Punjab-Haryana High Court
Surjeet Singh And Anr vs State Of Haryana on 12 November, 2014
Author: Inderjit Singh
Bench: Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(i) Crl. Appeal No.S-189-SB of 2002
Surjeet Singh and another
...Appellants
versus
State of Haryana
...Respondent
(ii) Crl. Appeal No.S-243-SB of 2002
Massa Singh
...Appellant
versus
State of Haryana
...Respondent
Date of Decision: November 12, 2014
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.K.P.S.Virk, Advocate
for the appellants (in CRA No.S-189-SB of 2002).
Mr.K.P.S.Virk, Advocate
Legal Aid counsel
for the appellant (in CRA No.S-243-SB of 2002).
Mr.Subash Godara, Addl. Advocate General, Haryana
for the respondent-State.
****
INDERJIT SINGH, J.
This judgment shall dispose of above-stated two connected cases arising out of the same judgment of conviction and order of sentence dated 06.11.2001 passed by learned Judge, Special Court, Kaithal, whereby, the appellants were held guilty and convicted and sentenced to undergo rigorous imprisonment for a period of ten VINEET GULATI 2014.12.17 16:32 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-189-SB of 2002 and connected appeal -2- years each and to pay a fine of `1 lac each in default of payment of fine, to further undergo rigorous imprisonment for a period of one year under Section 15 of the Narcotic Drugs and Psychotropic Substances, Act, 1985.
The brief facts of the prosecution case are that on 05.11.1999, Sub Inspector Randhir Singh, SHO, Police Station Guhla along with other police officials was present at the turn of village Duserpur in connection with Nakabandi. In the meantime, a tonga occupied by all the three accused were seen coming from the side of Guhla. It was about 2.00 A.M. (night). The tonga was got stopped. One occupant namely accused Santa Singh fled away from the spot but SI Randhir Singh knew him previously. The remaining two accused Massa Singh and Surjeet Singh were captured. In the tonga, seven bags of poppy husk were lying. As some narcotic substance was suspected, therefore, these two accused were served with a notice Ex.PB under Section 50 of the Act for their search either before a Magistrate or a Gazetted Officer. Accused opted to be searched before a Gazetted Officer. Both the accused along with tonga and case property and the witness were produced before Sh.Ashok Kumar Gaur, Tehsildar. Under his directions, the bags lying in the tonga were searched which were found containing poppy straw. From each bag, 250 gms. of poppy husk was separated as sample. The remaining residue in each bag came to 39.750 kgs. on weighment. The samples and residue were converted into separate sealed parcels by using the seals of 'RS' and 'AKG'. Sample seal impressions were also retained. VINEET GULATI 2014.12.17 16:32 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-189-SB of 2002 and connected appeal -3- All the recoveries along with tonga were taken into possession vide memo Ex.PA. Ruqa Ex.PC was sent to the police station, on the basis of which FIR Ex.PC/1 was recorded. Statements of witnesses were recorded. Site plan was prepared. Accused were arrested. On return to the police station, case property was deposited in the Malkhana and both the accused were sent to lock-up. Report under Section 57 of the Act was also prepared. Accused Santa Singh was arrested by ASI Sultan Singh on 04.12.1999. The samples were sent to the FSL, Madhuban for analysis of the contents. After necessary investigation, challan was presented against accused-appellants.
On presentation of challan against accused-appellants, copies of challan and other documents were supplied to them under Section 207 Cr.P.C. Finding prima facie case, the accused-appellants was charge-sheeted under Section 15 of the NDPS Act, to which they pleaded not guilty and claimed trial.
In support of its case, prosecution examined PW-1 Ashok Kumar, Tehsildar, who mainly deposed regarding proceedings conducted in his presence and regarding recovery of poppy husk and taking samples from the bags and also regarding taking case property in the police station vide recovery memo Ex.PA. PW-2 C-1 Ram Kumar mainly deposed regarding delivering of special report to higher officers. PW-3 MHC Rattan Singh is formal witness. He deposed that he was posted as MHC on 05.11.1999 and deposed regarding depositing of seven gunny bags, seven sample parcels duly sealed with seals of 'RS' and 'AKG' along with sample seal and one tonga VINEET GULATI 2014.12.17 16:32 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-189-SB of 2002 and connected appeal -4- along with mare, with him. He further deposed that on 09.11.1999, he took out the sample parcels and handed over seven sample parcels along with sample seal to Constable Rajbir for delivering the same to the office of FSL, Madhuban, who after depositing the same, handed over the receipt thereof to him. PW-4 Constable Rajbir Singh deposed regarding taking of seven sample parcels for depositing the same with the FSL, Madhuban in intact condition. PW-5 ASI Sultan Singh mainly deposed regarding arrest of accused Santa Singh. PW- 6 SI Shamsher Singh deposed regarding preparing of report under Section 173 Cr.P.C. PW-7 ASI Lakhmi Chand, who was with the police party deposed regarding recovery of poppy husk from the accused and deposed as per prosecution version. PW-8 SI Randhir Singh, SHO, Investigating Officer, mainly deposed regarding investigation conducted by him in the present case.
At the close of prosecution evidence, the accused- appellants were examined under Section 313 Cr.P.C. and they denied the correctness of the evidence and pleaded themselves as innocent.
In defence, accused-appellants examined DW-1 Jagir Singh, who mainly deposed that he knew accused Santa Singh because Santa Singh is his neighbour. He further deposed that Santa Singh's back bone was fractured about five years back and he was not able to walk properly. He could only walk with the help of others and he was taken away by the police from his house.
The learned trial Court, after appreciation of the evidence, convicted and sentenced the accused-appellants, as stated above. VINEET GULATI 2014.12.17 16:32 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-189-SB of 2002 and connected appeal -5- At the time of arguments, learned counsel for the appellants argued that in the present case, prosecution has failed to lead cogent evidence regarding identity of accused Santa Singh, who is stated to have fled away. There is no cogent evidence to prove that Santa Singh fled away from the spot. There is also nothing on the record to show as to how the Investigating Officer was knowing him previously. Therefore, he argued that a reasonable doubt exist in the prosecution version regarding involvement of Santa Singh in the present case. Learned counsel for the appellants further argued that the sample seals impressions were not prepared, which also creates doubt in the prosecution version. He next argued that when the case property was produced in the Court, some seals were found broken. Learned counsel for the appellants further contended that case property was not produced before the Illaqa Magistrate and provisions of under Section 52-A of the NDPS Act have not been complied with. He next contended that CFSL form was also not prepared at the spot. He further argued that prosecution has failed to prove the conscious possession of the appellants on the poppy husk and appellants are entitled to be acquitted on this ground also. He next argued that no independent witness has been joined in this case. Learned counsel for the appellants, therefore, argued that there being merit in the appeals, it should be allowed and appellants should be acquitted.
On the other hand, learned State counsel argued that prosecution has duly proved its case by leading cogent evidence. The recovery process was conducted in the presence of Tehsildar, who is VINEET GULATI 2014.12.17 16:32 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-189-SB of 2002 and connected appeal -6- an Executive Magistrate. There is no question of joining independent witness in the present case as the occurrence took place at night time i.e. at 2.00 A.M. He next argued that all the witnesses have deposed regarding preparing of sample seal impressions. He further argued that there is nothing in the evidence that CFSL form was not prepared at the spot. Learned State counsel further contended that prosecution has duly proved the possession of the accused-appellants on poppy husk. The identity of Santa Singh has also been duly proved. Learned State counsel, therefore, argued that there being no merit in both the appeals, the same should be dismissed.
I have heard learned counsel for the appellants as well as learned State counsel and have gone through the record.
From the record, I find that first of all as per prosecution version, Santa Singh was not apprehended on the spot and stated to have fled away. Admittedly, it was night time i.e. 2.00 A.M. and it is very difficult in the dark to identify a person who ran away. Secondly, I find that as per the prosecution version, Investigating Officer Randhir Singh was knowing Santa Singh previously but there is nothing in the evidence as to how he was knowing Santa Singh or whether Santa Singh was earlier apprehended or arrested in any other case etc. There are no such particulars as to how the Investigating Officer was knowing Santa Singh. Furthermore, in the chief examination PW-8 Randhir Singh Investigating Officer has stated that tonga was got stopped with a torch light and one occupant whose name was later known as Santa Singh, had fled away from the spot. If Randhir Singh, VINEET GULATI 2014.12.17 16:32 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-189-SB of 2002 and connected appeal -7- Investigating Officer was knowing Santa Singh previously, then why he could not come to know his name at that very time. In the chief- examination, he also stated that he knew Santa Singh previously. This version of PW-8 Randhir Singh, Investigation Officer that he was knowing Santa Singh previously, cannot be believed. There is no other cogent evidence on record to connect Santa Singh with the crime. The prosecution has failed to prove that Santa Singh had fled away from the spot and a reasonable doubt exists in the prosecution version regarding involvement of Santa Singh in the alleged occurrence. Therefore, by giving benefit of doubt, Santa Singh is acquitted of the charges framed against him and appeal qua him is accepted.
As regarding appellants Massa Singh and Surjeet Singh, I do not find any merit in the arguments of learned counsel for these appellants. If one sample of 250 gms. is taken instead of two samples, I find that no prejudice is caused to the accused-appellants. Learned counsel for the appellants has not shown any provision to this Court vide which, it is mandatory to take two samples of 250 gms. The sample is 250 gms., which is a sufficient quantity for examination by Chemical Examiner. The argument that sample seal impression was not prepared is also having no merit. The PWs have deposed that sample seal impressions were prepared and there is no cross- examination of the PWs that sample seal impressions were not prepared. PW-1 Ashok Kumar, Tehsildar, in his chief-examination stated that after use, the sample seals were prepared. PW-3 MHC VINEET GULATI 2014.12.17 16:32 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-189-SB of 2002 and connected appeal -8- Rattan Singh, who was posted as MHC at that time, has stated in his chief-examination that he handed over seven sample parcels along with sample seals to Constable Rajbir for depositing the same with FSL, Madhuban. There is no cross-examination regarding sample seals. The recovery witness PW-7 ASI Lakhmi Chand has also stated in chief-examination that sample seals were prepared and there is no cross-examination on this point. Similarly, PW-8 Randhir Singh, Investigating Officer also stated in chief-examination that the sample seals were prepared on a piece of cloth. There is nothing in the cross-examination that sample seals were not prepared. So, this argument of learned counsel for the appellants has no force. Similarly, the argument that CFSL form was not prepared on the spot, has also no force. There is nothing in the cross-examination of the Investigating Officer that CFSL form was not prepared on the spot. There is not even a suggestion that CFSL form was not prepared on the spot. Recovery has been effected at 2.00 A.M. at night. So, independent witnesses are not supposed to be there at that time. Otherwise also, it is settled law that testimony of police official is as good as of any other witness unless some enmity or motive is alleged and proved. In the present case, police officials have no enmity or motive against the appellants. Therefore, no reasonable doubt exists on this point. No material contradiction or improbability in the statements of the PWs has been pointed by learned counsel for the appellant. There is nothing in the cross-examination of the PWs, which may make their statements unreliable. PWs have consistently VINEET GULATI 2014.12.17 16:32 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-189-SB of 2002 and connected appeal -9- deposed regarding prosecution version. PW-1 Ashok Kumar Tehsildar, in whose presence the search was made and the recovery was effected and proceedings were done, has consistently deposed regarding prosecution version. There is nothing on the record to show as to why the statement of PW-1 Ashok Kumar Tehsildar should not be believed. It is settled law that the case property is only a corroborative piece of evidence and if case property is not produced, it cannot be held as fatal to the prosecution case. In the present case, case property is produced in the Court and if due to gap of time, some seals on the case property are broken, it will not create any reasonable doubt in the prosecution version. As per the FSL report, the seals were found intact. PWs have also deposed that the case property was deposited with MHC in intact condition and it was further deposited with FSL in intact condition. Link evidence is complete in this case. PWs have consistently deposed regarding possession of the poppy husk by the accused. At night time at 2.00 A.M., both the accused were taking away the tonga carrying seven bags of poppy husk each weighing 40 kgs. The prosecution is to prove the possession of the poppy husk. It is for the accused to show that any of the accused was not in conscious possession. The Hon'ble Supreme Court in Megh Singh Vs. State of Punjab 2003(4) R.C.R. (Criminal) 319, has held that word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. Expression 'possession' is a polymorphous term which assumes different colours in different contexts. It is impossible to VINEET GULATI 2014.12.17 16:32 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-189-SB of 2002 and connected appeal -10- work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes. In that case, accused was found sitting on gunny bags containing contraband and it was held that accused was in conscious possession. The Hon'ble Supreme Court in Madan Lal and another Vs. State of Himachal Pradesh 2003(4) RCR (Crl.) 100, has held 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.
21. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in chapter IV of the Act which relates to offence for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.
22. It is highlighted that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.
23. 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" uniformly applicable to all situations in the context of all statutes.
24. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended.
25. As noted in Gunwantlal v. The State of M.P. (AIR VINEET GULATI 1972 SC 1756) possession in a given case need not be 2014.12.17 16:32 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-189-SB of 2002 and connected appeal -11- physical possession but can be constructive, having power and control over the article in case in question, while the person whom physical possession is given holds it subject to that power.
26. 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).
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 where also presumption is available to be drawn from possession of illicit articles."
In view of these above two citations, conscious possession of the appellants is duly proved. There is no explanation from the accused side to explain their possession over the gunny bags. Therefore, this argument of learned counsel for the appellants has also no merit.
The mere fact that the case property was not produced before the Illaqa Magistrate on the next date, also does not create any doubt in the prosecution version in view of the evidence produced by the prosecution. Learned counsel for the appellant has not shown anything to show as to how the provisions of Section 52-A of NDPS Act, are mandatory. Furthermore, the samples have been withdrawn in the presence of Executive Magistrate i.e. PW-1 Ashok Kumar Tehsildar. Therefore, in no way, it can be held that no attempt to make compliance of Section 52-A of NDPS Act has been made. VINEET GULATI 2014.12.17 16:32 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-189-SB of 2002 and connected appeal -12- Learned counsel for the appellants cited judgment passed by this Court in Jaswinder Singh vs. State of Punjab, 2009(1) RCR (Criminal) 425. I have gone through this cited judgment and the same having distinguished facts will not apply in the present case as already discussed that there is nothing on record to show that CFSL form was not prepared at the spot and further in view of the law laid down by the Hon'ble Supreme Court as discussed above that it is to be proved by the appellants that they are not in conscious possession.
Learned counsel for the appellants further cited judgment passed by this Court in Ram Sarup vs. State of Haryana, 2006(1) RCR (Criminal) 52. I have gone through this cited judgment also and the same having distinguished facts will not apply in the present case as it is already discussed that sample seal impressions were prepared and there is report of FSL that seals on the samples have been tallied with sample seal impressions, which are found intact.
Learned counsel for the appellants also cited judgments passed by this Court in Ashok Kumar vs. State of Haryana, 2014(2) RCR (Criminal) 194 and Baldev Singh and another vs. State of Punjab, 2014(2) RCR (Criminal) 197. I have gone through both the above cited judgments and the same having distinguished facts will not apply in the present case.
In view of the discussion, I find that prosecution has duly proved its case against appellants Massa Singh and Surjeet Singh by leading cogent evidence beyond reasonable doubt. The judgment of VINEET GULATI 2014.12.17 16:32 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No.S-189-SB of 2002 and connected appeal -13- conviction and order of sentence dated 06.11.2001 passed by learned Judge, Special Court, Kaithal, are correct and as per law and do not require interference from this Court qua appellants Massa Singh and Surjeet Singh.
Resultantly, CRA No.S-189-SB of 2002 stands allowed qua appellant Santa Singh whereas it stands dismissed qua appellant Surjeet Singh and CRA No.S-243-SB of 2002 filed by appellant Massa Singh stands dismissed.
Since appellants Surjeet Singh and Massa Singh are on bail, their bail bonds stand annulled and they are directed to surrender themselves before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against them in accordance with law. As appellant Santa Singh is on bail, his bail bonds stand discharged.
November 12, 2014 (INDERJIT SINGH)
Vgulati JUDGE
VINEET GULATI
2014.12.17 16:32
I attest to the accuracy and
authenticity of this document
Chandigarh