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2010 DIGILAW 1457 (PNJ)

Karan Singh v. State Of Haryana

2010-04-19

H.S.BHALLA

body2010
Judgment H.S.Bhalla, J. 1. Recovery of 8 bags of poppy husk weighing about 41 kgs from the possession of canter being driven by appellant Karan Singh is attributed to the present appellant, which led to his trial, conviction and sentence of 10 years rigorous imprisonment coupled with a fine of Rs. 10 lac for having committed an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act"). Aggrieved against this conviction and award of sentence, appellant has filed the present appeal. 2. On 11.4.1996 Sub Inspector Het Ram along with ASI Kulwant Singh, Head Constable Bhim Singh, Head Constable Hans Raj and Suresh Kumar was present near Tirlokewala Chowk near village Khatrawan on his official jeep. In the meantime, canter bearing Registration No. DL-1LB-6118 was seen coming from the side of village Khatrawan. After having seen the police party holding a Nakabandi, the canter stopped by the side of the road at a distance and tried to turn the same. On suspicion the driver of the Canter was apprehended who disclosed his name thereafter as Karan Singh. The person who was sitting with the driver disclosed his name Biru Ram and the third person who was sitting on the rear portion of the canter disclosed his name Bakhshish Singh. The Investigating Officer served separate notices under Section 50 of the Act upon the accused respectively to the effect that he suspects that canter contained chura post and if they so desire a Gazetted Officer or a Magistrate can be summoned. The accused vide their replies desired that a gazetted officer may be summoned for conducting search of the canter. All the three accused put their respective thumb impressions on the notice and their replies were attested by ASI Kulwant Singh and Head Constable Bhim Singh. Thereafter a VT message was flashed in the Police Station Kalanwali for arranging a gazetted officer and sending him at the spot. From the Police Station a wireless message was flashed to Hukam Singh DSP who there after, reached the spot. The Investigating Officer searched the canter as per the instructions of the dsp. The canter was found containing 8 bags of chura post covered with Tarpaulin 100 grams of poppy husk was separated from each of the bag as sample and the residue on measurement was found to be 40 kgs 900 grams each including bag. The Investigating Officer searched the canter as per the instructions of the dsp. The canter was found containing 8 bags of chura post covered with Tarpaulin 100 grams of poppy husk was separated from each of the bag as sample and the residue on measurement was found to be 40 kgs 900 grams each including bag. The samples as well as the residue bags were sealed separately with the seal bearing impression HR and were taken into possession vide separate recovery memo Ex PD. The Deputy Superintendent of Police also affixed his two seals bearing impressions HS on the samples as well as the residue parcels. The seal HR after use was handed over to ASI Kulwant Singh whereas DSP retained his seal with him. the Investigating Officer thereafter sent a ruqa Ex. PE to the police station whereupon a formal FIR Ex. PE/1 was registered against the accused. Het Ram, the Investigating Officer, prepared rough site plan of the place of occurrence with marginal notes upon them. After coming back to the police station, the case property and the canter were deposited with the MHC with its seal intact. After completion of necessary formalities, accused were challenged and sent up for trial. 3. After the conclusion of the trial, accused Karan Singh and Bakshish Singh were convicted. After the passing of the conviction order, Bakshish Singh met his edge of doom and proceedings against him were ordered to be abated vide separate order of even date. 4. The case of the prosecution is supported by the evidence of as many as five witnesses. The accused when confronted with incriminating facts and circumstances pleaded false implication. He pleaded not guilty to the charge under Section 15 of the Act preferred against him. Having appreciated the evidence led by the prosecution and plea of the appellant raised, the trial court found him guilty and sentenced him as already noticed. No evidence was led of the defence. 5. I would also like to observe that one of the accused namely, Biru Ram was proved to be a minor and was sent to the Juvenile Court for trial vide order dated 5.11.1996 of the then learned Sessions Judge, Sirsa. 6. I have heard learned counsel appearing for the appellant and the learned State Counsel at some length and have also gone through the record with their able assistance carefully. 7. 6. I have heard learned counsel appearing for the appellant and the learned State Counsel at some length and have also gone through the record with their able assistance carefully. 7. Learned counsel appearing for the appellant has raised a number of pleas in support of his stand and has prayed for allowing the appeal and setting aside of the conviction of the appellant. Learned counsel rightly argued that the mere fact that appellant was driving the canter does not prove that he was in conscious possession of the alleged contraband. Learned counsel also submitted that prosecution should have conducted further investigation to prove the ownership that the appellant was really in possession of the alleged contraband. 8. After having considered this argument of the learned counsel and going through the record of the case, appeal deserves to be allowed. The mere fact that appellant was driving the canter, it cannot be held that he was in conscious possession of poppy husk. Prosecution should have satisfactorily proved that appellant was in possession of the poppy husk. It is true that Section 15 of the Act provides for punishment if any person, in contravention of any provisions of the Act or any rule or order made or condition of a licence granted thereunder, produces, possesses, transports, imports inter- State, exports, inter-State, sells, purchasers uses or omits to warehouse poppy straw or removes or does any at in respect of warehoused poppy straw shall be punishable. Section 8 enacts a prohibition against cultivation, production, manufacture, possession, sales, purchase, consumption, import etc. Any drug or psychotropic substance, expect for medical or scientific purposes the instant case, the allegations against the appellant are with regard to possession and transportation of the contraband. However, the charge against the appellant is confined only to the possession of the appellant. As per the prosecution case, appellant was driving the canter loaded with bags of poppy husk but it has failed to bring any cogent evidence on record to prove the nexus between the appellant and the alleged contraband. 9. The word possession has different meanings and is quite elastic in its connotation. Possession and ownership cannot always go together but the requisite element which has to be satisfactorily proved is custody or control over the goods. Without any link, evidence, it is difficult to reach at such conclusion beyond reasonable doubt. 9. The word possession has different meanings and is quite elastic in its connotation. Possession and ownership cannot always go together but the requisite element which has to be satisfactorily proved is custody or control over the goods. Without any link, evidence, it is difficult to reach at such conclusion beyond reasonable doubt. Admittedly, there were three persons sitting in the vehicle. There could be probability that any of them or some other person was the owner of the goods. Prosecution has failed to prove that if anyone of them was the owner of the contraband. 10. There is another infirmity in the proseu- tion case. Section 8 of the Act enacts a prohibition against production, transportation etc. of the contraband. In case prosecution was of the view that appellant was transporting the contraband he should have been charged for transporting the same without permit or authorization as required by law, but no such charge has been framed against the appellant. In State of Punjab v. Balkar Singh, 2004 Supreme Court Cases (Criminal) 838, the Apex Court observed that police should have conducted further investigation with regard to ownership of poppy husk to prove that the appellant was in possession of the contraband. Moreover, even if for the sake of arguments, it be presumed that all the allegations are true, even then no conscious possession of contraband is made out. The mere fact that the accused was driving the canter, it cannot be held that he was in conscious possession of the contraband. 11. There is no evidence that form No. 29 was filled at the spot by the Investigating Officer and he had deposited the same with the MHC of Malkana along with the case property. In any case, there is no evidence to the effect that prosecution has led any evidence by the prosecution. Moreover, in the present case, the Investigating Officer who has effected the search and seizure of the alleged contraband was himself the Investigating Officer. It is further proved on record that in the statement recorded under Section 313 of the Code of Criminal Procedure, no question was specifically put to the accused persons that they were in conscious possession of the contraband. It is further proved on record that in the statement recorded under Section 313 of the Code of Criminal Procedure, no question was specifically put to the accused persons that they were in conscious possession of the contraband. Admittedly, the police party had ample time to join independent witnesses from public, but even then no witness was joined though village was nearby and when services of DSP were requisitioned, independent witnesses could have been joined. The police party remained at the spot number of hours, but even then no person from public was associated as an independent witness. The contention that independent witness was not available cannot be believed in the facts and circumstances of the case in such like circumstances, simply saying that independent witness was not available without any evidence to that effect is not believable and thus, to convict the accused on the basis of testimony of police officials only shall not be safe. 12. The alleged recovery was effected from the vehicle on 11.4.1996 and there is an unexplained delay of six days in sending the sample to the Chemical Examiner. Learned counsel has rightly pointed out that delay of six days in the office of Forensic Science Laboratory was not explained and as such possibility of tampering with the same could not be ruled out. The submission of the learned counsel in this regard appears to be correct. It is no doubt, true that if the other evidence produced by the prosecution to prove the completion of link evidence, is found to be cogent, convincing, reliable and trustworthy, then mere delay in sending the sample to the office of the Forensic Science Laboratory, pales into significance. On the other hand, if the other evidence produced in this regard is found to be unreliable then certainly the delay by the prosecution to prove the completion of link evidence besides being deficient, is neither reliable, nor creditworthy. In these circumstances the unexplained delay, referred to above in sending the sample to the Laboratory certainly proved fatal to the case of the prosecution. 13. In view of what has been discussed above, case of the prosecution appears to be highly doubtful and to my mind judgment of the trial court also fell to take into consideration the aforesaid infirmities and lacuna in the prosecution case. 13. In view of what has been discussed above, case of the prosecution appears to be highly doubtful and to my mind judgment of the trial court also fell to take into consideration the aforesaid infirmities and lacuna in the prosecution case. As a result whereof, it fell into an error in recording conviction and awarding sentence to the appellant judgment of the trial court warrants interference and is liable to be set aside. 14. For the reasons recorded hereinabove, appeal is accepted. Judgment of conviction and order of sentence is set aside. Appellant shall stand acquitted of the charge framed against him. If he is on bail, he shall stand discharged of the bail bonds. If he is in custody, he shall be set at liberty, at once, if not required in any other case. Appeal accepted.