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2008 DIGILAW 985 (PNJ)

Dharam Singh v. State Of Punjab

2008-05-06

HARBANS LAL

body2008
Judgment Harbans Lal, J. 1. This appeal is directed against the judgment/order of sentence dated 18.5.2000 passed by the Court of learned Additional Sessions Judge Ferozepur, whereby he convicted and sentenced Dharam Singh accused to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine, to further undergo rigorous imprisonment for two years under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, `the Act). 2. The facts in brief of the prosecution case are that on 12.8.1996, SI Gurvinder Singh among other police officials was proceeding towards village Wara Bhai Kaon on government Gypsy bearing registration No. PB-05-3087. When they neared the bridge of twin canal in the aforesaid area, he received secret information that the accused Dharam Singh was present in the fields in his motor along with huge quantity of poppy husk and if raid is conducted, he can be caught red handed and poppy husk can be recovered. On raid, the accused was found sitting on 3 gunny bags placed outside the room meant for electric motor. He was apprised of his right to be searched in the presence of a Gazetted Officer or a Magistrate as he was suspected to be in possession of some contraband. He offered to be searched in the presence of some Senior Police Officer. On receipt of wireless message, Sajjan Singh, DSP commando came at the spot. Meanwhile, Gurdial Singh Lambardar was also joined in the Police party. On the direction of the aforementioned DSP, the search of the bags was carried out by SI Gurvinder Singh. The contents of the same were found to be poppy husk. 250 grams of poppy husk was drawn from each bag to serve as sample and converted into a parcel. The remainder of 2 bags when weighed came to 44 Kg.750 grams which was also turned into a parcel. Thereafter, all the parcels were sealed with the seal GS and seized vide recovery memo. The sample seal was prepared. The seal after use was handed over to ASI Sukhmander Singh. The Sub Inspector prepared the rough site plan showing the place of recovery, recorded statements of witnesses and sent the sample parcel for analysis to the office of the Chemical Examiner, Bathinda. The sample seal was prepared. The seal after use was handed over to ASI Sukhmander Singh. The Sub Inspector prepared the rough site plan showing the place of recovery, recorded statements of witnesses and sent the sample parcel for analysis to the office of the Chemical Examiner, Bathinda. On receipt of chemical examiners report and after completion of investigation, the charge-sheet was laid in the Court of learned Chief Judicial Magistrate. He committed the case to the Court of Sessions for trial of the accused. 3. The accused was charged under Section 15 of the Act to which he did not plead guilty and claimed trial. 4. In order to substantiate the allegations, the prosecution has examined PW-1 SI Manjit Singh, PW-2 Constable Nirmal Singh, PW-3 Constable Sukhdev Singh, PW-4 ASI Sukhmander Singh, PW-5 SI Gurvinder Singh and closed its evidence by tendering chemical examiners report, Exh. P13. 5. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded false implication as well as innocence. He has come up with the plea that he was illegally detained in Police Station Ghall Khurd on 11.8.1996 in the evening and later on he was falsely implicated in this case. In his defence, he examined Inderjit Gupta. Section Supervisor, Telegraph Office, Ferozepur as DW-1, Narinder Singh DW-2 and Gurdial Singh DW-3. 6. After hearing the learned Additional Public Prosecutor, the learned defence counsel and examining the evidence on record, the learned trial court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with his conviction/sentence, he has preferred this appeal. 7. I have heard Mr. S.P.S. Sidhu, Advocate for the appellant, as well as Ms. Manjari Nehru, Deputy Advocate General, Punjab for the State, besides going through the record with due care and circumspection. 8. Mr. Feeling aggrieved with his conviction/sentence, he has preferred this appeal. 7. I have heard Mr. S.P.S. Sidhu, Advocate for the appellant, as well as Ms. Manjari Nehru, Deputy Advocate General, Punjab for the State, besides going through the record with due care and circumspection. 8. Mr. S.P.S. Sidhu, Advocate appearing on the behalf of the appellant, making a short shrift of his arguments, maintained that (a) there is unexplained delay of as many as 9 days in sending the sample to the Chemical Examiner, though as per standing instruction No. 1/88 dated 15.3.1988 of Narcotic Control Bureau, New Delhi, the same should have been despatched within 72 hours; (b) no C.F.S.L. form was prepared at the spot nor deposited in the Malkhana; (c) recovery has been effected from the open space which is accessible to all and sundry; (d) the conscious possession of the accused qua these bags is not established; (c) The seal after use was not handed over to Gurdial Singh, an independent witness; (f) the secret information was neither reduced into writing nor sent to the immediate superior officials in adherence to the provisions of Section 42 of the Act and all these circumstances are cumulatively fatal to the prosecution case. 9. To tide over these submissions, Ms. Manjari Nehru, Deputy Advocate General, Punjab, for the State of Punjab, contended that as is being depicted by the Chemical Examiners report, the sample seal tallied with the seals affixed on the sample parcels when these were received in the office of the Chemical Examiner. This obviously rules out the possibility of tampering with the contents of the sample parcels. The presumption arising under Section 35 as well as 54 of the Act with regard to the conscious possession of the accused over the bags of poppy husk has not been rebutted by him. He has not accounted for his possession and thus he is presumed to be in conscious possession of the same. The case of the prosecution should not be thrown out merely because of the fact that the seal after use was handed over to an official witness instead of an independent witness. 10. I have given a deep and thoughtful consideration to the rival contentions. In re : Bhola Singh v. State of Punjab, 2005(2) RCR(Criminal) 520 (P&H), fourteen bags of poppy husk were recovered. 10. I have given a deep and thoughtful consideration to the rival contentions. In re : Bhola Singh v. State of Punjab, 2005(2) RCR(Criminal) 520 (P&H), fourteen bags of poppy husk were recovered. The C.F.S.L. was neither prepared at the spot nor deposited in the Malkhana. The seal was not given to the independent witness. The same was kept by the Investigator. It was held that the possibility of seal, contraband and the contents of the container being changed, cannot be ruled out. The conviction was set aside. In the current case, there is a delay of as many as 9 days in the despatch of sample to the office of the Chemical Examiner, whereas according to the Standing Instruction referred to by Mr. Sidhu, the same should have been sent within 72 hours. As transpires from the prosecution evidence, the C.F.S.L. form was neither prepared at the spot nor deposited in the Malkhana. The seal after use was made over to ASI Sukhmander Singh instead of Gurdial Singh, an independent witness. The latter, when examined as DW-3 in defence, testified that on the alleged day, Dharam Singh (referring to the accused) was also in the police custody. When he visited Police Station Ghall Khurd, his signatures were obtained on about four papers in connection with compromise and no poppy husk was recovered from Dharam Singh accused. Thus, his testimony nullifies the prosecution story. Needless to say, the prosecution has not apportioned any cogent reason for withholding the despatch of the sample parcels along with sample seal for couple of days. ASI Sukhmander Singh PW-4 under the stress of cross-examination, admitted that Exh.DB (referring to his own police statement) is silent about the handing over of the seal by the DSP to him. It is in his further cross-examination that "I returned the seal to the SHO on the next day after production of the case property in Court. I had also returned the seal to the DSP after production of the case property in Court. I and SHO remained in Police Station after the recovery of poppy husk till we came to Ferozepur for production of the case property and the accused in Court." This evidence speaks volumes of return of return of the seals by this witness to the Investigator as well as DSP much before the despatch of the sample parcel for chemical analysis. In the face of these circumstances, the possibility of their contents having been tampered with, cannot be ruled out. The prosecution case is that the accused was found sitting on three gunny bags placed outside the room meant for motor. 11. In re : State of Punjab v. Balkar Singh and another, 2004(3) Supreme Court Cases 582, the accused were alleged to have been found present at the place from where about 100 bags of poppy husk were recovered. They were found sitting on such bags. They failed to give any satisfactory explanation for being present at that place. The Apex Court held that "merely by being found to be present at the place where the poppy bags were found and the failure to give any satisfactory explanation for being present there did not prove that the accused were in possession of the said poppy bags. In fairness, the police should have conducted further investigation as to transportation of poppy bags to the place of incidence, ownership of the poppy husk etc. to prove that the accused were really in possession of the said articles. " 12. Adverting to the facts of the instant case, the accused was allegedly found sitting on the gunny bags said to contain poppy husk. Thus, in view of the ratio laid down in Balkar Singh and anothers case (supra) mere his presence over the bags and his failure to give any satisfactory explanation for being so present, does not prove that he was in possession of such bags. As is borne out from the record, the Investigating Officer did not collect the evidence as to how the alleged bags were transported to the place of incidence or who was the owner of the bags or the place at which these were lying. 13. In re : Raj Kumar v. State of Punjab, Hawa Singh v. State of Punjab, 2005(1) RCR(Crl.) 70, the jeep was being driven by Raj Kumar while Hawa Singh was seated by his side on the front scat. There was a bag lying between Raj Kumar and Hawa Singh. On search of the bag 8.250 kgs. poppy was recovered. The Division Bench of this Court held that "In the present case the bag containing 8.250 Kgs. of opium was lying on the seat between the two appellants. There was a bag lying between Raj Kumar and Hawa Singh. On search of the bag 8.250 kgs. poppy was recovered. The Division Bench of this Court held that "In the present case the bag containing 8.250 Kgs. of opium was lying on the seat between the two appellants. Both the appellants had been charged for possession of opium but neither of them had been asked any question in their statements under Section 313 Cr.P.C. that they were in conscious possession of opium. Therefore, neither the presumption under Section 35 nor the presumption under Section 54 of the Act would be attracted." 14. Section 35 provides that in any prosecution for an offence under the Act which requires a culpable mental state of the accused (conscious possession), the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he has no such mental state with respect to the act charged as an offence in that prosecution. There is an explanatory clause which states that "culpable mental state" includes "intention, motive, knowledge of a fact and belief in or reasons to believe, a fact." 15. Section 54 states that in trials under the Act it may be presumed unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of (a) any narcotic drug.............. (b) ..................... (c) ................ (d) ................ for the possession of which he fails to account satisfactorily. It would, therefore, a be apparent that presumption of culpable mental state and presumption of possession can be raised against accused persons but where these presumptions are raised the accused has a right to rebut the presumptions by pleading in his defence that he has no such mental state with respect to the act charged as an offence or that he has been able to satisfactorily account for the possession. Accused can give his counter explanation. It is necessary for the trial Court to frame a specific question regarding the presumption which is sought to be raised either under Section 35 or Section 54 when examining the accused under Section 313 Cr.P.C. and seeking his explanation. Unless this is done the presumption under Sections 35 and 54 cannot be used against the accused. Consequently, in the present case, the presumptions were not available to the prosecution. Unless this is done the presumption under Sections 35 and 54 cannot be used against the accused. Consequently, in the present case, the presumptions were not available to the prosecution. Furthermore, the prosecution had failed to prove that either Raj Kumar (driver) or Hawa Singh (passenger) were in possession of the opium recovered from the bag which was lying in-between them on the seat of the jeep." 16 On the analogy of the above extracted observations, it was necessary for the trial Court to frame a specific question regarding presumption, which is sought to be raised either under Section 35 or Section 54 of the Act when the accused were examined under Section 313 of Cr.P.C., so as to seek their explanation. A glance through their statutory statements would reveal that no such specific question has been framed by the learned trial Court. Sequelly, in the instant case, the presumptions arising under the aforementioned Sections are not available to the prosecution. It further emanates from their statutory statements that it has nowhere been put to them that they were in possession of the bags. Consequently, their conscious possession is not established qua the bags by the prosecution. 17. It is in the cross-examination of PW-5 SI Gurvinder Singh, Investigator that " on receipt of secret information by me no information was sent to the higher police officers of the Police Station." 18. The facts of this case are such that if the Investigating Officer had indulged in taking down the secret information in writing for sending the same to the immediate superior officers, the accused would not have escaped from the place of alleged recovery as the same was situated near his tubewell kotha. 19. It is well settled that the provisions of Section 42 of the Act are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. Under Section 42(2) of the Act, an empowered Officer who takes down any information in writing or records the grounds under Proviso to Section 42(1) should forthwith send a copy thereof to his immediate officer superior. If there is total non-compliance of this provision, the same affects the prosecution case. To that extent, it is mandatory but if there is delay where it was undue or where the same has been explained or not, will be a question of fact in each case. 20. If there is total non-compliance of this provision, the same affects the prosecution case. To that extent, it is mandatory but if there is delay where it was undue or where the same has been explained or not, will be a question of fact in each case. 20. In view of the infirmities enumerated hereinbefore, this appeal is accepted, setting aside the impugned judgment/order of sentence. The accused- appellant Dharam Singh is hereby acquitted of the charged offence.