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2009 DIGILAW 1388 (PNJ)

Sewak Singh v. State of Haryana

2009-08-11

MAHESH GROVER

body2009
JUDGMENT Mahesh Grover, J 1. This appeal is directed against judgment and order dated 29.10.2003 of the Additional Sessions Judge, Sirsa (hereinafter described as `the trial Court') whereby the appellant has been convicted and sentenced under Section 15 of the Narcotic Drgus and Psychotropic Substances Act,1985 (for short, `the Act'), to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.one lac and in default of payment of fine, to undergo further rigorous imprisonment for two years. 2. The facts of the case are that on 21.12.2000, when Shri Randhir Singh, Station House Officer, Police Station, Sadar, Dabwali, along with other police officials was present in the area of village Phullo in connection with Nakabandi at canal bridge, he saw a maruti car bearing no.HR-01-8667 coming from the side of the village. The occupants of the car, on seeing the police party, stopped it, came out and tried to run away. One of them was captured. He is stated to be the appellant herein. However, the other person managed to escape. The appellant was served with a notice asking him whether he desired to be searched before a Magistrate or a gazetted officer as a measure of compliance of Section 50 of the Act. However, he declined the offer. Thereafter, the search of the car was conducted and four bags, each containing forty kilograms of poppy straw were recovered therefrom. Two samples weighing 200 grams each were separated from each of the bags. The samples and the bags were separately sealed and taken into possession vide recovery memo Exhibit-PD. The car in question was also seized. A rough site plan of the place of recovery was prepared. The statements of the witnesses were recorded under Section 161 of the Cr.P.C. and the appellant was arrested. An F.I.R. was got registered by sending a ruqa to the police station. The case property and the samples were deposited in the malkhana and after completion of necessary investigation, a challan was presented against the appellant as he was prima facie found guilty of an offence punishable under Section 15/16 of the Act. 3. The appellant was charge sheeted under Section 15 of the Act by the trial Court and the prosecution was directed to produce its evidence. 3. The appellant was charge sheeted under Section 15 of the Act by the trial Court and the prosecution was directed to produce its evidence. As many as four witnesses were examined by the prosecution and thereafter, the statement of the appellant was recorded under Section 313 of the Cr.P.C. in which he denied the allegations levelled against him and pleaded that he has been falsely implicated. In his defence, he produced two witnesses, namely, DW1-Ramesh Kumar, Constable and DW2-Sher Singh, Constable. 4. After appraisal of the entire evidence before it, the trial Court came to the conclusion that the offence alleged against the appellant stood established and, therefore, he was liable to be convicted and sentenced of the same. By the impugned judgment and order, he has been convicted and sentenced as noticed hereinabove. 5. While assailing the conviction and sentence of the appellant, learned counsel for the appellant contended that the prosecution story suffers from grave defects. He underlined the following infirmities:- 1. Even though it is the case of the prosecution that there were two persons in the car, but no question was put to the appellant regarding the other person either during the investigation or during the course of trial as to who was he. Moreover, no attempt was made by the police to apprehend that person. 2. No attempt was made to establish the identity of the car and its owner & driver. 3. PW3-Kishori Lal was silent about the seal which was affixed on the samples extracted from the recovered bags, being handed over to him, but the report of the Forensic Sciences Laboratory refers to the sample seal which was received there. There is no explanation as to how the seal was appended to the samples. 4. No question was put to the appellant regarding his being in conscious possession of the contraband when he was examined under Section 313 of the Cr.P.C. PW4-Randhir Singh, who was the investigating officer, has clearly stated that the sample seal was not prepared and yet, the report of the Forensic Sciences Laboratory shows that the samples were received with the sample seal. 5. F.I.R. was registered at 6.25 A.M. on 21.12.2000, whereas PW4-Randhir Singh stated that the appellant was arrested at 8.00 A.M. on that day. 6. 5. F.I.R. was registered at 6.25 A.M. on 21.12.2000, whereas PW4-Randhir Singh stated that the appellant was arrested at 8.00 A.M. on that day. 6. On the basis of the above infirmities, learned counsel for the appellant submitted that the impugned judgment is liable to be set aside. In support of his submissions/ contentions, he placed reliance on Avtar Singh Versus State of Punjab, 2002(4) R.C.R. (Criminal) 180 (S.C.) and State of Punjab Versus Hari Singh & Ors., 2009(2) R.C.R.(Criminal) 144 (S.C.). 7. On the other hand, learned counsel for the respondent-State contended that the identity of the second occupant of the car could not be established for the reason that the appellant had refused to cooperate with the investigating officer. She further contended that looking at it from any angle, the case of the prosecution stood proved beyond any shadow of doubt as there is over-whelming evidence on record, which has been considered by the trial Court and there is no infirmity or illegality in the impugned judgment which deserves to be upheld. 8. I have thoughtfully considered the rival contentions and have gone through the whole record. 9. In my opinion, the present appeal deserves to succeed. PW4Kishori Lal has not uttered a single word about the samples having been sealed in his presence, yet, some seals reportedly appeared thereon which is clearly apparent from the report of the Forensic Science Laboratory. This aspect of the matter remained totally unexplained by the prosecution. To a pointed query by this Court, learned counsel for the respondent-State could not give a satisfactory reply as to how the seals were present on the samples. Thus, there was a clear violation of the procedure which is to be adopted while taking samples. This strikes at the very root of the matter. 10. The crucial link evidence remains unexplained and is missing from the sequence of the case of the prosecution. Its case cannot be said to be without any blemish. This casts a serious doubt about the prosecution story. 11. That apart, the contraband was allegedly recovered from the car and one person is stated to have run away. It was, therefore, imperative upon the prosecution to have proved the conscious possession of the appellant. Its case cannot be said to be without any blemish. This casts a serious doubt about the prosecution story. 11. That apart, the contraband was allegedly recovered from the car and one person is stated to have run away. It was, therefore, imperative upon the prosecution to have proved the conscious possession of the appellant. No question was put to him while recording his statement under Section 313 of the Cr.P.C. as to whether he was in conscious possession of the contraband or not. Similarly, no question was put to him regarding the identity of the other person and no attempt was made to establish the identity of the owner and driver of the car in question. In this manner also, the prosecution has miserably failed to establish that the appellant was in conscious possession of the contraband. 12. In Avtar Singh Versus State of Punjab (supra), the Apex Court held in paragraph 6 of the judgment as follows :- “6. “Possession is the core ingredients to be established before the accused in the instant case are 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 the possession must be conscious possession. Perhaps taking clue 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 of 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 PW4-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 (PW2), one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. 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 (PW2), 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 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 be 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 the circumstances in which they were travelling in the vehicle at the odd hours, is one strong circumstance that can be put against them. 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 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 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 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.” 13. In State of Punjab Versus Hari Singh & Ors. (supra), their Lordships have observed in paragraph 33 of the judgment as under :- “33. Non-application of mind to the material factors has thus vitiated the judgment under appeal.” 13. In State of Punjab Versus Hari Singh & Ors. (supra), their Lordships have observed in paragraph 33 of the judgment as under :- “33. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word `may' in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.” 14. The above observations of the Apex Court are clearly attracted to the facts of the present case. It was incumbent upon the prosecution to conduct proper investigation to ascertain the role played by the appellants and to link him with the contraband. As held by the Supreme Court in the Avtar Singh's case (supra), the possession, in such like cases, is the core ingredient which has to be established before an accused person is held guilty of violating the provisions of Section 15 of the Act. True, if an accused is found in possession of the contraband, then it is for him to account for such possession satisfactorily in order to avoid presumption under Section 54 of the Act. The minimum requisite condition which is required to be satisfied by the prosecution is to establish the custody and control of the goods. However, in the instant case, there is nothing on record to prove the said fact and mere presence of the appellant in the car cannot give rise to a presumption that he was having custody and control of the contraband placed therein. However, in the instant case, there is nothing on record to prove the said fact and mere presence of the appellant in the car cannot give rise to a presumption that he was having custody and control of the contraband placed therein. Moreover, no question was put to him in his statement under Section 313 Cr.P.C. about the conscious possession of the contraband and the identity of the other person accompanying him in the car. 15. On the basis of the above discussion, this appeal is accepted, the impugned judgment is set aside and the appellant is acquitted of the charge levelled against him by giving him the benefit of doubt.