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NAZAR SINGH versus STATE OF PUNJAB.

High Court of Punjab and Haryana, Chandigarh

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Nazar Singh v. State of Punjab. - CRA-S-494-SB-1998 [2007] RD-P&H 1340 (9 February 2007)

Criminal Appeal No. 494-SB of 1998 1

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.

Date of decision :9-2-2007

Nazar Singh Vs. State of Punjab.

CORAM: Hon'ble Mr. Justice Virender Singh
Present: Mr. Rahul Vats, Advocate, for the appellant.

Mr. Janender Chandial, AAG, Punjab.

Virender Singh, J.

Appellant Nazar Singh son of Mukhtiar Singh son of Uttam Singh, Labourer, resident of village Dialpura ( District Mansa) stands convicted under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1988 ( for short the `Act') vide impugned judgment of learned Sessions Judge, Sangrur dated 8-1-1998 for allegedly keeping in his possession 10 bags of poppy husk, each containing 37 Kgs. Vide order dated 15-1-19978, he has been sentenced to undergo RI for ten years and to pay a fine of Rs. One lac, in default thereof to suffer further RI for one year.

The prosecution case in brief is that on 21.2.1993 at about 1-30 PM, SI Chanan Singh ( PW1) along with other police officials which included HC Mithu Singh ( PW5) were proceeding from village Kanakwal to village Ganduan. Joginder Singh PW met them on the way. He was also joined in the police party. When they reached near the vacant land Criminal Appeal No. 494-SB of 1998 2

belonging to the Panchayat of village Ganduan, they saw that in a deserted place the appellant was sitting on a stack of gunny bags. After seeing the police party he made an attempt to run away but was apprehended. SI Chand Singh told him that he wanted to search the said bags and if he so desired, the search could be conducted in the presence of a Magistrate or a Gazetted Officer. Since he reposed his confidence in SI Chanan Singh, the consent memo. ( Exhibit PA) was prepared, which was thumb marked by him and attested by Joginder Singh independent witness and Mithu Singh ( PW5). Thereafter the bags were searched. These were found to contain poppy husk. Two samples each of 250 grams were extracted from each of the bags ( 20 samples from ten bags). The residue was thereafter weighed and each of the bags was found to be 36.500 grams. 20 sample packets and ten parcels of the remainder were sealed separately with the seal of SI Chanan Singh bearing inscriptions `CS'. A specimen impression of the seal was also prepared. The entire case property was taken into possession vide memo. Exhibit PB, which was attested by the aforesaid witnesses. On a personal search of the appellant Rs. 150/- were recovered. The said amount was also taken into possession. Ruqqa ( Exhibit PC) was sent to the police station upon which formal FIR (Exhibit PC/1) was registered in the concerned police station. The appellant along with the case property was produced before SHO Baldev Singh ( PW4), who after verifying all the facts affixed his own seal thereon bearing inscriptions `BS'. Thereafter the case property was deposited with the MHC. After receipt of the report of the Chemical Examiner ( Exhibit PH) which opined that the samples Criminal Appeal No. 494-SB of 1998 3

contained poppy heads, the investigation was completed. On filing of the challan, the appellant was charged under Section 15 of the Act.

The prosecution in order to substantiate the charge, examined SI Chanan Singh (PW1), the Investigating Officer, HC Swarn Singh ( PW2), who had tendered his affidavit (Exhibit PF), Constable Rulda Singh (PW3), who had tendered his affidavit ( Exhibit PG), Baldev Singh, DSP (PW4), who had proved the compliance of Section 55 of the Act and ASI Mithu Singh (PW5), another witness to the recovery.

Independent witness Joginder Singh was given up as having been won over. Report of the Chemical Examiner ( Exhibit PH) was also tendered into evidence.

The stand taken by the appellant as emerges from his statement recorded under Section 313 of the Code of Criminal Procedure was that he was arrested from his house on 19-2-1993 at 9-00 PM along with three persons namely Megh Singh, Pillu Singh and Baldev Singh. His father had moved an application to SSP, Mansa on 20-2-1993 regarding his illegal detention. He then pleaded that his three brothers were involved by the same police on 20-2-1993 in case FIR No. 30 of 1993 and he was also booked in this case on 21.2.1993.

In his defence the appellant produced his brother Baldev Singh ( DW-1), who proved postal receipts exhibits DA and DB.

After appreciating the entire evidence the learned trial Court convicted and sentenced the appellant as already indicated above.

Hence this appeal.

Criminal Appeal No. 494-SB of 1998 4

I have heard Mr. Rahul Vats, learned counsel for the appellant and Mr. Janender Chandial, learned Assistant Advocate General, Punjab.

With their assistance I have minutely gone through the entire evidence on record.

Learned counsel for the appellant attacks the case of the prosecution primarily on the issue of conscious possession contending that the recovery of ten bags of poppy husk was effected from a deserted place, which was accessible to all and sundry. He then submits that there was a passage near the place of recovery and, therefore, there is no convincing evidence on record to prove that the appellant was in possession of the contraband muchless in conscious possession.

Dwelling upon his arguments on the aspect of conscious possession, the learned counsel submits that the appellant is a labourer, who was resident of village Dialpura, which falls within the jurisdiction of police station Bareta ( District Mansa), whereas the present case is registered against him at police station Sunam, falling within the jurisdiction of District Sangrur. The recovery allegedly effected is from the vacant panchayati land of village Ganduan. The appellant has no connection with that village. The recovery of a meagre amount of Rs.150/- from personal search of the appellant also goes to show that he had no knowledge about the fact as to what was being kept in those bags. From this argument, the learned counsel wants to develop that even if he is said to be present near the bags, still his conscious possession qua the contraband is not proved. The learned counsel while striking home his view Criminal Appeal No. 494-SB of 1998 5

point relies heavily on a judgement of Hon'ble Apex Court rendered in State of Punjab Vs Balkar Singh and another, 2004(3) Supreme Court Cases 582 and submits that sitting on the bag containing contraband and failing to give satisfactory explanation for being so present would not be a proof enough of conscious possession and, therefore, in all fairness, the police should have conducted further investigation by probing deep into the matter especially with regard to transportation of the said bags to the place of incident, ownership of the poppy husk etc. to prove that the accused were really in possession of the said article.

In order to strengthen his arguments further, the learned counsel also relies upon a Single Bench decision of this case rendered in Baldev Singh Vs. State of Punjab, 2005(1) RCR 823 in which the accused were found sitting on the bags of poppy husk and this Court held that it cannot be inferred that they were in conscious and intelligent possession of the contraband despite the fact that they were in close proximity of the object.

The learned counsel while relying upon a Full Bench decision of this Court rendered in Kashmir Singh Vs. State of Punjab, 2006(2) RCR ( Criminal) 477 submits that no doubt, there is presumption of culpable mental state and conscious possession on the part of the accused under Sections 35 and 54 of the Act, the said presumptions are, however, rebuttable and will not be available to the prosecution unless the accused is given an opportunity to rebut the same by putting question to him under Section 313 of the Code of Criminal Procedure. In the case in hand, a Criminal Appeal No. 494-SB of 1998 6

perusal of the statement of the appellant recorded under Section 313 Cr.

P.C. indicates that no such specific question was put to him to the effect that he was found in conscious possession of the contraband and, therefore, in the light of Kashmir Singh's case ( supra) the said presumption as envisaged under Sections 35 & 54 of the Act cannot be drawn against the appellant. Strengthening his arguments on this aspect, the learned counsel also relies upon a latest judgment of this Court rendered in Sukhdev Singh and another Vs. State of Punjab and two connected appeals reported in 2006(4) RCR ( Crl.) 263.

The learned counsel also points out certain discrepancies with regard to link evidence and contends that the said flaw has also weakened the case of the prosecution to a great extent. He then submits that as per the statement of SI Chanan Singh, he after using his seal had handed over the same to HC Harbhajan Singh. The said police official was working under SI Chanan Singh only. Similarly the other seal used in this case is of Baldev Singh, the then SHO of police station Sunam, who had deposited the case property with MHC Swaran Singh. Despite the fact that independent witness Joginder Singh was joined in the police party, SI Chanan Singh had not handed over the seal to him. The samples had been sent to the Chemical Examiner after a considerable time, as is evident from the affidavits on record. Therefore, during this period chances of tampering with the case property especially the samples cannot be ruled out.

According to the learned counsel, it is the duty of the prosecution to prove the the link evidence to the effect that right from the stage of drawing the Criminal Appeal No. 494-SB of 1998 7

samples till the same reached the hands of the Chemical Examiner, there should not be any chances of tampering with. Therefore, the case of the prosecution fails on this vital aspect as well.

The learned counsel in the same strain submits that even the FSL form ( form No. 29) was not prepared at the spot and this fact has also been taken as a serious flaw by this Court in a latest decision in Bhola Singh Vs. State of Punjab, 2005(2) RCR ( Crl. ) 520.

On the basis of the aforesaid submissions, the learned counsel prays for acquittal of the appellant.

Controverting the submissions advanced by Mr. Vats, the learned State counsel submits that in the case in hand a single person has been apprehended along with the case property and, therefore, conscious possession is proved. According to him, in the present set of circumstances even if no special question is put to the appellant while recording his statement under Section 313 of the Code of Criminal Procedure, the same would have no adverse effect on the prosecution case as it was for the appellant to rebut the same by leading satisfactory evidence in his defence. He has not been able to discharge the said onus and, therefore, the conviction as recorded by the trial Court deserves to be maintained.

After giving my thoughtful considerations to the rival contentions of either side and minutely going through the entire substantive evidence and the other documents on record, I am of the view that the prosecution has not been able to prove conscious possession of the Criminal Appeal No. 494-SB of 1998 8

appellant qua the contraband ( ten bags of poppy husk).

It goes without saying that possession is the core ingredient to be established before the accused is submitted to the punishment under the Act and the prosecution has to prove the nexus between the accused and the contraband allegedly recovered, as held in Avtar Singh Vs. State of Punjab, 2002(4) RCR ( Crl.) 180, wherein their Lordships have observed that the word `possession' no doubt has different shades of meaning, is quite elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods.

In Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, (2000)2 SCC 523, while dealing with the aspect of Section 35 of the Act, their Lordships observed that the circumstances appearing in the prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that the accused could not have the knowledge or the required intention, the burden on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when called upon to enter his defence.

In Kashmir Singh's case ( supra), the Full Bench of this Court while discussing Sections 35 & 54 of the Act and taking into consideration the aforesaid two decisions of Hon'ble Apex Court and certain other judgements including Balkar Singh's case ( supra) relied upon by learned counsel for the appellant finally observed that no presumption under Sections 35 or 54 of the Act should be drawn against the accused unless he Criminal Appeal No. 494-SB of 1998 9

has been given an opportunity to rebut the same in his statement under Section 313 of the Code of Criminal Procedure. I am dealing with the case in hand in the light of the aforesaid judgements.

The admitted position is that the appellant is resident of village Dialpura, falling within the area of police station Bareta, whereas the bags of poppy husk were found lying in a vacant Panchayati land of village Ganduan, in the jurisdiction of police station Sunam. In this factual background, it cannot be said that the appellant was in exclusive possession of that piece of land where ten bags of contraband were found lying. The said place was accessible to all and sundry. Another admitted position before me is that the appellant was a labourer. The recovery of Rs.

150/- from his personal search ( Jamatalashi) strengthens this aspect.

Therefore, it was for the prosecution to prove the culpable mental state of the appellant qua the contraband allegedly recovered. In my view the prosecution is failing on this core ingredient. Merely because the appellant was found present near the bags or sitting on the bags cannot be said to be a proof enough of conscious possession of the contraband. Even failure to give any satisfactory explanation for being so present cannot be taken against him so as to infer that conscious possession is proved. The judgement in Balkar Singh's case ( supra) relied upon by learned counsel for the appellant squarely covers the case of the appellant with full force.

In the said case the accused were found sitting on 100 bags of poppy husk and while acquitting them, it was held by their Lordships of Hon'ble the Apex Court that merely by being found to be present at the place where Criminal Appeal No. 494-SB of 1998 10

poppy bags were found and failure to give any satisfactory explanation did not prove that the accused were actually in possession of the said poppy husk bags. In the aforesaid case the accused were also belonging to different villages and it was observed that in all fairness the police should have conducted further investigation as to transportation of the poppy bags to the place of incident, ownership of poppy husk etc. to prove that the accused were really in possession of the said articles. In the case in hand also the prosecution is miserably failing on that aspect and, therefore, the judgment rendered in Balkar Singh's case ( supra) comes at the rescue of the appellant.

In the given set of circumstances, I am of the view that the Full Bench decision in Kashmir Singh's case ( supra) also strengthens the case of the appellant with regard to the aspect of conscious possession and no presumption under Sections 35 or 54 of the Act can be drawn against him for the reason that no specific question was put to him in his statement recorded under Section 313 of the Code of Criminal Procedure in this regard so as to give an opportunity to lead evidence in defence in support of his stand. The judgment rendered in Sukhdev Singh's case ( supra) is also on this issue and may be read with advantage.

As a sequel to the aforesaid discussion, I am of the considered view that the prosecution has not been able to prove conscious possession of the appellant qua the contraband and he deserves acquittal on this score alone.

Criminal Appeal No. 494-SB of 1998 11

Although I find substance in the other limb of arguments advanced by learned counsel for the appellant also with regard to flaw in the link evidence which is a very vital flaw and the prosecution is failing on that aspect also, yet I do not intend to delve deep in this regard as I have already discarded the case of the prosecution on another material aspect i.e.

conscious possession.

The net result is that the instant appeal succeeds, the conviction and sentence of the appellant as recorded by the learned trial Court is set- aside and he is acquitted of the charges framed against him. The appellant is stated to be in custody. He be released forthwith, if not required in any other case.

[Virender Singh]

Judge

February 9 , 2007

`ask'


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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