Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 4528 (PNJ)

Dayal Singh v. State Of Punjab

2006-12-18

VIRENDER SINGH

body2006
Judgment Virender Singh, J. 1. Both the appellants are stated to be in custody since the date of their arrest. Keeping in view their long period of detention, which includes their detention period as undertrial prisoners, the instant appeal has been set down for final hearing. 2. Dyal Singh son of Gurdas Singh and Saudagar Lal son of Gurdev Lal, the appellants-herein (hereinafter to be called the `accused) were booked in case FIR No. 71 dated 29.5.1999, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (for short to be referred to as the `Act), registered at police station Phillaur, District Jalandhar. Vide impugned judgment of learned Judge, Special Court, Jalandhar they stand convicted for the said charge and have been sentenced to undergo RI for ten years and to pay a fine of Rs. one lac each, in default of payment thereof to further undergo RI for 12 months each. 3. Briefly, the case of the prosecution is that on 29.5.1999 at about 5.20 p.m. SI Sarabjit Rai, the then SHO, police station Phillaur (PW-5) along with other police officials was present at Adda Lasara in connection with patrol duty when he received a secret information to the effect that Jaswinder Singh @ Dulla was coming in a Maruti van without registration number with a driver towards Nawanshahar and his son Sital Singh with a Canter No. PB-08-D-8247 loaded with poppy husk were coming from Ludhiana side. The secret information further revealed that Jaswinder Singh @ Dulla was being followed by the said Canter, which was being driven by Sital Singh, who was accompanied by the present two appellants. As per the information, the poppy husk was to be supplied in the area of Nawanshahar and if Naka is held, the same could be recovered. Believing the secret information to be reliable, SI Sarabjit Rai sent ruqqa (Exhibit PG) to the police station on the basis of which formal FIR (Exhibit PG/1) was recorded. Toshi, a witness from the public was joined in the raiding party. Thereafter a naka was laid at Bus Stand, Kwari. Opinderjit Singh, the then DSP, Sub-Division Phillaur was requested to reach the spot. Meanwhile a van of white colour reached the spot in which Jaswinder Singh @ Dulla was sitting by the side of driver. They were signalled to stop. However, they managed to flee away. Thereafter a naka was laid at Bus Stand, Kwari. Opinderjit Singh, the then DSP, Sub-Division Phillaur was requested to reach the spot. Meanwhile a van of white colour reached the spot in which Jaswinder Singh @ Dulla was sitting by the side of driver. They were signalled to stop. However, they managed to flee away. Canter No. PB-9-8247 came there, which was being driven by Sital Singh and both the appellants were found sitting in the said Canter. Sital Singh fled away from the spot. As per the case of the prosecution, he was known to Sarabjit Rai SI earlier. Both the accused were apprehended at the spot. Certain police officials tried to chase Sital Singh but he could not be apprehended. Both the accused were apprised of their right of being searched before a gazetted officer or a Magistrate as envisaged under Section 50 of the Act. In this regard two separate memos. (Exhibits PH & PI) were prepared, which were signed by the police officials and the independent witness. Both the accused opted to be searched in the presence of some Gazetted Officer. On his arrival at the spot, Opinderjit Singh DSP gave a fresh option to both the accused, who reposed confidence in the former and in this regard consent memos. (Exhibits PD & PE) were prepared. Thereafter the search was conducted by removing the Tarpal of the Canter. It was found loaded with ten bags of gram flakes and one hundred bags containing poppy husk. Out of each bag of poppy husk, two samples each of 250 grams were separated. Each of the remaining bags on weighment turned out to be 34 kgs - 500 grams. The samples and the bags were sealed with the seals bearing inscriptions `SR (for Sarabjit Rai) and `OJS (for Opinderjit Singh). Separate sample impressions were also prepared. The samples, case property along with the registration certificate and the permits were taken into possession vide recovery memo. Exhibit PF, attested by the witnesses and the DSP. The seal of SI after use was handed over to ASI Inderjit Singh whereas the DSP retained his own seal with him. The rough site plan (Exhibit PJ) was prepared at the spot. The statements of certain witnesses were recorded. Thereafter the samples and the case property were deposited with Sikander Singh (PW-2), the Moharrir Head Constable. The seal of SI after use was handed over to ASI Inderjit Singh whereas the DSP retained his own seal with him. The rough site plan (Exhibit PJ) was prepared at the spot. The statements of certain witnesses were recorded. Thereafter the samples and the case property were deposited with Sikander Singh (PW-2), the Moharrir Head Constable. On 30.5.1999 the samples and the case property were produced by ASI Inderjit Singh (PW-6) before the Illaqa Magistrate and thereafter the same were redeposited with the MHC. On completion of the process of investigation, both the accused were challaned. They were charged under Section 15 of the Act. 4. To substantiate the charge, the prosecution has examined the following witnesses : PW-1 Balraj Singh Constable had tendered his affidavit (Exhibit PA). PW-2 HC Sikander Singh tendered his affidavit (Exhibit PB) and PW-3 Head Constable Raj Kumar tendered his duly sworn in affidavit (Exhibit C) by way of evidence. PW-4 Opinderjit Singh the then DSP, Phillaur, in whose presence poppy husk was allegedly recovered from the Canter. PW-6 Sarabjit Rai, SI was the Investigating Officer. PW-6 Inderjit Singh SI was another witness to recovery. PW-7 Sham Lal Clerk from the office of DTO, Jalandhar had brought the summoned record of vehicle No. PB-08-D-8247, which in fact was a scooter make Bajaj Chetak in the name of one Karnail Singh son of Chanan Singh, resident of Village Kalra, District Jalandhar. Toshi, the alleged independent witness was given up by the prosecution as having been won over. The report of the Chemical Examiner was also tendered into evidence. 5. The plea taken by both the accused as emerges from their statements recorded under Section 313 of the Code of Criminal Procedure is of false implication, wherein they have pleaded that in fact Jaswinder Singh @ Dulla, Avtar Singh and Sital Singh were got discharged by the Court on police request despite the fact that even the supplementary challan was also prepared against Sital Singh on the report of DSP Special Branch. Their case is that they have been made scape goats. 6. In their defence the accused have produced Constable Ajit Singh (DW-1), who had produced copy of another FIR No. 124 dated 22.7.2002 (Exhibit DA) in which Sital Singh alias Seeta son of Jaswinder Singh Dulla was booked in a case under the NDPS Act. 7. Their case is that they have been made scape goats. 6. In their defence the accused have produced Constable Ajit Singh (DW-1), who had produced copy of another FIR No. 124 dated 22.7.2002 (Exhibit DA) in which Sital Singh alias Seeta son of Jaswinder Singh Dulla was booked in a case under the NDPS Act. 7. HC Bhupinder Singh (DW-2) had produced copies of three FIRs (Exhibit DB, DC & DD) of police station Phillaur, in which cases Toshi (the aforesaid independent witness) was cited as a witness to recovery. 8. After appreciating the entire evidence, the learned trial Judge has convicted both the accused for the charge and sentenced them as already indicated hereinabove. Aggrieved by the same, they have preferred the instant appeal. 9. I have heard Mr. Kuldeep V. Singh, learned counsel for the appellants and Mr. M.S. Sidhu, learned Senior Deputy Advocate General, Punjab. With their assistance I have gone through the entire record. 10. Mr. Singh at the very out-set attacks the case on the point of conscious possession of the contraband qua both the accused submitting that the very case set up by the prosecution agency was that Jaswinder Singh @ Dulla was coming in a Maruti van without registration number and his son Sital Singh was following him in a Canter, which was allegedly loaded with poppy husk. On seeing the police party, Jaswinder Singh @ Dulla fled away in the van and when the Canter reached near the police party, it was signalled to stop. One of the occupants, Sital Singh, managed to run away and could not be apprehended despite being chased. The aforesaid Jaswinder Singh @ Dulla, Sital Singh and one Avtar Singh were got discharged on police request, as is evident from the zimni orders on the trial Court records. Drawing my attention to certain zimni orders passed by the trial Court in this regard the learned counsel contends that the prosecution agency had not been fair in its investigation and a favour has been shown to the real culprits whereas the present two accused, who had no nexus with the conscious possession of the contraband, have just been made scape goats. Dwelling upon his arguments, he further contends that even the Canter, which was being driven by Sital Singh, son of Jaswinder Singh @ Dulla and was not having the original registration number, as is clear from the statement of Sham Lal Clerk from DTO office (DW- 7), was not taken into custody. This indicates foul play. Even the van in which his father Jaswinder Singh @ Dulla was travelling, had no registration number. This all indicates that the real persons, who were transporting the contraband, were Jaswinder Singh @ Dulla and his son Sital Singh and it is also otherwise clear from the secret information itself and, therefore, it was the bounden duty of the prosecution agency to investigate the present case in that direction as the above said two had no escape. But the same is not done. In fact Sital Singh was shown to be involved not only in this case as is evident from the secret information, but subsequently also another FIR (No. 124 of 2000) was registered against him under Section 15 of the Act and this fact was admitted by SI Sarabjit Rai, the Investigating Officer in his cross- examination. Even otherwise, it is proved from the statement of Constable Amarjit Singh (DW-1), who had produced copy of the aforesaid FIR (Exhibit DA). 11. While pointing out the aforesaid flaws in the investigation, Mr. Singh submits that simply the appellants were found sitting in the Canter, it cannot be presumed that they were in conscious possession of the contraband (100 bags of poppy husk) without there being any further investigation to conclude that they, in fact, had the nexus with it. Therefore, both the accused deserve acquittal. 12. Mr. Singh then contends that not only the case of the prosecution fails on the aforesaid vital infirmity, even the so-called independent witness, namely, Toshi, who ultimately was given up as having been won over, happens to be a stock witness and was very convenient for SI Sarabjit Rai the Investigating Officer. Drawing the attention of this Court to the Exhibits DB, DC and DD, he submits that aforesaid Toshi has been projected as a witness to recovery in all those cases which were also under the Act. Drawing the attention of this Court to the Exhibits DB, DC and DD, he submits that aforesaid Toshi has been projected as a witness to recovery in all those cases which were also under the Act. This infirmity also goes to show that the case as projected by the prosecution is not true and all the formalities were completed subsequently by the Investigating Officer, may be in the police station. 13. The learned counsel then contends that the link evidence is also missing in this case. As per the statement of SI Sarabjit Rai, he had deposited the entire case property including the samples intact with Sikandar Singh Moharrir Head Constable on 29.5.1999, the alleged date of recovery and the same was produced on 30.5.1999 before the Illaqa Magistrate the next day by ASI Inderjit Singh. Thereafter it was deposited back with MHC Sikander Singh. This statement runs contrary to the affidavit Exhibit PB tendered by Sikander Singh, wherein he talks about only 200 samples which were extracted from 100 bags (two samples from each bag) and not 100 bags containing the main bulk. Even before the Illaqa Magistrate the samples were produced and not the bags (100 in number) of bulk as is clear from the order dated 30.5.1999 passed by Sh. D.P. Singla Judicial Magistrate Ist Class. This indicates that 100 bags were never deposited in the Malkhana and this was the reason that the case property was not produced before the Illaqa Magistrate despite several opportunities availed by the prosecution agency. In this regard my attention has been drawn to a detailed order dated 19.1.2004 passed by the concerned court. This, according to the learned counsel, is a serious flaw in the case of the prosecution, which also creates a doubt in the very case set up against the accused. The learned counsel then submits that not only the 100 bags were not produced as stated above, even the Canter was also not produced before the learned Illaqa Magistrate, from which the poppy husk was allegedly recovered. 14. The learned counsel then submits that not only the 100 bags were not produced as stated above, even the Canter was also not produced before the learned Illaqa Magistrate, from which the poppy husk was allegedly recovered. 14. The learned counsel then contends that although Toshi the alleged independent witness has been given up as having been won over but non-handing over of the seal to him after completing all the formalities at the spot by the Investigating Officer and instead giving the same to another police official i.e. SI Inderjit Singh (PW-6), who was working under him only creates a doubt about the tempering with the case property. According to the learned counsel, retaining the own seal by the DSP, in this eventuality, would not be of any advantage to the prosecution. In order to demolish the case of the prosecution on this aspect, the learned counsel contends that even the FSL form was not prepared at the spot as is evident from evidence. Even the seal impressions which are pasted on form No. 29 (CFSL form) do not indicate any date. From this, it can comfortably be said that the seal impressions on the said form were affixed subsequently in order to complete the paper formality and, therefore, possibility of tampering with the case property cannot be ruled out. This lacuna is also to be seen seriously. 15. The learned counsel lastly points out certainly discrepancies in the statements of the prosecution witnesses, but primarily he sets store by the aforesaid contentions. 16. Repudiating the submissions advanced by Mr. Singh, Mr. Sidhu, the learned State counsel contends that in this case huge recovery has been effected from the present two accused, which at least could not be planted by the police. He then contends that the recovery is effected in the presence of a senior gazetted officer (DSP), who himself is signatory to all the memos and, therefore, it cannot be doubted. According to him, even if certain discrepancies have crept in the statements of the witnesses, still the prosecution case with regard to conscious possession of the contraband qua both the accused has been proved to the hilt and they have not been able to rebut the same and as such they have no escape. 17. According to him, even if certain discrepancies have crept in the statements of the witnesses, still the prosecution case with regard to conscious possession of the contraband qua both the accused has been proved to the hilt and they have not been able to rebut the same and as such they have no escape. 17. After hearing the rival contentions of either side and going through the entire record very carefully, I am of the view that the prosecution case qua both the accused fails as conscious possession of the contraband (100 bags of poppy husk) qua them is not proved to the hilt. Therefore, the impugned judgment deserves to be set-aside. However, I shall now be entering into detailed discussion touching almost all the vital aspects of the case. 18. The possession of the narcotic is the core ingredient to be established before the accused is subjected to punishment under the Act. Therefore, the prosecution has to prove the nexus between the accused and the contraband allegedly recovered. While dealing with this aspect in detail, in Avtar Singh v. State of Punjab, 2002(4) RCR(Criminal) 180, wherein there was recovery of 16 bags from a truck and two persons were sitting on the bags one was on the steering of the truck, their Lordships while setting aside their conviction as recorded by the High Court have observed that 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 the custody or control over the goods. For reference the relevant para from the aforesaid judgment is reproduced as under : "Possession is the core ingredients to be established before the accused in the instant case is subjected to the punishment under Section 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of Clause (xiv) of Section 2, it is for them to account for such possession satisfactorily; if not, the presumption under Section 54 comes into play. We need not go into the aspect whether possession must be conscious possession. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of Clause (xiv) of Section 2, it is for them to account for such possession satisfactorily; if not, the presumption under Section 54 comes into play. We need not go into the aspect whether possession must be conscious possession. Perhaps taking clue (cue ?) from the decision of this Court in Inder Sain v. State of Punjab, 1983(2) SCC 372 arising under the Opium Act, the learned trial Judge charged the accused of having conscious possession of poppy husk. Assuming that poppy husk comes within the expression poppy straw, the question, however, remains whether the prosecution satisfactorily proved the fact that the accused were in possession of poppy husk. Accepting the evidence of PW-4 the Head Constable, it is seen that appellant No. 3 (accused No. 4) was driving the vehicle loaded with bags of poppy husk. Appellants 1 and 2 (Accused Nos. 1 and 2) were sitting on the bags placed in the truck. As soon as the vehicle was stopped by ASI (PW-2), one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and the offending goods. 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 by (but ?) the minimum requisite element which has to be satisfied in (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 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 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 transpires from 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 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. True, their silence and failure to explain 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 would 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 appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption under Section 114 of the Evidence Act nor is it after (apt ?) 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. In this state of things, it is not proper to raise a presumption under Section 114 of the Evidence Act nor is it after (apt ?) 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 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 conclusion 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. Non- application of mind to the material factors has thus vitiated the judgment under appeal." 19. The onus to prove the absence of culpable mental state lies on the accused. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000(1) RCR(Crl.) 611 (SC) : 2000(2) SCC 523, their Lordships of the Apex Court while dealing with this issue have observed that the burden of proof cast on the accused under Section 35 of the Act can be discharged through different modes. One is that he can rely on the materials available in the prosecution evidence. Next is that he can elicit answers from the prosecution witnesses through cross-examination to dispel any such doubt and he may also adduce some other evidence when he is called upon to enter his defence. In other words, if circumstances appearing in the prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that the accused could not have the knowledge or the required intention, the burden cast upon him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter his defence. 20. 20. While dealing with the presumption envisaged under Sections 35 and 54 of the Act, this Court in its Full Bench judgment rendered in Kashmir Singh v. State of Punjab, 2006(2) RCR(Crl.) 477 (FB) has observed that the presumptions envisaged under the Act are questions of fact depending upon the case and it appears to be very difficult to lay down any specific mode and method in which the presumption can be raised. The facts in each case are different and the witnesses testify differently. Finally, it was observed that no presumption under Sections 35 and 54 should be used against the accused unless he has been given an opportunity to rebut the presumptions in his statement under Section 313 of the Code Criminal Procedure by being called upon to explain the circumstances which give rise to the presumptions. 21. In another judgment rendered by a Division Bench of this Court in Tarsem Singh v. State of Punjab, 2005(4) RCR(Criminal) 300 while acquitting the accused, who were sitting in the tractor-trolley, which was allegedly carrying 20 gunny bags of poppy husk, their Lordships have observed that it cannot be inferred that the accused was exercising the possessory right over the contraband. In the aforesaid judgment, the Division Bench has relied upon another Single Bench decision of this Court rendered in Criminal Appeal No. 298-SB of 1999 decided on 12.5.2005 in which this Court 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. The word "possession", according to the Shorter Oxford English, 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 Encyclopedia Britannica, Volume 9, 15th Edition means :- "the acquisition of either a considerable degree or physical control over a physical thing, such as 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 with 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 recognised 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." 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 or right to unqualified ownership in such a manner as to exclude control by other person." 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." 22. I am dealing with the vital aspect of conscious possession keeping in view the guidelines enunciated by the aforesaid decisions. 23. The case set up by the prosecution is that Jaswinder Singh @ Dulla and his son Sital Singh was coming in a Van without registration number and the Canter which too was having a fake registration number was being allegedly driven by Sital Singh, following the said van. The present two accused are shown to have been with Sital Singh in the Canter. The case of the prosecution then is that the Jaswinder Singh @ Dulla did not stop his van despite signal and fled way whereas Sital Singh, who was on the steering of the Canter also succeeded in making good his escape in the presence of many police officials. In his cross-examination, SI Sarabjit Rai has stated that he knew Sital Singh earlier and an attempt was made by the police officials to chase him but he could not be apprehended. The explanation given by the prosecution agency showing its inability to nab Sital Singh on the face of it does not appeal to reasoning, but even if some latitude is given to the prosecution for this lapse, still one material fact which is apparent on record is that Jaswinder Singh @ Dulla and his son Sital Singh were certainly aware of the fact as to what was being carried in the Canter. The aforesaid two persons are the main persons, who were ultimately discharged on police request. It is really strange and creates a cloud of doubt over the manner in which the investigation is carried out. I feel the necessity of reproducing two zimni orders passed by the concerned court in this regard. The aforesaid two persons are the main persons, who were ultimately discharged on police request. It is really strange and creates a cloud of doubt over the manner in which the investigation is carried out. I feel the necessity of reproducing two zimni orders passed by the concerned court in this regard. The order dated 6.3.2002 runs thus : Present : P.P. for the State. Sh. B.S. Nijjar, Advocate, counsel for the applicant. Record not produced. Counsel for the applicant submitted that the above said case is pending in this court against Saudaga Lal and Dyal Singh while Jaswinder Singh and Avtar Singh alias Tari were discharged at the time of charge as no case was made out against them for framing of charge by Shri G.S. Dhiman, the then Ld. Special Judge, Jalandhar. The case against applicant was re-investigated by the Additional Deputy General of Police, Punjab Crime Branch, who directed the SSP, Jalandhar vide his office memo No. 1480/Inv.-2 dated 28.6.2000 that Sital Singh accused should be got discharged in this case. SSP, Jalandhar prepared report under Section 173(8) for discharge of the applicant Sital Singh. On 28.2.2001, applicant was discharged on the request of police. Now the police of Police Station Phillaur, which is inimical towards the family of the petitioner is going to re-arrest the applicant after a gap of more than one year, in this very FIR. 2. Heard. Record has not been produced by the police. The arrest of the applicant Sital Singh is stayed in only FIR No. 71 dated 29.5.1999 under Section 15 of the NDPS Act, P.S. Phillaur, in which he already stood discharged, till 15.3.2002. 3. Record be produced on that date. Photostat copy of necessary documents have been placed on file by the applicant. However, record of discharge be called from the record room on that date. Announced 6.3.2002 Special Judge, Jalandhar." 24. At the same time, another order dated 30.9.2002 also needs to be reproduced, which is as under :- "Present : Counsel for the petitioner. Addl. P.P. For the State. Detailed order has already been passed on 6.3.2002. So far no supplementary challan against Sital Singh has been presented in the Court. He was discharged. Shri L.S. Parmar, Advocate counsel for the petitioner submitted that petitioner apprehends his arrest and the police should give at least one week prior notice in case of his arrest. 2. Heard. Detailed order has already been passed on 6.3.2002. So far no supplementary challan against Sital Singh has been presented in the Court. He was discharged. Shri L.S. Parmar, Advocate counsel for the petitioner submitted that petitioner apprehends his arrest and the police should give at least one week prior notice in case of his arrest. 2. Heard. I have heard the Ld. Addl. P.P. for the State as well as Ld. Counsel for the petitioner. In view of submission made by the Ld. Counsel for the petitioner, it is ordered that in case in this FIR the petitioner is required to be arrested, the police should give one week prior notice to him, before his arrest. The application is disposed of accordingly. Announced 30.9.2002 Special Judge, Jalandhar." 25. Mr. Sidhu, the learned State counsel after verifying from the records concedes at the Bar that Sital Singh and Jaswinder Singh @ Dulla were got discharged and no proceedings were initiated against them thereafter. 26. The aforesaid facts speaks volumes of the fact that the Investigating Officer has not properly investigated this case and it smacks of a favour to them, may be for any reason. However, at the moment I am more concerned with the conscious and intelligent possession of the contraband qua the present two accused. Merely they were physical present in the Canter, it cannot be said to be a ground to hold that they were actually in conscious possession of the contraband. Both of them are residents of different villages. The plea taken by the accused is that the real persons were let off by the police and they have been made scape goats. All these factors when taken collectively lead this Court to observe that both the accused have been able to discharge the onus of culpable mental state. The aforesaid judgments of Honble Apex Court, the Full Bench and the Division Bench of this Court referred to hereinabove squarely cover the case of both the accused. In my view the accused can also derive benefit from the Full Bench decision of this Court in Kashmir Singhs case (supra) as no specific question was put to them in their statements recorded under Section 313 of the Code of Criminal Procedure for being called upon to explain the circumstances giving rise to the presumptions. 27. In my view the accused can also derive benefit from the Full Bench decision of this Court in Kashmir Singhs case (supra) as no specific question was put to them in their statements recorded under Section 313 of the Code of Criminal Procedure for being called upon to explain the circumstances giving rise to the presumptions. 27. My aforesaid view is also fortified by another latest decision of a Division Bench of this Court rendered in Sukhdev Singh alias Sukha v. State of Punjab, 2006(1) RCR(Crl.) 4 and Single Bench decisions of this Court rendered in Baldev Singh v. State of Punjab, 2005(1) RCR(Crl.) 823 (P&H); Dharam Pal and another v. State of Haryana, Criminal Appeal No. 635-SB of 1996, decided on September 25, 2006; Joga Singh v. State of Punjab, 2006(3) RCR(Crl.) 480 (P&H) Criminal Appeal No. 472-SB of 2003, decided on May 22, 2006 and Karnail Singh and another v. State of Punjab, Criminal Appeal No. 1087-SB of 2000, decided on June 7, 2006. 28. Not only the case of the prosecution qua the present two accused fails on the aforesaid vital flaw of conscious possession, which by itself is enough to dislodge the entire case, even the link evidence is not established to the hilt. In this regard, I am taking up all the submissions made in this behalf by learned counsel for the appellants collectively. 29. There appears to be a major discrepancy in the substantive statement of SI Sarabjit Rai and the affidavit (Exhibit PB) tendered by Sikander Singh Moharrir Head Constable wherein there is no reference regarding deposit of 100 bags of poppy husk. The conceded position before this Court is that the case property was not produced before the trial Court till conclusion of the trial despite several opportunities availed by the prosecution in this regard. No doubt, the prosecution case cannot be thrown merely on this weakness as the samples drawn from each bag were in fact produced before the learned Illaqa Magistrate as is clear from the zimni order on the file, but one fact which certainly creates doubt in the mind of this Court is that the sample seal impression bearing the inscriptions (`SR and `OJS) of the Investigating Officer and the DSP respectively were not prepared at the spot and were subsequently pasted on form No. 29. I have once again perused form No. 29 (FSL form) very carefully, on which both the seal impressions were pasted. These impressions do not bear the signatures of either the Investigating Officer or the DSP. The date is also not mentioned. The columns of form No. 29 (FSL form) in the beginning are typed, which indicates that this form was prepared subsequently and certainly not at the place of recovery. Non-filling up of the form at the time of effecting the alleged recovery and the same being not deposited in the malkhana has been taken as a serious flaw in the investigation as held by this Court in Bhola Singh v. State of Punjab, 2005(2) RCR(Crl.) 520. In my view, this infirmity also dents the case of the prosecution to a great extent. 30. Non-handing over of seal to the independent witness, who was present at the spot at the time of recovery has also been taken as a serious lacuna as held in Baldev Singhs case (supra). Although Toshi, the alleged independent witness was subsequently given up as having been won over, yet at the time of effecting the recovery he was projected as an independent witness and, therefore, the Investigating Officer instead of handing over the seal to ASI Inderjit Singh should have entrusted the same to him. The matter does not rest here. The second issue that crops up is as to whether he was really an independent witness or at the beck and call of the police or a stock witness. He was also shown as a witness to recovery in three cases under the Act relating to the same police station (Phillaur) where Inspector Sarabjit Rai was posted as Station House Officer. This certainly creates a doubt about the fairness of the investigation. 31. This Court would have given some latitude to the prosecution agency for all these laxities but once it has not been able to prove conscious possession of the contraband qua both the accused to the hilt on account of the flaws discussed hereinabove, the other weaknesses can be considered against the prosecution. 32. 31. This Court would have given some latitude to the prosecution agency for all these laxities but once it has not been able to prove conscious possession of the contraband qua both the accused to the hilt on account of the flaws discussed hereinabove, the other weaknesses can be considered against the prosecution. 32. I am conscious of the fact that the recovery allegedly effected, from the Canter is quite huge but at the same time this Court cannot lose sight of the stringent provisions with regard to the sentence, where the minimum sentence of ten years RI and a fine of Rs. one lac is provided for keeping in possession non-commercial quantity of contraband. Therefore, before the conviction is maintained, it becomes incumbent upon the prosecution to project a flawless investigation at least on vital aspects. In the case in hand, the prosecution is stumbling on all material points, especially with regard to conscious possession and, therefore, this Court is unable to concur with the findings of the trial Court. 33. As a sequel to the aforesaid discussion, the net result now surfaces is that the instant appeal stands allowed, the impugned judgment of conviction is set aside and both the accused are acquitted of the charge. They are stated to be in custody and shall be released forthwith, if not required in any other case. 34. Before parting with the judgment, I am showing my anguish on the investigation conducted in this case, which according to me was not fair. Let the copy of the judgment be sent to the Director General of Police, Punjab, Chandigarh and the Senior Superintendent of Police, Jalandhar to deeply probe into the matter regarding the manner of the investigation carried out in this case with regard to the conclusion for discharging aforesaid Jaswinder Singh @ Dulla and his son Sital Singh. If need be, responsibility be also fixed on the delinquent police official.