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2005 DIGILAW 686 (PNJ)

Surjan Singh Alias Kala v. State Of Punjab

2005-07-01

AMAR DUTT

body2005
Judgment Amar Dutt, J. 1. Surjan Singh is aggrieved by the conviction and sentence recorded against him under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") by the Special Judge, Ferozepur. 2. The circumstances leading to the trial of the appellant are that on 14.1.1994 Inspector Bhagwan Dass, SHO, Police Station, Zira and other police officials were proceeding from the side of Sugar Mill, Zira towards village Sadhuwala along the bank of canal minor on Gypsy. The police party had merely covered a distance of about 2-1/2 killas from the Jaura Bridge, when they saw a trolley standing in the bunch of trees on the right side of canal minor. On the trolley, Surjan Singh was sitting and he was apprehended on suspicion. The Inspector had then sent a wireless message to Dev Raj, DSP, Zira to reach on the spot, who reached within 20 minutes and after recording the statement of the appellant searched the trolley and found 27 gunny bags lying therein each containing 40 KG of poppy husk. A sample of 250 grams was taken from each of the gunny bags and sealed with seal `BD. The remaining poppy husk was also taken into possession through separate recovery memo. On personal search of the appellant, recovery of currency notes worth Rs. 150/- was made from his shirt and the same were taken into possession through memo Ex. P3. After apprising the appellant of grounds of his arrest, a ruqqa was sent to Police Station, Zira for recording a formal FIR. Case property was deposited in the malkhana and the samples were forwarded for chemical examination to the office of Chemical Examiner at Bhatinda. On receipt of the report of the Chemical Examiner a challan was put in Court under Section 15 of the Act. 3. After hearing the APP for the State and counsel for the accused, the trial Court found that a prima facie case was made out against the appellant under Section 15 of the Act and, accordingly, framed charge thereunder, to which he pleaded not guilty. 4. To prove its case, prosecution examined ASI Bachan Singh as PW1, Inspector Bhagwan Dass as PW2, Dev Raj, DSP as PW3 and Constable Sukhchain as PW4 and closed its evidence. 5. 4. To prove its case, prosecution examined ASI Bachan Singh as PW1, Inspector Bhagwan Dass as PW2, Dev Raj, DSP as PW3 and Constable Sukhchain as PW4 and closed its evidence. 5. The accused in the statement given by him under Section 313 Cr.P.C. in response to the question put for seeking his explanation regarding incriminating circumstances appearing against him in the prosecution case, denied the same but did not lead any evidence. 6. After hearing the arguments, the Special Judge convicted the appellant under Section 15 of the Act and sentenced him to undergo RI for 10 years and imposed a fine of Rs. 1 lac and in default of payment of fine to further undergo RI for one year. Hence, the appeal. 7. I have heard Mr. S.C. Chhabra, learned counsel for the appellant and Mr. Jayender S. Chandail, learned Assistant Advocate General, Punjab for the respondent and gone through the record and perused judgment of the trial Court. 8. The short question on which the conviction recorded by the Court below is sought to be challenged is that even if the prosecution version, as brought out in the statement of ASI Bachan Singh and Inspector Bhagwan Dass is found to be accepted as correct, the prosecution evidence merely states that the appellant was found sitting on the trolley of the tractor and in the absence of any evidence being produced to show that in what way he could be stated to be in possession of the narcotic substance on which he was sitting, the prosecution case against him cannot be said to have been proved. There is no such evidence on the record. 9. We have carefully considered the submissions and have perused the record. The evidence on the file merely asserts that the appellant was found sitting on the trolley of a tractor from which 27 gunny bags each containing 40 KG of poppy husk were eventually recovered. The Investigating Officer, in the present case, for the reasons best known to him, has not thought it proper to go into the question as to whom the tractor and trolley belonged and if appellant was not owner, what was the reason why he was sitting therein. Section 15 of the Act, which reads as under :- "15. The Investigating Officer, in the present case, for the reasons best known to him, has not thought it proper to go into the question as to whom the tractor and trolley belonged and if appellant was not owner, what was the reason why he was sitting therein. Section 15 of the 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 to warehouse poppy straw or removes or does any act in respect of warehoused poppy straw, shall be punishable, - (a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees; (c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees : Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakhs rupees." separately renders punishable, 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, where the contravention involves small quantity, where the contravention involves quantity lesser than commercial quantity and where the contravention involves commercial quantity. Mere sitting on a trolley from which narcotic substances are eventually recovered does not constitute possession or even custody of the substances unless there is more independent evidence to establish any connection between the article recovered and the appellant from which the possessory title can be inferred. There is also no material available on the file from which the Court may infer that the appellant was in custody of 27 gunny bags of poppy husk. There is also no material available on the file from which the Court may infer that the appellant was in custody of 27 gunny bags of poppy husk. In the absence of any such averment as also in the absence of any material which has been brought on the record during the trial from which it may be able to infer that the bags were in the custody of the appellant for transportation as mere custody would not attract the violation of Section 15 of the Act, it cannot be held that the conviction recorded by the trial Court can be sustained. The presumption under Section 54 of the Act comes into play only when possession is proved and in the present case as no evidence is available to sustain such a finding, it is not possible for this Court to uphold the view taken by the trial Court. 10 For the reasons recorded above, the appeal is allowed, the conviction and sentence recorded against the appellant are set aside and he is acquitted of the charge framed against him.