Punjab-Haryana High Court
Dalip Kaur Alias Deepo vs State Of Punjab on 16 September, 2013
Author: Rekha Mittal
Bench: Rekha Mittal
Criminal Appeal No. S 2317-SB of 2004 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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Criminal Appeal No. S 2317-SB of 2004
Date of decision : 16.09.2013
Dalip Kaur alias Deepo ...Appellant
Versus
State of Punjab ....Respondent
Coram: Hon'ble Mrs. Justice Rekha Mittal
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Present: Mr. Rahul Vats, Advocate
For the Appellant
Mr. Amarinder Singh Klar, Assistant Advocate General, Punjab
For the respondent State
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1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Rekha Mittal, J.
The present appeal has been directed against the judgment dated 08.11.2004, passed by the Judge, Special Court, Sangrur, whereby the appellant has been convicted and sentenced for commission of offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'the Act') for keeping in possession 144 kgs. poppy husk (poppy straw) without any permit or licence, as extracted herein below:-
Name of Under Sentenced Fine imposed In payment of convict Section awarded default of fine Dalip Kaur 15 of the To undergo Rs.1,00,000/- To further NDPS Act, rigorous undergo 1985 imprisonment rigorous for ten years imprisonment for one years Bimbra Mohan Lal 2013.10.01 14:50 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. S 2317-SB of 2004 2 The facts relevant for the disposal of the present appeal are that on 18.03.2003, Inspector Sardara Singh (SHO), Police Station Sherpur along with police party was going from Sherpur to Gobindpura in connection with patrolling and checking. When the police party reached at the turning of Gobindpura, Balwant Singh son of Hazura Singh, resident of Tibba met the police party and was associated. When the police party was near the bridge of canal minor of Gobindpura, two persons were seen unloading jute bags from TATA 407 vehicle, facing Gobindpura. Two persons were standing on the road and were holding the bags while taking it down. HC Santokh Singh identified Charna Singh and Teja Singh sons of Maghar Singh Sansi as the persons unloading the bags and Bhura Singh son of Maghi Singh and Darshan Singh son of Maghar Singh as the persons holding the bags. Beeja son of Nand Lal Sansi standing behind the vehicle was identified by HC Gurcharan Singh. On seeing the police vehicle, Darshan Singh, Charna Singh, Teja Singh, Beeja and Bhura Singh sat in TATA 407 vehicle and fled away from there.
On stopping the police vehicle near the bridge, a lady was seen sitting on four jute bags, on the eastern side of the road. Inspector Sardara Singh along with ASI Pritam Singh, HC Gurcharan Singh, LHC Jasbir Kaur and Balwant Singh son of Hazura Singh remained at the spot. HC Santokh Singh and other officials were directed to follow TATA 407 in the Government vehicle.
The lady sitting on the bags disclosed her name as Dalip Kaur Sansi wife of Maghar Singh, resident of Sherpur. It was disclosed to her that it was suspected that there was some intoxicant substance in the bags Bimbra Mohan Lal 2013.10.01 14:50 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. S 2317-SB of 2004 3 and search was to be conducted. She was given an offer if she wanted the search to be got conducted from a Magistrate or a Gazetted Officer but Dalip Kaur reposed confidence in the SHO and asked him to conduct search. Her statement was recorded to this effect. On search, the bags were found containing poppy husk. Two samples of 250 grams each were separated from each bag and remaining poppy husk was weighed, which was found to be 35 ½ kgs. All the four bags were converted into parcels.
The sample parcels and bulk parcels were sealed by Inspector Sardara Singh with his seal bearing impression 'SS'. Sample seal was prepared separately.
Seal after use was handed over to ASI Pritam Singh. The parcels along with sample seal were taken into possession, vide separate recovery memos.
Ruqa was sent, on the basis of which, a formal FIR was registered.
On reaching the police station, accused Dalip Kaur was detained in the lock up and case property was deposited with MHC. The remaining accused were arrested later. After receipt of the report of Chemical Examiner and completion of necessary investigation formalities, challan was presented in the Court.
After necessary compliance with the provisions of Section 207 of the Code of Criminal Procedure (for brevity, 'the Code'), finding a prima facie case, the accused were charge sheeted for commission of offence punishable under Section 15 of the Act, to which they pleaded not guilty and claimed trial.
To prove culpability of the accused, the prosecution examined as many as seven witnesses, namely, MHC Tarsem Singh (PW1), Inspector Sardara Singh (PW2), HC Balbir Singh (PW3), SI Ajmer Singh (PW4), HC Gurcharan Singh (PW5), HC Santokh Singh (PW6) and ASI Pritam Singh Bimbra Mohan Lal 2013.10.01 14:50 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. S 2317-SB of 2004 4 (PW7).
After evidence of the prosecution was colosed, the accused were examined separately in terms of Section 313 of the Code. The accused denied all the incriminating circumstances appearing in evidence against them and pleaded their innocence and false implication. Accused Dalip Kaur raised the plea that no incriminating article was recovered from her. She was arrested from her house and a false case was planted upon her. However, the accused did not produce any evidence in defence.
Having heard counsel for the parties and on appraisal of evidence adduced by the prosecution, the learned trial Court came to conclusion that the prosecution has failed to prove the charge against Charna Singh, Teja Singh, Darshan Singh, Bhura Singh and Beeja Singh and accordingly, acquitted them of the offence charged against them. However, it was held that the prosecution was successful in proving the charge against accused Dalip Kaur and consequently, she was convicted and sentenced as detailed hereinabove.
Feeling aggrieved against the verdict of the learned trial Court, the present appeal has been preferred by Dalip Kaur alias Deepo, resident of Village Sherpur.
Counsel for the appellant submits that the judgment passed by the trial Court cannot stand the test of judicial scrutiny as the learned trial Court failed to correctly appreciate that the prosecution has failed to lead any cogent and convincing evidence to prove that Dalip Kaur was found in 'conscious possession' of incriminating article.
To bring home his contention, it is strenuously contended that apart from the fact that Dalip Kaur was found sitting on the four jute bags Bimbra Mohan Lal 2013.10.01 14:50 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. S 2317-SB of 2004 5 which were later found containing the offending article, no other evidence has been led to prove ownership of the contraband and the fact as to how the material was transported to the place of recovery. It is further argued that the accused against whom allegations were levelled that they brought the incriminating material to the spot in TATA 407 and were noticed while unloading the bags from the said vehicle, were acquitted by the trial Court by extending them benefit of doubt and the respondent State has not preferred any appeal to assail their acquittal. In support of his contention that it is enjoined upon the prosecution to prove the factum of 'conscious possession' and failure to do so would enure to the benefit of accused, counsel has heavily relied upon judgments of Hon'ble the Supreme Court of India in Avtar Singh v. State of Punjab, 2002(4) R.C.R. (Criminal) 180, State of Punjab v. Balkar Singh, 2004(3) SCC 582 and judgments of this Court in Sukhdev Singh alias Sukha v. State of Punjab, 2006(1) R.C.R. (Criminal) 4 and Jagmohan Singh alias Jago v. State of Punjab, 2007(3) R.C.R. (Criminal) 900.
Counsel appearing on behalf of the respondent State, on the other hand, supports the judgment of the trial Court with the submissions that there is no error, infirmity much less illegality in the findings of the trial Court as would call for interference. It is submitted that the convict has failed to tender any explanation much less satisfactory one as to how she happened to be at the place of recovery and sitting on the bags, found containing incriminating material of huge quantity i.e. 144 kgs. each bag containing 36 kgs. According to counsel, as the prosecution has proved that the appellant was found in possession of the contraband, it was for the appellant to rebut the presumptions available in favour of the prosecution Bimbra Mohan Lal 2013.10.01 14:50 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. S 2317-SB of 2004 6 under Sections 35 and 54 of the Act.
I have heard counsel for the parties and perused the records. On appreciation of the submissions made by counsel for the parties, a short question which requires adjudication is whether recovery of contraband from the appellant in the circumstances of the case, is sufficient to prove her culpability for the crime.
In Avtar Singh's case (supra), a relevant extract from para 6 of the judgment is quoted hereinbelow:-
"6. Possession is the core ingredient 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 S. 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 Vs. State of Punjab (1973 (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 Bimbra Mohan Lal 2013.10.01 14:50 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. S 2317-SB of 2004 7 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 'possession' no doubt has different shades of meaning and it is quite elastic in its connotation.
Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is 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 traveling in the vehicle at the odd hours, is one strong circumstance that can be put against them. A Bimbra Mohan Lal 2013.10.01 14:50 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. S 2317-SB of 2004 8 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 S.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 safe 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 S.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 aspects pointed out above were neither adverted to nor taken into account by Bimbra Mohan Lal 2013.10.01 14:50 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. S 2317-SB of 2004 9 the trial court and the High Court. Non-application of mind to the material factors has thus vitiated the judgment under appeal."
In State of Punjab v. Balkar Singh's case (supra), the accused was convicted by the Sessions Court for offence under Section 15 of the Act as they were found in possession of 100 bags of poppy husk. But the appeal filed by them was accepted by this Court and the judgment of acquittal in appeal became subject to scrutiny by Hon'ble the Apex Court in criminal appeal filed by the State. The acquittal recorded by this Court, was affirmed by Hon'ble the Supreme Court. This Court held that the prosecution failed to prove that the accused were in conscious possession of the poppy husk recovered by the police. The evidence by the prosecution consisted of the testimony of Balbir Singh (PW1) and ASI Jarnail Singh (PW2). Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in Village Lohgarh. The respondents belonged to different villages. Respondent Balkar Singh is a resident of village Bira Bedi in District Hisar while respondent Munish Chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of the respondents (accused) at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. These findings recorded by this Court were upheld by Hon'ble the Supreme Court to dismiss the appeal filed by the State.
In Sukhdev Singh's case (supra), a division Bench of this Court in para 13 of the judgment has held as extracted herein below:- Bimbra Mohan Lal 2013.10.01 14:50 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. S 2317-SB of 2004 10
"13. The ld. Counsel for the appellant also referred to the case of Baldev Singh v. State of Punjab, 2005(1) RCR (Crl.) 823. Reliance was placed on the case of Syed Mohd. Syed Umer Syed and others v. State of Gujarat, JT 1995(3) SC 489 and Balkar Singh's case (supra), for deciding the above referred to case. Two bags of poppy husk were recovered. It was alleged that two accused persons were sitting over the bags. It was not established that bags belonged to the accused. It was held that merely because when the police saw the accused, they were sitting on the bags, does not infer that they were in conscious possession of those bags.
Conviction recorded under Section 15 of the Act was set aside."
However, taking into consideration certain other infirmities, lacunae in the case of the prosecution, this Court reversed the judgment of conviction passed by the trial Court and the appellant was acquitted of the offence by setting aside the judgment impugned.
In Jagmohan Singh's case (supra), this Court while relying upon the judgments in Sukhdev Singh's case (supra), State of Punjab and Balkar Singh's case (supra) and Mohan Singh V. State of Punjab, 2004(4) RCR (Criminal) 260 (FB), passed by this Court, held that the appellant has not been shown to be in conscious possession of the contraband and while taking into consideration certain other deficiencies, extended benefit to the accused and resultantly accepted the appeal.
In the instant case, admittedly, besides the evidence of recovery of the contraband from the bags on which the appellant was found sitting near the bridge canal minor of Gobindpura, no further investigation was made to know the ownership of the incriminating article. However, the persons who were noticed unloading the bags from a vehicle were also Bimbra Mohan Lal 2013.10.01 14:50 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. S 2317-SB of 2004 11 arraigned as accused but were acquitted by the Court by extending them benefit of doubt. In all fairness, it appears that some of the accused who were acquitted of the offence, are sons of appellant Dalip Kaur as accused Charna Singh, Teja Singh and Darshan Singh are stated to be the sons of Maghar Singh, residents of Sherpur and the present appellant is the wife of Maghar Singh.
In State of Punjab v. Hari Singh and others, 2009(2) R.C.R. (Criminal) 143, an appeal against acquittal by this Court, a question was raised in similar circumstances, whether the respondents/accused were found in conscious possession of the contraband. Hon'ble the Supreme Court in paras 13 to 17 has dealt with the issue as quoted herein below:-
13. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v.
Anil Kumar Bhunja and Ors. (AIR 1980 SC 52), to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes.
14. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended.
15. As noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756) possession in a given case need not be physical possession but can be constructive, having power and control over the article in case in question, while the persons whom physical possession is given holds it subject to that power or control.
Bimbra Mohan Lal2013.10.01 14:50 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. S 2317-SB of 2004 12
16. The word 'possession' means the legal right to possession (See Health v. Drown (1972) (2) All ER 561 (HL). In an interesting case it was observed that where a person keeps his fire arm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD).
17. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. This position was highlighted in Madan Lal and Anr. v. State of Himachal Pradesh (2003 (6) SCALE 483)."
A perusal of the observations made by Hon'ble the Supreme Court would reveal that once possession is established, the person, who claims that it was not a conscious possession, has to establish it, because how he came to be in possession is within his special knowledge. The Court has relied upon the presumptions available in favour of the prosecution under sections 35 and 54 of the Act.
In Avtar Singh's case (supra) relied upon by counsel for the appellant, the facts are quite distinct and distinguishable. In the said case, the contraband was being carried in a vehicle. As soon as the vehicle was stopped by ASI (PW2), one person sitting in cabin by the side of the driver and another person sitting on the back of the truck fled. No investigation was directed to ascertain the role played by each of the accused and the Bimbra Mohan Lal 2013.10.01 14:50 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. S 2317-SB of 2004 13 nexus between the accused and the offending article. During examination of the accused under Section 313 of the Code, not even a question was asked that they were the person in possession of the 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. Even the driver was questioned on the same line. Accordingly, Hon'ble the Supreme Court set aside the conviction and sentence of the appellant while allowing the appeal. Keeping in view these peculiar circumstances of the referred case, the appellant cannot take any advantage to her contention from the judgment in Avtar Singh's case (supra) In State of Punjab v. Balkar Singh's case (supra), Hon'ble the Supreme Court examined the judgment of acquittal passed by this Court. There is no denial that scope of examination and interference in a judgment of acquittal stands on a different footing than that of judgment of conviction. This apart, in this judgment, Hon'ble the Supreme Court has not dealt with the presumptions available in favour of the prosecution under Sections 35 and 54 of the Act.
Similarly, in Sukhdev Singh's case (supra), a division Bench of this Court has not dealt with the provisions of Section 35 and 54 of the Act. Apart from this fact, there were other infirmities noticed in the case and as a cummulative effect of various lacunae, this Court accepted the appeal.
In this view of the matter, the appellant cannot gain any advantage to her contention from the judgments cited by counsel for the appellant.
The prosecution in the instant case has successfully proved that the appellant was found in possession of offending article. During Bimbra Mohan Lal 2013.10.01 14:50 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. S 2317-SB of 2004 14 examination of the accused under Section 313 of the Code, she was specifically confronted with the fact regarding possession of incriminating article and recovery thereof in pursuance of the search conducted by the investigating officer after necessary compliance with the provisions of Section 50 of the Act. The appellant simply denied all the incriminating circumstances put to her by offering usual answers that the same are incorrect. In response to the last question, the appellant propounded the plea that she was arrested from her house and no article was recovered from her possession and a false case has been made against her. She has not alleged any animosity against her actuated by malice or mala fide by the investigating officer or any member of the police party. Her version that she was arrested from her house is a mere plea when admittedly statement made under Section 313 of the Code, is not a substantive piece of evidence. The appellant has not examined any witness in her defence to corroborate her version that she was arrested from her house to rule out the possibility of her being arrested from the spot along with the incriminating article.
In State of Punjab v. Hari Singh and others (supra), Hon'ble the Supreme Court of India, did not approve the findings of this Court in regard to conscious possession of the contraband by the accused but affirmed the judgment passed in favour of the accused with the observations that though there was evidence regarding conscious possession, but unfortunately no question relating to possession much less conscious possession was put to the accused under Section 313 of the Code and for that reason, the accused was entitled to benefit thereof and as a result, the judgment of acquittal passed by this Court was affirmed.
Keeping in view the ratio laid down in State of Punjab v. Hari Bimbra Mohan Lal 2013.10.01 14:50 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. S 2317-SB of 2004 15 Singh and others case (supra), I find myself unable to be persuaded with the submissions of counsel for the appellant that the prosecution has failed to prove the appellant being in 'conscious possession' of the contraband and thus she is liable to be acquitted of the offence charged against her.
No other point has been raised before me.
In view of what has been discussed hereinabove, finding no merit, the appeal is dismissed. The order in regard to release of the appellant on bail passed by this Court is set aside. The appellant be taken into custody to suffer remaining part of the sentence awarded by the trial Court.
(Rekha Mittal) Judge 16th September, 2013 mohan Bimbra Mohan Lal 2013.10.01 14:50 I attest to the accuracy and integrity of this document Chandigarh