Punjab-Haryana High Court
Kaka Singh vs State Of Punjab on 4 November, 2009
Criminal Appeal No.862-SB of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Appeal No.862-SB of 2002
Date of Decision:04.11.2009
Kaka Singh
.....Appellant
Vs.
State of Punjab
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- None for the appellant.
Mr. T.S. Salana, Deputy Advocate General, Punjab.
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JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment/ order of sentence dated 20.12.2001 passed by the Court of learned Special Judge, Moga whereby he convicted and sentenced the accused Kaka Singh to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lac under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, `the Act') and in default of payment of fine, to further undergo rigorous imprisonment for one year.
As set up by the prosecution on 5.7.1993, ASI Gurjant Singh among other police officials was proceeding towards Village Charik etc. for patrolling and checking of suspected persons. When the police party neared Village Kaleke, he received secret information to the effect that Kaka Singh Criminal Appeal No.862-SB of 2002 -2- accused was indulging in the sale of poppy husk at a public place. Pursuant thereto, the police party conducted the raid near the canal bridge, situated in the area of aforesaid village. The accused was found sitting on five gunny bags. He was offered to have his personal search in the presence of a Gazetted Officer or a Magistrate. He expressed his faith in the Assistant Sub Inspector, who conducted search of the gunny bags. On search, their contents were found to be poppy husk. When weighed, the contents of four bags came to 40 Kgs. each, though of the fifth one came to 25 Kgs. A sample of 250 grams of poppy husk was drawn from each bag and converted into parcels. The residue of each bag was also turned into parcels. These parcels were sealed with seal `GS'. The sample seal was prepared. The seal after use was made over to HC Gurjant Singh. The gunny bags along with sample parcels were seized vide recovery memo. Ruqa was sent to the Police Station, wherein on its basis, formal FIR was registered. The accused was put under arrest. After completion of investigation, the charge-sheet was laid in the Court of the learned Illaqa Magistrate.
On commitment, the case was entrusted to learned Additional Sessions Judge, Faridkot who charged the accused under Section 15 of the Act to which he did not plead guilty and claimed trial. Later on, this case was transferred to the Court of Special Judge, Moga. To bring home guilt against the accused, the prosecution examined PW1 SI Tehal Singh, PW2 ASI Gurjant Singh Investigator, PW3 ASI Gurjant Singh, the then HC, PW4 Constable Lakhwinder Singh and closed its evidence by tendering Ex.P7, the report of the Forensic Science Laboratory.
Criminal Appeal No.862-SB of 2002 -3-
When examined under Section 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. In his defence, he did not adduce any evidence. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal.
This case was adjourned from time to time for arguments, but none had been putting in appearance on behalf of the appellant despite the fact that this matter for hearing was also displayed on the net. However, I have heard the learned State Counsel besides perusing the record with due care and circumspection.
As per the grounds of appeal, the conscious possession of the appellant qua the allegedly recovered poppy husk has not been established.
As against this, the learned State Counsel pressed into service that the prosecution has been able to demonstrate that the appellant was found in possession of poppy husk bags and this fact proprio vigore proves his conscious possession. This contention merits rejection. In re: State of Punjab v. Hari Singh and others, (2009) 4 Supreme Court Cases 200, it has been observed that "When the accused was examined under Section 313 Cr.P.C., the essence of accusation was not brought to his notice, more particularly, that possession aspect, as was observed by this Court in Avtar Singh v. State of Punjab. The effect of such omission vitally affects the prosecution case." In re: Avtar Singh v. State of Punjab, 2002(4) Recent Criminal Appeal No.862-SB of 2002 -4- Criminal Reports (Criminal) 180, the Apex Court has held as under:-
"Possession is the core ingredients to be established before the accused in the instant case are subjected to the punishment under Section 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of Clause (xiv) of Section 2, it is for them to account for such possession satisfactorily; if not, the presumption under Section 54 comes into play. We need not go into the aspect whether the possession must be conscious possession. Perhaps taking clue from the decision of this Court in Inder Sain v. State of Punjab, 1983(2) SCC 372 arising under the Opium Act, the learned trial Judge charged the accused of having conscious possession of poppy husk. Assuming that poppy husk comes within the expression poppy straw, the question, however, remains whether the prosecution satisfactorily proved the fact that the accused were in possession of poppy husk. Accepting the evidence of PW-4 - the Head Constable, it is seen that appellant No.3 (accused No.4) was driving the vehicle loaded with bags of poppy husk. Appellants 1 and 2 (Accused Nos.1 and 2) were sitting on the bags placed in the truck. As soon as the vehicle was stopped by ASI (PW-2), one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and the offending goods. The word Criminal Appeal No.862-SB of 2002 -5- `possession' no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together by the minimum requisite element which has to be satisfied in custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants - one of whom was driving the vehicle and other two sitting on the bags, were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods. For instance, if they are labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at least in their temporary custody, conviction under Section 15 may not be warranted. At best, they may be abettors, but, there is no such charge here. True, their silence and failure to explain the circumstances in which they were travelling in the vehicle at the odd hours, is one strong circumstance that can be put against them. A case of Criminal Appeal No.862-SB of 2002 -6- 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 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 was being carried by the vehicle. The High Court resorted to the presumption under Section 35 which relates to culpable state of mind, 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 Criminal Appeal No.862-SB of 2002 -7- 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 aspects 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."
Adverting to the present one, a meticulous perusal of the appellant's statutory statement would reveal that the question of possession as was observed by the Supreme Court in Avtar Singh's case (supra) was not put to him while being examined under Section 313 of Cr.P.C. That being so, in view of Hari Singh and others' case (supra), this omission vitally affects the prosecution case. To put it differently, it renders the prosecution case vulnerable on this aspect. In re: Kashmir Singh v. State of Punjab, 2006(2) Recent Criminal Reports (Criminal) 477, the Full Bench of this Court has ruled that "no presumption can be raised against the accused person under Sections 35 or 54 of the NDPS Act or even under Section 114 of the Evidence Act that he was in conscious possession of the alleged contraband unless a specific question has been put to him regarding conscious possession under Section 313 of Cr.P.C." In view of these observations, in the case at hand, a specific question was required to be framed and put to the appellant with regards to his being in conscious possession of the recovered poppy husk bags when he was being examined under Section 313 of Cr.P.C. Thus, on viewing the matter in background of the afore-quoted law, the conscious possession of the appellant is not Criminal Appeal No.862-SB of 2002 -8- established. It is in the cross-examination of ASI Gurjant Singh PW2 Investigator that "It is correct that the place of recovery is a thoroughfare and is accessible to everybody. It is correct that throughout the entire proceedings i.e. at the time of recording the consent of the accused and the recovery, no independent person was called or joined by me but I tried to join the private person. It is correct that bags which are produced in the Court do not bear the chits and the number of the bags marked on the bags by me and even the seals are not present again said seals are on the bags but on same bags are broken and are not eligible. It is correct that no Gazetted Officer was joined in the investigation and also at the time of recovery." When this witness was re-examined by the learned Public Prosecutor for the State, he deposed that "I have seen the bags today. The same are Ex.P1 to Ex.P5 (objected to on the ground that the bags produced today do not bear the particulars of the case and the number affixed on the bags so as to connect with the accused and seals are not intact). On examining this evidence, it transpires that the recovery was effected from a public place. If so, there could be no dearth as to the availability of independent witnesses. To add further to it, the place of recovery could be accessed by any one. Palpably, the poppy husk bags produced as case property in the Court did not bear the chits containing particulars of the case nor the numbers which were marked by the aforementioned Assistant Sub-Inspector. The seals on the same were found in broken illegible condition. To say the least of it, the prosecution has dismally failed to connect these bags with the appellant. In re: State of Punjab v. Balkar Singh and another, (2004) 3 Supreme Court Cases 582, the accused was found sitting on poppy husk bags which Criminal Appeal No.862-SB of 2002 -9- were about 100 in number. The Apex Court held that "merely by being found to be present at the place where the poppy husk were found and the failure to give any satisfactory explanation for being so present did not prove that the accused persons were in possession of the said poppy husk bags. In fairness, the police should have conducted further investigation (as to transportation of poppy bags to place of incident, ownership of the poppy husk etc.) to prove that the accused were really in possession of the said articles." Here in this case, the record is quite barren to show that the Investigator had made any further investigation as to how the alleged poppy husk bags were transported to the alleged place of recovery and who was the owner thereof.
As a sequel of the above discussion, this appeal is accepted, setting aside the impugned judgment/ order of sentence. The appellant is hereby acquitted of the charged offence.
November 04, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No