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2010 DIGILAW 864 (PNJ)

Jagir Singh v. State Of Punjab

2010-02-11

HARBANS LAL

body2010
Judgment Harbans Lal, J. 1 This appeal is directed against the judgment/order of sentence dated 21.8.20.03 passed by the court of learned Judge Special Court, Jalandhar whereby he convicted and sentenced the accused Avtar Singh, Balkar Singh and Jagir Singh to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1.00 lac each under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, the Act) and in default of payment of fine, the defaulter to further undergo rigorous imprisonment for one year. 2 Tersely put facts of the prosecution case are that on 1.7.1997 Sub inspector/S.H.O. Sucha Singh amongst other police officials being under the supervision of D.S.P. Dilbagh Singh happened to be present at canal bridge, village Chomo in connection with patrolling. Around 1.30 A.M. (night) one truck bearing registration No. PB-08-D-0559 came from the side of village Daroli Kalan. On being given a signal, it came to halt. It was being driven by accused Avtar Singh by whose side the accused Jagir Singh and Balkar Singh were seated. On search of the truck, 4 bags containing poppy husk yielded. 250 grams of poppy husk was drawn from each bag to serve as a sample and converted into parcels. The residue of each bag when weighed came to 34 Kgs 750 grams which was also made into parcels. The case property including the sample parcels were sealed with seals SS and DS and taken into possession alongwith the truck. All the three accused were put under arrest. After completion of investigation, charge-sheet was laid in the court for trial of the accused. 3 The accused Avtar Singh, Balkar Singh and Jagir Singh were charged under Section 15 of the Act to which they did not plead guilty and claimed trial. In order to bring home guilt against the accused, the prosecution examined Constable Gurnam Singh PW-1, Surinder Kumar clerk DTO Office PW-2, HC Sukhdev Singh PW-3, DSP Dilbagh Singh (now S.P.) PW-4, Sub Inspector Sucha Singh Investigator PW-5 and closed its case. 4 When examined under Section 313 of Cr.P.C, all the three accused denied the incriminating circumstances appearing in the prosecution evidence against them and pleaded innocence as well as false implication. 4 When examined under Section 313 of Cr.P.C, all the three accused denied the incriminating circumstances appearing in the prosecution evidence against them and pleaded innocence as well as false implication. Accused Avtar Singh came up with the following plea :- "I am a Akali worker and was supporter of S. Dalbir Singh Dhirowal before the election of MLA. an Akali candidate and I had supported him in the election. Congress candidate Shri Kamaljit Singh Lally was annoyed with us and has threatened to teach us a lesson and he won the election by six votes and after that, on his instance, the police has implicated me and my co-accused in this false case. No recovery was effected from me and I am innocent." 5 His co-accused Jagir Singh and Balkar Singh have adopted the same plea. In their defence they examined Satnam Singh DW-1. 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 the accused as noticed at the outset. Feeling aggrieved therewith, Jagir Singh accused has preferred this appeal. 7 I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. 8 On behalf of the appellant, it has been strenuously urged that a glance through Ex.PA affidavit of HC Sukhdev Singh with whom the case property was allegedly deposited would reveal that it has no where been stated in it as to on which date the sample parcels were handed over to Gurnam Singh C-II. To add further to it, as follows from the contents of this affidavit, the sample parcels were handed over to C-II Gurnam Singh whereas in the statutory statement of the appellant Jagir Singh recorded under Section 313 Cr.P.C. it has been put to him in question No. 10 that "Ex.PA is the affidavit of MHC Sukhdev Singh and Ex.PW-1/A is affidavit of Constable Avtar Singh to the effect that the case property and samples remained intact till the same remained in their possession." It is, thus, inferable that it has not been put to the appellant that the sample parcels for the purpose of carrying the same to the office of the Chemical Examiner were handed over to C-II Gurnam Singh rather as per the statutory statement these were given to Constable Avtar Singh. On putting these facts together, it comes out that there is dent in the prosecution case. It has been further argued that a glance through the prosecution evidence would reveal that no independent witness was attempted to be joined and the seal after use was handed over to HC Arjan Singh. Thus, the possibility of tampering with the contents of the sample parcels/after taking back the seal from said Head Constable cannot be ruled out. To crown it all, a careful delving into the statement of the appellant recorded under Section 313 of Cr.P.C. would reveal that no specific question has been framed nor put to him to the effect that he was found in conscious possession of the recovered poppy husk bags and thus, it does not lie in the mouth of the prosecution to contend that the conscious possession of the appellant qua these bags has been established in view of the ratio decidendi laid down by the Full Bench of this Court in Kashmir Singh v. State of Punjab, 2006(2) Apex Criminal 24:2006(2) RCR(Criminal) 477, wherein it has been observed as under :- "12. When the Trial Judge records the statement of an accused person under Section 313 Cr.P.C. with regard to the circumstances which have appeared in evidence against him, the learned judge gives the accused an opportunity to explain those circumstances. The accused generally denies the prosecution case against him but it is an opportune moment for him to plead any type of defence that he may like to take. Therefore, by extending the provisions of Section 313 Cr.P.C. and on first principles of fair trials as well, there is need to give every accused person an opportunity to explain the case against him. Wheresoever the presumption under Ss. 35 & 54 is to be raised, it would be advisable for the Trial Court to frame a question under S. 313 Cr.P.C in order to give the accused a fair opportunity to re but the presumption but it is strange that Trial Courts do not give the accused this opportunity. Unless the accused have been given the opportunity to prove that he had no such mental state as presumed under S.35 or that he had satisfactorily accounted for the possession which was being presumed against him under Section 54, the respective presumptions cannot be raised against the accused. 19. Unless the accused have been given the opportunity to prove that he had no such mental state as presumed under S.35 or that he had satisfactorily accounted for the possession which was being presumed against him under Section 54, the respective presumptions cannot be raised against the accused. 19. For the above reasons we would answer the question raised by stating that no presumption under Section 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 Cr.P.C. by being called upon to explain the circumstances which give rise to the presumptions. Thereafter the accused should be given an opportunity to lead evidence in defence in support of his stand. However, there is no real or apparent conflict regarding the correct meaning of "possession" which needs to be resolved." 9 It is further canvassed at the bar on behalf of the appellant that owner of the truck has neither been associated in the investigation nor challaned. 10 To overcome these submissions, the learned State counsel pressed into service that as per Chemical Examiners report Ex.PK, when the sample parcels were received in the office for chemical analysis, the seals affixed on the sample parcels were intact and agreed with the sample seal, and thus possibility of tampering with the contents of sample parcels stands ruled out. The learned State counsel could not reconcile the other contentions in a successful manner." 11 I have given a deep and thoughtful consideration to the rival contentions. 12 Ex.PA the affidavit of MHC Sukhdev Singh with whom the case property including sample parcels was deposited being absolutely silent about the date on which sample parcels were delivered to C-II Gurnam Singh for being carried to the office of the Chemical Examiner for analysis, the link in the chain of evidence is missing. It was incumbent upon the Public Prosecutor, whosoever was conducting the case in the learned Trial Court to have checked this affidavit before it was exhibited. A glance through Ex.PW-1/A the affidavit of C-II Gurnam Singh would reveal that the sample parcels of this case were handed over to him though it has been put to the appellant during his examination under Section 313 of Cr.P.C. that the sample parcels were given to Constable Avtar Singh for being delivered in the office of Chemical Examiner. A glance through Ex.PW-1/A the affidavit of C-II Gurnam Singh would reveal that the sample parcels of this case were handed over to him though it has been put to the appellant during his examination under Section 313 of Cr.P.C. that the sample parcels were given to Constable Avtar Singh for being delivered in the office of Chemical Examiner. Thus to the utter consternation of the prosecution, there is dent in the prosecution case. 13 In case Avtar Singh v. State of Punjab, 2002(4) RCR(Criminal) 180 ,the accused were travelling in a truck belonging to accused No. 5 in the small hours of 7.8.1989. The vehicle was carrying 16 bags of poppy husk being driven by Balbir Chand appellant No. 3. One person, who was sitting in the front seat by the side of the driver and another person sitting on the back side of the truck ran away leaving the vehicle. The Apex Court held that "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 were 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 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 aspect 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." 14 In Raj Kumar v. State of Punjab, 2005(1) RCR(Criminal) 70,a bag containing opium lying between Raj Kumar and Hawa Singhs seat was recovered. The Division Bench of this Court held that both the accused have 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 he was in conscious possession of opium. Therefore, neither presumption under Section 35, nor the presumption under Section 54 of the Act would be attracted. 15 In state of Punjab v. Hari Singh and others, 2009(2) R.A.J. 175 : 2009(2) RCR(Criminal) 143, sixteen bags of poppy husk were recovered. The conviction has been set aside by the Apex Court by observing that evidence on record showed that the accused was in conscious possession but no question was put to the accused during his examination under Section 313 Cr.P.C. that he was in conscious possession of contraband. Questioning of accused under Section 313 Cr.P.C. is not an empty formality. 16 Coming back to the present one, a meticulous perusal of the statement recorded under Section 313 of Cr.P.C. would reveal that no question regarding conscious possession has been put to the accused. Thus, in view of the afore- extracted observations, the presumption arising under Sections 35 and 54 of the Act would not be available to the prosecution. 17 It surfaces in the cross-examination of Sub Inspector/SHO Sucha Singh PW-5 the Investigator that "I have not contacted the owner of the truck." It is in his further evidence that Anand Parkash Power of Attorney has been joined in investigation. He has not apportioned any reason for non-joining or interrogating the owner. 17 It surfaces in the cross-examination of Sub Inspector/SHO Sucha Singh PW-5 the Investigator that "I have not contacted the owner of the truck." It is in his further evidence that Anand Parkash Power of Attorney has been joined in investigation. He has not apportioned any reason for non-joining or interrogating the owner. He has nowhere stated that Anand Parkash was interrogated and what was the outcome. Thus, the provisions of Section 25 of the Act have been given a go by for the reasons best known to the Investigator. 18 For the reasons indicated above, this appeal succeeds and is accepted by setting aside impugned judgment/order of sentence. The accused/appellant is hereby acquitted of the charged offence by giving him benefit of reasonable doubt. He be released forthwith, if not wanted in any other case. 19 Since the appeal has been decided, all pending Criminal Miscellaneous,if any, also stand disposed of.