High Court of Punjab and Haryana, Chandigarh
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Leela Ram alias Leela Singh v. The State of Punjab. - CRA-D-784-db-2002  RD-P&H 3398 (24 May 2006)
CRIMINAL APPEAL NO. 784-DB OF 2002
DATE OF DECISION: 01.05.2006
Leela Ram alias Leela Singh son of Puran Singh son of Ranjah, resident of Sunder Basti, Sangrur.
The State of Punjab.
CORAM: Hon'ble Mr.Justice K.S.Garewal; and
Hon'ble Mr.Justice R.S.Madan.
Argued by: Mr. S.K.Markan, Advocate, for the appellant.
Mr.A.S.Virk, Additional Advocate General, Punjab.
Leela Ram alias Leela Singh appellant was tried, convicted and sentenced to undergo rigorous imprisonment for eleventh years and a pay a fine of Rs. One Lakh, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred to as NDPS Act). In default of payment of fine, he was further ordered to undergo rigorous imprisonment for a period of one year, vide order dated 1.10.2002 passed by Shri B.S.Mangat, Judge, Special Court, Sangrur, for keeping in his conscious possession 735 Kgs.
Of poppy husk, without any permit or licence.
In brief, the prosecution case is that on 2.10.1993 a police party headed by Inspector Bikram Singh, in police Gypsy bearing registration No.PIS- 2395 being driven by Kaur Singh, was on patrol duty at Barnala Crossing, Sangrur. At about 4.30 AM, the investigating officer received a secret information that accused Leela Singh had a stock of poppy husk contained in gunny bags, at the brick kiln, in the area of Village Baguana and was selling the same. Taking the secret information to be reliable and credible, the investigating officer sent ruqa Ex.PC to the police station whereupon FIR Ex.PC/1 was registered by ASI Shamsher Singh. After the registration of the case, the police party along with independent witness Balbir Singh, proceeded towards the pointed place and found the accused sitting on the stack of gunny bags. The accused was apprehended who on interrogation disclosed his name as Leela, resident of Sunder Basti, Sangrur. Suspecting that the gunny bags contained some contraband stuff, the investigating officer asked for search of the gunny bags and option was extended to the accused whether he opt the search to be conducted by some senior officer. As per the option of the accused, the investigating officer flashed the message to Deputy Superintendent of Police, namely Devinder Singh, who immediately reached at the spot. In the presence of the DSP, the bags were counted and the number of the gunny bags came to be 20 (full) and one half bag, in which plastic dibba was also there. 250 grams of samples from each gunny bag was separated as sample. The remainings quantity on weighment comes to 35/1-2 Kgs in each 20 bags whereas in the other half full bag it was 14/1-2 Kgs. All the 42 samples and 21 bags containing poppy straw were sealed by the investigating officer with his seal bearing impressions "SS".
Sample seal chit Ex.P1 was prepared and the seal after use was handed over to ASI Dev Raj. The case property was taken into police possession vide recovery memo Ex.PA attested by ASI Dev Raj, Bir Singh PW and DSP Devinder Singh.
The investigating officer prepared the rough site plan Ex.PD, recorded the statements of the witnesses on the person of the accused was searched. From the personal search of the accused, currency notes of Rs.230/- were recovered and taken into possession vide memo Ex.PB, duly thumb marked by the accused and attested by the witnesses. On return to the police station, the entire case property was deposited with Balwinder Singh MHC. After the receipt of the report of the Chemical Examiner and completion of other requisite formalities, challan against the accused was present in Court.
In order to bring home the guilt of the accused, the prosecution besides tendering into evidence the affidavits of formal witnesses and the report of the Chemical Examiner Ex.PF, examined constable Harbans Singh, PW-1, DSP Devinder Singh as PW-2, retired Inspector Bikram Singh as PW-3, HC Balwinder Singh as PW-4, and HC Dev Raj as PW-5, closed the evidence of the prosecution.
The statement of the accused as envisaged under Section 313 of the Code of Criminal Procedure, was recorded, wherein all the incriminating evidence appearing against the accused, were put to him, to which he denied and claimed to be innocent. He further deposed that the recovery is a foisted one.
It was on 23.10.2000 when the case was fixed for defence evidence, accused absented himself from the court and was thereafter declared as proclaimed offender on 8.05.2001. He was rearrested on 17.04.2001 in a case bearing FIR No.117, under Section 15 of the NDPS Act, registered at Police Station, Sangrur and on the application being moved by the prosecution, production warrants of accused were issued and on 20.4.2002 the accused was produced in the court with supplementary challan, the copies of which were supplied to the accused.
In defence, the accused examined HC Dalbara Singh as DW-1, HC Avtar Singh as DW-2 and Birbal as DW-3.
After going through the prosecution evidence as well the defence evidence available on the record, the learned Judge, Special Court, Sangrur convicted and sentenced the accused, as indicated above.
We have heard the learned counsel Shri S.K.Markan, for the appellant and Shri A.S.Virk, Additional Advocate General, Punjab and have carefully gone through the evidence adduced by the prosecution and the accused, with the assistance of respective counsel.
According to the learned counsel for the appellant, a secret information was received by the investigating officer PW-3 at 4.30 AM, when he was present in connection with patrol duty at Barnala Crossing and was talking to one Birbal. The secret information was to the effect that Leela accused was having poppy husk in gunny bags and was sitting on heap of gunny bags in a brick kiln in the area of Village Baguana, where he was selling the poppy straw.
According to the learned counsel for the appellant, the investigating officer was under an obligation to reduce the secret information into writing and was supposed to send the same to his superior for information, as envisaged under Section 42 of the Act. In support of his arguments, he relied upon State of Punjab Versus Kaka Singh - 2001(1) Criminal Court Judgments 339 wherein the Division Bench of this Court observed as under:- " We are of the opinion that the provisions of Section 42 of the Act have not been complied with. In the FIR which had been recorded on the basis of secret information received by Sub Inspector Ramandeep Singh, as also in the evidence produced, we find no indication that information with regard to the registration of the case had been sent to the superior police officers by Sub Inspector Ramandeep Singh as postulated by Section 42 of the Act. We are, therefore, of the opinion that the omission to comply with this provision also vitiate the prosecution case."
The learned Additional Advocate General, Punjab, controverted the arguments of the learned counsel for the appellant, and relied on the case reported as Sajan Abraham Versus The State of Kerla, 2001(6) SCC 692, wherein the Hon'ble Apex Court has considered the significance of Section 42 of the Act , which is mandatory in nature, but one has to examine it with pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply, which the court have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. This stringency is because of the type of crime involved under it, so that no such persons escapes from the clutches of law.
In the present case, the investigating officer has immediately proceeded towards the spot to apprehend the accused but did not take any steps to supply the information after reducing the same into writing, to his senior officers. It is true that each case is to be judged by its own facts and circumstances appearing in the case. In the instant case, the investigating officer, instead of wasting any time in furnishing the requisite information to the higher officers, immediately rushed towards the spot to nab the accused with the contraband. Therefore, according to the learned State counsel, the non compliance of the provisions of Section 42 of the Act, even if is mandatory in nature, can be ignored keeping in view the facts and circumstances of the case.
Another limb of arguments of the learned counsel for the appellant was that the prosecution has failed to prove that the accused was in conscious possession of the contraband allegedly recovered from him. Once, the conscious possession of the contraband stuff is not proved, it can not be easily said that the alleged recovery of the poppy straw in the present case relates to the accused-appellant. In support of his averments, reference was made to a Full Bench Decision of this Court in case Kashmir Singh Versus State of Punjab and Karam Singh Versus State of Punjab, Criminal Appeals No. 407 and 408- DB of 1999, the Full Bench has dealt in detail with Sections 35 and 54 of the N.D.P.S.Act and observed that unless the accused is put in the statement under Section 313 Cr.P.C., that they were in conscious possession of the contraband, the order of conviction and sentence can not be recorded against the accused.
It is the fundamental right of the accused to know the case of the prosecution to enable him develop his defence.
"It has been further observed that in any prosecution for an offence under the Act, which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that `prosecution, as provided in Section 35 of the Act. For the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability".
Section 54 reads as under:-
"Presumption from possession of illicit articles- In trials under the Act, it may be presumed, until and until the contrary is proved, that the accused has committed an offence under this Act in respect of--
(a) any narcotic drug or psychotropic substances or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he cultivated; (c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) any material which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily".
The learned counsel for the appellant referred to the judgment of the Supreme Court in Madan Lal and another Versus State of H.P. 2003, Supreme Court Cases (Crl.) 1664, wherein it was held as under:- " The word "possession" means the legal right to possession. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different back grounds. Possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control".
" The word "conscious" means awareness
about a particular fact. It is a state of kind which is deliberate or intended".
"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 the 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".
At the end of this judgment, the Full Bench further observed that the accused is to be given an opportunity to rebut the presumption as envisaged in Section 313 of the Code of Criminal Procedure.
Admittedly, in the instant case, the accused has not been asked any question with respect to the presumption of conscious possession as envisaged under Section 313 Cr.P.C. Therefore, he has not been afforded any opportunity to enable him to develop his defence.
Thus, according to the learned counsel for the appellant, the accused is entitled to acquittal on the detailed observations made in the Full Bench judgment of this Court.
The learned Additional Advocate General, Punjab, however disputed the contentions of the learned counsel for the appellant and submitted that it has come in the statement of DSP Devinder Singh PW2 that when he visited the spot, he apprised the accused that he was Devinder Singh, Deputy Superintendent of Police and asked him as to how he was there, upon which the accused told him that he had committed a mistake and he be forgiven. Thus, according to the learned counsel for the State the accused was in conscious possession of the poppy husk contained in the gunny bags over which he was sitting. This statement made by the accused before the police, on the face of it, is sufficient to hold the accused guilty of the offence. We do not agree with the submission of the learned Additional Advocate General, Punjab, because the statement made by the accused during the investigation is hit by Section 162 of the Code of Criminal Procedure, which reads as under:- "Statement of police not to be signed: Use of statements in evidence.- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement on record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made;
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872) or to affect the provisions of Section 27 of that Act".
In view of the position explained above, the learned Additional Advocate General, Punjab, frankly conceded that in the instant case the statement of the accused as envisaged under Section 313 of the Code of Criminal Procedure, no such question was put to the accused with respect to his conscious possession of the contraband.
In the absence thereof, it can be safely concluded that the accused was not in conscious possession of the poppy husk, lying in the gunny bags in the brick kiln field. The investigating officer did not examine the owner of the brick kiln or the owner of the field. Thus the investigating officer has failed to connect the accused with the possession of contraband.
In the light of the foregoing discussion and keeping in view the facts and circumstances appearing in this case, it is held that the prosecution has miserably failed to bring home the guilt of the accused, beyond any shadow of doubt, that the accused-appellant was in conscious possession of the poppy husk contained in 21 bags. The case of the appellant is fully covered by the decision of the Full Bench of this Court.
In the net result, this appeal is accepted giving the accused the benefit of doubt. The order of conviction and sentence passed against the accused-appellant is set aside. He is discharged from the bail bonds furnished.
April 26, 2006.
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