Punjab-Haryana High Court
Amir Singh vs State Of Haryana on 26 August, 2010
Crl. Appeal No.907-SB of 2000 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.907-SB of 2000
Date of Decision:- 26.08.2010
Amir Singh ....Appellant
vs.
State of Haryana ....Respondent(s)
***
CORAM:- HON'BLE MR.JUSTICE ARVIND KUMAR *** Present:- Mr. Narinder Singh, Advocate, for the appellant.
Mr. Rajiv Malhotra, Addl. A.G., Haryana *** ARVIND KUMAR, J:
This judgment shall dispose of two appeals, namely, Criminal Appeals No. 907-SB of 2000 and 1140-SB of 2000 as they arise out of same FIR relating to one incident.
Criminal Appeal No. Criminal Apeal No. 907-SB of 2000 has been preferred by accused Amir Singh and Criminal Appeal No. 1140-SB of 2000 has been preferred by accused Jasminder Singh against the judgment and order dated 28/30.8.2000 passed by the Additional Sessions Judge, Karnal, whereby in case FIR No.532 dated 27.9.1994 at Police Station Sadar Karnal, under Section 15 of the N.D.P.S. Act, the accused-appellants have been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- each and in default of payment of fine to further undergo rigorous imprisonment for three years each.
In brief, the facts of the case are that on 27.9.1994, a police party headed by ASI Sitar Singh was on patrolling duty and near the turning of Yamuna bandh on Meerut road, one Kura Ram met them. At that time, a secret information was received by the police party that one tractor trolley bearing registration No. PUT-8252 loaded with poppy husk Crl. Appeal No.907-SB of 2000 2 underneath the fodder was going to pass towards Karnal. Accordingly, a nakabandi was held. After some time, the police party noticed the said tractor trolley coming which was got stopped. The Investigating Officer then gave notice under Section 50 of the Act ibid to the accused whereby they were asked to give an option for their search either in the presence of a Magistrate or gazetted officer, to which they opted for search before a gazetted officer. Accordingly, DSP Raj Kumar was requested to reach the spot and he reached there. On his directions, the search of the trolley was conducted from which 20 gunny bags of poppy husk, each weighing 40 kg, were recovered. Thereafter, 200 grams of poppy husk from each gunny bag was taken out as sample. The separate sealed parcels of all the samples and the gunny bags containing remaining poppy husk were prepared and sealed with the seal bearing impression 'SS' . The case property was taken into police possession vide separate recovery memos and thereafter, accused were arrested. On completion of investigation and certain formalities, the accused were challaned under Section 15 of the Act ibid whereafter charge under the said Section was framed by the trial Court to which they pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined PW-1 Sukhinder Singh, PW-2 Suresh Chand, PW-3 Siri Krishan, PW-4 Inspector Fateh Singh, PW-5 DSP Raj Kumar, PW-6 HC Rattan Singh and PW-7 ASI Sitar Singh, and after tendering into evidence the report Exhibit PF of the Forensic Science Laboratory, closed its evidence.
Thereafter, the statement of the accused under Section 313 Cr.P.C. was recorded by putting them incriminating evidence qua them to which they pleaded innocence and false implication. They however did not lead any evidence in their defence.
The learned Additional Sessions Judge, Karnal, upon appreciation of evidence adduced on record, vide the above stated impugned judgment and order held the accused-appellants guilty and convicted and sentenced them in the manner indicated above. Hence, the present three appeals by them.
I have heard learned counsel for the parties.
It is a settled principle of criminal jurisprudence that more serious the offence, the stricter the degree of proof, since a higher degree of Crl. Appeal No.907-SB of 2000 3 assurance is required to convict the accused. Greater the charge, stricter is the proof is the accepted principle of law. The initial duty is always upon the prosecution to prove the charge by producing cogent, reliable and satisfactory evidence. In such like cases, when the Legislature has provided minimum punishment of 10 years, it becomes the fundamental duty of the trial Court as well as the appellate Court to see that the evidence led by the prosecution must inspire confidence in the mind of the Court. The question is as to whether it was proof enough of "conscious possession" of the prohibited substance. It is well settled, as held by the Hon'ble Supreme Court in Syed Mohd. Syed Umer Syed and others v. State of Gujarat, JT 1995(3) SC 489, that unlawful possession of the contraband is the sine qua non for conviction under the Act and that fact has to be established by the prosecution beyond reasonable doubt. Presumption though can be drawn against the accused but initial burden is on the prosecution to prove possession. 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 corups-the element of physical control and secondly, the animus or intent with which such control is exercised. It is conscious and intelligent possession of any contraband which attracts penal provision of the Act and it is for the prosecution to establish that the accused was found in conscious and intelligent possession of the contraband. In the instant case, appellant Amir Singh was driving the tractor whereas the other appellant Jasminder Singh was sitting on the mud-guard of the tractor and the contraband was recovered from the trolley attached to the said tractor. There is nothing in the statements of the witnesses to suggest that the police tried to ascertain that the bags which were lying in the trolley were belonging to the accused-appellants. In all fairness, the police should have conducted further investigation as to the transportation of the poppy husk bags, ownership of poppy husk, to prove that the accused were really in possession of the said bags, which is missing in this case. In Avtar Singh v. State of Punjab 2002(4) RCR(Criminal) 180, the Hon'ble Supreme Court has dealt with various aspects with regard to conscious possession and also the burden which rests upon the prosecution in such cases. It was Crl. Appeal No.907-SB of 2000 4 observed that though the persons were found sitting on the bags but this alone would not be sufficient proof of their being in conscious possession of the contraband. In Avtar Singh's case(supra), the Hon'ble Supreme Court has observed as follows:-
"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 '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 be was the proprietor. The persons who were merely sitting Crl. Appeal No.907-SB of 2000 5 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 leading 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."
There is another angle of the case. Even if for the sake of arguments it is assumed that the prosecution has proved conscious possession, but nevertheless no question relating 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 and even the driver was not question on the same lines and it was held that failure to elicit their answer on such crucial aspect as possession, is quite significant and it is not proper to raise presumption under Section 114 of the Evidence Act and suffice for acquittal. In State of Punjab v. Hari Singh and others 2009(2) RCR (Criminal) 143, though it was held 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. Similarly, in the present case also, in the statement recorded under Section 313 Cr.P.C., not even only a single question had been put to the accused-appellants with regard to possession, what to say of poppy husk, and thus, it goes without saying that the same is fatal to the prosecution case.
It is well settled that till the dispatch of the samples to the office of the Chemical Examiner or Forensic Science Laboratory, the seal should not be available to the prosecuting Agency and in absence of such safeguard, the possibility of the seal being tampered with, substance being changed and the containers being re-sealed, cannot be ruled out. In the instant case, it is evident from the statement of PW-7 ASI Sitar Singh that one Kura Ram was joined as an independent witness. PW-5 DSP Raj Crl. Appeal No.907-SB of 2000 6 Kumar was also present at the time of search and seizure. It was obligatory on the part of the investigating Agency to hand over the seal to the independent witness or for any reason, if not possible, then at least to the DSP who is of course a gazetted officer but in the instant case, for the reasons best known to ASI Sitar Singh, the seal was neither handed over to Kura Ram who subsequently was not examined as having been declared hostile or to PW-5 DSP Raj Kumar but on the contrary, he had given the same to PW-6 HC Rattan Singh who is none else but his subordinate. The prosecution has not submitted any explanation or reason for preferentially handing over the seal to his subordinate instead of the independent witness or the said gazetted officer i.e. DSP Raj Kumar. In such an eventuality, the seal could be taken at any moment from HC Rattan Singh for the purposes of tampering with the contents of the sample parcels. In Bhola Singh v. State of Punjab, 2005(2) RCR(Criminal) 520(P&H), the seal was not given to independent witness but the same was kept by the Investigating Officer. This Court held that if the seal remained with the police, the possibility of seal, contraband and the sample being tampered with, cannot be ruled out. Reference in this context can also be made to a judgment rendered in Sukhdev Singh @ Sukha v. State of Punjab 2006 (1) RCR(Criminal) 4. The decision in Bhola Singh's case(supra) has been followed in Hoshiar Singh v. State of Haryana, 2008(3) RCR(Criminal)
683. There is another feature against the prosecution. Recovery was effected on 27.9.1994 whereas samples were sent to the Laboratory on 18.10.1994 i.e. after a period of 23 days. There is absolutely no explanation for such delay. There is no dispute with the proposition of law that this fact alone may not be sufficient for acquittal but coupled with the fact the seal throughout had remained with the Investigating Agency and non-strict proof by the prosecution that the same was not tampered with till it was deposited in the said Laboratory, must prove fatal to the case of the prosecution as the possibility of tampering with the sample could not be ruled out. In this context, reference can be made to a judgment of the Hon'ble Supreme Court in State of Rajasthan v. Gurmail Singh 2005(2) RCR(Criminal) 58(SC). Gurmail Singh's case(supra) has also been duly followed in Pargat Singh v. State of Haryana 2008(4) RCR Crl. Appeal No.907-SB of 2000 7 (Criminal) 596.
The provisions of Section 100 Cr.P.C. would be applicable to arrest and search in the case relating to NDPS Act. In a large number of cases, this Court as also various High Courts have emphasized the need of conducting search in the presence of an independent witness. In the instant case, recovery had been effected at a place where there is a turning of Meerut road. There is police barrier as well. It has come in the statement of PW-5 DSP Raj Kumar that Yamuna bridge was a busy road and needless to say that recovery has been effected near Yamuna bandh but strangely, no independent witness had been associated by the Investigating Agency. Kura Ram is stated to have been joined but non-handing over the seal to him however falsifies the plea of having joined him for the reason that had he been joined, the seal would have been handed over to him. Learned State counsel has not been able to convince this Court in this regard and as such, the same is again fatal to the case of the prosecution.
In view of the discussion above and the cumulative effect of the infirmities, the prosecution has failed to prove the charge against the appellants beyond reasonable doubt. Accordingly, both the appeals, namely, Criminal Appeal No. 907-SB of 2000 and 1140-SB of 2000 are hereby allowed and the conviction and sentence awarded to the appellants is set aside and they stand acquitted of the charge. Appellants Amir and Jasminder Singh are ordered to be set at liberty forthwith. The bail bonds and surety bonds, if any furnished in the trial Court, by these appellants shall stand discharged.
August 26, 2009 ( ARVIND KUMAR ) JS JUDGE