Criminal Appeal No.1275 -SB of 2004 v. State of Punjab

CORAM : HON'BLE MR. JUSTICE MOHINDER PAL. Present: Ms. Vandna Malhotra, Advocate, and Mr.Tribhawan Singla, Advocate, for the appellant. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. Appellant Sadhu Khan has filed this appeal against the judgment of conviction dated 20.2.2004 and the sentence order dated 24.2.2004 passed by the Judge, Special Court, Jalandhar, whereby he was convicted under Section 15 of the -2- Criminal Appeal No.1275 -SB of 2004. Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/-, in default whereof to undergo further rigorous imprisonment for one year. The prayer made in this appeal is to set aside the impugned judgment and the sentence order by way of acceptance of this appeal and to acquit appellant Sadhu Khan of the charge framed against him under Section 15 of the Act. The facts of the prosecution case are that on 2.3.2002, a police party headed by Sub Inspector Janak Singh, while on patrol duty in a Government vehicle and was present near the bridge of drain from where `Kacha' passage led towards the fields, , spotted the appellant sitting on the gunny bags. The appellant was apprehended on suspicion. The Sub Inspector, having become suspicious, told the accused that he wanted to check the gunny bags. Sub Inspector Janak Singh apprised the accused of his right being searched in the presence of a Magistrate or a Gazetted officer. The appellant opted for his search to be made in the presence of a Gazetted Officer. Deputy Superintendent of Police Kamaldeep Singh was, accordingly, called to the spot by the Investigating Officer. The Deputy Superintendent of Police disclosed his identity to the accused. The search of gunny bags, which were five in number was thereafter made. The gunny bags were found to contain poppy husk. Two -3- Criminal Appeal No.1275 -SB of 2004. samples of 250 grams from each bag were separated and the remaining poppy husk in each bag was found to be 29 Kgs and 500 grams. Their parcels were prepared and sealed. The bags containing bulk poppy husk were also sealed. All these parcels were thereafter taken into possession. The accused-appellant could not show any permit to keep the poppy husk in his possession. The appellant was arrested. The Investigating Officer sent intimation in writing to the Police Station and on its basis the instant case was registered. Site plan was prepared showing the place of recovery. The Investigating Officer recorded the statements of the witnesses. On receipt of the report of Chemical Examiner, vide which the samples were opined to be of poppy heads (Chura Post) and on completion of investigation of the case, challan was presented against the accused in Court. Charge under Section 15 of the Act was framed against the accused, to which he did not plead guilty and claimed trial. In order to prove its case against the accused, the prosecution examined Assistant Sub Inspector Jaswant Singh (P.W.1), Sub Inspector Janak Singh (P.W.2), Deputy Superintendent of Police Kamaldeep Singh (P.W.3) and Head Constable Nirmal Singh (P.W.4). In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused-appellant denied the -4- Criminal Appeal No.1275 -SB of 2004. prosecution allegations and pleaded false implication. He further stated that he was brought from his house and later on falsely implicated in this case. In defence, the appellant examined Gursewak Singh (D.W.1). I have heard the learned counsel for the parties and have gone through the records of the case. The learned counsel for the appellant, inter alia, argued that in this case conscious possession of contraband poppy husk by the appellant is not proved by the prosecution and it entitles the appellant to acquittal. He argued that merely being found present at the place where the gunny bags containing poppy husk were found and the failure to give any satisfactory explanation for being so present did not prove that the accused was in possession of the said poppy bags. According to the learned counsel, in fairness to the accused, the police ought to have conducted further investigation as to the transportation of poppy bags to the place of incident, ownership of the poppy husk etc. to prove that the accused-appellant was really in possession of the said articles. After giving my careful thought to the argument raised by learned counsel for the appellant, I find sufficient force in the same. In this case, the appellant was allegedly found sitting on gunny bags in an open space i.e `Kacha path' near the fields. There is no evidence on record to show the ownership of the poppy husk by the appellant. The police out to have conducted -5- Criminal Appeal No.1275 -SB of 2004. further investigation to prove that the appellant was really in possession of these bags, which was not done. As noticed above, the case of the prosecution is consisted of only official witnesses. No doubt, the statements of the official witnesses cannot be discarded merely because of their official status, but when the exclusive possession of the accused over the contraband poppy husk has not been proved on record the statements of the police witnesses, who are interested in the success of the case, have to be scrutinized minutely particularly when there is no corroboration to their statements from an independent source. There is no evidence to prove the charge of transporting the contraband poppy husk to the place of recovery by the accused. No investigation was made by the police regarding the source of the contraband as to wherefrom it was brought and its destination. It casts a serious doubt on the prosecution version. In the case reported as State of Punjab v. Balkar Singh and another, 2004 Supreme Court Cases (Cri.) 838, wherein the accused-respondents, who belonged to different villages, were alleged to have been found present at a place wherefrom about 100 bags of poppy straw were recovered, sitting on such bags, and failed to give any satisfactory explanation for being present at that place, it was held by the Hon'ble Supreme Court that merely by being found present at the place where -6- Criminal Appeal No.1275 -SB of 2004. the poppy bags were found and the failure to give satisfactory explanation for being so present did not prove that the accused persons were in possession of said poppy hags. Holding thus, the Apex Court dismissed the appeal of the State against the acquittal of the accused-respondents. Similar view was taken by a Division Bench of this Court in the case of Bikkar Singh v. State of Punjab, 2006 (3) R.C.R (Criminal) 16 wherein the accused-appellant Balkar Singh was found sitting on 120 bags of poppy husk lying in a sugarcane field and it was held by this Court that custody and control of accused over the substance was not proved beyond doubt. For taking this view, reliance was placed by a Division Bench of this Court on the authority reported as State of Punjab v. Balkar Singh, 2004 Supreme Court Cases (Cri.) 838. In the case of State of Punjab v. Nachhattar Singh alias Bania, 2007 (3) RCR (Criminal) 1040: 2007 (3) P.L.R.122 , wherein the accused therein was found sitting on bags of poppy husk near a river and the police did not ascertain whether bags belonged to accused or not and how bags were transported to the place of recovery, it was held by a Division Bench of this Court that it was not sufficient to prove conscious possession of the accused. Accordingly, the appeal filed by the State against the acquittal of the accused therein was dismissed. Further, in the case of Sukhdev Singh alias Sukha v. -7- Criminal Appeal No.1275 -SB of 2004. State of Punjab, 2006 (1) R.C.R (Criminal) 4 : 2006 (1) Cri. C.C 934, where the accused was found sitting on six bags of poppy husk, it was observed by a Division Bench of this Court that the police should have conducted further investigation to prove that the accused was really in possession of these bags and the failure to give any explanation by the appellant therein for being present on that place itself does not prove that he was in possession of these articles. In view of the above, the charge under Section 15 of the Act against the appellant is not proved beyond all reasonable doubts. Resultantly, I accept this appeal and acquit the appellant of the charge framed against him by giving him the benefit of doubt by setting aside the impugned judgment of conviction and the sentence order. April 09, 2010. ( MOHINDER PAL ) JUDGE