Punjab-Haryana High Court
Radhey Sham vs State Of Haryana on 22 November, 2010
Crl.Appeal No.233-SB of 2000 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Appeal No.233-SB of 2000
Date of Decision:- 22.11.2010
Radhey Sham ....Appellant.
versus.
State of Haryana ....Respondent
***
CORAM:- HON'BLE MR.JUSTICE ARVIND KUMAR *** Present:- Mr.Rahul Vats, Advocate, for the appellant.
Mr.Sandeep S. Mann, Sr.D.A.G., Haryana.
*** ARVIND KUMAR, J:
This appeal is against the judgment and order dated 4/8.12.1999 passed by the Judge, Special Court, Karnal, whereby in case FIR No.291 dated 6.12.1998 at Police Station GRP Karnal under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, the accused- appellant Radhey Sham has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine to further undergo R.I. for 2½ years.
In brief, the facts of the case are that on 6.12.1998, a police party headed by ASI Shiv Kumar was present on Platform No.2 and 3 at Railway Station, Karnal, in connection with patrol duty and checking when a train, namely, Dadar Express, came from the side of Panipat and halted at platform No.3. The police party boarded a second class compartment in the said train. On seeing the police party, accused Radhey Sham alighted from the front door of the compartment, along with two big bags and started Crl.Appeal No.233-SB of 2000 2 moving ahead. On suspicion, the police party apprehended him. At that time, one Hakumat Rai was also with the police party. Accused was told that since there was suspicion regarding some intoxicating substance in the said bags, a search was required to be conducted and for this, he was given an option as to whether he wanted the search to be conducted in the presence of a Magistrate or gazetted officer, to which he opted to be searched in the presence of the Investigating Officer. On search of the said two bags, the same were found to contain poppy straw. On weighment, poppy straw in first bag was 12 kgs while the second bag was having 11 kgs 100 grams. Therefrom, a sample of 100 gram each of poppy straw was taken out from both the bags. The samples as well as remaining poppy straw were converted into parcels after being sealed with seal 'SK' and thereafter, the case property was taken into police possession. On the basis thereof, the present case came to be registered against the accused and he was accordingly arrested. On completion of investigation and certain formalities, the accused was challaned under Section 15 of the Act ibid whereafter charge under the said Section was framed by the trial Court to which he pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined PW-1 SI Gurdeep Singh, PW-2 HC Ram Murti, PW-3 SI Jeet Kumar, PW-4 ASI Mangal Singh, PW-5 Constable Ram Kumar, PW-6 Hakumat Rai and PW-7 ASI Shiv Kumar, Investigating Officer, and after tendering into evidence the report Exhibit PK of the Forensic Science Laboratory, Madhuban (Karnal), closed its evidence.
Thereafter, the statement of the accused under Section 313 Cr.P.C. was recorded by putting him incriminating evidence qua him to which he pleaded innocence and false implication. Accused although desired to lead defence evidence but did not lead any and closed his evidence.
The learned Judge, Special Court, Karnal, upon appreciation of evidence adduced on record, vide the above stated impugned judgment and order held the accused-appellant guilty and convicted and sentenced him in the manner indicated above. Hence, the present appeal.
Recovery in this case is 23 kgs.100 grams of poppy husk. This is otherwise non-commercial quantity but after the amendment which is Crl.Appeal No.233-SB of 2000 3 with effect from 2.10.2001, since the conviction and the appeal filed is prior to the said amendment, the accused-appellant is not entitled to the benefit of the amendment as per ratio of the judgment rendered by the Hon'ble Supreme Court in Basheer @ N.P.Basheer v. State of Kerala, 2004(1) RCR(Criminal) 1008.
I have heard counsel for the parties.
In this case, no question with regard to possession, muchless conscious possession, was put to the accused under Section 313 Cr.P.C. In Avtar Singh v. State of Punjab, 2002(4) RCR(Criminal) 180, in the statement recorded under Section 313 Cr.P.C. no question with regard to possession of poppy husk was put to the accused and it was held that failure to elicit their answer on such crucial aspect as possession, is quite signifcant and it is not poper to raise presumption under Section 114 of the Evidence Act and suffice for the acquittal. In State of Punjab v. Hari Singh and others, 2009(2) RCR(Criminal) 143, though it has been held by the Hon'ble Supreme Court that if conscious possession is proved but since no question relating to possession was put in the 313 Cr.P.C. statement which is not an empty formality, yet such an omission vitally affects the prosecution case. It has further been held as follows:-
"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 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."
A meticulous perusal of the statement of the appellant-accused under Section 313 Cr.P.C. would reveal that neither the specific question with regard to conscious possession has been framed nor put to him, while he was being examined under the said section. That being so, the presumption arising Crl.Appeal No.233-SB of 2000 4 under Section 35 and 54 of the Act does not operate in favour of the prosecution. Reference can also be made to a judgment of the Full Bench of this Court in Kashmir Singh v. State of Punjab, 2006(2) RCR (Criminal) 477.
In this case, CFSL form was neither prepared on the spot nor deposited in the Malkhana. In Gurcharan Singh v. State of Punjab 2005 (4) RCR(Criminal) 681, the seal affixed on seized opium was given to the Head Constable and not to the public witness. Since the CFSL form was not prepared at the spot, it was held therein that preparation of CFSL form at the spot is an important safeguard against an allegation of tampering with the sample. In Bhola Singh v. State of Punjab 2005(2) RCR(Criminal) 520(P&H), it was held that the CFSL form should be prepared at the spot and deposited in the Malkhana. Where the seal remained with the police after use and the CFSL form was neither prepared on the spot nor deposited in the malkhana, such circumstance would be fatal to the prosecution case. Filling up of CFSL form at the spot is a very valuable safeguard to ensure that the seal sample is not tampered with till its analysis by the Forensic Science Laboratory.
Thus, if the matter is viewed in the background of the above observations, the possibility of the seal being tampered with, substance being changed and the containers being resealed cannot be ruled out. Gurcharan Singh's and Bhola Singh's cases(supra) have been duly followed in Lachhman Dass v. State of Punjab, 2010(1) RCR(Criminal)
666. In view of the discussion above and the cumulative effect of the infirmities, the prosecution has failed to prove the charge against the appellant beyond reasonable doubt. The present appeal is accordingly allowed. The conviction and sentence awarded to the appellant is, therefore, set aside and he stands acquitted of the charge. The bail bonds and surety bonds, if any furnished in the trial Court, shall stand discharged.
November 22, 2010 ( ARVIND KUMAR ) JS JUDGE