Punjab-Haryana High Court
Hans Raj S/O Goma Ram vs The State Of Haryana on 6 April, 2010
Crl. Appeal No. 518-SB of 2007
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IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Crl. Appeal No. 518-SB of 2007
Date of decision. 06.04.2010
Hans Raj s/o Goma Ram, Kamboj, Business, r/o Khairpur, District
Sirsa.
....... Appellant
Versus
The State of Haryana
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. D.N. Ganeriwala, Advocate
for the appellant.
Mr. Sandeep Mann, Sr. DAG, Haryana,
for the respondent-State.
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Sham Sunder, J.
This appeal is directed against the judgment of conviction dated 30.01.2007, and the order of sentence dated 08.02.2007, rendered by the Court of Additional Sessions Judge, Sirsa, vide which it convicted the accused (now appellant), for the offence, punishable under Section 25 of the Crl. Appeal No. 518-SB of 2007
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Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him, to undergo rigorous imprisonment for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo simple imprisonment for a period of two years.
2. The facts, in brief, are that on 13.01.2001 at about 8.00 PM Chander Singh, DSP, alongwith other Police officials, was going in a government jeep bearing registration No.HR-24E/0975 via village Sakta Khera to village Chautala, in connection with VIP duty and when the Police party reached near the bridge of Raj canal, in the area of Abubshahar, a secret information was received, that the truck bearing registration No.HYN-7766 was parked near Ram Niwas Aggarwal hotel, in front of Ashakhera Petrol Pump. It was also informed that 100 bags of poppy husk were loaded in the truck, aforesaid, which were covered with the bags of DDT powder. It was also informed by the informer that the truck, aforesaid , belonged to Hans Raj Kamboj, resident of Khairpur, Sirsa, and that the truck owner, cleaner of the truck, Rai Sahab and Begraj, had brought the poppy-straw, in the same. It was further informed that those persons were still sitting in the truck, aforesaid. On receipt of the information, DSP Chander Singh reached the hotel of Ram Niwas alongwith the Police party. The said truck was found parked Crl. Appeal No. 518-SB of 2007
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there. Four persons were sitting inside the truck, who on seeing the Police jeep, jumped out of the same and ran towards the fields. Out of those, two persons, namely Rai Sahab and Beg Raj were already known to Randhir Singh, Sub Inspector, and Ram Kishan, Assistant Sub Inspector. The Police party chased them and tried their level best to apprehend them, but all the four persons, succeeded in escaping from the spot. The search of the truck was conducted. 100 bags of DDT powder were removed and beneath those bags, 100 bags of poppy straw were found, loaded in the truck. On weighment, each bag was found containing 40 Kgs of poppy-straw. Two samples of 100 grams poppy straw from each of the bags, were taken and the remaining poppy straw was kept in the same bags. The samples, and the bags, containing the remaining poppy straw, were converted into parcels, duly sealed, and taken into possession, alongwith the truck bearing registration No.HYN-7766, vide a separate recovery memo. During the search of the cabin of the truck, RC (Ex.P-1) of the truck, aforesaid, Sapurdaginama (Ex.P-2) in favour of Gurcharan Singh, one copy (Ex.P-13) of passengers and goods taxation, a tag containing ten currency notes of the denomination of Rs.100/- each, totalling Rs.1000/-(Ex.P-3 to Ex.P-12), one shirt (Ex.P-16), one pant (Ex.P-17), one cap nike (Ex.P14) and two pairs of shoes (Ex.P-15) were also recovered Crl. Appeal No. 518-SB of 2007
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and the same were taken into possession , vide separate recovery memo Ex.PD. Thereafter, ruqa was sent to the Police Station, on the basis whereof, an FIR was registered, and statements of the witnesses were recorded. On return to the Police station, the Investigating Officer deposited the case property with the MHC of Police Station Sadar, Dabwali. Hans Raj, owner of the truck was arrested while other accused were, ultimately, declared proclaimed offenders.
3. It is pertinent to mention here that, on the applications of Smt. Mohra Devi, mother of Rai Sahab, and Smt. Parmeshwari Devi, mother of Beg Raj, moved before the Inspector General of Police, Hisar Range, Hisar, an inquiry was conducted and both Rai Sahab and Beg Raj were found to be innocent. Ultimately, supplementary challan under Section 173 (8) of the Code of Criminal Procedure was filed, before the Court, for declaring them to be innocent,which prayer, was rejected.
4. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to Hans Raj accused. Charge under Section 15 of the Act, was framed against the accused, to which he pleaded not guilty, and claimed judicial trial.
5. The prosecution, in support of its case, examined, Balwant Singh, EHC,( PW-1 ), Maha Singh, Sub Crl. Appeal No. 518-SB of 2007
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Inspector, (PW-2), Ramesh Kumar, Assistant Sub Inspector, (PW-3), Chander Singh, DSP, (PW-4), and Randhir Singh, Inspector, (PW-5). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence, after tendering into the Ex.PG, report of the Forensic Science Laboratory.
6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication in the instant case.
7. The accused examined Jai Singh, Head Constable, DW-1, Bhagat Singh, Moharrir Constable, DW-2 Har Kishan, DW-3, and Joginder Singh alias Joly. Thereafter, he closed his defence evidence.
8. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, acquitted the accused for the offence, punishable under Section 15 of the Act, on the ground that no evidence was produced to connect him, with the case, for having been found in possession of 100 bags, containing poppy-straw. However, the trial Court, convicted him, for the offence, punishable under Section 25 of the Act, on the ground that the Registration Certificate was in his name.
Crl. Appeal No. 518-SB of 2007
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9. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, has been filed by the appellant.
10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
11. The Counsel for the appellant, submitted that the provisions of Act are very stringent, in nature, and, as such, the compliance thereof, was required to be strictly made. He further submitted that no charge under Section 25 of the Act was framed against the accused. He further submitted that without framing charge under Section 25 of the Act, against the accused, he was deprived of defending himself, in a proper manner, during the trial of the case. He further submitted that on account of this reason, a complete failure of justice occasioned to the accused. He further submitted that no evidence was produced by the prosecution, to prove that the accused knowingly permitted the use of the truck, in question, by his co-accused, for transporting the bags, containing poppy straw. He further submitted that, in the absence of production of evidence, in regard to the factum , that the owner of the vehicle intentionally permitted the use thereof, for the commission of offence, punishable under Crl. Appeal No. 518-SB of 2007
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Section 15 of the Act, the ingredients required for constituting the offence punishable under Section 25 of the Act were not constituted. He further submitted that the trial Court was merely swayed by the factum, that a big haul of poppy straw , could not be transported in the truck, without the permission of the accused, he being the owner thereof and, as siuch, he committed the offence, punishable under Section 25 of the Act. He further submitted that the judgment of the trial Court, being based on conjectures and surmises, is perverse, and liable to be set aside. He also placed reliance on Ram Pal v. State of Punjab, 2003(3) RCR (Criminal) 159, a case decided by a Division Bench of this Court, in support of his contention.
12. On the other hand, the Counsel for the respondent, supported the judgment of the trial Court. He submitted that the conviction could even be recorded without framing the charge, under Section 25 of the Act. He further submitted that no failure of justice occasioned to the accused, on account of non-framing of charge, against him , under Section 25 of the Act. He further submitted that the trial Court was right, in holding that since a big haul of poppy straw was transported, in the truck, it could not be said that the same was transported, without the knowledge of the Crl. Appeal No. 518-SB of 2007
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accused. He further submitted that the judgment of conviction and the order of sentence, being legal and valid, are liable to be upheld.
13. Admittedly, no charge under Section 25 of the Act was framed against the accused. The provisions of the Act are very stringent. Minimum sentence has been prescribed for various offences, under the Act. In the absence of framing of charge, under Section 25 of the Act, against the accused that he knowingly permitted the use of the truck, in question, for transporting the poppy-straw by his co-accused, he (accused) was unable to defend himself effectively, during the course of trial. Since the accused did not know, as to what was the charge against him, it could not be expected of him, to cross-examine the witnesses, in an effective manner and lead his defence evidence, to rebut that charge. The omission to frame a charge, in an effect very similar to refusal to give the accused a hearing, or a refusal to allow him to defend himself or a refusal to explain the nature of the charge to him. The accused is not asked to defend himself, in regard to an offence, he is not charged with. The omission to frame a charge is a grave defect and should be vigilantly guarded against. It is, no doubt, true that according to Section 464 of the Code of Criminal Procedure, no finding, sentence or order Crl. Appeal No. 518-SB of 2007
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by a Court of competent jurisdiction, shall be deemed invalid merely, on the ground, that no charge was framed, or on the ground of any error, omission or irregularity, in the charge including any mis-joinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has, in fact, occasioned thereby. Had the charge been framed and some irregularity or omission therein been found, the matter would have been different. In the absence of framing of charge under a particular provision of law, against the accused, and recording conviction and awarding sentence to him, would certainly prejudice him, in his defence. Had the charge under Section 25 of the Act been framed against the accused, he would have cross-examined the prosecution witnesses, from a particular angle, that he never knowingly permitted the use of the truck, in question, by his co-accused, for transporting the poppy-straw or that the same was being used, without his knowledge, by them. He could also lead defence evidence, in that regard. Under these circumstances, this Court is of the opinion that a complete failure of justice occasioned to the accused, on account of this reason. In Nanak Chand v. State of Punjab (AIR 1955 SC 274 ) it was held that if there is a conviction for charge not framed, it is an illegality, and not an irregularity, curable by the provisions of Crl. Appeal No. 518-SB of 2007
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Sections 535 and 537 of the Code of Criminal Procedure, 1898 (now Sections 460 and 461 of the Code of Criminal Procedure, 1973). The ratio of law, laid down, in Nanak Chand's case (supra) is fully applicable to this case. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction, and awarding sentence to the accused.
14. The next question, that arises for consideration, is, as to whether, the accused could be convicted for the offence, under Section 25 of the Act, merely, on the ground, that he was registered owner of the truck, in question. No evidence was produced, on the record, that the accused was sitting in the truck and he fled from the spot, on seeing the Police party. Since he was not connected with the commission of crime, under Section 15 of the Act, he was acquitted by the Court below of that charge. The mere fact that the truck, in question, was registered in the name of the accused, was not sufficient to record his conviction and award him sentence, for the offence, punishable under Section 25 of the Act. Section 25 of the Act reads as under:-
"Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly Crl. Appeal No. 518-SB of 2007
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permits it to be used for the commission by any other person of an offence, punishable under any provision of this Act, shall be punishable with the punishment provided for that offence."
15. The plain reading of Section 25 of the Act clearly goes to reveals that the accused could be convicted for the said offence, only, if it was proved by the prosecution that he 'knowingly' 'permitted' the use of the premises or the vehicle, by any other person, for the commission of an offence punishable under the Act. The words 'knowingly' and 'permitted' are very material. The Legislature, in its wisdom, has specifically mentioned these words in Section 25 of the Act. Once the Legislature in its wisdom, inserted the words 'knowingly' and 'permitted' in Section 25 of the Act, it was for the prosecution to establish both these ingredients. The knowledge means actual knowledge. So the crux of the offence under Section 25 of the Act, lies in 'knowingly' 'permitting' the use of any place or conveyance for the commission of an offence under the Act. These words are indicative of 'meas rea' in the form of guilty knowledge, and this being an essential requirement of this particular offence, it calls for a positive proof, from the side of the prosecution, that the person, whose conveyance Crl. Appeal No. 518-SB of 2007
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is involved, was aware of the fact that the said conveyance was being used, for the commission of an offence under the Act. The insertion of word 'knowingly' has, thus, been intentionally used by the Legislature. The prosecution failed to prove the ingredients aforesaid, essentially required for the commission of offence under Section 25 of the Act. Under these circumstances, presumption under Sections 54 and 60(3) of the Act, could not be invoked. In the instant case, as stated above, since the prosecution miserably failed to prove that the accused knowingly permitted the use of the vehicle, for the commission of an offence, under the Act, the mere fact that he was the owner of the same, without anything else, could not be sufficient to convict him, for the offence, under Section 25 of the Act. The trial Court was wrong, in recording conviction, and awarding sentence to the accused. Similar principle of law, laid down in Ram Pal's case (supra). Accordingly, the judgment of conviction and the order of sentence rendered by the trial Court, being perverse, are liable to be set aside.
16. No other point was urged, by the Counsel for the parties.
17. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, Crl. Appeal No. 518-SB of 2007
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rendered by the Court below, are not based on the correct appreciation of evidence, and law, on the point. Had the trial Court taken into consideration, the aforesaid infirmities and lacunae, it would not have reached the conclusion, that the accused committed the offence, punishable under Section 25 of the Act. The judgment of conviction, and the order of sentence are, thus, liable to be set aside.
18. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction 30.01.2007, and the order of sentence dated 08.02.2007, are set aside. The appellant, shall stand acquitted of the offence, punishable under Section 25 of the Act. If, he is on bail, he shall stand discharged of his bail bonds. If, he is in custody, he shall be set at liberty, at once, if not required, in any other case.
06.04.2010 (SHAM SUNDER)
dinesh JUDGE