Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 1085 (PNJ)

Raj Kumar v. State Of Punjab

2004-09-21

K.S.GAREWAL, V.K.BALI

body2004
Judgment K.S.Garewal, J. 1. These are two appeals filed by Hawa Singh (Criminal Appeal No. 401-DB of 2000) and Raj Kumar (Criminal Appeal No. 627-DB of 2000) against their conviction by learned Special Judge, Sangrur on July 6, 2000 for having been found guilty under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") qua the possession of 8.250 Kg of opium. 2. Hawa Singh of Pirthala Police Station Tohana, District Fatehabad (Haryana) and Raj Kumar of Bhantheri (Rajasthan) were travelling in Armada Jeep HR 20D/7454 on September 16, 1998. When the Jeep reached near T point Papra within the area of Police Station Moonak, District Sangrur, it was stopped by SI Sukhwinder Singh (PW-3) who was present there along with other police officials and Chanan Singh. The jeep was being driven by Raj Kumar while Hawa Singh was sitting by his side on the front seat. There was a bag lying between Raj Kumar and Hawa Singhs seat. SI Sukhwinder Singh (PW-3) informed the accused that he suspected that there was something suspicious in the bag which was required to be searched. He also told the accused that, if they desired, search could be conducted before a Magistrate or Gazetted Officer. Both accused separately consented to their search before a Gazetted Officer and their separate statements were recorded which were signed by them and also witnessed by Chanan Singh and ASI Inder Singh. SI Sukhwinder Singh then sent a message from the spot asking DSP Ranbir Singh Head Quarter, Sangrur (PW-4A) to reach the spot. DSP Ranbir Singh received the message at 8 A.M. and reached the spot soon thereafter. In the presence of the said officer, the bag was searched and found to contain 8.250 Kgs of opium wrapped in glazed paper. Two samples of 10 gms. each were taken out from the bulk and put in small tin containers. These items were taken into possession vide recovery memo attested by DSP Ranbir Singh, witnessed by Chanan Singh and ASI Inder Singh and prepared by SI Sukhwinder Singh. The Jeep of the accused along with its certificate of registration in the name of its owner Jai Parkash son of Balbir Singh resident of Bhantheri District Jhunjhunu (Rajasthan) was taken into possession. The driving licence of Raj Kumar was also taken into possession. The Jeep of the accused along with its certificate of registration in the name of its owner Jai Parkash son of Balbir Singh resident of Bhantheri District Jhunjhunu (Rajasthan) was taken into possession. The driving licence of Raj Kumar was also taken into possession. Thereafter the report of the case was sent to Police Station Moonak and case was registered under Section 18 of the Act against the two accused-appellants. The accused were arrested and searched. Cash was recovered from their possession; Rs. 35/- from Raj Kumar and Rs. 450/- from Hawa Singh. A wrist watch was also recovered. On return to the Police Station case property was deposited with M.H.C. and the samples were sent for analysis. The Chemical Examiner reported that the contents of the sample were opium. After completion of the investigation accused were sent up to face trial. 3. At the trial, charge under Section 18 of the Act was framed to which they pleaded not guilty and claimed trial. 4. Prosecution examined Ravi Shankar, Motor Licence Clerk, Office of the S.D.M., Hisar as PW-1 who testified that ownership of Jeep No. HR 20ID/7454 stood in the name of Jai Parkash son of Balbir Singh of Bhantheri, District Jhunjhunu (Rajasthan). Attar Singh, Steno to S.D.M., Hisar was examined as PW-2 to testify that Driving Licence No. 89145 dated May 24, 1996 had been issued in the name of Raj Kumar son of Gopi Ram (appellant herein) resident of House No. 109, Nalbandi Gali, Police Station Road, Hisar. SI Sukhwinder Singh appeared as PW-3. Reader Sudesh Kumar, Court of Judicial Magistrate Ist Class, Sunam appeared as PW-4. DSP Ranbir Singh appeared as PW-4A, HC Jaswinder Singh (PW-5) and C. Karnail Singh (PW-6). Report of the Chemical Examiner Ex. PR was tendered in evidence and taken on record. After close of the prosecution evidence, the accused were examined without oath and they denied the various items of the prosecution evidence. Hawa Singh admitted that his watch along with Rs. 450/- were taken from his possession but stated that "we were taking liquor in front of a liquor vend and S.I. Sukhminder Singh in private uniform started questioning us. After close of the prosecution evidence, the accused were examined without oath and they denied the various items of the prosecution evidence. Hawa Singh admitted that his watch along with Rs. 450/- were taken from his possession but stated that "we were taking liquor in front of a liquor vend and S.I. Sukhminder Singh in private uniform started questioning us. When there was an altercation with him, he called the police and we were taken to the Police Station where false recovery was planted." Similar was the statement of Raj Kumar who admitted the recovery of his Driving Licence but stated that it was recovered from liquor vend at village Maniana and Rs. 35/- had also been recovered but he denied all other items of prosecution evidence which appeared against him and gave a statement similar to the statement given by Hawa Singh. 5. When the accused were called upon to enter defence, C. Chand Singh (DW-1) appeared as a witness and testified on the basis of the FIR Register of Police Station Moonak that 10 FIRs had been registered at Police Station Moonak in which Chanan Singh, the so-called independent witness to the recovery, had been cited as a witness for the prosecution. These cases related to the years 1995 (1 case), 1997 (1 case) and 1998 (8 cases). 6. The learned Trial Judge considered all the aspects of the prosecution case and came to the conclusion that in the present case it was not necessary to comply with the provisions of Section 50 of the Act since it was not a case of personal search, the failure of the Investigator to record the statement of DSP Ranbir Singh (PW-4A) under Section 161 Cr.P.C. with regards to the direction to the Investigator to start the search was a minor omission, the number of cases in which Chanan Singh had appeared as witness would be of no help to the defence because Chanan Singh was not examined as a witness in the present case. The defence raised by the accused was not a believable one and the delay in sending the samples to the Chemical Examiner did not prejudice the defence. No flaw in the link evidence was found and it was held that the prosecution had succeeded in establishing the case. The defence raised by the accused was not a believable one and the delay in sending the samples to the Chemical Examiner did not prejudice the defence. No flaw in the link evidence was found and it was held that the prosecution had succeeded in establishing the case. The accused were convicted and sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs. 1.50 lacs and in default of payment of fine, to further undergo rigorous imprisonment for 1-1/2 years. 7. The learned counsel for the appellants has challenged the conviction of the appellants on the ground of various illegalities committed during the investigation and non-compliance of certain provisions of the Act. It was argued that the provisions of Section 50 of the Act have not been complied with, the consent of the appellants for their search by a Gazetted Officer or Magistrate had been obtained on consent statement written in Punjabi whereas the appellants had signed in Hindi and these had not been explained to the appellants in their language. The independent witness, namely, Chanan Singh has not been examined at the trial. In fact Chanan Singhs association during investigation was extremely doubtful because he was stock witness of the police. The appellants had proved on record FIRs of ten cases in which Chanan Singh had appeared as a witness. According to the Investigating Officer, the case property had been sealed and the seal had been handed over to this very Chanan Singh. 8. It was vehemently argued that the opium had been recovered from a bag which was lying on the seat, between the driver Raj Kumar and passenger Hawa Singh. Court had to determine who was in possession of this bag of opium. It was either the driver or the passenger who owned the bag and possessed it, not both. Furthermore, the collected so-called opium was a solid mass of 8.250 kgs out of which only a small sample of 10 gm. had been tested. The sample could not be said to be a representative sample of the whole mass of the so-called opium. Recovery had been effected on September 16 but the sample was not sent for analysis before September 22. Even the seal that had been given to Chanan Singh had not been produced or proved at the trial. 9. had been tested. The sample could not be said to be a representative sample of the whole mass of the so-called opium. Recovery had been effected on September 16 but the sample was not sent for analysis before September 22. Even the seal that had been given to Chanan Singh had not been produced or proved at the trial. 9. On behalf of the State it was submitted that the case was one of chance recovery, there was no prior information with the Police Officer who apprehended the appellants. Therefore, the case was not covered under Section 42 of the Act. The case was also not of recovery on the basis of personal search of the appellants and did not fall under Section 50 of the Act. It was a case of seizure of opium, in transit, from a vehicle and fell under Section 43(a) and (b) of the Act because the opium had been seized in a public place while being transported in a jeep. The Police Officers had full authority to detain the appellants and seize the opium that had been found in their possession. Indeed the investigation had been done under the direct supervision and control of DSP Ranbir Singh (PW-4A) whose evidence cannot be doubted. 10. The main plank of the arguments advanced by the learned counsel for the appellants was that the prosecution had failed to establish that the appellant were in conscious possession of the opium. Possession was a basic ingredient of the offence. The charge in the present case was that the accused "were found in conscious possession of 8-1/4 kgs opium without any permit/licence." The charge was not that they were transporting the opium. In their respective statements under Section 313 Cr.P.C. the accused were not told that there was evidence against them that they were in possession of opium. Therefore, the prosecution evidence, even if accepted, would not establish the charge of possession of opium because the accused were not given a chance to explain their possession and had not been charged for transportation of opium. 11. Learned counsel placed reliance on Avtar Singh and others v. State of Punjab, 2002(4) RCR(Crl.) 180 (SC) : 2002 SCC(Crl.) 1769 and Narcotics Control Bureau v. Murlidhar Soni and others, 2004(2) RCR(Crl.) 900 (SC) : 2004 SCC(Crl.) 1561. 11. Learned counsel placed reliance on Avtar Singh and others v. State of Punjab, 2002(4) RCR(Crl.) 180 (SC) : 2002 SCC(Crl.) 1769 and Narcotics Control Bureau v. Murlidhar Soni and others, 2004(2) RCR(Crl.) 900 (SC) : 2004 SCC(Crl.) 1561. In Avtar Singhs case 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 drivers 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 under Section 35 of the Evidence Act (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 but the minimum requisite element which has to be satisfied is 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 the other two sitting on the bags, were having such custody or control ? It is difficult to reach such conclusion beyond reasonable doubt. 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 the 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 the 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 scare (scarce ?) after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of the goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything 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 under Section 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 under Section 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 under Section 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 under Section 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 the appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which the appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this stage of things it is not proper to raise a presumption under Section 114 of the Evidence Act nor is it safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. The High Court resorted to the presumption under Section 35 which relates to culpable state of mind, without considering the aspect of possession. The trial Court invoked the presumption under Section 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 conclusions 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 to nor taken into account by the trial court and the High Court." 12. In Narcotics Control Bureau v. Murlidhar Soni and others (supra) the accused was driving a scooter with his father sitting on the pillion seat carrying a bundle containing 2.41 kg. of heroin. Father and son were apprehended at 9.00 P.M. and the bundle carried by the father was searched, the contraband was recovered. While acquitting the son of the charge of possession of heroin, Supreme Court observed as under :- "It is also to be noted that even according to the prosecution case so far as this respondent is concerned, his only role in regard to the contraband was to take his father on his scooter to the place where they were allegedly arrested. The bundle in question which contained the contraband was carried by Murlidhar Soni and there is no material whatsoever to show that the present respondent had the knowledge that the bundle contained any contraband. In our opinion since the prosecution has not placed any material to show the conscious possession of the contraband by the respondent herein and since Murlidhar Soni is dead, we think the contention advanced on behalf of the respondent as to the possession of the contraband by the respondent has to be accepted." 13. In our opinion since the prosecution has not placed any material to show the conscious possession of the contraband by the respondent herein and since Murlidhar Soni is dead, we think the contention advanced on behalf of the respondent as to the possession of the contraband by the respondent has to be accepted." 13. In the present case the bag containing 8.250 Kgs of opium was lying on the seat between the two appellants. Both appellants had been charged for possession of opium hut neither of them had been asked any question in their statements under Section 313 Cr.P.c. that they were in conscious possession of opium. Therefore, neither the presumption under Section 35 nor the presumption under Section 54 of the Act would be attracted. 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 presumptions 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 given 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 under Section 35 or Section 54 when examining the accused under Section 313 Cr.P.C. and seeking his explanation. Accused can given 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 under Section 35 or Section 54 when examining the accused under Section 313 Cr.P.C. 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 had 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. 17. One very disconcerting feature in this case is the association of Chanan Singh in the investigation. It is no doubt true that Chanan Singh was not examined at the trial and was given up as having been won over after the Investigating Officer had filed an application in this respect but the fact remains that SI Sukhwinder Singh PW-3) was talking to Chanan Singh at the time and place where the jeep was intercepted. The search of the jeep was conducted in the presence of DSP Ranbir Singh. Chanan Singh was present from beginning to end. Chanan Singh witnessed the consent memos signed by both the appellants, the recovery memo of the opium which was also attested by DSP Ranbir Singh, the recovery memo of jeep, Registration Certificate and Driving Licence. At the trial prosecution developed cold feel and did not produce this important witness (although of doubtful reliability) because the witness would not have been able to answer the many questions that would have been raised regarding his previous conduct as a stock police witness. 18. Ex. DA to Ex. DH, Ex. DJ and Ex. DK are copies of 10 First Information Reports in which Chanan Singh had been cited as a witness of recovery. The cases are of offences under Section 15 of the Act and relate only to Police Station Moonak. While it is true that Chanan Singhs character cannot be impeached unless he had appeared as a witness and cross-examined on the basis of these 10 cases but the fact remains that in investigations under the Act the Moonak police invariably have Chanan Singh as a recovery witness. This brings a sort of taint to the whole investigation. While it is true that Chanan Singhs character cannot be impeached unless he had appeared as a witness and cross-examined on the basis of these 10 cases but the fact remains that in investigations under the Act the Moonak police invariably have Chanan Singh as a recovery witness. This brings a sort of taint to the whole investigation. DSP Ranbir Singh should have known that Chanan Singh may not be able to withstand cross-examination and having made him a witness may demolish the prosecution case. The DSP should have put his foot down and pulled up the Investigating Officer. Gazetted Officers are required to oversee investigation and supervise the legal steps or procedure to ensure that the provisions of the Act are complied with and prosecutions succeed. They must act as responsible officers because at stake is not just the liberty of the individual citizen but the integrity and purity of the stream of the justice. Criminal Justice System demands fair, impartial and proper investigation. Otherwise the evil of smuggling would only be temporarily buried and shall rise again as a many-headed monster to engulf society and the coming generations. 19. Resultantly, these appeals are accepted and the appellants, one from Haryana and the other from Rajasthan, travelling in a Haryana registered jeep belonging to a Rajasthan man being driven by a driver belonging to Rajasthan and possessing a Haryana driving licence, are hereby acquitted of the charge framed against them. They be set at liberty, if not required in any other case.