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2023 DIGILAW 163 (PNJ)

Avtar Singh (died) v. State of Punjab

2023-01-12

SANJAY VASHISTH

body2023
JUDGMENT Sanjay Vashisth, J. (Oral) - Present appeal is filed by appellants - Avtar Singh and Balkar Singh, against the judgment of their conviction and order of sentence dated 21.08.2003, passed by Ld. Judge, Special Court, Jalandhar, in Sessions Case No.35 of 2003, arising from FIR No. 49 dated 01.07.1997, under Section 15 of the Narcotic Substances and Psychotropic Substances Act, 1985 (for brevity 'NDPS Act'), Police Station Adampur. 2. For the recovery of 140 KG of poppy-husk, appellants (hereinafter referred to as 'accused'), were sentenced to undergo RI for a period of 10 years each and to pay a fine of Rs.1 lac each, and in default of payment of fine to further undergo RI for one year each. 3. Order dated 15.12.2022 passed by this Court says as under: 'Ld. Legal Aid Counsel appears and submits that out of three convicts, present appeal was filed by Avtar Singh and Balkar Singh, and Avtar Singh had died. Another, appeal i.e. CRA-1679-SB-2003 (O&M), filed on behalf of Jagir Singh, has already been decided on 11.02.2010, by the Coordinate Bench of this Court, wherein, said Jagir Sijngh has been acquitted. Ld. Legal Aid Counsel also points out the order dated 13.12.2018, by which present appeal qua appellant No.1 - Avtar Singh, has already been noticed to be abated. Order dated 13.12.2018 says as under:- 'Learned State counsel on instructions from ASI Narinder Singh of Police Station Adampur, stated that appellant - Avtar Singh died on 15.12.2005, therefore, qua him appeal stand abated. It has been pointed out by learned counsel for the appellants that Jagir Singh filed appeal CRA- 1679-SB-2003 titled as Jagir Singh Vs State of Punjab and the same was allowed by this Court vide judgment dated 11.02.2010. Learned State counsel seeks time to verify as to whether judgment in case of Jagir Singh, has been challenged before the Hon'ble Supreme Court of India or not? Adjourned to 23.01.2019.' In view of the fact recorded in the order dated 13.12.2018, present appeal stands abated qua appellant No.1 - Avtar Singh, and is now left with the issue to decide the fate of appeal on behalf of remaining appellant i.e. Balkar Singh. Adjourned to 20.12.2022, for arguments. Registry is directed to attach the file of Criminal Appeal No.1679-SB-2003 (Jagir Singh Vs. State of Punjab) along with present appeal, for the date fixed." 4. Adjourned to 20.12.2022, for arguments. Registry is directed to attach the file of Criminal Appeal No.1679-SB-2003 (Jagir Singh Vs. State of Punjab) along with present appeal, for the date fixed." 4. In view of the fact recorded in the said order, present appeal stands abated qua appellant No.1 - Avtar Singh, and is now left with the issue to decide the fate of appeal on behalf of remaining appellant i.e. Balkar Singh. 5. Today, while opening the arguments, Mr. Lokesh Sharma, Advocate, Legal Aid Counsel for the appellants, appointed by this Court vide order dated 14.11.2022, points out that Criminal Appeal filed by 3rd accused Jagir Singh i.e. CRA- 1679-SB-2003 was allowed on 11.02.2010. While citing the judgment, which is now uploaded as ' Jagir Singh v State of Punjab ,\ CRA- 1679-SB-2003, Law Finder Doc ID #212260, learned counsel for the appellant submits that while recording statement under Section 313 Cr.P.C., accused- Jagir Singh (already acquitted) and Balkar Singh (appellant in the present appeal) have adopted the same plea and in defence, they had examined one witness i.e. Satnam Singh as DW 1. Counsel refers to paragraphs 6 to 19 of the said judgment and submits that case of the present appellant is entirely covered with the arguments addressed in Jagir Singh's case (supra) decided by this Court. Paragraphs 6 to 19 of the said judgement are reproduced here below: '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. 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 Criminal Procedure Code 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 CII 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 Criminal Procedure Code 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 Criminal Procedure Code 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 Criminal Procedure Code 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 Section 313 Criminal Procedure Code in order to give the accused a fair opportunity to rebut 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 Section 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 Criminal Procedure Code 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 Examiner's 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. 10. To overcome these submissions, the learned State counsel pressed into service that as per Chemical Examiner's 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 Criminal Procedure Code 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 Criminal Procedure Code 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 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 Singh's 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 Criminal Procedure Code 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. 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 Criminal Procedure Code that he was in conscious possession of contraband. Questioning of accused under Section 313 Criminal Procedure Code is not an empty formality. 16. Coming back to the present one, a meticulous perusal of the statement recorded under Section 313 of Criminal Procedure Code 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 nonjoining 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." 6. Learned State counsel very fairly submits that already this issue has been dealt with by this Court in Jagir Singh' case (Supra) which has attained finality as per his instructions, therefore, there is no material with him to address any different argument as has already been submitted and considered in the appeal of Jagir Singh. 7. Learned State counsel very fairly submits that already this issue has been dealt with by this Court in Jagir Singh' case (Supra) which has attained finality as per his instructions, therefore, there is no material with him to address any different argument as has already been submitted and considered in the appeal of Jagir Singh. 7. In view of the circumstances that already appeal of the co- accused- Jagir Singh i.e. CRA-1679-SB-2003 has been allowed by acquitting the accused-Jagir Singh on the same ground and arguments, there is nothing available with this Court also to deviate from the view as already taken by this Court in Jagir Singh'case (supra). 8. Moreover, learned counsel for the appellant has also substantiated the arguments addressed by him on his law point with the judgement of Kashmir Singh V State of Punjab, CRA-407-DB-1999, decided on 22.02.2006, (Law Finder Doc ID #120127) passed by Full Bench of Punjab and Haryana High Court. Relevant paragraph 12 of the said judgment which deals with the said arguments is as under: '12. When the Trial Judge records the statement of an accused person under Section 313 Criminal Procedure Code 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 Criminal Procedure Code 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 Section 313 Criminal Procedure Code in order to give the accused a fair opportunity to rebut the presumption. Indeed Sections 35 and 54 do entitle the accused to rebut the presumptions 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 Section 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." 9. Unless the accused have been given the opportunity to prove that he had no such mental state as presumed under Section 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." 9. Considering the aforementioned circumstances, judgement of conviction and order of sentence dated 21.08.2003 passed by learned trial Court, are hereby set-aside, and consequently, appeal is allowed by acquitting the appellant-Balkar Singh from all the charges levelled against him. 10. Appeal stands disposed of.