Virender Singh, J.@mdashAppellant Som Nath and his co-convict Dilbagh Mohammad who is stated to have died on 14.9.2000 during the pendency of the appeal were convicted vide impugned judgment of learned Special Judge, Nawanshahar dated 18.9.1999 u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act'') and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lac each, in default thereof to further undergo rigorous imprisonment for one year each.
2. It is worth mentioning here that Amrik Singh son of Jarnail Singh, the co-convict, who was also booked along with the aforesaid two persons stands acquitted by the learned trial Court. Mr. Hoshiarpuri, learned Assistant Advocate General, submits that the State of Punjab has not preferred any appeal against his acquittal.
3. In short, the case of the prosecution is that on 19.8.1997, Lajpat Singh (PW-4) who was Incharge of CIA Staff, Nawanshahr along with other police officials including ASI Sukhdev Singh (PW-3) set up a Naka at Rehpa and started checking the vehicles passing on the road. One Baldev Krishan (PW), given up as having been won over, was also joined in the party. In the meantime, a truck bearing registration No. PB-07-A-2397 was seen approaching from Apra side at about 7.15 a.m. which was made to stop. The driver of the truck halted the truck at some distance. A person who was sitting by the side of the bags in truck descended and ran towards the fields. He was identified by Lajpat Singh, SHO as Amrik Singh (since acquitted) by the trial Court. The case of prosecution further is that he could not be over-powered. The appellant was on the steering of the truck, whereas, Dilbagh Mohammad (since dead) was also sitting on the bags in the truck. Both were apprehended at the spot and questioned about the contents of the bags. They disclosed that the bags being carried in the truck were of poppy-husk. In order to show the compliance of Section 50 of the Act, both were asked as to whether they wanted the bags to be searched before a Magistrate or Gazetted Officer. They reposed confidence in Lajpat Singh, SHO. The consent memos Ex. PC and Ex. PD were prepared in this regard. Harmel Singh, DSP (not produced) was also called at the spot. The bags containing poppy-husk were 23 in number. They were unloaded from the truck. DSP Harmel Singh drew 250 grams of poppy-husk from each bag as sample and they were sealed in two separate parcels. The remainder contents of bags Ex. P1 to Ex. P23 were weighed. Each bag was containing 37 kgs. 750 grams of poppy-husk. Separate parcels were prepared for the remaining bulk and sealed with the seals of LPS (Lajpat Singh) and HS (Harmail Singh). They were taken into possession vide memo Ex. PE attested by the aforesaid Sukhdev Singh ASI, independent witness, Baldev Krishan ASI and Harmel Singh, DSP. The photostat copy of the registration certificate Ex. P1 and the truck were taken into possession vide separate memo Ex. PF. Personal search memos of both the accused were also prepared at the spot. Thereafter, ruqa Ex. PJ was sent to Police Station, upon which formal FIR Ex. PK was registered. Rough site plan Ex. PL was also prepared at the spot. On reaching the Police Station, Lajpat Singh, Investigating Officer deposited the case property with all the seals intact with DSP Harmel Singh (PW1). After the receipt of Chemical Examiner report Ex. PN, which opined the contents of the samples to be of poppy husk, all the accused were challaned. They were consequently charged u/s 15 of the Act.
4. In order to substantiate the charge, the prosecution has examined HC Harmesh Singh No. 1954, who had tendered his affidavit Ex. PA to prove the link evidence as 23 samples, 23 bags of poppy husk were deposited with him when he was posted as Incharge of the Malkhana on the day of alleged recovery. PW-2 Constable Mohan Lal No. 2611, had also tendered his affidavit Ex. PB to the effect that he had deposited 23 samples and seals impressions with the office of Chemical Examiner, Amritsar for analysis. Sukhdev Singh, ASI (PW3) is a witness to the recovery. Lajpat Singh PW4 is the Investigating Officer. I do not feel the necessity of describing his investigation as the same is detailed in the preceding paras. PW-5 Darshan Lal is a Clerk in the office of DTO Jalandhar, who proved that truck No. PB07-A-2397 was initially registered in the name of Darshan Singh son of Kartar Singh, resident of village & Post Office Goraya, District Jalandhar. It was subsequently transferred on 4.9.1997 in the name of Gurdev Ram son of Nasib Chand, resident of village Samrari, Tehsil Phillaur, District Jalandhar. The prosecution also tendered the report of the Chemical Examiner Ex. PN.
5. The case of appellant is of false implication stating that he had refused to oblige the police for using the truck without payment of money and for this reason, he was falsely implicated in the present case. However, no defence witness was produced by the appellant.
6. As already stated above, the learned trial Court after appreciating the entire evidence, convicted and sentenced the appellant and his co-accused Dilbagh Mohammad (since dead).
7. I have heard Ms. Kahlon, learned counsel for appellant and Mr. Hoshiarpuri, AAG, Punjab. With their assistance, I have also gone through the entire evidence.
8. Ms. Kahlon contends that the case as set up by the prosecution is that Som Nath appellant was on the steering of the truck, whereas two persons were sitting on the bags containing poppy-husk. The one who was identified as Amrik Singh by Lajpat Singh, Investigating Officer ran away from the spot and could not be over-powered by the police and the second person was apprehended at the spot. From the foregoing facts of the case, learned counsel wants to develop that there is no evidence with the prosecution that appellant Som Nath who was driving the truck was in conscious possession of the contraband. Appellant Som Nath is from village Manwali, Police Station Sadar Phagwara, District Kapurthala, whereas Dilshad Mohammad (since dead) and Amrik Singh are from the same District, may be they are hailing from different villages. From this factual position, learned defence counsel submits that Amrik Singh who was sitting in the back of the truck and had fled away on seeing the police party might be in conscious possession of all the bags or even, Dilbagh Mohammad (since dead) who was also sitting on the back of the truck along with aforesaid Amrik Singh can also be said to be in conscious possession of the same. It can be a case of joint conscious possession of aforesaid two as well. But by no stretch of imagination, the present appellant, who was incidentally on the steering of the truck can be said to be in conscious possession of the contraband. The prosecution agency has not made any attempt to investigate the case on that track and therefore, qua the present appellant at least, the case of the prosecution is not free from doubt.
9. In support of her contentions, Ms. Kahlon relies upon a judgment of this Court rendered in Gurdeep Singh v. State of Punjab, 2003 (4) RCR (Cri.) 407, in which in almost similar set of circumstances, the person who was driving the Tempo was acquitted.
10. Learned counsel lastly contends that the case of the prosecution is otherwise on slippery footing with regard to another material infirmity to the effect that whole of the recovery was effected in presence of a senior police official DSP Harmel Singh, so much so, the samples were also drawn out by the aforesaid DSP Harmel Singh from each of the bags and he had even sealed the case property with his own seal bearing inscription `HS'' still the prosecution has not brought him into the witness box. According to learned defence counsel, this creates doubt about the sanctity of search carried out at the spot. Dwelling upon her arguments, learned counsel further contends that if we read the recovery memo Ex. PE prepared at the spot, in indicates that everything has been done by the Investigating Officer Lajpat Singh, whereas the case of the prosecution is that from all the bags, sample of 250 grams of poppy-husk was drawn out by DSP Harmel Singh. It is not the case that samples were drawn out at the instructions of aforesaid DSP and therefore for that purposes he was the Investigating Officer. According to the learned counsel it appears that signature of DSP Harmel Singh, who was posted as DSP Headquarters, Nawanshahr Camp at Banga were obtained subsequently on the recovery memo, otherwise except on the aforesaid document (Ex. PE), no other document carries the signatures of DSP Harmel Singh and even otherwise, the signatures of DSP Harmel Singh on Ex. PE are on one side of the paper disturbing the entire symmetry which is very well maintained in all other memos viz. Ex. PC, Ex. PD, Ex. PF, Ex. PG and Ex. PH. Learned counsel then submits that if one looks at all the aforesaid documents carefully, except Ex. PE, all other documents are written in different handwriting may be of one person and signed subsequently by Lajpat Singh, the Investigating Officer, whereas, it appears that Ex. PE is prepared in another hand and then the said document was put up before DSP for his signatures. Learned counsel states that may be in this regard, no specific question was put to Lajpat Singh, Investigating Officer but the flaw as pointed out is writ large and it can easily be inferred that the investigation carried out in this case is not in an honest manner. This weakness also uproots the case of the prosecution.
11. On the basis of aforesaid submissions, learned counsel prays for acquittal of the appellant.
12. Repudiating the submissions advanced by Ms. Kahlon, Mr. Hoshiarpuri, learned State counsel submits that the recovery effected in the present case from the truck is quite huge which cannot be planted by the police officials. He then contends that it cannot be said that the bags containing poppy-husk were being carried in the truck without his knowledge and therefore, presumption under Sections 35 and 54 of the Act can also be drawn against him. The appellant has, thus, no escape from his liability.
13. After hearing rival contentions of both the sides and going through the entire records very minutely, I am of the view that prosecution has not been able to prove the conscious possession of the contraband (23 bags) qua the appellant despite the fact that the appellant was found on the steering of the truck which was allegedly carrying contraband. The admitted position is that two persons were sitting on the bags, one ran away from the spot after seeing the police and could not be overpowered by the police party and the other person (Dilbagh Mohammad) was nabbed. Although, the story as set up does not appear to be very plausible as it is not possible that police officials who were holding a Naka were not armed with any arm or ammunition and they allowed a person to run away from the spot after descending from the truck. However, the said person was identified as Amrik Singh by Lajpat Singh, Investigating Officer. This shows that the Investigating Officer knew him earlier. From this, it can be inferred that aforesaid Amrik Singh, who ran away from the spot and has since been acquitted might be having the possessory title over all the bags being carried in the truck. In other eventuality, it could be the joint conscious possession of aforesaid Amrik Singh and Dilbagh Mohammad (since dead) who was also found sitting on the bags. In Avtar Singh v. State of Punjab, 2002 (4) RCR (Cri.) 180, which was made basis of acquittal in Gurdeep Singh''s case (supra) relied upon by Ms. Kahlon, their Lordships of Hon''ble the Supreme Court have held that possession and ownership need not go together but the minimum requisite element which has to be satisfied is the custody and control over the goods.
14. The question with regard to correct meaning of possession in the context of the Act was referred to the Full Bench of this Court in Kashmir Singh v. State of Punjab, 2006 (2) RCR (Cri.) 477 where the presumption of culpable mental state to be raised u/s 35 of the Act and presumption being raised u/s 54 of the Act was also considered. This Court while dealing with the aforesaid aspect in detail in which Avtar Singh''s case (supra) was also referred to, came to the conclusion that no presumption under Sections 35 and 54 of the Act should be used against the accused unless he has been called upon to explain the circumstances which give rise to the presumption. I am appreciating this case from that angle as well. Perusal of statement of appellant recorded u/s 313 of the Code of Criminal Procedure shows that in the first question, the incriminating evidence is put to him with regard to the recovery of poppy-husk from the truck being driven by him. The other questions put to him are also with regard to the investigation carried out at the spot. No specific question has been put to him with regard to conscious possession calling upon to explain the circumstances which give rise to the presumption to be drawn against him under Sections 35 and 54 of the Act. This is a serious lacuna in the case of prosecution.
15. In Bhola Singh v. State of Punjab, 2005 (2) RCR (Cri.) 520, 14 bags of poppy husk were recovered from the Trolley. The person sitting in the Trolley ran away on seeing the police party. This Court while acquitting the driver observed that it cannot be said that the driver who was on the steering of the Tractor-Trolley was having the conscious possession of the contraband. In the case in hand also, the facts are almost of similar nature.
16. Although, the infirmity pointed out by learned counsel for the appellant with regard to the document Ex. PE prepared at the spot, in my view, appears to be again vital one which can create doubt with regard to the fairness of search, yet I do not feel the necessity of entering into detailed discussion on that aspect for the reason that in my firm view, the case of prosecution is not proved to the hilt qua the appellant on account of other basic flaws discussed herein above.
No other point has been urged before me by either side.
17. As a sequel to the aforesaid discussion, the net result now surfaces is that the prosecution has not been able to prove the charge qua the appellant beyond any shadow of reasonable doubt and as such, his conviction as recorded by the trial Court for the charge of Section 15 of the Act deserves to be disturbed. Ordered accordingly.
18. Resultantly, the instant appeal is hereby allowed. Appellant Som Nath son of Bhagu Ram stands acquitted of the charge. He is stated to be in custody and shall now be released forthwith, if not required in any other case.
19. All concerned quarters be informed without any delay.
