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2003 DIGILAW 343 (PNJ)

Ram Pal v. State of Punjab

2003-02-25

R.L.ANAND, VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - By this judgment we shall be disposing of two Criminal Appeals (Nos. 441-DB of 2002 and 621-SB of 2002), arising out of one and the same judgment. 2. By the impugned judgment dated 31.5.2002 passed by the learned Judge, Special Court, Patiala, Ram Pal appellant has been convicted under Section 25 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred as the Act) and has been sentenced to undergo rigorous imprisonment for a period of eleven years and to pay a fine of Rs. one lakh, in default of payment of fine to suffer further RI for six months, whereas Amrik Singh appellant has been convicted under Section 15 of the Act and has been awarded the same sentence. Aggrieved by the impugned judgment of conviction and sentence, both the appellants have filed their separate appeals. We may mention here that Ram Pal appellant was also charged under Section 15 of the Act and stands convicted for the said charge by the trial Court but has been sentenced under Section 25 of the Act only. 3. The prosecution story in brief is that on March 9, 2000, SI Gurbaj Singh (PW5) alongwith other police officials was holding a Nakabandi at T-point, Bus Adda, main road, village Shatrana (District Patiala). PW Mohinder Singh met SI Gurbaj Singh and he was also joined in the police party. At about 4-00 AM a truck bearing No. HR-47-3127 was seen coming from the side of village Khanauri. It was signalled to stop by torch light. The driver of the truck turned the truck downwards the road towards the left side and stopped it. The Conductor, who was clean-shaven of the age of about 22-23 years and was sitting besides the driver, jumped from the truck and succeeded in running away under the cover of darkness. The driver of the truck was apprehended. On inquiry he disclosed his name as Amrik Singh son of Mehnga Singh (appellant- herein). It is then the case of the prosecution that SI Gurbaj Singh told Amrik Singh appellant that there being suspicion of some contraband article in his truck, he wanted to search the same. He further told Amrik Singh appellant that he had a right to get the search conducted in the presence of a gazetted officer or a Magistrate. It is then the case of the prosecution that SI Gurbaj Singh told Amrik Singh appellant that there being suspicion of some contraband article in his truck, he wanted to search the same. He further told Amrik Singh appellant that he had a right to get the search conducted in the presence of a gazetted officer or a Magistrate. Amrik Singh appellant opted for the search of his truck to be conducted in the present of some gazetted officer. The memo of statement of Amrik Singh appellant was reduced into writing by SI Gurbaj Singh, which is Ex. PE. Thereafter a wireless messages was sent to Kulshinder Singh DSP (D), Patiala to reach the spot. Consequently Kulshinder Singh DSP (PW-1) arrived at the spot and introduced himself to Amrik Singh appellant that he wanted to take the search of his truck as it was suspected to contain some contraband. Thereafter Amrik Singh appellant reposed confidence in the DSP. The truck was accordingly unloaded on the direction of DSP Kulshinder Singh. 400 bags containing chips were first of all unloaded and underneath those bags, 44 bags of poppy husk were recovered. The bags were then numbered from 1 to 44. Two samples of 250 grams each were separated from each bag of poppy husk and put into parcels, which were also marked as 1-A to 44-A and 1-B to 44-B. On weighment, each bag was found to be 35 kilograms. The bags were also put into parcels. All the sample parcels and bag parcels were sealed with the seal of SI Gurbaj Singh, bearing impression GS as also the seal of DSP Kulshinder Singh bearing impression KS. The case property and the truck were taken into possession vide recovery memo. Ex. PA. From the personal search of Amrik Singh appellant, current notes of Rs. 870/- alongwith registration certificate of the said truck (Ex. P2), bilty of chips (Ex.P3), cash receipts (Exhibits P4 and P5) were taken into possession vide recovery memo. Ex. PB. All these recovery memos were signed by HC Kuldeep Singh (PW6) and Mohinder Singh and attested by Kulshinder Singh DSP (PW-1). After completing these formalities, a ruqqa (Ex. PF) was sent to the police station, on the basis of which the formal FIR (Ex. PF/1) was recorded by SI Manjit Singh, SHO, police station, Pattran. The grounds of arrest were also disclosed to appellant Amrik Singh vide memo. After completing these formalities, a ruqqa (Ex. PF) was sent to the police station, on the basis of which the formal FIR (Ex. PF/1) was recorded by SI Manjit Singh, SHO, police station, Pattran. The grounds of arrest were also disclosed to appellant Amrik Singh vide memo. Exhibit PH. The statements of the witnesses were recorded at the spot by SI Gurbaj Singh. On the same day, the case property and Amrik Singh appellant were produced before SI Manjit Singh, SHO, Police Station, Pattran, who checked the case property, further sealed the same with his seal bearing impression MS and directed SI Gurbaj Singh to deposit the case property with Moharrir Head Constable Surinder Pal (PW4). 4. On the next day, the case property and Amrik Singh appellant were produced before the Illaqa Magistrate with a request application (EX. PJ), who passed the order (Ex. PJ/1) and after checking the case property, it was again deposited with MHC Surinder Pal on the same day. After receipt of the report of Forensic Science Laboratory, (Ex. PK) Amrik Singh appellant was challaned. 5. It is worth mentioning that Ram Pal appellant was declared proclaimed offender by the learned Illaqa Magistrate on August 14, 2000 and thereafter an information was received by the police that he was lodged in Jail at Kaithal. After obtaining his production warrants, he was formally arrested in this case. Ultimately, supplementary challan was presented against him on 2.4.2001. 6. Initially, both the appellants were charged under Section 15 of the Act. Subsequently, the charge was altered and Ram Pal appellant was also charged under Section 25 of the Act. 7. In support of its case, the prosecution has examined as many six witnesses. 8. PW-1 SP Kulshinder Singh, PW-5 SI Gurbaj Singh and PW-6 HC Kuldeep Singh are the witnesses of recovery, whose evidence has already been reflected in the preceding paras. 9. PW-2 is Inspector Manjit Singh, whose evidence is to the effect that on 9.3.2000 when he was posted as SHO Pattran, Gurbaj Singh PW-5 had produced before him the case property along with appellant Amrik Singh and the other witnesses. It has then come in his statement that he verified all the facts from Amrik Singh appellant and the other witnesses and thereafter sealed the case property with his own seal bearing the impression MS. The sample slip (Ex. It has then come in his statement that he verified all the facts from Amrik Singh appellant and the other witnesses and thereafter sealed the case property with his own seal bearing the impression MS. The sample slip (Ex. P1) was also attested by him and thereafter he directed SI Gurbaj Singh to deposit the case property along with the truck, chips bags and other documents recovered from the truck with Moharrir Head Constable Jagga Ram. 9. PW-3 is Constable Angrej Singh, who has tendered his affidavit (Ex. PC). He had taken 44 samples to the Chemical Examiner for analysis. 10. HC Surinder Pal was examined as PW-4, who tendered his affidavit (Ex. PD). 11. Mohinder Singh was given up as having been won over by the appellants. 12. The stand of both the appellants as emerges from their statements recorded in terms of Section 313 of the Code of Criminal Procedure was of false implication by the police. No evidence in their defence was produced by the appellants. However, at one stage the appellants chose to produce Gurtej Singh CII, but ultimately gave him up as being unnecessary. 13. On a consideration of the entire evidence, the learned trial Court has convicted and sentenced both the appellants as indicated above. 14. We have heard Mr. RS Ghai, learned Senior Advocate assisted by Mr. Vinod Ghai, representing Ram Pal appellant. As per records, Ms. Sushma Verma Advocate is the counsel for Amrik Singh appellant but no one has put in appearance on his behalf. The State of Punjab has been represented by Mr. GS Gill, Senior Deputy Advocate General. With their assistance, we have perused the entire records of the case. 15. Mr. Ghai appearing on behalf of Ram Pal appellant has made two fold submissions, firstly that there is no evidence with the prosecution to bring the case of this appellant within the ambit of Section 15 or 25 of the Act and secondly that the prosecution has not led any plausible evidence to connect the ownership of truck No. HR-47-3127 with Ram Pal appellant. 16. So far as first limb of argument is concerned, Mr. Ghai has submitted that there is no evidence worth the name with the prosecution to show that Ram Pal appellant had knowingly permitted his truck to be used for the purpose of carrying/transporting the contraband by his driver Amrik Singh appellant. 16. So far as first limb of argument is concerned, Mr. Ghai has submitted that there is no evidence worth the name with the prosecution to show that Ram Pal appellant had knowingly permitted his truck to be used for the purpose of carrying/transporting the contraband by his driver Amrik Singh appellant. Colouring his arguments, Mr. Ghai then contended that assuming for the sake of argument that from the truck of Ram Pal the alleged contraband was recovered by the police, still it cannot be said by any stretch of imagination that the said contraband, was permitted to be transported by Ram Pal appellant, being owner of the truck. Mr. Ghai then contended that the receipts/bills merely recovered by SI Gurbaj Singh from the truck show that the chips bags were sent from Rajasthan for the purposes of being delivered at Patiala and if at all some contraband was put underneath the chips bags, Ram Pal appellant being owner of the truck could not possibly be held liable for the same under Section 25 of the Act in the absence of any evidence connecting him with the contraband. This could also be the job of the marble dealers of Rajasthan or the persons to whom the delivery was to be made or at the best the liability could be fastened upon the driver, who was carrying the same in the truck. Mr. Ghai then contended that in order to overcome this legal lacuna, the prosecution agency has cleverly shown the presence of Ram Pal appellant along with driver Amrik Singh appellant as mentioned in the ruqqa Exh.PF to the effect that a clean shaven person, of the age of 22-23 years, who was sitting by the side of the driver, got down from the truck and ran away taking the advantage of darkness and thereafter SI Gurbaj Singh asked Amrik Singh appellant as to who was his companion and the latter disclosed the name of the said person as Ram Pal appellant. Mr. Ghai contends that the statement of Amrik Singh before the police, involving Ram Pal appellant cannot be read in evidence being the statement of an accused against his co-accused. Mr. Ghai contends that the statement of Amrik Singh before the police, involving Ram Pal appellant cannot be read in evidence being the statement of an accused against his co-accused. He further contended that SI Gurbaj Singh (PW5) and HC Kuldeep Singh (PW6) identified Ram Pal appellant in the court for the first time and this identification in the Court is also of no value in the eyes of law. Concluding his arguments on this aspect, Mr. Ghai contends that in this way, the prosecution has no legal evidence bringing the case of appellant Ram Pal within the ambit of Section 15 or Section 25 of the Act. 17. The second contention raised by Mr. Ghai is that the prosecution has also failed to produce any cogent proof to show that the truck in question belonged to Ram Pal appellant. On this count, he contends that the registration certificate (Ex. P2) of the truck is not duly proved by the prosecution as no official from the Registration Authority has been produced to show that the said RC was in fact issued by the said office. Mr. Ghai contends that the mere statement of SI Gurbaj Singh to the effect that he had taken the RC of the truck in question from the spot would not be considered as legal evidence to prove the Registration Certificate. Developing his case, Mr. Ghai has further contended that even recovery of Registration Certificate (Ex. P2) was also not put to Ram Pal appellant as a piece of incriminating evidence at the time of recording his statement in terms of Section 313 of the Code of Criminal Procedure and this inherent infirmity also goes to prove that the prosecution has not been able to connect him with the ownership of the truck in question. 18. Summing up his arguments, Mr. Ghai prays for acquittal of Ram Pal appellant. 19. On the other hand, Mr. Gill, learned Senior Deputy Advocate General representing the State of Punjab has submitted that Ram Pal appellant has no case of acquittal as he is the registered owner of truck No. HR-47-3127, which was found carrying huge quantity of poppy husk. Mr. Ghai prays for acquittal of Ram Pal appellant. 19. On the other hand, Mr. Gill, learned Senior Deputy Advocate General representing the State of Punjab has submitted that Ram Pal appellant has no case of acquittal as he is the registered owner of truck No. HR-47-3127, which was found carrying huge quantity of poppy husk. Mr. Gill further contended that after getting down from the truck and while running away, Ram Pal appellant was identified by SI Gurbaj Singh (PW5) and thus his identification in the Court by this witness should be considered as a legal evidence and therefore, his conviction deserves to be upheld. Mr. Gill has also submitted that so far as Amrik Singh appellant is concerned, the charge against him under Section 15 of the Act is also proved to the hilt, as being driver of the truck, he was carrying huge quantity of contraband right from Rajasthan, knowing fully well that underneath the chips bags, 44 bags of poppy husk were kept and as such, conscious possession of the contraband qua Amrik Singh appellant is fully proved. 20. Before dealing with the argument advanced Mr. Ghai, we may mention here that although Amrik Singh appellant goes unrepresented, yet we ourselves, being a Court of First Appeal, have closely scrutinized the entire evidence on record with regard to the charge framed against him. The deposition of the three star witnesses, viz. SP Kulshinder Singh (PW1), SI Gurbaj Singh (PW5) and HC Kuldeep Singh (PW6) is consistent on the point of recovery of 44 bags of puppy husk underneath the chips bags from the truck in question. Amrik Singh appellant was apprehended at the spot. Otherwise also, we do not find non-compliance of the mandatory provisions of the Act in this case before the recovery was effected and thereafter also. He cannot thus escape the liability as the charge against him stands fully established and his conviction is thus liable to be upheld. 21. So far as Ram Pal appellant is concerned, no doubt that he is the registered owner of truck No. HR-47-3127. Simply that no official from the Registering Authority was produced by the prosecution to prove the Registration Certificate (Ex.P2) would not be a ground to say that Ram Pal is not the owner of the said truck. A perusal of the Registration Certificate (Ex. Simply that no official from the Registering Authority was produced by the prosecution to prove the Registration Certificate (Ex.P2) would not be a ground to say that Ram Pal is not the owner of the said truck. A perusal of the Registration Certificate (Ex. P2) shows that the truck in question stands transferred in the name of Ram Pal appellant on 9.2.2000. The tax was also paid upto 31.3.2000. Initially this truck was in the name of one Manohar Lal son of Raju Mal of New Delhi. The transfer entry is having the initials of the Registering Authority, Yamuna Nagar. It is prepared by the concerned officer in the discharge of his official duty and there is no reason to doubt it. On the contrary, no evidence has been led by Ram Pal appellant to prove that on the day of alleged recovery, the truck in question was not owned by him. 22. Another material aspect, which cannot be ignored is that at the time of filing of the present appeal, a prayer was made that the truck in question be released on superdari to Ram Pal appellant. The said prayer for release of truck was, however, declined by this Court vide order dated July 8, 2002. Once Ram Pal himself has asked for release of the truck in question on superdari in his favour, it does not lie in his mouth now to deny ownership of the truck. 23. Another contention raised by Mr. Ghai in this regard is that the incriminating evidence in the shape of recovery of Registration Certificate (Ex. P2) was not put to Ram Pal appellant while recording his statement in terms of Section 313 Criminal Procedure Code This omission may be an irregularity on the part of the trial Court, but in our view the same would not prejudice the case of this appellant in any manner. The charge against him was that his truck was involved in transporting the contraband. The Registration Certificate was produced during trial in the presence of Ram Pal appellant. The prosecution witnesses have duly been cross-examined by the learned defence counsel on each and every aspect of the case and as such, it cannot be said now that this irregularity has cause prejudice. We thus hold that Ram Pal appellant was in fact the registered owner of truck No. HR-47-3127 at the time of recovery of the contraband. The prosecution witnesses have duly been cross-examined by the learned defence counsel on each and every aspect of the case and as such, it cannot be said now that this irregularity has cause prejudice. We thus hold that Ram Pal appellant was in fact the registered owner of truck No. HR-47-3127 at the time of recovery of the contraband. 24. The crucial question involved in the case is whether Ram Pal appellant has knowingly permitted his truck No. HR-47-3127 to be used for the carriage of contraband from Rajasthan to Patiala to bring his case within the ambit of Section 25 of the Act ? In a case under Section 25 of the Act, it is for the prosecution to establish that the owner of the vehicle knowingly permitted the vehicle to be used for commission of an offence under the Act. The Legislature in its wisdom has specifically mentioned the word knowingly, which expression has to be given due weight. Once the Legislature has implied this word, it is for the prosecution to establish that with the owners knowledge, the vehicle was used for commission of an offence under the Act and the presumption under Sections 54 and 60(3) of the Act cannot be pressed into service by the prosecution. The word knowingly is used to indicate the knowledge and as such has to be proved by the prosecution either by positive evidence or even by some other circumstantial evidence before any mens rea can be adopted for the purposes of holding conviction under Section 25 of the Act. The word knowingly in our view is of a greater degree. At the same time, the word permits has also been inserted in this Section by the Legislature with an object. The word permits implies the knowledge as well and as such the knowledge implied in the word permits cannot be equated with any suspicion. The knowledge means actual knowledge. So the crux of the offence under Section 25 of the Act lies in knowingly permitting use of any place or conveyance for commission of an offence under the Act. The word permits implies the knowledge as well and as such the knowledge implied in the word permits cannot be equated with any suspicion. The knowledge means actual knowledge. So the crux of the offence under Section 25 of the Act lies in knowingly permitting use of any place or conveyance for commission of an offence under the Act. It raises the perennial term of meas rea in the form of guilty knowledge and this being an essential requirement of this particular offence, it calls for a positive proof from the side of the prosecution that the person, whose conveyance is involved, was aware of the fact that the said conveyance was being used for commission of an offence under the Act. The insertion of word knowingly has thus been intentionally used by the Legislature. 25. We will now scan the evidence of the present case in the light of the abovesaid proposition. The very set up of the present case as emerges from the initial ruqqa Exhibit PF is that truck No. HR-47-3127 was intercepted and Amrik Singh appellant was apprehended at the spot, whereas the other man had fled away under the cover of darkness. However, the physiognomic description of the second man is given in the ruqqa. The case of the prosecution further is that Amrik Singh appellant disclosed the name of his companion as Ram Pal (appellant). Legally this statement cannot be read into evidence, being the statement of an accused against his co-accused. The prosecution agency did not make a request for holding identification parade of Ram Pal appellant after his arrest was made. No doubt Ram Pal was declared proclaimed offender and was subsequently arrested in this case after obtaining production warrants, but this fact itself would not by-pass the legal implication. Another material fact which cannot be lost sight of is that when SI Gurbaj Singh stepped into witness box as PW5, in order to overcome this lacuna, he stated that he had identified the person who had run away from the spot. Certainly, this statement was an attempt to cover up the legal weakness. The prosecution has projected its case as if Ram Pal appellant was travelling in his truck alongwith Amrik Singh driver when it was intercepted by the police. Certainly, this statement was an attempt to cover up the legal weakness. The prosecution has projected its case as if Ram Pal appellant was travelling in his truck alongwith Amrik Singh driver when it was intercepted by the police. This apparently is the reason why Ram Pal appellant was also charged under Section 15 of the Act alongwith his co-accused besides being further charged under Section 25 of the Act. In our view, the learned trial Court has also fallen in error by observing that SI Gurbaj Singh, the Investigating Officer (PW5) in his statement on oath has stated that the second accused was identified by him at the spot and as such there was no doubt in his mind about the identity of Ram Pal appellant. The learned trial Court on the point of identity of this appellant has further observed that the statement of the Investigating Officer is very clear to the effect that Ram Pal was identified by him when he ran away from the spot and that he also came to know of his name lateron and therefore it cannot be said that the identification was not proper. It appears to us that the learned trial Court has thus fixed the identity of Ram Pal appellant alongwith Amrik Singh appellant in the truck itself at the time of interception by the police, whereas in our view the prosecution has miserably failed to connect the second man travelling with Amrik Singh appellant being Ram Pal appellant. It appears more probable that Ram pal appellant was involved in the case merely on suspicion because the truck in question was owned by him, being its registered owner and we are of the view that the identity of Ram Pal appellant is not established beyond any shadow of doubt at the time of interception of the truck and as such charge under Section 15 of the Act is not proved against him. Once the identity of Ram Pal appellant has not been established then his active involvement in the commission of the offence under Section 25 of the Act is covered under the dense cloud of doubt. Not an iota of evidence has been adduced by the prosecution to show even remotely that Ram Pal being owner of the truck had knowingly permitted its use for carrying the contraband. Not an iota of evidence has been adduced by the prosecution to show even remotely that Ram Pal being owner of the truck had knowingly permitted its use for carrying the contraband. This burden was to be discharged by the prosecution and it has miserably failed in its duty and as such the presumption of Section 54 and Section 60(3) of the Act cannot be put into service by the prosecution in this case at all. Our view is supported by a decision render in Kale Khan v. State of Madhya Pradesh, 1990 Criminal Law Journal 1119. In the aforesaid case, on secret information, a car was intercepted at a barrier, which was being driven by Kale Khan. Two inmates sitting in the car managed to escape. The contraband was found in the car. Kale Khan was convicted and sentenced under Section 18 of the Act whereas the owner of the car was convicted under Section 25 of the Act. The only evidence brought on record by the prosecution against the owner was that he was owner of the said car. While setting-aside the conviction and sentence of the owner, it was observed that the charge against him was that he was owner of the car in which contraband was found as he was registered owner and that by itself was not sufficient to sustain conviction under Section 25 of the Act because there was no evidence that he had knowingly permitted the use of his car for the commission of the offence under the Act. In the case in hand also as we have doubted the presence of Ram Pal appellant alongwith Amrik Singh appellant in the truck at the time of alleged recovery of contraband and the only evidence then left with the prosecution agency is to the effect that Ram Pal appellant is registered owner of the truck and this evidence by itself is not sufficient to hold him guilty of the offence under Section 25 of the Act. 26. We are conscious of the fact that a heavy recovery is effected in this case but every case is to be scaled within the legal parameters and not beyond that and in the instant case, the case of Ram Pal appellant does not fall within the four corners of Section 15 and 25 of the Act. 27. 26. We are conscious of the fact that a heavy recovery is effected in this case but every case is to be scaled within the legal parameters and not beyond that and in the instant case, the case of Ram Pal appellant does not fall within the four corners of Section 15 and 25 of the Act. 27. As a resume to the abovesaid discussion, Criminal Appeal No. 441-DB of 2002 filed by Ram Pal appellant succeeds, he stands acquitted the charges framed against him and he be set at liberty forthwith, if in custody and is not required in any other case. 28. However, Appeal No. 621-DB of 2002 filed by Amrik Singh appellant is dismissed being devoid of any merit. 29. The case property be confiscated to the State and shall be destroyed according to rules. 30. Intimation of this judgment be sent to the trial Court/Chief Judicial Magistrate concerned as also to the Jail authorities. Appeal allowed.