Harbans Lal, J.@mdashThis appeal is directed against the judgment dated 02.09.2002/order of sentence dated 04.09.2002 passed by the Court
of learned Additional Sessions Judge, Hissar, whereby he convicted and sentenced Gurmit Singh, Des Raj and Harbans Singh to undergo rigorous
imprisonment for a period often years and to pay a fine of Rs.1,00,000/- each and in default of payment of fine, the defaulter to further undergo
rigorous imprisonment for a period of one year u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ''the Act'').
2. As set up by the prosecution, on 17.03.1998, a Police party headed by SI/SHO Mohinder Singh happened to be present on Mangali Kaimri
Road near Mangali Bus Stand on Government Jeep bearing registration No.HR-20-D-0294 being on patrol duty. A Maruti Car of white colour
bearing registration No.DL-4C-6738 was spotted approaching from the side of Village Daya to which the above mentioned Sub Inspector gave a
signal to stop. The driver of the same, instead of stopping the car, accelerated the speed and sped away towards Hissar. The police party chased
the Maruti Car in the government jeep and also tried to flash a wireless message thereby informing the Control Room, but due to technical fault, it
failed. The police party continued chasing the Maruti Car, which ultimately reached at Bus Stand, Hissar, where the above mentioned Sub
Inspector saw a PCR Gypsy bearing registration No. HR-20-3034 lying parked. He gave a signal to the said gypsy. Thereafter, both the police
parties chased the Maruti Car. The occupants of the car started pelting stones at the police vehicle. When they reached at Babbar Market, Sirsa
Road, Hissar, the wind screen of the above mentioned jeep got smashed. The PCR gypsy tried to overtake the above mentioned Maruti Car from
its left side but the way was not given. The Maruti Car took a sharp turn on the left side. The right side of the gypsy got struck with the left side of
the Maruti Car. The side looking mirror as well as the wind screen of the police gypsy was also broken. When the aforesaid Sub Inspector
Mohinder Singh failed to stop the Maruti Car, he directed the police men of PCR Van to fire at the Maruti Car. Accordingly, Constable Devi
Chand fired two shots from his rifle, whereas Constable Sahib Ram fired one shot. As its consequence, the tyre of the Maruti Car got burst and it
lost control and stopped in the ditches.
3. All the three occupants of the Car tried to escape but they were overpowered. In the meantime, Raj Kumar, an independent witness also came
at the spot by chance. He was joined in the investigation by the police. The Sub Inspector gave a notice in writing to the accused u/s 50 of the Act
calling upon them as to whether they wanted to be searched before a Gazetted Officer or a Magistrate. They submitted a reply in writing exhibiting
faith in the Sub Inspector. On search of the Car, 8 bags containing poppy husk were recovered. 200 Grams of poppy husk was drawn from each
bag to serve as sample. The residue of each bag, when weighed, came to 39 Kg. 800 grams. The samples as well as the remainder were
converted into parcels sealed with seal bearing impression RS. All these parcels along with Maruti Car were seized vide Memo. A Ruqa was sent
to the Police Station. On its basis, formal FIR was recorded. The Sub Inspector prepared the rough site plan showing the place of recovery and
also sent a report to the D.S.P.Hissar. On receipt of report from the Forensic Science Laboratory and after completion of investigation, challan
was laid in the Court for trial of the accused.
4. The accused were charged u/s 15 of the Act, to which they did not plead guilty and claimed trial.
5. To bring home guilt against the accused, the prosecution has examined PW1 ASI Khajan Singh, PW2 Raj Kumar, PW3 Constable Sahib Ram,
PW4 Narinder Singh DSP, PW5 ASI Rattan Lal, PW6 Mahinder Singh, PW7 Head Constable Mukat Ram and closed its evidence by tendering
Exhibits, PA, PA/1, PA/2, PB to PJ.
6. On close of the prosecution evidence, when examined u/s 313 of the Code of Criminal Procedure, the accused denied all the incriminating
circumstances appearing in the prosecution evidence against them and pleaded innocence. In defence, they examined DW1 Dr.Arun Kumar, DW2
Dr.M.K.Bhadoo and also tendered documents, Exh.DA and DD.
7. 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 all the three accused, as noticed at the outset. Feeling aggrieved therewith, they have preferred this appeal.
8. I have heard Mr.Madan Sandhu, Advocate, learned counsel for the appellants as well as Mr.Sidharth Sarup, learned Assistant Advocate
General, Haryana, besides going through the record with due care and circumspection.
9. To begin with, Mr.Madan Sandhu, Advocate, on behalf of the appellants, urged with great eloquence that as per prosecution story, 8 bags of
poppy husk were recovered from the Maruti Car which is unacceptable for the reason that such a number of bags cannot be adjusted in the
dicky/inside the Car. He further pressed into service that the prosecution has not adduced any evidence on record to prove that the appellants
were in conscious possession of the bags and furthermore, no question to the effect that they were in conscious possession of the bags, has been
put to either appellant when examined u/s 313 of the Code of Criminal Procedure. He further submitted that in re: Bhola Singh v. State of Punjab,
2005(2) C C C 865 (P&H): 2005(2) RCR (Crl.) 520 (P&H), 14 bags of poppy husk were recovered from the trolley. Four persons sitting in
trolley jumped away. It was held that the accused driver cannot be said to be in conscious possession and the conviction was set aside. He further
added to it that neither the ownership of the Car nor of the poppy husk has been established.
10. To overcome these submissions, Mr.Sidharth Sarup, learned Assistant Advocate General, Haryana, pressed into service that all the three
appellants were sitting in the front portion of the Car and the bags were placed in the dicky as well as rear seat and this evidence is sufficient to
presume that they were the owners of the bags. This contention does not find favour with me.
11. State of Punjab Vs. Balkar Singh and Another, , the accused were alleged to have been sitting on bags containing poppy husk. They failed to
give any satisfactory explanation for being present at that place. The Apex Court held that merely by being found to be present at the place where
the poppy bags were found and the failure to give any satisfactory explanation for being so present, did not prove that the accused persons were in
possession of the said poppy bags and that in fairness, the Police should have conducted further investigation (as to transportation of poppy husk
bags to place of incidence, ownership of the poppy husk etc.) to prove that the accused were really in possession of the said articles. In the
present case, it is unbelievable that dicky/rear seat of the Maruti Car could accommodate 8 bags of poppy husk. Mohinder Singh, SI/SHO-PW6
has no where stated that he inquired about the ownership of the poppy husk or the Car. In the absence of such evidence, it is very difficult to hold
that the conscious possession of the appellants over the bags containing poppy husk has been established. Furthermore, the question of conscious
possession of poppy husk bags was not put to the appellants in their examination u/s 313 of the Code of Criminal Procedure.
12. In re: Avtar Singh v. State of Punjab, 2002(2) A C J 402 (S.C.): 2002(4) RCR(Crl) 180 (SC), 16 bags of poppy husk were recovered from
a truck. Two accused were sitting on the bags and one accused was driving the truck. The Apex Court observed that 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. 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. The High Court resorted to the presumption u/s 35 of
the Act 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.
13. Coming to the instant case, it is not the prosecution case that the appellants were sitting on the bags. Rather, they were allegedly sitting on the
front seat of the Car. Thus, the present one is on a better footing than Avtar Singh''s case (supra). It is in the cross-examination of Mohinder Singh
(Investigator) PW6 that first shot was fired at Maruti Car after covering a distance of 3/3-1/2 Kms. from Hissar; that total three shots were fired
on Maruti Car; that 2 shots were fired by Constable Devi Chand and one was fired by Constable Sahib Ram. It is in his further cross-examination
that he did not prepare any recovery memo, regarding the empty cartridges nor he took into his possession the fired cartridges. Under the stress of
cross-examination, he has admitted that counted number of cartridges are supplied to police officials and they are to be deposited with the MHC.
From this evidence, it is discernible that the empties were not taken into possession. As per rules, every police official to whom cartridges/rounds
are supplied in the official capacity, if he makes use of the same, in turn, he is obligated to deposit the empties with the MHC. Further, it is the
prosecution case that the appellants had thrown stones on the police jeep of which wind screen got broken. It is in the cross-examination of
Mohinder Singh SI that he did not take broken glass pieces into possession. To substantiate this story, it was obligatory upon him to seize the
pieces of broken glasses and this apart, he was also required to get the jeep as well as the Car photographed. It is un-understandable as to from
where the appellants captured the stones for being pelted on the police jeep, as according to the prosecution version, the appellants remained on
the run as they were being chased by two police vehicles. There being no photographs as well as the empties, it is too hard to swallow the version
as projected by the prosecution. Furthermore, Devi Chand Constable as well as Constable Sahib Ram, who had allegedly fired upon the Car,
ought to have been examined in corroboration of the allegations of the prosecution. Raj Kumar, PW2, an independent witness testified in his chief
examination that SI took the search of the Maruti Car and found 8 bags of poppy husk lying in the Maruti Car. When this examination-in-chief was
tested in cross-examination, he took a somersault by stating that the poppy husk was not recovered in his presence and it had already been
recovered from the Car and the same was lying at the spot. He has admitted in categoric terms that the police officials asked him to sign on the
papers that they had recovered the articles from the Car. Towards the end of his cross examination, he has deposed that"" I did not see the accused
at the place of recovery near Babbar market."" Thus, he wipes out his entire examination in chief. It is in his cross-examination that his tea stall is
situated opposite Police Station Sadar, Hissar and that some times some police officials send for tea from his shop. Thus, he was acquainted with
the police officials. So, it was not difficult for the Investigator to obtain his signatures on certain documents showing the alleged recovery.
14. As is borne out from the testimony of Mohinder Singh, PW6 (Investigator), seal after use, was handed over to Rattan Lal ASI though the
prosecution case is that the recovery was effected within the view of Raj Kumar, independent witness. The handing over of the seal to a police
official in the presence of an independent witness further falsifies the presence of Raj Kumar for the reason that had he been there, the seal would
have been handed over to him.
15. At this juncture, it deserves to be pointed out here that sample parcels were sent to Forensic Science Laboratory after 8 days though as per
the standing instructions of Narcotic Control Bureau Centre, the same should be sent within 72 hours. There is also nothing on record to show that
the CFSL form was filled at the spot and deposited in the Malkhana. All these flaws when put together leads to the conclusion that there could be
every possibility of the contents of the sample parcels being tampered with. In re: Bhola Singh (supra), it has been observed that where the seal
remained with the police after use and the CFSL form was neither prepared at the spot nor deposited in the Malkhana, such circumstance would
be fatal to the prosecution case. Filling up of such form at the spot is a very valuable safeguard to ensure that the seal sample is not tampered with
till its analysis by the Forensic Science Laboratory. In re: Bhola Singh (supra), also the seal was not given to an independent witness but the same
was kept by the Investigating Officer. It was held that if the seal remained with the police, the possibility of seal, contraband and the sample being
tampered with, cannot be ruled out. There is also no charge u/s 8 of the Act against the appellant who was driving the vehicle. As per evidence of
the Investigator, only one sample was drawn from each bag though the Act contemplates that 2 samples should be drawn. Furthermore, the
testimony of the Investigating Officer is also silent on the aspect that the case property was produced before the learned Magistrate in adherence to
the provisions of section 55 of the Act. A meticulous perusal of Exh.PB, notice u/s 50 of the Act would reveal that a composite notice was served
upon all the three appellants, whereas each of the appellant was required to be served individually with such notice. Thus, by a composite notice,
the appellants have been prejudiced in their right.
16. For the reasons enumerated above, this appeal succeeds and is accepted, setting aside the impugned judgment/order of sentence. The
appellants are hereby acquitted of the charged offence.