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2004 DIGILAW 1165 (PNJ)

Bhupinder Singh alias Bhinda v. State of Punjab

2004-10-12

AMAR DUTT, BINOD KUMAR ROY, HEMANT GUPTA

body2004
JUDGMENT Amar Dutt, J. - Bhupinder Singh petitioner had filed a petition for bail under Section 439 of the Code of Criminal Procedure asserting that even if for the sake of arguments the recovery of 56 kgs. of poppy husk from him and Harmeet Singh is to be taken as correct then too he could in law be held to be guilty of possession of only 28 Kgs. of poppy husk, which being less than a commercial quantity as envisaged under Section 2(xxiiia) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the 1985 Act"), he would be entitled to bail. For this submission, he placed reliance on the observation made in the judgment reported as Kala Singh alias Kalu v. State of Haryana, 2002(3) RCR(Crl.) 540. When the application came up for hearing before one of us (Hemant Gupta, J.) his Lordship was of the view that when seen in the light of the observations contained in Madan Lal and another v. State of H.P., 2003(7) Supreme Court Cases 465, the opinion expressed in Kala Singhs case (supra) requires reconsideration and consequently directed that papers be laid before Honble the Chief Justice for constituting a larger Bench. It is, in these circumstances, that we have been called upon to examine the contention that in cases where recovery of narcotic substance is effected from more than one person, it would be open to them to assert while seeking bail that the quantity recovered be divided equally between them for determining whether the quantity recovered can be termed as small, less than commercial or commercial quantity. 2. On 23.4.2004, when the application was listed before us for the first time, the following order was passed :- "Let notice issue to the Advocate General, Punjab. Since this High Court is a Court of record and within its jurisdiction the State of Haryana as well as Union Territory, Chandigarh also exists and the question which is involved in this litigation is bound to affect their territories also, we issue notice to the Advocate General, Haryana, as well as Shri Ajay Lamba, Advocate, who is notified as Public Prosecutor of the Chandigarh Administration. The notice will accompany a copy of the order passed by one of us (Hemant Gupta, J.), which is self explanatory why this Special Bench has been constituted. The Rule is made returnable on 5.5.2004. The notice will accompany a copy of the order passed by one of us (Hemant Gupta, J.), which is self explanatory why this Special Bench has been constituted. The Rule is made returnable on 5.5.2004. The written statements are required to be submitted in the office of the Court by May 03, 2004." 3. Thereafter on May 14, 2004, a statement was made by Mr. P.S. Khurana, appearing on behalf of the petitioner that he may be permitted to withdraw the application but since the question referred to for answer by the Full Bench was of considerable importance and likely to have a bearing on many cases, this request was declined. 4. We have heard Mr. P.S. Khurana, appearing on behalf of the petitioner, Mrs. Charu Tuli, Senior Deputy Advocate General, appearing on behalf of the State of Punjab, Mr. Randhir Singh, Senior Deputy Advocate General, appearing on behalf of the State of Haryana and Mr. Ajai Lamba, appearing on behalf of the Union Territory, Chandigarh and have gone through the record. 5. Although Mr. Khurana, appearing on behalf of the petitioner continued to place reliance on Kala Singhs case (supra), but learned counsel appearing for the States of Punjab, Haryana and Union Territory, Chandigarh brought to our notice a view taken by this Court while disposing of Criminal Misc. No. 8723-M of 2003 on 20.10.2003 in which a view contrary to Kala Singhs case (supra) had been taken. 6. While disposing of Criminal Misc. No. 8723-M of 2003, this Court had the occasion to examine the judgments of Kala Singhs case (supra), Jagroop Singh and another v. The State of Punjab, Criminal Misc. No. 23139-M of 2003; Ajit Singh v. State of Punjab, Criminal Misc. No. 15330-M of 2003; Paramjit Singh v. State of Punjab, Criminal Misc. No. 27687-M of 2003 and Janta Singh v. State of Haryana, 2000(3) RCR(Crl.) 209, which were cited by the learned counsel in support of the proposition that the Court could divide the narcotic substance recovered in a case equally amongst all the accused for arriving at a conclusion whether the recovery qua each one of the persons involved in the case was of small, less than commercial and commercial quantity. After examining the aforesaid cases, the following conclusions were arrived at :- "The first judgment, which has been relied upon by the petitioners counsel is Kala Singh alias Kalu (supra), a perusal whereof, shows that the proposition, which is sought to be expounded by the petitioners has merely been noted as an argument and the bail has been granted therein de hors the proposition. On going through the judgment reported as Jagroop Singh and another (supra), I find that the case of the prosecution itself was that from one petitioner 35-1/2 Kgs. and from the other 36 Kgs. of poppy husk was recovered. The case was one, which does not decide the question of joint possession and, therefore, is of no assistance to the petitioners case. In Criminal Misc. Nos. 15330-M and 27687-M of 2003 titled as Ajit Singh v. State of Punjab and Paramjit Singh v. State of Punjab respectively decided on 8.9.2003, this Court, after noticing the submissions of the petitioners that 60 Kgs. of poppy husk, which was in joint possession of Paramjit Singh and Ajit Singh, could not be treated as a commercial quantity in the hands of each of the petitioners, had, while granting bail, mentioned specifically that it is not giving any express opinion on the merits of the case. The position in the case reported as Janta Singh (supra) too is not different and, therefore, the precedents relied upon by the petitioners counsel provide little assistance for supporting their case". 7. The judgment had thereafter proceeded to examine the proposition de hors independently all the aforesaid judicial precedents and come to the following conclusions :- "Having come to the conclusion that none of the judicial precedents relied upon by the counsel for the petitioners deals with the point sought to be raised by him, I may now proceed to examine the validity of the contentions independently of the judicial precedents. The petitioners, in this case, seek the minimisation of the offence committed by them on the ground that even if the quantity of poppy husk that has been recovered from their possession is accepted, their liability would be reduced because each one of them would be deemed to be in possession of 1/3rd of the quantity that has been found in their joint possession. For analysing this argument, it would be but appropriate to turn to the punishing Section 15 of the 1985 Act, which reads as under :- "15. Punishment for contravention in relation to poppy straw - Whoever, in contravention of any provisions of this Act or any rule or order made or condition of a licence granted thereunder, produces, possesses, transports, imports inter-State, exports inter-State, sells, purchases, uses or omits...." A perusal of the section shows that an individual contravening the section has been described as whoever. Though the word "whoever" is not defined in the 1985 Act, yet while interpreting this word, assistance can be had by referring to Corpus Juris Secundum Volume XCIV, wherein the word "whoever" has been defined as under :- "WHOEVER. A comprehensive term which refers to a person or persons and may include artificial persons, such as a municipality, corporations, and public officers as well as private persons". In the Concise Oxford Dictionary, the word "whoever" has been interpreted as under :- "the or any person or persons who". The use of the word "whoever" in a statute came up for interpretation before the Apex Court in the case reported as M/s. Rai Bahadur Seth Shreeram Durgaprasad v. Director of Enforcement, AIR 1987 Supreme Court 1364 while dealing with Section 23(1) of the Foreign Exchange Regulation Act, 1947 (in short the 1947 Act), which reads as under :- "The word "whoever" in sub-section (1) of Section 23 of the Act before its amendment was comprehensive enough to include an association of persons, such as a firm, and did not connote a natural person alone. There is no reason why the word "whoever" in the section should not receive its plain and natural meaning. The word "whoever" in the unamended Section 23(1) must be read in juxtaposition with Section 12(2) and must mean any person who commits a contravention of that section without exception. That must be the legal connotation of the word "whoever" and it necessarily takes in corporate liability and includes any association of persons such as a partnership firm. This construction is borne out by the plain language of sub-section (4) of Section 23 inserted by Act 34 of 1950. That must be the legal connotation of the word "whoever" and it necessarily takes in corporate liability and includes any association of persons such as a partnership firm. This construction is borne out by the plain language of sub-section (4) of Section 23 inserted by Act 34 of 1950. It provides that if the person committing an offence punishable under sub-section (1) of Section 23 is a company or other body corporate, every director, manager, secretary or other officer thereof shall, unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent its commission, be deemed to be guilty of such offence. The Act, therefore, clearly contemplated that adjudication proceedings under sub-section (1) of Section 23 prior to its amendment could be initiated not only against the person who actually commits contravention but also casts vicarious liability on an association of persons such as a partnership firm or an artificial or a legal entity like a company." The language of Section 23(1) of the 1947 Act and Section 15 of the 1985 Act being para materia, I feel that a group of persons can jointly be held to be responsible for contravention of Section 15 of the 1985 Act. Since the case of the prosecution is that Darshan Singh along with the petitioners was found in possession of 110 Kgs. of poppy husk and till date and there is no material in support of the plea sought to be put forth by the petitioners counsel that possession of the three persons was separate and distinct from each other, it would not be possible to accept the submissions put forth by the petitioners counsel that his clients can be held to be in possession of only small quantity of poppy husk. In this view of mine, I am supported by the observations of a Division Bench of Calcutta High Court contained in the judgment reported as Anil Kumar Samanta and another v. The State, AIR 1953 Calcutta 476. In this view of mine, I am supported by the observations of a Division Bench of Calcutta High Court contained in the judgment reported as Anil Kumar Samanta and another v. The State, AIR 1953 Calcutta 476. Their Lordships, while disposing of the criminal revision under the Essential Supplies (Temporary Powers) Act, 1946, had the occasion to deal with a similar argument and observed as under :- "The second point urged is that two brothers, Anil Kumar Samanta and Sunil Kumar Samanta have jointly been charged in respect of the offence under Section 7(2), Essential Supplies Act for possession of a quantity of paddy exceeding twice the maximum quantity prescribed, that is, for possession of 21-1/2 maunds of paddy; and it is urged that under the West Bengal Foodgrains Control Order, each person may possess upto ten maunds, and, therefore, the two petitioners could lawfully possess upto twenty maunds, and, therefore, 21-1/2 maunds which they possessed do not exceed twice the maximum quantity which they could possess. Paragraph 10, West Bengal Foodgrains Control Order, 1951 provides that no person holding a licence issued or deemed to be issued under this Order or a producer shall have in his possession or under his control a quantity of rice or paddy exceeding ten maunds. But the words "a person" must be taken to include a group of persons who are in joint possession. In this connection, reference may be made to the definition of the word "person" in the General Clauses Act, 1897 : Person shall include any company or association or body of individuals, whether incorporated or not. But the words "a person" must be taken to include a group of persons who are in joint possession. In this connection, reference may be made to the definition of the word "person" in the General Clauses Act, 1897 : Person shall include any company or association or body of individuals, whether incorporated or not. Thus a body of persons in general is included within the definition of "person", and if two persons are in joint possession over twice the maximum quantity prescribed, they become liable for contravention of the Order; and they cannot set up the fiction of being in separate possession of half the quantity each." In view of the above discussion, it may not be possible for the counsel for the petitioners to seek bail on behalf of the petitioners on the plea that they cannot be deemed to be in joint possession unless and until they take up the plea at the time of the framing of the charge and bring on record material in support thereof so as to enable the Court to dispose of the case on merits on the basis of the stand so taken." 8. Apart from this, we have also now the benefit of the observations of the Apex Court in Madan Lals case (supra) to the following effect :- "22. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meaning in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes". which would strengthen the conclusions arrived at by this Court while disposing of Crl. Misc. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes". which would strengthen the conclusions arrived at by this Court while disposing of Crl. Misc. No. 8723-M of 2003, where it was observed to the following effect that :- "the ramifications of accepting such a stand at the stage of bail are so great that it may be possible in a certain case for a large number of persons, who are not even arrayed as accused, to appear before the trial Court and claim ownership of the contraband articles recovered from any person and thereby subvert the process of law and neutralize the deterrent punishment that had been provided for contravention of the provisions contained therein." Looked from any angle, we find it difficult to support the view that at the stage of bail, it would be permissible for the Court to accept the request of the applicant that the recovery of a narcotic substance jointly effected from him and his co-accsed should be divided equally amongst them for determining whether the quantity recovered was small, less than commercial or commercial and the question of bail should be considered in the light of such a division unless such a plea is taken by him at the time of the framing of the charge, which would necessarily involve an admission on the part of the applicant and his co-accused of the factum of recovery. 9. The reference is answered accordingly and the petition is dismissed being without any merit. Petition dismissed.