Criminal Appeal No.1620 -SB of 2004 v. State of Punjab

CORAM :HON'BLE MR. JUSTICE MOHINDER PAL. -2- Criminal Appeal No.1620 -SB of 2004, Criminal Appeal No.185 -SB of 2005 and Criminal Appeal No.1382 -SB of 2008. Present: Mr.Manoj Nagrath, Advocate, and Mr. Vivek Goel, Advocate, for appellant Mangat Ram. Mr. Rajiv Vij, Advocate, for appellant Bhupinder. None for appellant Kura. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. This judgment will dispose of Criminal Appeal No.1620 -SB of 2004,Criminal Appeal No.185 -SB of 2005 and Criminal Appeal No.1382 -SB of 2008 as they arise out of the same First Information Report. Appellants Mangat Ram, Bhupinder and Kura have filed these appeals against the judgments of conviction and the sentence orders passed by the Judge Special Court, Jalandhar, whereby they were convicted under Section 15 of the 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/-, each. In default of payment of fine, appellants Mangat Ram and Bhupinder were sentenced to undergo further rigorous imprisonment for one and a half years whereas appellant Kura, in default of payment of fine was sentenced to undergo further rigorous imprisonment for one year. It may be mentioned here that appellant Kura had absconded during trial and was declared Proclaimed Offender. The judgment of conviction in respect of -3- Criminal Appeal No.1620 -SB of 2004, Criminal Appeal No.185 -SB of 2005 and Criminal Appeal No.1382 -SB of 2008. appellants Mangat Ram and Bhupinder is dated 21.7.2004 and the sentence order is dated 22.7.2004 whereas in respect of appellant Kura the judgment of conviction and the sentence order are dated 15.5.2008. The prayer made in these appeals is to set aside the impugned judgments and the sentence orders by way of acceptance of these appeals and to acquit the appellants of the charge framed against them under Section 15 of the Act. The prosecution case, in brief, is that on 20.3.2000, Sub Inspector Kulwant Singh along with Head Constable Varinder Singh, Constable-II Sukhwinder Singh and other police officials was going in connection with patrol duty from Pandori Mushkarti to Lakhanpal on kacha road. When the police party reached near the tube-well of Sant Singh, they noticed the appellants sitting on the gunny bags. Appellant Mangat Ram was apprehended at the spot whereas appellants Bhupinder and Kura had succeeded in running away from the spot. Both appellants Bhupinder and Kura were apprehended later on. Sub Inspector Kulwant Singh, having become suspicious, told accused-appellant Mangat Ram that he wanted to check the gunny bags. Sub Inspector Kulwant Singh apprised the accused of his right being searched in the presence of a Magistrate or a Gazetted officer. The accused opted for his search to be made in the presence of a Gazetted Officer. Consent memo of the accused in this regard was prepared. The presence of Deputy Superintendent of Police Sajjan -4- Criminal Appeal No.1620 -SB of 2004, Criminal Appeal No.185 -SB of 2005 and Criminal Appeal No.1382 -SB of 2008. Singh Cheema was, accordingly, secured at the spot by the Investigating Officer. Deputy Superintendent of Police Sajjan Singh Cheema, on reaching the spot, disclosed his identity to the accused. The search of gunny bags, which were five in number was thereafter made under the supervision of the Deputy Superintendent of Police. The gunny bags, which were five in number, were found to contain poppy husk. A sample of 250 grams from each bag was 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 could not show any permit to keep the poppy husk. 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. After completion of investigation and on receipt of the report of Chemical Examiner, report under Section 173 of the Code of Criminal Procedure was presented in Court. Charge under Section 15 of the Act was framed against the accused, to which they did not plead guilty and claimed trial. In support of its case, the prosecution examined witnesses of recovery i.e Sub Inspector Kulwant Singh, Head -5- Criminal Appeal No.1620 -SB of 2004, Criminal Appeal No.185 -SB of 2005 and Criminal Appeal No.1382 -SB of 2008. Constable Varinder Singh and Deputy Superintendent of Police Sajjan Singh Cheema besides some formal witnesses. In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused-appellants denied the prosecution allegations and pleaded false implication. As mentioned above, appellant Kura had absconded during trial and was declared a Proclaimed Offender. Thereafter, the trial continued against appellants Mangat Ram and Bhupinder. In defence, appellants Mangat Ram and Bhupinder had examined Dharamvir (D.W.1). After his arrest, appellant Kura was put on trial. In defence, appellant Kura had examined Head Constable Gurdev Singh (D.W.1). I have heard Mr.Manoj Nagrath, Advocate, and Mr.Vivek Goel, Advocate, appearing for appellant Mangat Ram, Mr. Rajiv Vij, Advocate, appearing for appellant Bhupinder and Mr. Vishal Munjal, Additional Advocate General, Punjab, appearing for the State and have gone through the records of the case. Learned counsel for appellant Kura did not appear in Court when the matter was taken up for hearing in spite of the fact that his presence was requisitioned by the Reader of this Court by displaying his name in the notice board through the Computer installed in the Court. The learned counsel appearing for appellants Mangat Ram and Bhupinder, inter alia, argued that in this case -6- Criminal Appeal No.1620 -SB of 2004, Criminal Appeal No.185 -SB of 2005 and Criminal Appeal No.1382 -SB of 2008. conscious possession of contraband poppy husk by the appellants is not proved by the prosecution and it entitles the appellants to acquittal. They 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 were 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-appellants were really in possession of the said articles. After giving my careful thought to the argument raised by learned counsel for the said appellants, I find sufficient force in the same. In this case, the appellants were allegedly found sitting on gunny bags in the wheat field near the tube-well of one Sant Singh. There is no evidence on record to show the ownership of the poppy husk by the appellants. The police ought to have conducted further investigation to prove that the appellants were 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 -7- Criminal Appeal No.1620 -SB of 2004, Criminal Appeal No.185 -SB of 2005 and Criminal Appeal No.1382 -SB of 2008. 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 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 -8- Criminal Appeal No.1620 -SB of 2004, Criminal Appeal No.185 -SB of 2005 and Criminal Appeal No.1382 -SB of 2008. 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. 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 -9- Criminal Appeal No.1620 -SB of 2004, Criminal Appeal No.185 -SB of 2005 and Criminal Appeal No.1382 -SB of 2008. of these articles. In view of the above, the charge under Section 15 of the Act against the appellants is not proved beyond all reasonable doubts. Resultantly, I accept these appeals and acquit the appellants of the charge framed against him by giving them the benefit of doubt by setting aside the impugned judgments of conviction and the sentence orders. April 19, 2010. ( MOHINDER PAL ) JUDGE