Harbans Lal, J.@mdashThis appeal is directed against the judgment/order of sentence dated 16.11.2007 passed by the court of learned Judge, Special Court, Ludhiana whereby he convicted and sentenced the accused Sukhwinder Singh @ Pinky to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1.00 lac u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1988 (for brevity the Act) and in default of payment of fine, to further undergo rigorous imprisonment for six months.
2. The factual score records that on 10.12.2002 when Assistant Sub Inspector Rajinder Singh accompanied by other police officials reached ahead of the bridge of seepage drain falling in between villages Pabbian and Sohiana in connection with patrolling, they found the accused sitting on the bags containing some material, whilst one bag lay in front of him. One scooter make Bajaj Chetak, green in colour too lay parked there. On catching sight of the police party, the accused made an attempt in vain to run away towards the seepage drain, but he was intercepted. He was told that the contents of the bags were suspected to be some contraband. So if he so desires he can have search before a Gazetted Officer or a Magistrate. He opted to have the search in the presence of a Gazetted Officer. On receipt of message, DSP Randhir Singh came at the spot. On search, the contents of the bags which were ten in number, were found to be poppy husk. Two samples each weighing 250 grams were drawn from each bag and converted into parcels. The residue of each bag when weighed came to 29.5 Kgs, which was also made into parcels. The case property including the sample parcels was sealed with seals HS and RS and seized vide recovery memo. The accused was arrested. After completion of investigation, the charge-sheet was laid in the court for trial of the accused.
3. The accused was charged u/s 15 of the Act to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW-1 ASI Harjinder Singh, PW-2 HC Harchand Singh, PW-3 Constable Raminder Singh, PW-4 DSP Randhir Singh, PW-5 SI Arvind Puri and closed its evidence.
4. When examined u/s 313 of Cr.P.C. the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. He came up with the plea that he was apprehended from his house two days prior to the alleged recovery alongwith his scooter in the presence of his mother Mohinder Kaur and thereafter, this case was foisted upon him. In defence, he examined his mother Mohinder Kaur as DW-1.
5. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal.
6. I have heard the learned Counsel for the parties, besides perusing the record with due care and circumspection.
7. Mr. Raj Kumar Gupta on behalf of the appellant strenuously urged that no independent witness was associated in the recovery proceedings. The conscious possession is not established. The alleged place of recovery was accessible to all and sundary. The ownership thereof has also not been established by the prosecution on the record. It has been authoritatively pronounced that a specific question with regards to the conscious possession ought to be framed and put to the accused while examining him u/s 313 of Cr.P.C. In the instant one, neither such question has been framed, nor put to the accused under the said Section.
8. To tide over these submissions, the learned State counsel maintained that it is no longer a res integra that the evidence of the police officials has to be weighed in the same scales as of others. That being so, the case of the prosecution ought not to be thrown out of hand merely because of non-joining of an independent witness. The appellant was found sitting on the gunny bags containing poppy husk. Thus, in all probabilities the contents thereof were to his pointed knowledge, which ipso facto establishes his conscious possession qua the recovered poppy bags. These contentions merit rejection for the discussion to follow hereunder:
As would be apparent on the face of Ex.PL, the Forensic Science Laboratory''s report the sample parcels were received in the Laboratory on 17.12.2002 whereas the recovery was allegedly effected on 10.12.2002. It is symptomatic of the fact that the sample parcels had reached the laboratory after six days. ASI Harjinder Singh PW-1 the Investigator has solemnly affirmed in his cross-examination that "seal was returned to him by HC Amarjit Singh on third day." It is thus clear and unambiguous that the seal was received back by the Investigator, when the sample parcels were still lying in the Police Station. SI Arvind Puri PW-5 who had allegedly affixed his own seal AP on the case property as well as sample parcels after verification, has stated in categoric terms in his cross-examination that "I retained my seal with me." In the face of this evidence, the possibility of tampering with the contents of the sample parcels before their dispatch to the aforesaid Laboratory for chemical analysis cannot be ruled out.
9. As testified by the Investigating Officer "We found one person sitting on the bags filled with some material therein, while one bag was lying in front of him." On reappraisal of this evidence, it transpires that the accused was found sitting on the bags, whereas PW-6 HC Tialk Raj went on to say that " when police party reached near the drain bridge and when crossed the drain bridge, the accused present in court was standing near the side of the drain with the bags lying on one side and one bag was lying in front of the accused alongwith one scooter." Axiomatically, two different versions are forthcoming. If the version given out by the Investigating Officer is assumed to be true, then the presence of HC Tilak Raj (sic) at the time of recovery is falsified. On weighing the statements of both these police officials, the conscious possession of the accused-appellant has not been established. The record is quite barren to show that the Investigator had tried to ascertain that the bags said to contain the poppy husk did belong to the accused/appellant. It is not the prosecution case that the place at which the bags were lying was the ownership of the accused-appellant. ASI Harjinder Singh (sic) as well as HC Tilak Raj (sic) are in unison on the point that they were on patrolling and had reached ahead of the bridge of seepage drain falling in between villages Pabbian and Sohian. It is thus inferrable that the place of alleged recovery could be accessed by any one. In similar circumstances, the Hon''ble Apex Court in
The evidence by the prosecution consisted of the testimony of PW-1 Balbir Singh and PW-2 ASI Jarnail Singh. Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in village Lohgarh. The respondents belonged to different villages. The respondent Balkar Singh is a resident of village Bira Bedi in District Hisar while respondent Munish Chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any infirmity in the judgment passed by the High Court.
10. Adverting to the instant one, there is nothing on the record to show that the Investigator had conducted further investigation as to the mode of transportation of the poppy husk bags to the place of the incident or ownership of the poppy husk, or that the accused-appellant was really in possession of the same. Thus, on viewing the matter in the backdrop of Balkar Singh and other''s case (supra) merely by being found to be present at the place where the poppy bags were found and failure of the accused-appellant to give any satisfactory explanation for being so present did not prove that he was in possession of the said poppy husk bags.
Ex.PH/2 reads as under:
In the court of Sh. H.S. Grewal, JMIC(D), Jagraon State v. Sukhwinder Singh
F.I.R. No. 303 dated 10.12.2002
Under Section 15-85 NDPS Act
P.S. Jagraon
Sir,
In pursuance of Your Honour''s order dated 11.12.02, I have checked the case property and the samples produced in the above said case. The bags and samples were having seal impressions ''H.S.'', ''R.S.'' and ''A.P.'' each. Big bags were 10 and samples were 20 in number. The seals on the same were found to be intact. I appended my initials on case property and samples.
Submitted
Sd/-
Kulwant Singh
Reader/11.12.02
Seen
Sd/-
JMIC 12/12/2002
11. Section 52A of the Act in so far is relevant for the decision of this case runs as under:
52A Disposal of seized narcotic drugs and phychotropic substances--
(1) xx xx xx
(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered u/s 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or phychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of-
(a) certifying the correctness of the inventory so prepared;
or
(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3)Where an application is made under sub-section (2), the Magistrate shall as soon as may be, allow the application.
12. Ostensibly, the legislature has couched in the widest possible terms in the language of aforereferred provisions of Section 52A that the Magistrate shall certify the correctness of the inventory prepared by the Investigator as well as the list of samples drawn by the Investigating Officer. It is quite plain and patent from Ex.PH/2 that the case property as also the samples were checked by Kulwant Singh Reader of the Court and he had appended his initials on the case property and the samples in abhorrence or in derogation to the aforequoted mandatory provisions of law. The scheme of the Act no where contemplates that the Magistrate before whom the case property alongwith the sample/s is produced by the Investigating Officer in adherence to the provisions of Section 52A ibid, she can abdicate his/her power to his subordinates. Thus, to my mind, it was not desirable on the part of the Magistrate to depute the Reader of his court to discharge the function as conferred by Section 52A upon him. The entire gamut of the Act is absolutely silent about such delegation. May be that the Reader being in connivance with the Investigator would have submitted Ex.PH/2 without verifying the case property as well as the samples in a manner as provided by law. The Magistrate in token of his having checked the case property and the samples has to put his signatures or initials by writing the word "seen" on the case property and the samples. To cap it all, the Legislature has employed the word " certified" in the language of the Section itself. It implies that correctness of the inventory as well as list of samples prepared by the investigator was to be certified by the Magistrate himself/herself as the case may be and he or she could not assign this obligation to any member of his/her staff including Reader. This apart Ex.PH/2 does not contain requisite certificate, which is thus lacking in this case.
13. As surfaces in the cross-examination of ASI Harjinder Singh PW-1"When we crossed the seepage bridge, the bags were visibly lying in the bushes. There were three stacks of bags and the accused was sitting on the bags. Accused tried to run away from the spot, but was apprehended at a distance of 10 karams from the bags." It is deducible from this evidence that when the accused was apprehended he away from the bags. This witness has no where stated in his examination-in-chief that on noticing the police party, the accused-appellant had run away from the spot and was captured at a distance of 10 karms away from the bags. The apprehension of the accused-appellant at such a distance from the bags too undermines the conscious possession of the accused-appellant. It does not stand to the logic that the bags containing contraband would have been heaped at such a place as would have been visible to the passersby. Towards the end of his cross-examination,DSP Randhir Singh PW-4 has deposed that "one or the other person had been passing around the place of recovery. We have asked them to join the investigation, but they failed to come forward. I do not remember if the I.O. recorded the name of any person in the zimny." It is in the cross-examination of PW-6 HC Tilak Raj that "Place of recovery is not thorough fare but some people pass there . Till two/three P.M. no body passed us. After 3 P.M. four/five persons passed by us." In view of this evidence, there was no dearth as to the availability of the independent witnesses. The prosecution has not furnished any satisfactory explanation for non-joining of an independent witness in the search and seizure of bags. On Ex.PB consent memo, the said DSP has purportedly signed in Punjabi, whereas on the recovery memo Ex.PC, he has signed in English. It is beyond comprehension as to how he adopted double standard of signatures, if he had appended the same at one and the same time. This renders his presence suspect at the spot.
14. PW-5 S.I. Arvind Puri has testified in his cross-examination that "My statement was not recorded in the investigation of this case." Had the case property been verily produced before him and in turn, he had verified it and affixed his seal on it, in all probabilities, his statement would have been recorded by the Investigating officer. He has not given any reason worth the name for not making statement before the Investigator.
15. In Kashmir Singh v. State of Punjab 2006 (2) RCR (Criminal) 477, the Full Bench of this Court has observed as under:
12. When the Trial Judge records the statement of an accused person u/s 313 Cr.P.C. with regard to the circumstances which have appeared in evidence against him, the learned judge gives the accused an opportunity to explain those circumstances. The accused generally denies the prosecution case against him, but it is an opportune moment for him to plead any type of defence that he may like to take. Therefore, by extending the provisions of Section 313 Cr.P.C. and on first principles of fair trials as well, there is need to give every accused person an opportunity to explain the case against him. Wheresoever the presumption under Sections 35 & 54 is to be raised, it would be advisable for the Trial Court to frame a question under S. 313 Cr.P.C. in order to give the accused a fair opportunity to rebut the presumption but it is strange that Trial Court do not give the accused this opportunity. Unless the accused have been given the opportunity to prove that he had no such mental state as presumed u/s 35 or that he had satisfactorily accounted for the possession which was being presumed against him u/s 54, the respective presumptions cannot be raised against the accused.
19. For the above reasons, we would answer the question raised by stating that no presumption under Sections 35 and 54 should be used against the accused unless he has been given an opportunity to rebut the presumptions in his statement u/s 313 Cr.P.C. by being called upon to explain the circumstances which give rise to the presumptions. Thereafter, the accused should be given an opportunity to lead to the presumptions. Thereafter, the accused should be given an opportunity to lead evidence in defence in support of his stand. However, there is no real or apparent conflict regarding the correct meaning of "possession" which needs to be resolved.
16. In State of Punjab v. Hari Singh and Ors. 2009 (2) RCR (Criminal) 143 it has been observed by the Hon''ble Supreme Court as under:
19. For the above reasons, we would answer the question raised by stating that no presumption u/s 35 and 54 should be used against the accused unless he has been given an opportunity to rebut the presumptions in his statement u/s 313 Cr.P.C. by being called upon to explain the circumstances which give rise to the presumptions. Thereafter the accused should be given an opportunity to lead evidence in defence in support of his stand. However, there is no real or apparent conflict regarding the correct meaning of "possession" which needs to be resolved.
17. A careful delving into the statutory statements of the appellant would reveal that no specific question with regards to his conscious possession has been framed, nor put to him while he was being examined u/s 313 of Cr.P.C. Thus, his conscious possession is not established, nor the presumption arising u/s 35 and 54 of the Act can be drawn in favour of the prosecution.
18. In consequence of the preceding discussion, this appeal is accepted and the impugned judgment/order of sentence is hereby set aside. The accused-appellant is hereby acquitted of the charged offence.
19. Since the appeal has been decided, all pending Criminal Miscellaneous,if any, also stand disposed of.
