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2008 DIGILAW 662 (PNJ)

Kaku Singh v. State of Punjab

2008-03-10

HARBANS LAL

body2008
JUDGMENT Harbans Lal, J. - This appeal is directed against the judgment/order of sentence dated 9.7.2001 passed by the Court of learned Judge, Special Court, Bathinda, whereby he convicted and sentenced accused Kaku Singh, Sita Singh and Buta Singh to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, the defaulter to further undergo rigorous imprisonment for 2 years under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, the Act). 2. Shorn of all unnecessary details, the prosecution version is that on 2.11.1996, SI Major Singh, accompanied by other Police officials, happened to be present at Bus Stand of Village Jalal being on patrol duty in Government Jeep being driven by Constable Hardev Singh. He received a secret information through Head Constable Baldev Singh that the accused were indulging in the sale of poppy husk in the cotton field of Sita Singh accused. On receipt of this information, he went there. The accused were sitting on the gunny bags. On catching sight of the Police party, they took to their heels but Kaku Singh was intercepted, whereas Sita Singh and Buta Singh made good their escape. Kaku Singh was given option of being searched before a Magistrate or a Gazetted Officer. He opted to be searched in the presence of a Gazetted Officer. His consent memo. was recorded. On receipt of message, Sher Singh DSP Commando came at the spot. On his directions, 25 bags which lay in the cotton field, were searched. The same were found containing poppy husk. 200 grams of poppy husk was separated from each bag and turned into parcel. The residue of each bag, when weighed, came to 34 Kgs. 800 Grams. The bags containing residue were converted into parcels. All the parcels were sealed with seal MS and taken into possession vide recovery memo. The seal after use was handed over to ASI Mohinder Singh. Ruqa was sent to the Police Station. On its basis, formal FIR was recorded. The aforesaid SI prepared the rough site plan showing the place of recovery. On personal search of accused Kaku Singh, currency notes worth Rs. 20/- were recovered. The same were also seized vide memo. On return to the Police Station, the case property was kept by the Investigator, Major Singh. On its basis, formal FIR was recorded. The aforesaid SI prepared the rough site plan showing the place of recovery. On personal search of accused Kaku Singh, currency notes worth Rs. 20/- were recovered. The same were also seized vide memo. On return to the Police Station, the case property was kept by the Investigator, Major Singh. On the next day, the accused was produced before the Ilaqa Magistrate. He directed to deposit the same with the MHC of Judicial Malkhana, but there being no space therein, the same was deposited with the MHC Balwant Singh in the Police Station. On 5.11.1996, Buta Singh as well as Sita Singh accused were arrested. On receipt of Chemical Examiners report and after completion of investigation, the charge-sheet was laid in the Court of learned Illaqa Magistrate. He committed the same to the Court of Sessions for trial of the accused. 3. On commitment, the accused were charged under Section 15 of the Act to which they did not plead guilty and claimed trial. 4. In order to substantiate its allegations, the prosecution has examined PW-1 SI Major Singh (Investigator), PW-2 Constable Paramjit Singh, PW-3 ASI Mohinder Singh and closed its evidence by tendering the Chemical Examiners report, Exh. PN/1 and by giving up DSP Sher Singh as he had gone abroad. 5. When examined under Section 313 of the Code of Criminal Procedure, all the three accused denied the incriminating circumstances appearing in the prosecution evidence against them and pleaded false implication. Kaku Singh accused came up with the plea that he was taken away from his house at 2.00 P.M. on 2.11.1996 and nothing incriminating was recovered from his possession; that at that time Chanan Singh, Member Panchayat was present; that he also moved an application in this regard to the higher authorities through his mother. Sita Singh accused put forth that he was on duty in his office on 2.11.1996. In defence, they examined DW-1 Mehar Singh, DW-2 Karnail Singh, DW-3 Mohinder Singh, DW-4 Buta Singh, DW-5 Chanan Singh and DW-6 Nazar Singh. 6. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced all the three accused, as noticed the outset. Feeling aggrieved against their conviction/sentence, they have preferred this appeal. 7. 6. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced all the three accused, as noticed the outset. Feeling aggrieved against their conviction/sentence, they have preferred this appeal. 7. I have heard learned counsel for the appellants as well as Ms. Manjari Nehru, Deputy Advocate General, Punjab, besides going through the record with due care and circumspection. 8. Mr. A.P.S. Deol, Senior Counsel appearing for appellant No. 1 (Kaku Singh), Mr. S.S. Sidhu, Advocate for appellant No. 2 (Sita Singh) and Mr. G.S. Kaura, Advocate for appellant No. 3 (Buta Singh), urged in one voice that as alleged by the prosecution, the recovery has been effected pursuant to secret information which, as is borne out from the record, was not reduced into writing nor forwarded to the immediate superior officials in adherence to the mandatory provisions of Section 42 of the Act and as its consequence, the appellants have been prejudiced. To buttress their stance, they have sought to place abundant reliance upon the observations made by the Division Bench of this Court in re : Jarnail Singh v. State of Punjab, 2007(2) Recent Criminal Cases 92. 9. On the other hand, Ms. Manjari Nehru, Deputy Advocate General, Punjab, could not reconcile this contention in a successful manner. 10. As observed in Janail Singhs case (supra), "it was incumbent upon the Investigating Officer to take down the information given by secret informer and Ruqa should have been sent. Rest of the formalities of raid should have been conducted thereafter. There was non-compliance of the provisions of Section 42 of the Act." 11. Coming to the instant case, it surfaces in the across-examination of ASI Mohinder Singh, PW-3 that no Ruqa was sent on the basis of secret information nor secret information was reduced into writing at that place. It leads to an illation that the secret information was neither taken down nor forwarded to the immediate superior official in compliance with the provisions of Section 42 ibid. Thus, axiomatically the mandatory provisions of this Section have been given a go-bye. 12. It leads to an illation that the secret information was neither taken down nor forwarded to the immediate superior official in compliance with the provisions of Section 42 ibid. Thus, axiomatically the mandatory provisions of this Section have been given a go-bye. 12. The learned counsel for the appellants further pressed into service that the prosecution has not adduced cogent evidence in proof of conscious possession of the appellants over the bags of poppy husk nor a question qua such possession has been put to either appellant when examined under Section 313 of the Code of Criminal Procedure, therefore, in view of the observations made by the Apex Court in re : Avtar Singh v. State of Punjab, 2002(4) Recent Criminal Reports (Criminal) 180, their conviction/sentence is liable to be set aside. 13. Ms. Manjari Nehru, Deputy Advocate General, Punjab could not refute this contention in any manner. In re : Avtar Singh (supra), the Apex Court held as under :- "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 in 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 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 any thing 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 Criminal Procedure Code 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 Evidence Act nor is it safe 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 the presumption under Section 35 of the Act 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." 14. Further in re: State of Punjab v. Balkar Singh and another, (2004)3 Supreme Court Cases 582, the Apex Court observed as under :- "The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. The approach of both the Courts is erroneous in law." 14. Further in re: State of Punjab v. Balkar Singh and another, (2004)3 Supreme Court Cases 582, the Apex Court observed as under :- "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." 15. Adverting to the facts of the instant case, it is in the evidence of the Investigating Officer, SI Major Singh, PW-1 that "when he along with the police parry reached in the field of Sita Singh, where the three accused present in the Court were seen sitting on the gunny bags." In their statutory statement, it has been put to each of the accused that "you and your co- accused were sitting on the gunny bags." The Investigating Officer is absolutely silent about his having inquired into the ownership of the bags or how the same were transported to the stated field. He did not collect any evidence by way of revenue record that Sita Singh accused-appellant was owner of the field. Thus, on examining the matter in the background of the above extracted observations, it is held that the prosecution has utterly failed to prove that the appellants were in custody and control of bags. 16. It has further been argued by the learned counsel for the appellants that the DSP Sher Singh has not been examined by the prosecution with the result, the appellants have been denuded of their valuable right to cross-examine him. Furthermore the seal after use was handed over to ASI Mohinder Singh, the C.F.S.L. form was neither prepared nor deposited in the Malkhana and there is a delay of 4 days in the despatch of sample parcel to the Chemical Examiner. These circumstances are fatal to the prosecution case. 17. Ms. Furthermore the seal after use was handed over to ASI Mohinder Singh, the C.F.S.L. form was neither prepared nor deposited in the Malkhana and there is a delay of 4 days in the despatch of sample parcel to the Chemical Examiner. These circumstances are fatal to the prosecution case. 17. Ms. Manjari Nehru, Deputy Advocate General, Punjab, maintained that as would be apparent from Exh. PN/1, the Chemical Examiners report, the sample seal tallied with the seals affixed on the sample parcel and, that being so, the possibility of tampering with the contents of the sample parcel stands ruled out. This contention merits rejection. 18. It is in the evidence of SI Major Singh, PW-1 (Investigator) that "on 6.11.1996, the sample parcels remained in my custody and the same were sent by me to the office of the Chemical Examiner, Patiala through Constable Paramjit Singh No. 225 along with the specimen impression of the seal used to seal the sample; that the aforesaid Constable deposited the samples in the office of the Chemical Examiner on 7.11.1996; that on the next day, i.e. on 8.11.1996, he handed over the receipt to me." It is in the cross-examination of Constable Paramjit Singh, PW-2 that "I was handed over only one sample parcel along with the sample seal. Again said, I was handed over 25 samples including the sample of this case. I cannot say from where the sample parcels were taken out by the S.H.O." Palpably, the sample parcels remained in the custody of Major Singh (sic) till their despatch to the office of the Chemical Examiner. The seal was in the possession of ASI Mohinder Singh. C.F.S.L. form was neither filled at the spot nor deposited in the Malkhana. 19. In case Bhola Singh v. State of Punjab, 2005(2) Recent Criminal Reports (Criminal) 520, as many as 14 bags of poppy husk were recovered from the trolley. It was held that "where the seal remained with the Police after use and the C.F.S.L. form was neither prepared on the spot nor deposited in the Malkhana, such circumstance would be fatal to the prosecution case. Filling up of such form at the spot is very valuable safeguard to ensure that the sealed sample is not tampered with till its analysis by the F.S.L." In view of the foregoing discussion, this appeal is accepted, setting aside the impugned judgment-order of sentence. Filling up of such form at the spot is very valuable safeguard to ensure that the sealed sample is not tampered with till its analysis by the F.S.L." In view of the foregoing discussion, this appeal is accepted, setting aside the impugned judgment-order of sentence. The appellants are hereby acquitted of the charged offence. Appeal allowed.