Punjab-Haryana High Court
Mukhtiar Singh vs State Of Punjab on 23 April, 2010
Author: Mohinder Pal
Bench: Mohinder Pal
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Criminal Appeal No.2078-SB of 2005 and
Criminal Appeal No.39-SB of 2006.
IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA
AT CHANDIGARH
...
Criminal Appeal No.2078-SB of 2005.
Date of Decision: April 23, 2010.
Mukhtiar Singh ... Appellant
VERSUS
State of Punjab ... Respondent
Criminal Appeal No.39-SB of 2006.
Joginder Singh ... Appellant
VERSUS
State of Punjab ... Respondent
CORAM : HON'BLE MR.JUSTICE MOHINDER PAL.
1. Whether Reporters of Local papers may be allowed to see
the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
Present: Mr. D.S. Pheruman, Advocate,
for appellant Mukhtiar Singh.
Mr. Navkiran Singh, Advocate,
for appellant Joginder Singh.
Mr. Vishal Munjal, Additional Advocate General, Punjab.
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MOHINDER PAL, J.
This judgment will dispose of the afore-stated two -2- Criminal Appeal No.2078-SB of 2005 and Criminal Appeal No.39-SB of 2006.
appeals as they arise out of the same First Information Report.
Mukhtiar Singh and Joginder Singh (appellants) have filed these appeals against the judgment of conviction and the sentence order dated 13.9.2005 passed by the learned Judge, Special Court, Kapurthala, whereby they were convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and sentenced to undergo rigorous imprisonment for a period of ten years and to pay Rs.1 lac each, as fine, in default whereof to undergo further rigorous imprisonment for a period of two years.
It may be mentioned here that Mangal Singh alias Kala, Kashmir Singh and Balwinder Singh (co-accused of the appellants) had absconded and were declared Proclaimed Offenders by the trial Court.
As per allegations of the prosecution, on 25.11.1987, Inspector Hoshiar Singh along with Assistant Sub Inspector Balbir Singh and other police personnel was present at Tashpur Chowk in a government vehicle in connection with `Nakabandi'. At that time, a truck bearing registration No.PAT- 4984 came from the side of Village Malsian, which was signalled to stop. The Driver of the Truck, after coming down from it, tried to run away. On suspicion, he was apprehended. On an inquiry, he disclosed his name as Mukhtiar Singh (appellant). Four other persons, who were sitting in the truck, on inquiry disclosed their names as Mangal Singh alias Kala, Kashmir Singh, Balwinder -3- Criminal Appeal No.2078-SB of 2005 and Criminal Appeal No.39-SB of 2006.
Singh and appellant Joginder Singh.
When the truck was checked, it was found to contain 30
bags of poppy husk and 150 bags of fire clay powder. Inspector
Hoshiar Singh gave an option to the accused as to whether they
wanted to get the samples from the bags taken before any
Magistrate or a Gazetted Officer. The accused reposed confidence in Inspector Hoshiar Singh. Separate consent memos of the accused in this regard were prepared.
Search of the bags was conducted. They were found to contain 40 Kgs of poppy husk each. One sample of 250 grams each was separated from the bags. The samples and the remaining poppy husk contained in the bags were separately sealed and taken into possession by the police. Rough site plan of the place of recovery was prepared. Ruqa was sent to the Police Station and on its basis formal First Information Report was registered against the accused under Section 15 of the Act. After registration of the case against the accused, they were formally arrested and memos containing grounds of their arrest were prepared.
After completion of investigation and on receipt of the report of the Chemical Examiner, report under Section 173 of the Code of Criminal Procedure was presented in Court against the appellants.
Charge was framed against the accused for the offence punishable under Section 15 of the Act. They did not plead guilty to the charge and claimed trial.
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Criminal Appeal No.2078-SB of 2005 and Criminal Appeal No.39-SB of 2006.
At the trial, the prosecution examined Head Constable Jarnail Singh (P.W.1), Superintendent of Police (Retd.) Hoshiar Singh (P.W.2), Assistant Sub Inspector Mela Singh (P.W.3), Assistant Sub Inspector Charanjit Singh (P.W.4), Kishan Singh, Steno, office of the District Transport Officer Gurdaspur (P.W.5), Sub Inspector Prem Kumar (P.W.6) and Kartar Singh (P.W.7).
In their statements recorded under Section 313 of the Code of Criminal Procedure, the appellants denied the prosecution allegations and pleaded false implication. No evidence was led by the appellants in their defence.
The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case beyond reasonable doubt and that 30 bags, each containing 40 Kgs of poppy husk were recovered from the appellants. The trial Court convicted and sentenced the appellants, as mentioned above.
I have heard the learned counsel for the parties and have gone through the records of the case.
At the outset, learned counsel for the appellants, by placing reliance on the authorities reported as Avtar Singh v. State of Punjab, 2002 (4) R.C.R (Criminal) 180, State of Punjab v. Hari Singh & Ors, 2009 (2) R.C.R (Criminal) 143 and Dayal Singh and another v. State of Punjab, 2007 (2) R.C.R (Criminal) 596 argued that the object of examination of the accused under Section 313 of the Code of Criminal Procedure is to afford an opportunity to the accused to explain the -5- Criminal Appeal No.2078-SB of 2005 and Criminal Appeal No.39-SB of 2006.
circumstances appearing in the evidence against him, but in this case no question was put to them (accused) during their such examination that they were in conscious possession of the contraband. Learned counsel for the appellants argued that the recovery in this case was allegedly made from the truck, which was occupied by five persons. However, it was presumed that the appellants were in possession of the contraband without calling upon them to explain the circumstances giving rise to such presumption. According to the learned counsel, it makes the case of the prosecution untrustworthy and entitles the accused to acquittal.
I have given my careful consideration to the argument raised by learned counsel for the appellants. However, I do not find any substance in this argument. Each case has its own facts. Therefore, no hard and fast rule can be laid down to define what is or what is not "possession" of a narcotic substance. In the case of Madan Lal and another v. State of Himachal Pradesh, 2003 (4) R.C.R (Criminal) 100 wherein recovery of contraband was made from the search of a car in which five persons were travelling and one of them had stated that the contraband (i.e 820 grams charas contained in one steel container (dolu) in a black coloured bag, which was recovered from the said car) belonged to him, it was held by the Hon'ble Supreme Court that this statement of the accused was totally out of context and no credence could at all -6- Criminal Appeal No.2078-SB of 2005 and Criminal Appeal No.39-SB of 2006.
be attached to the statement because in his statement recorded under Section 313 of the Code of Criminal Procedure, he (the said accused) did not state that he alone was in possession of the contraband. In Madan Lal's case (supra), all the accused were held responsible for possession. In Paras 20, 27 and 28, the Apex Court, in the said case, observed as under:-
" 20. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record is that all the accused persons were travelling in a vehicle and as noted by the Trial Court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.
27. 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 -7- Criminal Appeal No.2078-SB of 2005 and Criminal Appeal No.39-SB of 2006.
where also presumption is available to be drawn from possession of illicit articles.
28. In the factual scenario of the present case not only possession but conscious possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act."
In the case of Avtar Singh v. State of Punjab, 2002(4) RCR (Criminal) 180, the Apex Court observed as under:-
" 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 -8- Criminal Appeal No.2078-SB of 2005 and Criminal Appeal No.39-SB of 2006.
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 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 circumstances in which they were travelling in the vehicle at the odd hours, is one strong circumstance that can be put against them."
In Megh Singh v. State of Punjab, (2003) 8 Supreme Court cases 666, the decision of the Apex Court in Avtar Singh's case (supra) was discussed in the following terms but the Court -9- Criminal Appeal No.2078-SB of 2005 and Criminal Appeal No.39-SB of 2006.
relying upon the principle of circumstantial flexibility, came to the conclusion that in the factual scenario of Megh Singh's case (supra), the accused had failed to show that his possession was not conscious. It was held as under:-
" Once possession is established, the person who claims that it was not a conscious possession has to establish, 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."
In view of the above, it cannot be concluded that huge haul of 30 bags of poppy husk contained in the truck escaped notice of the accused. It was within special means of knowledge of the accused as to how 30 bags of poppy husk were found in the truck and to which destination they were being taken. Once possession of the contraband by the accused is established on record and the accused had been given sufficient opportunity under Section 313 of the Code of Criminal Procedure to explain the position, microscopic scrutiny of every judicial action -10- Criminal Appeal No.2078-SB of 2005 and Criminal Appeal No.39-SB of 2006.
cannot be permitted and the accused cannot be given benefit of hypothetical assumptions. Besides, it is well-settled that omission to bring the attention of the accused to an inculpatory material does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. The facts and circumstances of the case, discussed above, do not show that any prejudice was caused to the accused in this case by not putting a particular question to the accused during examination under Section 313 of the Code of Criminal Procedure regarding conscious possession of the contraband. Under the circumstances, taking into account the totality of the evidence led on record by the prosecution, I have no hesitation in holding that the accused were in conscious possession of the contraband.
Another argument of the learned counsel for the appellants is that there was non-compliance of Section 50 of the Act as recovery was not effected in the presence of a Magistrate or a Gazetted Officer and the recovery was effected by Inspector Hoshiar Singh. According to the learned counsel, it renders the prosecution version doubtful.
In order to appreciate the argument of the learned counsel, a reference to the relevant provisions of Section 50 of the Act is necessary, which are as under:-
" 50. Conditions under which search of persons shall be conducted. - -11- Criminal Appeal No.2078-SB of 2005 and Criminal Appeal No.39-SB of 2006.
(1)When any officer duly
authorized under Section
42 is about to search any
person under the provisions
of Section 41, Sector 42 or
Section 43, he shall, if
such person so requires,
take such person without
unnecessary delay to the
nearest Gazetted Officer of
any of the departments
mentioned in Section 42 or
to the nearest Magistrate.
(2) If such requisition is
made, the officer may
detain the person until he
can bring him before the
Gazetted Officer or the
Magistrate referred to in
sub-section (1)
(3) The Gazetted Officer or
the Magistrate before
whom any such person is
brought shall, if he sees no
reasonable ground for
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Criminal Appeal No.2078-SB of 2005 and Criminal Appeal No.39-SB of 2006.
search, forthwith discharge the person but otherwise shall direct that search be made.
(4) xx xx xx
(5) xx xx xx
(6) xx xx
xx
(7) xx xx xx"
A perusal of the above provisions of Section 50 (1) of the Act reveals that incorporation of the words "when any officer duly authorized under Section 42 is about to search any person" therein depicts that only when personal search of any person is required to be made, the Police Officer concerned is required to apprise him of his right existing under this Section i.e as to whether he wanted to be searched before a Gazetted Officer or before a Magistrate. Such a requirement is not there when the Police Officer concerned is going to search houses, building etc. Such a view was taken by a Full Bench of this Court in the case of State of Punjab v. Kulwant Singh, 1994 (1) Recent CR 303 wherein in para 46 at page 317, it was observed as under:-
" xx xx xx. The provisions of sub--13-
Criminal Appeal No.2078-SB of 2005 and Criminal Appeal No.39-SB of 2006.
sections (1), (2) and (3) of Section 50 were enacted by the Legislature in its wisdom only qua the personal search of a person and not regarding the search of houses, building etc. obviously to preserve the human dignity. There is logic behind enacting the special provisions regarding the
personal search, because a person can carry only a small quantity of contraband narcotic drug or psychotropic substance. Thus, in order to rule out the possibility of planting small quantity of such drugs at the instance of unscrupulous officers of the enforcing agency and to eliminate the chances of exploitation, the above-referred substantive right has been conferred upon the suspected person. A conjunct reading of the provisions of Section 50 of the Act leaves no doubt that the Legislature did not intend to confer a distinct right upon the suspect to claim personal search before a Magistrate or Gazetted Officer and prove his innocence in recognition of the right to human dignity and free from exploitation flowing from Article 21 of the Constitution. " -14-
Criminal Appeal No.2078-SB of 2005 and Criminal Appeal No.39-SB of 2006.
There was, thus, no violation of the mandatory provisions of Section 50 of the Act, as argued by learned counsel for the accused-appellant. In this case recovery of 30 bags of poppy husk was made from the truck. Obviously, no personal search of the accused was to be effected. In this view of the matter, it is of no consequence whether the search of the bags kept in the truck was made before a Gazetted Officer or before a Magistrate or not.
Learned counsel for the appellant further argued that the case of the prosecution is based only on the statements of the official witnesses and no independent person was joined by the police party. According to the learned counsel, the police witnesses being interested in the success of the case, their statements should not be trusted without corroboration from an independent source. It has been submitted that non-joining of any independent witness has upset the balance of the prosecution case, making the alleged recovery doubtful. After giving a careful thought to the argument raised by the learned counsel, I do not find any force therein in the presence of cogent and trustworthy evidence put forth by the prosecution. Recovery in this case was effected per chance while the police party was patrolling the area. Otherwise also, normally the independent witnesses do not support the prosecution case as they reside in the same area where the accused-persons reside and they fear to create ill-will and enmity with criminals. In this case, the -15- Criminal Appeal No.2078-SB of 2005 and Criminal Appeal No.39-SB of 2006.
official witnesses have fully supported the prosecution case and no material contradiction, worth the name, has been pointed out in their statements. The accused-appellants have also not alleged any enmity with them (police officials). In this background, merely the fact that no independent witness was joined to witness the recovery, is not a good ground to discard the testimonies of the official witnesses. It has been repeatedly held that the prosecution story cannot be discarded on the ground that independent witness has not been examined. No discrepancy worth the name could be pointed out in the statements of the prosecution witnesses. Otherwise also, there was no reason for the police to falsely implicate the accused in such a case where stringent punishment has been provided by the Legislature. In these circumstances, non-joining of any independent witness by the police in this case does not at all affect the veracity of the prosecution case.
For the aforesaid reasons, I do not find any merit in these appeals. The same are hereby dismissed. The truck in which the contraband was being transported is ordered to be confiscated to the State.
April 23, 2010. ( MOHINDER PAL ) ak JUDGE