Harbans Lal, J.@mdashThis appeal is directed against the judgment/order of sentence dated 12.2.2001 passed by the Court of learned Special Judge, Ferozepur, whereby he convicted and sentenced accused-appellant Hakam Singh to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, `the Act'').
2. As set up by the prosecution, on 8.7.1990, SI Khushi Mohd., among other police officials, happened to be present for patrolling in the Chowk (Crossing) Baba Nidhan Singh in the area of Kot Isse Khan, where he received secret information that Amrik Singh son of Narain Singh, Rai Sikh, resident of Village Daulewala was indulging in the sale of poppy husk and two days back he had gone to Rajasthan for fetching poppy husk on a truck. If the raid was conducted or Naka was held, he could be apprehended with poppy husk. On the basis of this information, Ruqa was sent to the Police Station. Thereafter, SI Khushi Mohd., in the company of other members of the Police party, set up Naka on the road leading from Kot Isse Khan to Moga near the turning of link road leading to Village Gehloti in the area of Gehloti. At about 5.15 A.M. on 9.7.1990, a truck bearing registration No. PB-J-6111 came from Moga side. The same was signalled to stop. The truck was being driven by Gurpinder Singh alias Pindoo resident of Village Ladwala, Police Station Sultanpur Lodhi, District Kapurthala, whereas Amrik Singh son of Narain Singh and Hakam Singh son of Surjan Singh accused were sitting in the body of the truck on the gunny bags. On catching sight of the Police party, Gurpinder Singh accused made good his escape. He was given a chase but could not be intercepted. Hakam Singh and Amrik Singh were apprehended on suspicion. They were offered to be searched in the presence of some Gazetted Officer or Magistrate. They reposed confidence in SI Khushi Mohd. Their consent memo to this effect was prepared which was thumb marked by them and attested by ASI Sukhjit Singh and independent witness Rulda Singh. On search of the truck by Khushi Mohd. Investigating Officer, 125 gunny bags containing poppy husk yielded. 100 grams of poppy husk was drawn from each bag to serve as sample and converted into parcels. The remainder of each bag when weighed came to 43 Kg. 900 Grams. Thereafter, all the parcels were sealed with seal KM. The specimen seal impression was prepared. The seal after use was handed over to ASI Sukhjit Singh. All these parcels along with the truck were seized vide recovery memo. On personal search of the accused, no money or any other article was recovered. The Investigating Officer prepared the rough site plan showing the place of recovery, recorded the statements of witnesses and on return to the Police Station, produced the case property before Nachhatar Singh, SHO Police Station, Dharamkot, who after verification, affixed his own seal NS on the case property and took the same into possession vide separate memo. The case property was deposited with seals intact with AMHC Dhara Singh. On receipt of chemical examiner''s report and after completion of investigation, the charge-sheet was laid in the Court for trial of the accused. He was charged u/s 15 of the Act to which he did not plead guilty and claimed trial.
3. To bring home guilt against the accused, the prosecution examined PW-1 DSP Nachhatar Singh (the then SHO), PW-2 Constable Dhara Singh, PW-3 DSP Khushi Mohd. (the then SI), PW-4 ASI Sukhjit Singh, PW-5 Constable Gurmel Singh and closed its evidence.
4. When examined u/s 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. He did not lead evidence in defence.
5. After hearing the learned Additional Public Prosecutor, 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 with his conviction/sentence, he has preferred this appeal.
6. I have heard Mr. S.S. Rana, Advocate appearing on behalf of the appellant and Ms Simsi Dhir Malhotra, Assistant Advocate General, Punjab for the State, besides going through the record with due care and circumspection.
7. To begin with Mr. S.S. Rana, Advocate appearing on behalf of the appellant urged with great eloquence that it is the prosecution case that the accused was found sitting over the bags of poppy husk and there is no cogent, convincing and clear evidence on the record to the effect that he was found in their conscious possession. To buttress this stance, he has sought to place abundant reliance upon the observations made in re: Avtar Singh v. State of Punjab, 2002 (4) RCR (Cri) 180 (SC).
8. To tide over this submission, Ms Simsi Dhir Malhotra, Assistant Advocate General, Punjab, countered this argument by urging that in view of the provisions as enshrined in Section 35 as well as 54 of the Act, presumption arises that the accused was in conscious possession of poppy husk bags. This contention merits rejection.
9. In re: Avtar Singh (supra), the five accused were intercepted in the middle of the night travelling in a truck which was being driven by one of them. The truck was carrying 16 bags of poppy husk. One of the accused was sitting in the driver''s cabin in the truck and three were sitting on the bags of poppy husk in the back of the truck. When the truck was stopped, the accused who was sitting in the cabin and one of the accused who was sitting in the back managed to escape. They were later caught, one of them died during the trial and the other was acquitted by the trial Court. The remaining three accused, including the driver, were convicted. On appeal before the High Court the appellants had argued that the mere fact that they were sitting in the truck did not mean that they were in possession of the poppy husk. This argument was rejected by the High Court on the ground that these appellants had not come forward with the plea that they were merely passengers who were unaware of the contents of the bags and the reason for travelling at that odd hour had not been stated by the accused. Therefore, their close connection of being in possession of poppy husk must be held to be established. The court had also utilized the presumption u/s 35 of the NDPS Act but dismissed the appeal. Before the Apex Court the question of possession was discussed and decided in the following terms:
"The word `possession'' no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together by the minimum requisite element which has to be satisfied in custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants one of whom was driving the vehicle and other two sitting on the bags, were having such custody or control ? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be custodian of goods whether or not he as the proprietor. The persons who were merely sitting on the bags, in the absence of proof of any thing more, cannot be presumed to be in possession of the goods. For instance, if they are labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at least in their temporary custody, conviction u/s 15 may not be warranted. At best, they may be abettors, but there is no such charge here. True, their silence and failure to explain the circumstances in which they were travelling in the vehicle at the odd hours, is one strong circumstance that can be put against them. A case of drawing presumption u/s 114 of the Evidence Act could perhaps be made out then to prove the possession of the accused, but the fact remains that in the course of examination u/s 313, Cr. P.C not even a question was asked that they were the persons in possession of poppy husk, placed in the vehicle. The only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. The object of examination u/s 313, it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption u/s 114 of the Evidence Act nor is it after to conclude that the prosecution established beyond doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. The High Court resorted to the presumption u/s 35 which relates to culpable state of mind, without considering the aspect of possession. The trial Court invoked the presumption u/s 54 of the Act without addressing itself to the question of possession. The approach of both the Courts is erroneous in law. Both the Courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for travelling in the vehicle containing poppy husk at an odd hour. But, the other relevant aspects pointed out above were neither adverted nor taken into account by the trial Court and the High Court."
10. In re: Raj Kumar v. State of Punjab, 2005 (1) RCR Cri 70, a bag containing 8 Kg. of opium was lying on the seat between two appellants. Both the appellants had been charged for possession of opium but neither of them had been asked any question in their statements u/s 313 of the Code of Criminal Procedure that they were in conscious possession of opium. The Division Bench of this Court held that, therefore, neither the presumption u/s 35 nor u/s 54 would be attracted. In Paragraphs 14, 15 and 16 it was observed as under:
"14. Section 35 provides that in any prosecution for an offence under the Act which requires a culpable mental state of the accused (conscious possession), 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 has no such mental state with respect to the act charged as an offence in that prosecution. There is an explanatory clause which states that "culpable mental state" includes "intention, motive, knowledge of a fact and belief in or reasons to believe, a fact."
15. Section 54 states that in trials under the Act it may be presumed unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of
(a) any narcotic drug...................
(b)..............................
(c)...............................
(d)...............................
for the possession of which he fails to account satisfactorily.
16. It would, therefore, be apparent that presumption of culpable mental state and presumption of possession can be raised against accused persons but where these presumptions are raised, the accused has a right to rebut the presumption by pleading in his defence that he has no such mental state with respect to the act charged as an offence or that he has been able to satisfactorily account for the possession. Accused can give his counter explanation. It is necessary for the trial Court to frame a specific question regarding the presumption which is sought to be raised either u/s 35 or 54 when examining the accused u/s 313 of the Code of Criminal Procedure and seeking his explanation. Unless this is done, the presumption under Sections 35 and 54 cannot be used against the accused. Consequently, in the present case the presumptions were not available to the prosecution. Furthermore, the prosecution has failed to prove that either Raj Kumar (driver) or Hawa Singh (passenger) were in possession of the opium recovered from the bag which was lying in between them on the seat of the jeep."
11. In re: Madan Lal and another v. State of H.P., 2003 (4) RCR(Cri) 100, the Apex Court observed 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 backgrounds. 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.
12. Coming to the facts of the instant case, in the statutory statement of the accused it has been merely put that "your co-accused Amrik Singh (since dead) and you were found sitting on the body of the truck on the gunny bags." On scanning this statement, it transpires that no specific question regarding the presumption which is sought to be raised either u/s 35 or Section 54 of the Act, when examining the accused u/s 313 of the Code of Criminal Procedure and seeking his explanation, has been framed by the learned trial Court. Thus, in view of the ratio laid down in Raj Kumar''s case (supra), the presumption arising under the above mentioned Sections is not available to the prosecution.
l3. Mr. S.S. Rana further argued that it is in the cross-examination of DSP Khushi Mohd., PW-3 (IO) that "it is correct that seals on some of the bags are in broken condition and some of the bags are in torn condition and are leaking and the particulars written on the gunny bags are also in torn condition and are not legible." This evidence proprio vigore leads to an irresistible conclusion that the prosecution has utterly failed to connect the case property with the accused.
14. To gloss over this submission, Ms Simsi Dhir Malhotra argued that with the efflux of time, the condition of the case property would have deteriorated and no serious note of the same should be taken. This contention is unacceptable.
15. In re: Sukhdev Singh and another v. State of Punjab, 2006 (4) RCR(Cri) 263, the case property produced in the Court, during trial, did not bear any identification mark so as to prove that the case property which was produced in the Court was the same which was alleged to have been recovered from the possession of the accused. The Division Bench of this Court held that on this ground as well, a dent is created in the prosecution version.
16. Reverting back to the facts of the instant case, in view of the above deteriorated condition of the case property, it is very difficult to say that the case property produced at the trial was the same as was allegedly recovered from the vehicle in question. Sequelly, the prosecution cannot claim to have connected the same with the accused.
17. As follows from the testimony of the investigator, no money or article was recovered from the personal search of the accused. If the alleged poppy husk had been in the possession of the accused, he would have some money with him to meet the exigencies which he may have come across while carrying the offensive goods or transporting the same from one place to the other. This circumstance further renders the prosecution case sect.
18. It is own case of the prosecution that Rulda Singh, an independent witness was joined in the investigation, but to its utter dismay, the seal after use was made over to the ASI Sukhjit Singh. The prosecution has not apportioned any reason for preferentially handing over the seal to the official witness in the presence of an independent witness. The seal could be taken from ASI Sukhjit Singh at any moment for the purposes of tampering with the contents of the sample parcels. Rulda Singh, PW has not been examined by the prosecution. It has been authoritatively held that when the prosecution apprehends that the independent witness will not support its version, if produced at the trial, still it is necessary for the prosecution to examine him to reveal the truth. For his non-examination, an adverse inference has to be drawn u/s 114 (g) of the Indian Evidence Act, that had he been examined, he would have nullified the prosecution story by shedding light on the reality.
19. It is in the cross-examination of D.S.P Khushi Mohd. (sic) that " Inquiry was made about the owner of the truck but in vain. I know that the owner of the vehicle could be challaned u/s 25 of the NDPS Act. It is correct that innocent travellers can board any vehicle on the way to reach their destination. I did not visit the place from where poppy husk was brought in the truck neither I inquired about the fact that who took the poppy husk from that place." It is the desideratum of law that the investigator should inquire into the ownership of such vehicle as well as the place from which such contraband was transported. Here in this case obviously, the investigator did not take the pains to look into these facts.
20. In his affidavit, Exh. PB, Dhara Singh MHC has solemnly affirmed that the case property was deposited with him on 8.7.1990 though the recovery was allegedly effected on 9.7.1990. Further, the rough site plan too indicates that the recovery was effected on 8.7.1990. Palpably, the cart has been put before the horse, which too makes the Court to look upon recovery with suspicion.
21. In view of the infirmities catalogued here-in-above, this appeal is accepted, setting aside the impugned judgment/order of sentence. Sequelly, the accused-appellant is hereby acquitted of the charged offence.
