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2005 DIGILAW 940 (PNJ)

Tarsem Singh v. State Of Punjab

2005-09-05

AMAR DUTT, KIRAN ANAND LALL

body2005
Judgment Amar Dutt, J. 1. Tarsem Singh being 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") has filed the present appeal. 2. Briefly stated, the facts of the prosecution case as brought out in the testimony of its witnesses are that on 24.3.1995, police party headed by PW-3 SI Jasbir Singh, In-charge, Police Post, Hathur was present on the canal bridge in the area of village Rasoolpur in connection with a Nakabandi/patrol duty. It consisted of ASI Mehar Singh, ASI Ajit Singh, Constable Balbir Singh 428, Constable Amarjit Singh 388, Constable Devinder Kumar 258, Constable Harpal Singh 629, Constable Shamsher Singh 218, PHG Lakhvir Singh and PHG Jasbir Singh. Along with the police party was Govt. vehicle Allwyn Nisan bearing registration No. PB-10F/9664 which was being driven by Constable Shingara Singh. At about 5.00 a.m., a tractor-trolley was seen coming from the side of Kaonke Khossa and the Sub-Inspector had signalled the driver with the help of a torch to stop. On seeing the police party, the tractor driver responded by stopping the tractor on one side of the road but taking advantage of the darkness escaped from the spot leaving behind the man sitting on the tractor-trolley, who was apprehended by Sub-Inspector with the help of other officials. The enquiries made from this person revealed that he was Tarsem Singh son of Sarkar Saran Jat, resident of Kokri Kalan, Police Station Mehna, District Faridkot. He also disclosed the identity of the driver of the tractor-trolley as his son Hardip Singh. PW-3 had, thereafter, appraised him that gunny bags lying in the trolley were to be searched and if he desires some Magistrate or Gazetted Officer could be called to the spot for the same. The appellant, however, indicated that he trusted the Investigating Officer and appended his consent to the memo prepared by the Investigating Officer, whereafter, the Sub-Inspector searched the bags as per procedure and found that in all there were 20 bags each containing 40 kilograms of poppy husk. He took two samples of 250 grams each from each of the bags and after making parcels of the samples, appended his seal `JS on both the samples as well as the gunny bags, which were thereafter taken into possession through a memo. Ex. PB. He took two samples of 250 grams each from each of the bags and after making parcels of the samples, appended his seal `JS on both the samples as well as the gunny bags, which were thereafter taken into possession through a memo. Ex. PB. The tractor was also taken into possession along with its trolley through memo. Ex.PC and memo. Ex.PD was prepared in relation to the personal search of Tarsem Singh. After this PW3 SI Jabsir Singh had sent a ruqqa Ex. PDD to Police Station, Jagraon through Constable Devinder Kumar and on its basis formal FIR Ex. PD/1 was recorded. PW3 SI Jasbir Singh also prepared a rough site plan of the place of recovery and on return to the Police Station produced Tarsem Singh and the case property before the Inspector Joginder Singh, who verified the facts and sealed the case property with his seal, which also bore the impression `JS, before depositing the same with Moharrir Head Constable Devinder Singh PW5. On the same day, PW1 ASI Mehar Singh again took the case property from the Moharrir Head Constable and produced the same before the Illaqa Magistrate vide application Ex. PF upon which the Magistrate passed order Ex. PF/1, whereafter, the case property was redeposited with the Moharrir Head Constable. One of the two samples taken from each of the bags was forwarded to the Forensic Science Laboratory, Punjab and the report of the laboratory confirmed the samples to be that of poppy husk. On completion of the investigation, during the course whereof Hardip Singh was apprehended, a challan was put in the Court of Illaqa Magistrate, who committed the same for trial to the Special Judge, Ludhiana. On going through the papers forwarded with the challan, the trial Court framed charges against the accused under Section 15 of the Act for having been found in possession of 20 bags of poppy husk, weighing 40 kilograms each in Ford Tractor which was being driven by Hardip Singh without any valid permit or license. When the appellant pleaded not guilty to the charges, the prosecution was called upon to lead its evidence. 3. To bring home the charge, the prosecution examined ASI Mehar Singh as PW1, Head Constable Devinder Kumar as PW2, SI Jasbir Singh as PW3, Inspector Joginder Singh as PW4, Head Constable Devinder Singh as PW5. 4. When the appellant pleaded not guilty to the charges, the prosecution was called upon to lead its evidence. 3. To bring home the charge, the prosecution examined ASI Mehar Singh as PW1, Head Constable Devinder Kumar as PW2, SI Jasbir Singh as PW3, Inspector Joginder Singh as PW4, Head Constable Devinder Singh as PW5. 4. When the incriminating circumstances appearing in the prosecution case against the appellant were put to him, he denied all the circumstances and took the following plea :- "I am innocent. The tractor-trolley belonged to Chhinderpal Singh brother of Shri Maninderpal Singh retired DSP of our village. This tractor- trolley along with servant of Chhinderpal Singh was taken from the village. I had got conducted an inquiry against Shri Balbir Singh Khaira, SP(D), Faridkot and at his instance I have been falsely implicated in this case." while his son Hardip Singh also asserted his innocence in the following terms :- "I am innocent. I was arrested by Balbir Singh Khaira in another case and falsely involved as my father had got conducted an inquiry against him. I was taken from my house and falsely implicated. In that case I was acquitted." In defence, the appellant examined HC Santokh Singh as DW1. 5 After hearing the arguments, the trial Court did not accept the prosecution case against Hardhip Singh and by giving the benefit of doubt acquitted him of the charge framed against him. It, however, came to the conclusion that Tarsem Singh had been found in possession of 20 gunny bags each containing 40 kilograms of poppy husk and therefore, had contravened the provisions of Section 15 of the Act. Appellant Tarsem Singh was, accordingly, convicted under Section 15 of the Act and sentenced to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs. 1 lac. In default of payment of fine, he was ordered to undergo further rigorous imprisonment for two years. While doing so, the trial Court directed issuance of notice under Section 60(3) (presumably Section 63) of the Act to the owner of the tractor-trolley calling upon him to show-cause as to why the same should not be confiscated to the State. Hence, the present appeal. 6. While doing so, the trial Court directed issuance of notice under Section 60(3) (presumably Section 63) of the Act to the owner of the tractor-trolley calling upon him to show-cause as to why the same should not be confiscated to the State. Hence, the present appeal. 6. In the grounds of appeal, it was averred by the appellant that in view of the admitted case of prosecution that Tarsem Singh was merely sitting in the trolley at the time, when tractor was stopped, the same would not constitute offence of his being in possession of what was being carried in it. In the absence of any evidence to the effect that Tarsem Singh had been found to be in possession of 20 gunny bags each containing 40 kilograms of poppy husk, the finding to this effect should not have been returned by the trial Court as the tractor-trolley in the present case admittedly belonged to one Arshinder Pal Singh son of late Ajaib Singh and there is on record neither any evidence from which it could be inferred that the appellant had borrowed the tractor for transportation of contraband articles nor that the appellant was the owner of the same and therefore, in possession of the gunny bags and as such no offence under Section 15 of the Act would in law be said to have been proved against Tarsem Singh. 7. On behalf of the State, an effort was made to submit that the fact that Tarsem Singh was sitting on the trolley indicate that he was in possession of whatever was being carried in it. In this view of the matter, it was submitted that the plea taken by the appellant for escaping the responsibility of having been found in possession of contraband substances cannot be sustained. 8. We have carefully considered the rival contentions and with the help of learned counsel for the State have perused the record. 9. One thing which has come to light after perusing the record is the fact that though the case of the prosecution was that vehicle for transporting the contraband substances was being provided by a person other than Tarsem Singh, namely, Arshinder Pal Singh, which would have rendered him liable for prosecution under Section 25 of the Act yet in its wisdom Investigating Agency has conveniently forgotten to look into this aspect of this case. While implementing this, the manner in which this part of the investigation had been conducted leaves much to be desired. What to talk of the Investigating Officer, even the person In-charge of the prosecution seems to be totally oblivious of the provisions of Section 25 of the Act and the necessity of obtaining orders under Section 63 of the Act regarding confiscation of vehicle or articles mentioned therein during the trial. While Section 25 of the Act reads as under:- "Punishment for allowing premises, etc. to be used for commission of an offence :- Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishable provided for that offence." Section 63 of the Act is drafted in the following terms :- "Procedure in making confiscations :- (1) In the trial of offences under this Act, whether the accused is convicted or acquitted or discharged, the Court shall decided whether any article or thing seized under this Act is liable to confiscation under Section 60 or Section 61 or Section 62 and, if it decides that the article is so liable, it may order confiscation accordingly. (2) Where any article or thing seized under this Act appears to be liable to confiscation under Section 60 or Section 61 or Section 62 but the person who committed the offence in connection therewith is not known or cannot be found, the Court may inquire into and decide such liability and may order confiscation accordingly : Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim : Provided further that if any such article or thing other than a narcotic drug, psychotropic substance or controlled substance the opium poppy, coca plant or cannabis plaint is liable to speedy and natural decay, or if the Court is of the opinion that its sale would be for the benefit of its owner, it may at any time direct it to be sold; and the provisions of this sub- section shall as nearly as may be practicable apply to the net proceeds of the sale." 10. A combined reading of both these section brings into focus the desire of the Legislature not to confine its drive to curb the spreading of Narcotic Drugs and Psychotropic Substances to take actions against carriers but to strike at the big fish involved in spreading and sustaining the malady by taking actions against persons providing facilities for transportation and stocking of contraband substances as also confiscating such transport and facilities involved in smuggling of the same. 11. Even in the present case, the manner in which the notice under Section 63 of the Act had been issued to the owner only after the decision of the trial shows a complete lack of appreciation of the purport of object sought to be achieved by the Legislature by enacting Sections 60, 61 and 62 of the Act. Section 63 of the Act makes it abundantly clear that decision regarding confiscation had got be taken during the trial and not after it and the right of the State to confiscate the conveyance and articles or thing seized under this Act is irrespective of the result of the trial. Section 63 of the Act makes it abundantly clear that decision regarding confiscation had got be taken during the trial and not after it and the right of the State to confiscate the conveyance and articles or thing seized under this Act is irrespective of the result of the trial. In this view of the matter, one fails to see why Courts of law, as in the present case delay the issuance of notice under Section 63 of the Act until after the trial which only facilitates the owner to get away with the property without his liability being adjudicated as is the position in the present case. In our opinion, the mandate of the Legislature can clearly be discerned from the words "during the trial", which would oblige the Courts to decide the plea which is to be taken by the owner for avoiding confiscation at the earliest preferably before releasing the vehicle or property on superdari. 12. On merits, case against the appellant was that he had been found sitting in the trolley, which was carrying 20 gunny bags each containing 40 kilograms of poppy husk. There is on record no evidence to the effect that he was actually owner of the poppy husk. He is not the owner of the tractor or the trolley. He is not even the driver. Therefore, in our opinion, there is no evidence, which would in any way enable us to infer that he was, at the time when recovery was effected, exercising his possessory rights over the contraband substances. A Single Bench of this Court had in Criminal Appeal No. 298-SB of 1999, Tarsem Singh v. State of Punjab, decided on May 12, 2005 while discussing the charge of possession observed as under :- "The substratum of the charge is that the appellant and his co- accused were found in possession of 5 quintals and 52 kgs. of narcotic substance but unfortunately there is no evidence as regards the nature of their possession. of narcotic substance but unfortunately there is no evidence as regards the nature of their possession. The word "possession", according to the Shorter Oxford English Dictionary, Volume II, Third Edition means :- "The visible possibility of exercising over a thing such control as attaches to lawful ownership; the detention or enjoyment of a thing by a person himself or by another in his name; the relation of a person to a thing over which he may at his pleasure exercise such control as the character of the thing admits, to the exclusion of other persons; esp. the having of such exclusive control over land, in early instances sometimes used in the technical sense of SEISIN 1535." According to Websters Third New International Dictionary, Volume II, the word "possession" means :- "the act or condition of having in or taking into ones control or holding at ones disposal". The word "possession" according to The New Encyclopaedia Britannica, Volume 9, 15th Edition means :- "the acquisition of either a considerable degree of physical control over a physical thing, such a land or chattel, or the legal right to control intangible property, such as a credit. -- with the definite intention of ownership. xxx xxx xxx xxx Thus, possession tends to be regarded as prima facie evidence of the right of ownership; it gives this right against everyone except the rightful owner. Mere possession by a father is sufficient to provide grounds for an action against one who deprives him of the object who no better right than his own". The meaning of word "possession" is given in Halsburys Laws of England, Volume 35, Fourth Edition as under :- "Possession may mean legal possession; that possession which is recognized and protected as such by law. The elements normally characteristic of legal possession are an intention of possessing together with that amount of occupation or control of the entire subject matter of which it is practically capable and which is sufficient for practical purposes to exclude strangers from interfering. Thus, legal possession is ordinarily associated with de facto possession; but legal possession may exist without de facto possession, and de facto possession is not always regarded as possession in law. A person who, although having no de facto possession, is deemed to have possession in law is sometimes said to have constructive possession". Thus, legal possession is ordinarily associated with de facto possession; but legal possession may exist without de facto possession, and de facto possession is not always regarded as possession in law. A person who, although having no de facto possession, is deemed to have possession in law is sometimes said to have constructive possession". In Corpus Juris Secundum, Volume LXXII, the word "possession" means :- "In law, the term is defined as meaning an act, fact, or condition of a person having such control of property that he may legally enjoy it to the exclusion of others having no better right than himself; the physical control of a thing which belongs of right to unqualified ownership in such a manner as to exclude control by other persons." From the above, it is clear that the word "possession" would necessarily imply some degree of control over the goods possessed. The investigating agency in its wisdom has chosen not to lead evidence to prove that the capacity in which these three persons were connected with the truck, which was carrying the narcotic substance. There is no evidence to show the manner in which one of the accused had exercised actual control over the goods recovered for in law possession, as already indicated, would necessarily imply power or control similar to lawful ownership, which enables the person in control to deal with the articles possessed and not mere custody on behalf of some one else as may be inferable in case a person is transporting a consignment for the actual owner." 13. Learned counsel for the respondent has not been able to bring to our notice any judicial precedent, which would enable us to take a contrary view. We feel, in the present case too, there is no evidence, which would enable us to come to the conclusion that Tarsem Singh, who was apprehended while hitching a ride on the trolley could in law be held to be in possession of the contraband articles. 14. For the reasons recorded above, we accept the appeal and set aside the conviction and sentence recorded against the appellant and acquit him of the charge framed against him. 15. 14. For the reasons recorded above, we accept the appeal and set aside the conviction and sentence recorded against the appellant and acquit him of the charge framed against him. 15. Before parting with this judgment, we deem it appropriate to point out that from the record it has come to our notice that tractor-trolley in question, which was being used for transporting the poppy husk was released on superdari to Arshinderpal Singh on 17.4.1995. This order would obviously had been passed while exercising the powers under Sections 451 and 452 of the Code of Criminal Procedure, reads as under :- "Report of the SHO perused. The vehicle in question is ordered to be released on superdari to the applicant on his furnishing superdaginama in the sum of Rs. 2,00,000/- with one surety in the like amount, undertaking not to sell it or to change its structure and to produce the same in the Court on every date of hearing." We are surprised that the same has been passed by the Sub-Divisional Judicial Magistrate, who would have no jurisdiction to dispose of such an application in view of Section 63 of the Act, which makes it clear that irrespective of the decision of the trial, any article or thing seized under this Act, which are used in the commission of offence have got to be confiscated and the Special Judge is obliged to start separate proceedings in relation to confiscation after expiry of one month, if no one comes forth to claim the property. In view of the provision of Section 63 of the Act, the provisions of Code of Criminal Procedure as contained in Sections 451 and 452 will stand modified to the extent indicated in the aforementioned section and any claimant to the property will be obliged to satisfy the Court in terms of the exceptions carved out in Sections 60, 61 and 62 of the Act before he is returned the custody of the vehicle taken into custody when it was being used for transporting a narcotic substance. In the present case as already pointed out by us, the proceedings under Section 63 of the Act were not initiated until the disposal of the trial, which is not warranted by law. In the present case as already pointed out by us, the proceedings under Section 63 of the Act were not initiated until the disposal of the trial, which is not warranted by law. The proceedings for confiscation have got to be completed during the pendency of the trial and are in no way connected therewith as delay therein would only lessen the value of the property so confiscated and thereby cause loss to the State or the owner. 16 In these circumstances, we are of the considered view that the trial Court should recall the order giving superdari of the tractor-trolley to Arshinder Pal Singh and take a decision within two months regarding confiscation of the same in accordance with law. 17. A copy of this order be sent to all the Special Judges exercising jurisdiction under the Narcotic Drugs and Psychotropic Substances Act, 1985 in the States of Punjab, Haryana and Union Territory, Chandigarh for information and necessary compliance.