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2010 DIGILAW 883 (PNJ)

Nirmal Singh v. State Of Punjab

2010-02-16

HARBANS LAL

body2010
Judgment Harbans Lal, J. 1 This appeal is directed against the judgment dated 16.4.2004/order of sentence dated 19.4.2004 passed by the court of learned Judge Special Court, Moga whereby he convicted and sentenced the accused Nirmal Singh to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1.00 lac under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, the Act) and in default of payment of fine, to further undergo rigorous imprisonment for one year. 2 Succinctly put, the facts of the prosecution case are that on 25.6.2002 police party headed by ASI Partap Singh including Ranjit Singh son of Balwinder Singh was proceeding from canal minor Wadha Ghar towards village Mahla Khurd on road. When it went about 3/4 km ahead of canal minor bridge, the accused was noticed sitting on the bags near eucalyptus tree in the ditches. On catching sight of the police party, he made an attempt in vain to slip away but he was intercepted. He was apprised of his right to have their search of the bags in the presence of a Gazetted Officer or a Magistrate as their contents were suspected to be some contraband. He expressed his desire to have search in the presence of a Gazetted Officer. On receipt of message Harjit Singh Pannu D.S.P. Bagha Purana came at the spot. On search of the six bags, their contents were found to be poppy straw. Usual formalities were observed. The accused was put under arrest. After completion of investigation, the charge-sheet was laid down in the court 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. In order to bring home guilt against the accused, the prosecution examined PW-1 Inspector Jagjit Singh, PW-2 ASI Partap Singh, PW-3 HC Harbans Singh, PW-4 Gursewak Singh, PW-5 Komal Singh, PW-6 Harjit Singh Pannu D.S.P., PW-7 Constable Devinder Singh and closed its case. 4 When examined under Section 313 of Cr.P.C, the accused denied the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. He alleged that Karam Singh member panchayat of his village had reported to the police that I was in possession of stolen moped which I had purchased from some one. 4 When examined under Section 313 of Cr.P.C, the accused denied the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. He alleged that Karam Singh member panchayat of his village had reported to the police that I was in possession of stolen moped which I had purchased from some one. The police apprehended and interrogated me. During investigation, police committed excesses with me and injured me, though nothing was recovered. In his defence, he examined DW-1 Mohan Singh and DW-2 Ranjit Singh. 5 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, he has preferred this appeal. 6 I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. 7 The learned counsel for the appellant eloquently urged that the Investigating Agency. has not verified as to who is owner of the land from where the alleged recovery of poppy straw has been effected. PW Ranjit Singh independent witness has been held back by the prosecution for the reasons best known to it and as its consequence the appellant has been deprived of his valuable and indefeasible right to cross-examine him. He further puts that when examined as DW-2 Ranjit Singh stated that his signatures were obtained on blank papers by the police which clearly goes to show that the alleged recovery has been planted upon the appellant. It is further submitted that the Investigator did not send any special report as envisaged under Section 57 of the Act. To crown it at all, the conscious possession of the appellant qua recovered poppy straw has not been established by the prosecution. As against this, the learned State counsel maintained that on evaluating the entire prosecution evidence, it transpires that the prosecution has been able to establish guilt against the appellant. It is further pressed into service that Ranjit Singh by appearing in defence has affirmed the apprehension of the prosecution as he was given up for his having been won over by the appellant. 8 I have well considered the rival contentions. It is further pressed into service that Ranjit Singh by appearing in defence has affirmed the apprehension of the prosecution as he was given up for his having been won over by the appellant. 8 I have well considered the rival contentions. 9 In re: Satnam Singh v. State of Punjab 1996(3) Recent Criminal Reports(Criminal) 396 it has been held that "when the prosecution alleges that material witness has been won over by the accused, still it is necessary that such witness must be produced and examined at the trial to reveal the truth, especially when the seal is allegedly entrusted to him after use." In the instant one, it is specific case of the prosecution that seal after use was entrusted to Ranjit Singh private witness after its use. If he had been tendered for cross-examination, it could have been elicited as to after how many days the seal was returned by him. There may be every possibility that the sample was tampered with by getting back the seal from him. It assumes greater importance as admittedly sample in this case was dispatched to the Chemical Examiner after five days. A similar view has been taken by Division Bench of this Court in State of Punjab v. Surjit Singh 2008(1) Recent Criminal Reports(Criminal) 266. When examined as DW-2 this witness Ranjit Singh testified that "Neither I was member of police party oh 25.6.2002, nor any poppy straw was recovered in my presence from accused Nirmal Singh. I had gone to the Police Station to collect the belongings of my friend. I was asked by the police to sign on some blank papers and I signed on blank papers. Such blank papers were 6/7 in number." In re: Ritesh Chakarvarti v. State of Madhya Pradesh 2006 (4) Recent Criminal Reports(Criminal) 480, The opium weighing 1.300 kgs was recovered. In paragraph 35 of the judgment, it has been observed that "Furthermore, how the accused was identified is not known. Such blank papers were 6/7 in number." In re: Ritesh Chakarvarti v. State of Madhya Pradesh 2006 (4) Recent Criminal Reports(Criminal) 480, The opium weighing 1.300 kgs was recovered. In paragraph 35 of the judgment, it has been observed that "Furthermore, how the accused was identified is not known. How he could be singled out has not been explained." In paragraph 40, it has been further held that "In large number of cases, this Court as also various High Courts have emphasized the need of conducting a search in the presence of independent persons." In Jagdish v. State of Madhya Pradesh 2003(9) Supreme Court Cases 159, a three Judges Bench of Honble Supreme Court set aside the judgment of conviction as in that case the independent witnesses had denied that search and seizure for recovery of opium had taken place in their presence. 10 On examining the above reproduced evidence tendered by Ranjit Singh it emerges out that the recovery was not effected within his view. On being cross-examined by the learned Additional Public Prosecutor for the State, no material favourable to the prosecution could be elicited from this witness. Thus, his evidence strikes a death knell to the prosecution case. 11 In re: State of Punjab v. Balkar Singh and another- 2004(3) Supreme Court Cases 582 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 so present did not prove that the accused persons 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 incident, ownership of the poppy husk etc.) to prove that the accused were really in possession of the said articles. In the instant one, the Investigator did not take the pains to ascertain as to how the bags of poppy straw were transported to the alleged place of recovery or who was their owner. 12 In Kashmir Singh v. State of Punjab 2006(2) RCR(Criminal) 477, the Full Bench of this Court has 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. 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 Sections 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 rebut the presumption but it is strange that Trial Court 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. For the above reasons, we would answer the question raised by stating that no presumption under Sections 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 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." 13 In State of Punjab v. Hari Singh and Other?; 200V(2) Recent Criminal Reports (Criminal) 143 it has been observed by the Honble Supreme Court as under :- "19. However, there is no real or apparent conflict regarding the correct meaning of "possession" which needs to be resolved." 13 In State of Punjab v. Hari Singh and Other?; 200V(2) Recent Criminal Reports (Criminal) 143 it has been observed by the Honble Supreme Court as under :- "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." 14 A careful delving into the statutory statement of the appellant would reveal that no specific question with regards to conscious possession has been framed nor put to the appellant while examining him under Section 313 of Cr.P.C. Thus, the conscious possession is not established nor the presumption under Section 35 and 54 of the Act can be drawn in favour of the prosecution. 15 No other material point has been agitated or raised by either counsel. 16 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 them benefit of reasonable doubt. 17 Since the appeal has been decided, all pending Criminal Miscellaneous, if any, also stand disposed of.