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2005 DIGILAW 29 (PNJ)

Gurdip Singh v. State Of Punjab

2005-01-07

S.N.AGGARWAL, VIRENDER SINGH

body2005
Judgment S.N.Aggarwal, J. 1. Gurdip Singh and Gulzar Singh appellants were convicted under Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act) by the Court of Judge, Special Court, Rupnagar vide judgment dated 4.5.2004 and sentenced to undergo rigorous imprisonment for a period of 15 years and to pay a fine of Rs. 1,50,000/- each. In default of payment of fine, they were to further undergo rigorous imprisonment for a period of three years each. 2. Gurdip Singh accused filed Criminal Appeal No. 574-DB of 2004 while Gulzar Singh has filed Criminal Appeal No. 705-DB of 2004. Since both these appeals have arisen from the same judgment, so the same are being disposed of by this common judgment. 3. According to the prosecution case, on 21.1.2000, ASI Sarabjit Singh and other police officials were holding special Nakabandi on the main road T-point Behrampur Zimidara and each vehicle passing that place was being checked. At about 8.00 A.M., the police party noticed truck bearing registration No. PB-12-1595 coming from Kurali side and it was stopped. On enquiry, the truck driver disclosed his name as Gurdip Singh son of Shri Shamsher Singh while the other person sitting by the side of driver disclosed his name as Gulzar Singh son of Kartar Singh. ASI Sarabjit Singh asked Gurdip Singh, driver of the truck that they apprehended contraband article in the truck and, therefore, they intended to search the truck and gave him the option to get it searched in the presence of Gazetted Officer or a Magistrate or by himself. Said Gurdip Singh gave the consent to ASI Sarabjit Singh by writing consent memo for search of the truck. Thereafter ASI Sarabjit Singh searched the truck on which 12 bags of poppy husk were found loaded in the struck. Each bag contained 40 kilograms of poppy husk. The recovered bags containing poppy husk were sealed by ASI Sarabjit Singh with his own seal bearing impression `SS and were taken into possession through a recovery memo. The accused were found having committed an offence punishable under Section 15 of the NDPS Act, 1985 by keeping 480 kilograms of poppy husk in their truck bearing registration No. PB-12-1595 without any permit. Information was also given to Deputy Superintendent of Police (D) at 10.30 A.M. through wireless message requesting him to reach the spot. The accused were found having committed an offence punishable under Section 15 of the NDPS Act, 1985 by keeping 480 kilograms of poppy husk in their truck bearing registration No. PB-12-1595 without any permit. Information was also given to Deputy Superintendent of Police (D) at 10.30 A.M. through wireless message requesting him to reach the spot. Ruqqa was sent to the Police Station through constable Manjit Singh against these accused for having committed an offence punishable under Section 15 of NDPS Act. 4. In the meantime, DSP Randhir Singh PW-4 reached the spot after receiving message from ASI Sarabjit Singh and the latter produced 12 jute bags, each bag containing 40 Kilograms of poppy husk recovered from the truck bearing registration No. PB-12-1595 which were in possession of Gurdip Singh truck driver and his companion Gulzar Singh. DSP Randhir Singh made enquiry from the accused and they reposed confidence in him. Thereafter DSP Randhir Singh broke open the seals of 12 bags. Two samples of poppy husk were taken from each bag. The remaining poppy husk came to be 39.500 grams. The sample parcels and the bags of remaining poppy husk were separately sealed by DSP Randhir Singh with his own seal bearing impression "RS". Sample of the seal was kept separately and the seal after use was kept by Randhir Singh DSP himself. He thereafter handed over the accused, parcels of samples, sample of seal and the case property of remaining poppy husk to ASI Sarabjit Singh who conducted the remaining investigation. The sample parcels of poppy husk were sent for analysis to the Forensic Laboratory which were found to be poppy husk. The investigation was completed and the accused were sent up for trial. 5. The learned trial Court framed charges against the accused for having committed an offence punishable under Section 15 of NDPS Act to which they pleaded not guilty and claimed trial. 6. The prosecution examined six witnesses to prove its case against the accused including DSP Randhir Singh, PW-4, ASI Sarabjit Singh (who was by now promoted as Sub Inspector as PW-6) and HC Surinder Kumar, who is a witness of recovery as PW-5. 7. Accused Gurdip Singh has pleaded in his statement recorded under Section 313 Cr.P.C. that he was innocent and has been falsely implicated after calling him from his house and no recovery had taken place from him. 8. 7. Accused Gurdip Singh has pleaded in his statement recorded under Section 313 Cr.P.C. that he was innocent and has been falsely implicated after calling him from his house and no recovery had taken place from him. 8. Gulzar Singh accused had taken similar plea but he had taken additional plea that on 15.7.1997, his brother-in-law Bant Singh was coming on his scooter in drunken condition towards village Dehleez near Ahmedgarh. He was stopped by Sarabjit Singh ASI and he was detained in the police lock up after taking out Rs. 10,000/- lying in the pocket of Bant Singh. He (Gulzar Singh accused) asked Sarabjit Singh ASI to return the amount but he refused to do so. Then he (appellant) had filed a complaint against Sarabjit Singh ASI to Senior Superintendent of Police, Jagraon on which an enquiry was held and ASI Sarabjit Singh was made to return the amount on which he threatened his false implication, ASI Sarabjit Singh himself is a smuggler and a case is pending against him under the NDPS Act. 9. However, the accused have led no evidence in defence. 10. On the basis of this evidence, the learned Judge, Special Court vide his judgment dated 4.5.2004 convicted both the accused for having committed an offence punishable under Section 15 of NDPS Act and each of them was sentenced as already noticed above. 11. We have gone through the entire record of this case with the help of learned counsel for the appellants and the learned Senior Deputy Advocate General, Punjab. We have also considered the submissions advanced before us them. 12. It may be noticed that it is a case of sudden recovery when the police party led by ASI Sarabjit Singh had stopped truck bearing registration No. PB-12-1595 on 21.1.2000 at about 8.00 A.M. when the police party was holding Nakabandi at the point of recovery. The truck was apprehended. Appellant Gurdip Singh was the driver while Gulzar Singh was found sitting by his side and on search, 12 bags of poppy husk, each bag containing 40 kilograms of poppy husk were recovered from the said truck. The bags were sealed by ASI Sarabjit Singh and information was given to DSP Randhir Singh who reached the spot and conducted the investigation of this case as per law. 13. The bags were sealed by ASI Sarabjit Singh and information was given to DSP Randhir Singh who reached the spot and conducted the investigation of this case as per law. 13. The samples taken out of each of the gunny bags of poppy husk recovered from the accused were sent to the Chemical Examiner/Forensic Science Laboratory and its contents were found to be poppy husk. The recovery of poppy husk from the bags is proved not only by ASI Sarabjit Singh PW-6 but by HC Surinder Kumar, PW-5, DSP. Randhir Singh PW-4 has proved the investigation of this case. 14. The main submission of learned counsel for the appellants is that the possession of the appellants over the alleged bags of poppy husk has not been proved in the legal form and, therefore, the appellants cannot be held guilty for having possession over all these bags of poppy husk. In support of this submission, the learned counsel for the appellants have relied upon the judgments of Honble Supreme Court reported as Avtar Singh v. State of Punjab, 2002(4) RCR(Crl.) 180 (SC); State of Punjab v. Balkar Singh and another, 2004 Supreme Court Cases (Criminal) page 838 and one Division Bench judgment of this Court reported as Raj Kumar v. State of Punjab, 2005(1) Recent Criminal Reports (Criminal) page 70. Hence, it was submitted that since the possession of the appellants over the bags of poppy husk is not proved, therefore, the appellants are entitled to acquittal. 15. This submission has been considered by us. To start with, it may be observed that each case depends upon its own facts. The Honble Supreme Court had cautioned the Courts by observing that "Disposal of cases by blindly placing reliance on decisions is not proper. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases. Precedent should be followed only so far as it makes the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in the thickets and branches. Keep the path of justice of obstructions which could impede it." [Union of India v. Amrit Lal Manchanda, 2004(1) RCR(Crl.) 996 (SC) : 2004 Criminal Law Journal 1426 (SC)]. Keep the path of justice of obstructions which could impede it." [Union of India v. Amrit Lal Manchanda, 2004(1) RCR(Crl.) 996 (SC) : 2004 Criminal Law Journal 1426 (SC)]. Therefore, we have to examine the facts of this case as also the facts of the judgments relied upon by the learned counsel for the appellants besides other judgments on the subject for appreciating the meaning of word `possession and whether the legal constituents of word `possession are made out in the present case or not. 16. So far as the judgment in Avtar Singhs case (supra) relied upon by the learned counsel for the appellants, in this judgment also, their Lordships of the Honble Supreme Court were pleased to observe that "the word `possession had different shades of meaning and it is quite elastic in its connotation." It was also observed that "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." However, the facts of that case were different. The recovery, no doubt, had taken place from the truck which was apprehended by the police party but one person sitting on the front seat by the side of driver and another person sitting on the back side of the truck had run away by leaving the vehicle at the spot. It was observed by the Honble Supreme Court as under :- "It transpires from evidence that the appellants were not only the 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 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 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. 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." 17. Similarly, in Balkar Singhs case (supra), relied upon by the learned counsel for the appellants, the facts were different. The bags of poppy husk were found by the patrol party in the fields and the accused of that case were sitting over those bags. In those facts, the Honble Supreme Court was pleased to observe as under :- "The recovery was effected from a field in Village Lohgarh. The respondents belonged to different villages. The respondent Balkar Singh is a resident of Village Bira Bedi in District Hisar while respondent Munish Chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles." 18. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles." 18. In this context, reference may be made to the judgment of the Honble Supreme Court reported in Madan Lal and another v. State of Himachal Pradesh, 2003(4) RCR(Crl.) 100 (SC), in which again the Honble Supreme Court was pleased to explain the legal meaning of the word `possession as under :- "Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial Court, they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle. 21. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offence for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession. 22. It is highlighted that unless the possession was coupled with requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted. 23. The expression `possession is polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and others, AIR 1980 SC 52, to work out a completely logical and precise definition of "possession" uniformaly applicable to all situations in the context of all statutes." 19. Their Lordships were also pleased to observe as under : "Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Their Lordships were also pleased to observe as under : "Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from the possession of illicit articles." 20. The facts of the case reported in Madan Lals case (supra) were quite close to the facts of the present case, rather better in the sense that in the said case, there was prior secret information while in the present case, recovery has taken place all of a sudden during general checking of vehicle. In Madan Lals case (supra) the car was apprehended and the accused of that case were found sitting in the car. The car was searched as per Rules and the law. On search, a black coloured bag was found which contained a steel Doloo kept in a plastic bag and the said Doloo was found to contain 820 grams of Charas. Their Lordships of the Honble Supreme Court were pleased to observe that in the factual scenario of that present case, not only possession but conscious possession was also established. 21. In the present case also, the truck was apprehended which was being driven by Gurdip Singh and Gulzar Singh was sitting by his side. After the truck was searched as per Rules, 12 bags of poppy husk were recovered from the said truck and each bag was found to contain 40 kilograms of poppy husk. Therefore, in view of the law laid down by the Honble Supreme Court, the accused are held to be in possession of 12 bags of poppy husk which were recovered from the truck and each bag was found to contain 40 kilograms of poppy husk. Therefore, in view of law laid down by the Honble Supreme Court in Madan Lals case (supra), the accused were in possession of 12 bags of poppy husk which were recovered from the truck in question. 22. Therefore, in view of law laid down by the Honble Supreme Court in Madan Lals case (supra), the accused were in possession of 12 bags of poppy husk which were recovered from the truck in question. 22. The judgment in Raj Kumars case (supra) relied upon by the learned counsel for the appellants is mainly based on Avtar Singhs case (supra) and as discussed above, the facts of Avtar Singhs case, were different. In that case, two of the occupants of the car had run away and their Lordships of Honble Supreme Court were pleased to observe that their identity was not established and it could be possible that they could not be owners in possession of the contraband. The judgment in Madan Lals case (supra) was not brought to the notice of the Honble Judges who decided Raj Kumars case. On the other hand, in another Division Bench judgment of this Court rendered in Criminal Appeal No. 503-DB of 2000, Gurinder Singh v. Union Territory, Chandigarh decided on 10.12.2004, the possession of the accused of that case was upheld. In that case, a police party stopped Maruti Van No. PB-02-K-3968 and the said Maruti Van was found transporting 9 kilograms and 165 grams of smack. A green and black coloured raxine bag was found lying on the small seat in between the seats of two occupants of the car. In Gurinder Singhs case also, the smack was held to be in possession of the occupants of the car and their conviction was upheld. 23. Similarly, in the present case, the appellants are held to be in possession of 12 bags of poppy husk which were recovered from the truck. Gurdip Singh appellant was driving the truck and Gulzar Singh was sitting by his side. 24. In view of the discussion held above, it is held that Avtar Singh and Balkar Singhs cases (supra) have different facts and the judgments of those cases are not applicable to the facts of the present case. Rather the facts of this case are more nearer to Madan Lals case decided by the Honble Supreme Court, referred to above. 25. In view of the discussion held above, it is held that Avtar Singh and Balkar Singhs cases (supra) have different facts and the judgments of those cases are not applicable to the facts of the present case. Rather the facts of this case are more nearer to Madan Lals case decided by the Honble Supreme Court, referred to above. 25. It may be reiterated that the facts of each case will govern the judgment and reference may again be made to the judgment of the Honble Supreme in case Mahboob Dawood Shaikh v. State of Maharashtra, 2004(3) RCR(Crl.) 343 (SC) : 2004 Criminal Law Journal page 1359 in which the Honble Supreme Court was pleased to observe as under :- "A judgment should be understood in the light of facts of that case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or sentence from the judgment of this court divorced from the context of the question under consideration and treat it to be complete law decided by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court." It is, therefore, held that the possession of the appellants over 12 bags of poppy husk was clearly proved in the facts of the present case. 26 The next submission of learned counsel for the appellants was that the case was initially investigated by ASI Sarabjit Singh who was not empowered to do so and, therefore, the appellants deserve acquittal. 27. This submission has been considered by us. Perusal of the record reveals that ASI Sarabjit Singh PW-6 was the head of the police party which apprehended the truck suspecting something contraband in the truck. ASI Sarabit Singh had given the option to the accused to get the truck searched in the presence of Gazetted Officer/Police Officer or before himself. The accused had reposed confidence in ASI Sarabjit Singh and gave him the option to search the truck. The consent memo has been prepared as Exhibit PD/1. While investigating the case, ASI Sarabjit Singh PW-6 informed DSP Randhir Singh to reach the spot. The accused had reposed confidence in ASI Sarabjit Singh and gave him the option to search the truck. The consent memo has been prepared as Exhibit PD/1. While investigating the case, ASI Sarabjit Singh PW-6 informed DSP Randhir Singh to reach the spot. He had broken open the seals affixed by ASI Sarabjit Singh over the bags of poppy husk recovered from the truck and then took the samples. He had also sealed the samples of poppy husk and the bags of remaining poppy husk. The parcels and the remaining bags of poppy husk were sealed by him. The case property was handed over to ASI Sarabjit Singh by DSP Randhir Singh who himself retained the seal. Therefore, it is held that ASI Sarabjit Singh who investigated the case, merely sealed the bags of poppy husk recovered from the truck and handed over the same along with the accused to DSP Randhir Singh PW-4 who conducted investigation in the case. Therefore, there is no legal infirmity in this case. 28. The next submission of learned counsel for the appellants was that Gulzar Singh had attributed motives to ASI Sarabjit Singh who had allegedly detained Bant Singh, brother-in-law of Gulzar Singh when Bant Singh was in drunken condition. It was further alleged that ASI Sarabjit Singh had embezzled an amount of Rs. 10,000/- which he had recovered from said Bant Singh. After the matter was got investigated by senior police officer on the complaint of Gulzar Singh, he was made to restore money to Bant Singh/Gulzar Singh. It was prayed that ASI Sarabjit Singh is not a credible witness and cannot be believed. 29. This submission has been considered by us. The accused had failed to lead any evidence to prove if Bant Singh, brother-in-law of Gulzar Singh was ever apprehended by ASI Sarabjit Singh or if he had taken a sum of Rs. 10,000/- from the pocket of Bant Singh or if he was made to return that amount of Rs. 10,000/- to the complainant or to Gulzar Singh. It, therefore, appears that this story has only been cooked up by Gulzar Singh accused in order to save his own skin. 30. It was next submitted that ASI Sarabjit Singh is a smuggler and he himself was facing trial under the NDPS Act. 10,000/- to the complainant or to Gulzar Singh. It, therefore, appears that this story has only been cooked up by Gulzar Singh accused in order to save his own skin. 30. It was next submitted that ASI Sarabjit Singh is a smuggler and he himself was facing trial under the NDPS Act. Reference was made to the statement of SI Sarabjit Singh, PW-6 who admitted in his cross-examination that he along with some other police officials is facing trial under the NDPS Act. However, this admission of ASI Sarabjit Singh does not make him unreliable nor it shakes his credibility. If ASI Sarabjit Singh, PW-6 is facing trial in a case registered against him under the NDPS Act, the case will have its own legal course. This fact situation cannot give any benefit to the accused who themselves were caught red handed by the police party led by ASI Sarabjit Singh while carrying 12 bags of poppy husk and each bag containing 40 kilograms of poppy husk. Moreover, ASI Sarabjit Singh is not the only witness of recovery. There are many more. HC Surinder Kumar has also been examined as PW-5 who has proved recovery of poppy husk bags from the accused lying in a truck. Therefore, merely because ASI Sarabjit Singh was facing trial under NDPS Act, it cannot be held that the recovery of 12 bags of poppy husk from the accused/appellants was false. 31. No other point was argued before us. 32. Keeping in view the discussion held above, the prosecution has succeeded to prove the charge against the accused and accordingly they are convicted. There is no legal infirmity in the judgment dated 4.5.2004 rendered by the Judge Special Court Rupnagar and that is maintained. 33. It was then submitted by the learned counsel for the appellants that the sentence awarded to the appellants is excessive and it be reduced proportionately. This submission has been considered by us. We do not find any merit in this submission for the simple reason that the appellants were transporting a huge quantity of poppy husk by which they are spoiling the lives by alluring them to intoxicants and by covering the budding youth into drug addicts. No leniency in the sentence part is extended to the appellants. Therefore, the sentence portion is also maintained. 34. In the light of above discussion, both the appeals fail and are dismissed.