has been recently held by the Apex Court in the case of Varinder
Kumar Vs. State of Himachal Pradesh passed in Criminal Appeal
Nos.2450-2451 of 2010 vide order dated 11.02.2019, that trial will not
be vitiated by giving the following reasons:
"15. Societal interest therefore mandates that the
law laid down in Mohan Lal (supra) cannot be
allowed to become a spring board by an accused
for being catapulted to acquittal, irrespective of all
other considerations pursuant to an investigation
and prosecution when the law in that regard was
nebulous. Criminal jurisprudence mandates
balancing the rights of the accused and the
prosecution. If the facts in Mohan Lal (supra)
were telling with regard to the prosecution, the
facts in the present case are equally telling with
regard to the accused. There is a history of
previous convictions of the appellant also. We
cannot be oblivious of the fact that while the law
stood nebulous, charge sheets have been
submitted, trials in progress or concluded, and
appeals pending all of which will necessarily be
impacted.
16. xxx.... xxx.... xxx....
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17. xxx.... xxx.... xxx....
18. The criminal justice delivery system, cannot be
allowed to veer exclusively to the benefit of the
offender making it unidirectional exercise. A
proper administration of the criminal justice
delivery system, therefore requires balancing the
rights of the accused and the prosecution, so that
the law laid down in Mohan Lal (supra) is not
allowed to become a spring board for acquittal in
prosecutions prior to the same, irrespective of all
other considerations. We therefore hold that all
pending criminal prosecutions, trials and appeals
prior to the law laid down in Mohan Lal (supra)
shall continue to be governed by the individual
facts of the case.
9. In our considered opinion the second judgment Varinder
Kumar (supra) by the three Judges' Bench of the Apex Court is based
on the doctrine of prospective overruling. In the case of Ashok Kumar
Gupta & another Vs. State of U.P. and others (1997) 5 Supreme Court
cases 201. The concept of prospective overruling been described as
under:
"It is settled principle right from Golak Nath ratio
that prospective over-ruling is a part of the
principles of constitutional canon of interpretation.
Though Golak Nath ratio of unamendability of
fundamental rights under Article 368 of the
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Constitution was over-ruled in Kesavananda
Bharati's case [1973 Supp. SCR 1] the doctrine of
prospective over-ruling was upheld and followed in
several decisions. This Court negatived the
contention in Golak Nath's case that prospective
over-ruling amounts to judicial legislation.
Explaining the Blackstonian theory of law, i.e.,
Judge discovers law and does not make law, and the
efficacy of prospective over-ruling at page 808
placitum D to H, this Court by a Bench of eleven
Judges had held that the doctrine of prospective
over-ruling is a modern doctrine and is suitable for
a fast moving society. It does not do away with the
doctrine of stare decisis but confines it to past
transactions. While in strict theory, it may be said
that the doctrine involves the making of law, what a
Court really does is to declare the law but refuses to
give retrospectivity to it. It is really a pragmatic
solution reconciling the two conflicting doctrines,
namely, that a Court finds law and that it does make
the law. It finds the law but restricts its operation to
the future. It enables the Courts to bring about a
smooth transition by correcting the errors without
disturbing the impact of those errors on past
transactions. By implication of this doctrine, the
past may be preserved and the future protected. The
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Constitution does not expressly or by necessary
implication speak against the doctrine of
prospective over-ruling. Articles 32(4) and 142 are
designed with words of width to enable this Court
to declare the law and to give such direction or pass
such orders as are necessary to do complete justice.
Declaration of law under Article 141 is wider than
words found or made. The law declared by this
Court is the law of the land. So, there is no
acceptable reason as to why the Court in dealing
with the law in supersession of the law declared by
it earlier could not restrict the operation of law, as
declared, to the future and save the transactions,
whether statutory or otherwise, that were effected
on the basis of the earlier law. This Court is,
therefore, not impotent to adjust the competing
rights of parties by prospective over- ruling of the
previous decision in Rangachari ratio. The decision
in Mandal's case postponing the operation for five
years from the date of the judgment is an instance
of, and an extension to the principle of prospective
over-ruling following the principle evolved in
Golak Nath case. In Managing Director, ECIL,
Hyderabad & Ors. vs. B.Karunakar & Ors. [(1993)
4 SCC 727], a Constitution Bench of this Court,
while over-ruling Union of India V/s. Mohd.
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Ramzan Khan [(1991) 1 SCC 588] had held that the
benefit of decisions would be given only to the
parties to the cases pending before the authorities
from the date of the judgment but not to the actions
already taken by the date of that judgment. In that
behalf in separate but partly dissenting judgment to
a limited extent, on the issue of the need to give
benefit to the party that approaches the Court in that
case, one of us, K. Ramaswamy, J., had held that as
a matter of constitutional law retrospective
operation of an over-ruling decision is neither
required nor prohibited by the Constitution; it is a
matter of judicial attitude depending on the facts
and circumstances in each case; the nature and
purpose the particular over-ruling decision seeks to
serve are required to be taken into consideration.
The Court would look into the justifiable reliance
on the over-ruled case by the administration. All the
factors, viz., ability to effectuate the new rule
adopted in the over-ruling case, without doing
injustice and whether the likelihood of its operation
substantially burdens the administration or retards
the purpose, are to be taken into account, while
over-ruling the earlier decision or laying down a
new principle. Equally, no distinction could be
made between claims involving constitutional
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rights, statutory right or common law right. The
Court is required to adjust the competing rights
taking into consideration the prior history of the rule
in question, its purpose and effect and to find out
whether retrospective operation will accelerate or
retard its operation. Therefore, evolving of the
appropriate rule to give effect to the decision of the
Court over-ruling its previous precedent, is one of
judicial craftsmanship with pragmatism and judicial
statesmanship as a useful outline to bring about
smooth transition of the operation of law without
unduly affecting the rights of the people who acted
upon the law operated prior to the date of the
judgment over-ruling the previous law.
10. The judgment of the Apex Court in the case of P.V. George
and others Vs. State of Kerala & others, 2007(3) SCC 557, has also
discussed about the doctrine of prospective, the relevant portion reads
thus:
"The doctrine of prospective overruling although is
applied to overcome such a situation, but then it
must be stated expressly. The power must be
exercised in the clearest possible term.
14. xxx.... xxx.... xxx.... The legal position as
regards the applicability of doctrine of prospective
overruling is no longer res integra. This Court in
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exercise of its jurisdiction under Article
32 or Article 142 of the Constitution of India may
declare a law to have a prospective effect. The
Division Bench of the High Court may be correct
in opining that having regard to the decision of this
Court in Golak Nath v. State of Punjab [AIR 1967
SC 1643) the power of overruling is vested only in
this Court and that too in constitutional matters,
but the High Courts in exercise of their jurisdiction
under Article 226 of the Constitution of India,
even without applying the doctrine of prospective
overruling, indisputably may grant a limited relief
in exercise of their equity jurisdiction.
11. Insofar as the present case is concerned, the incident in
question took place on 13.07.2004 and in the light of the perspective
overruling as aforesaid obviously the decision in the case of Mohan Lal
(supra) will have no application. We hold accordingly.
12. The next question is about the complicity of appellant-
Gurmeet Singh. The prosecution has relied on the evidence of witnesses
who had conducted the raid in the house allegedly belonging to Manjit
Kaur, that Gurmeet Singh was caught red handed in the house stacking
poppy husk bags. That evidence has gone unchallenged in the cross-
examination. There is no explanation by Gurmeet Singh as to why he
was stacking the contraband. Obviously he was in conscious possession
of the bags in which poppy husk was found. The evidence is
overwhelming and there is no need to have any doubt about it. We,
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therefore, hold that Gurmeet Singh was in conscious possession of the
contraband seized by the police and consequently we affirm his
conviction under Section 15 of the NDPS Act.
13. The next appellant-Manjit Kaur in our opinion was
unnecessarily convicted in the absence of any legal evidence. In our
opinion the provision of NDPS Act are required to be interpreted in a
strict manner as to the proof. We do not find a single piece of evidence
pointed out by the trial Court in the judgment to show that the house
belonged to Manjit Kaur or that she was in conscious possession either
by producing any documentary evidence or examining neighboring
witness, all the more so, in the wake of the admitted fact that Manjit
Kaur was not even present in the house. Had Manjit Kaur also been
caught on the spot with Gurmeet Singh, perhaps the matter could have
been different. But that is not the case of the prosecution. We,
therefore, find that there was no reason whatsoever, to record her
conviction. Nothing prevented the prosecution from leading such
evidence to show complicity of Manjit Kaur as well. We are, therefore,
convinced that conviction of the appellant-Manjit Kaur will have to be
set aside.
14. The next question is about the sentence of 12 years awarded
to appellant-Gurmeet Singh. He has been sentenced to undergo rigorous
imprisonment for 12 years and to pay fine of `1,00,000/-. Looking to
the fact that there is no other offence against Gurmeet Singh shown by
the prosecution anywhere under any Act and looking to the period spent
by him in jail and further looking at the fact that he will have to undergo
the remaining sentence, we are inclined to modify the order of sentence
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and make it the minimum sentence provided by the Act, namely 10
years. We confirm the sentence of fine and default clause. In the result
we make the following order:
ORDER
(i) Criminal Appeal CRA-D-No.1041-DB OF 2009 filed by the appellant-Manjit Kaur is allowed.
(ii) The impugned judgment and order dated 21.11.2009 passed by Judge, Special Court, Jalandhar in Sessions Case No.180 of 2007, is set aside and the appellant-Manjit Kaur is acquitted of the charge framed against her. Fine if any be refunded to her.
(iii) Criminal Appeal CRA-D-No.36-DB of 2010 filed by appellant-Gurmeet Singh is partly allowed. His conviction for sentence under Section 15 of the NDPS Act is confirmed.
(iv) The order of sentence, however, is modified qua-Gurmeet Singh and he is sentenced to undergo rigorous imprisonment for 10 years with fine of `1,00,000/- and in default of payment of fine he has to undergo rigorous imprisonment for one year.
(A. B. CHAUDHARI)
JUDGE
14th JANUARY, 2019 (HARNARESH SINGH GILL)
'raj' JUDGE
Whether speaking/reasoned: Yes No
Whether Reportable: Yes No.
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