Criminal Appeal No.1826 -SB of 2003 v. State of Haryana

Present: Mr. P.S. Brar, Advocate, for the appellant. Ms. Sushma Chopra, Additional Advocate General, Haryana. -.- MOHINDER PAL, J. Appellant Jagsir Singh has filed this appeal against the judgment of conviction dated 11.8.2003 and the sentence order dated 12.8.2003 passed by the learned Additional Sessions Judge, Fatehabad, whereby he was convicted under -2- Criminal Appeal No.1826 -SB of 2003. Section 15 ( c ) 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/-, in default whereof to undergo further rigorous imprisonment for two years. Sukhdev Singh and Teja Singh (co-accused of appellant Jagsir Singh) were acquitted by the trial of the charge framed against them by giving them the benefit of doubt, inter alia, by holding that the prosecution has not been able to prove that Sukhdev Singh and Teja Singh were found in conscious possession of the contraband poppy husk and that their identity had not been proved on record. 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 Jagsir Singh of the charge framed against him under Section 15 of the Act. The facts of the prosecution case are that on 2.12.2000, a police party, headed by Assistant Sub Inspector Ram Bhaj, was present at Bus Stop Nangal in connection with patrolling. At that time, one Manohar Lal met Assistant Sub Inspector Ram Bhaj and he was conversing with Manohar Lal. During their conversation, Assistant Sub Inspector Ram Bhaj received secret information that appellant Jagsir Singh and acquitted accused Teja Singh and Sukhdev Singh were present near the bridge in the `Semnala' while sitting on the gunny bags filled with poppy husk and they were planning to transport the contraband to Punjab and -3- Criminal Appeal No.1826 -SB of 2003. that if a raid was conducted they could be apprehended along with poppy husk. Thereafter, the Assistant Sub Inspector sent a V.T message to Police Station Bahman Wala for calling the Deputy Superintendent of Police, Fatehabad to witness the recovery and search. The Investigating Officer prepared a raiding party and proceeded to the spot along with Manohar Lal, aforesaid. When they reached near the `Semnala', three persons were found sitting on the gunny bags, who on seeing the police party tried to flee away from the spot. Two persons were successful in running away from the spot whereas appellant Jagsir Singh was apprehended by the police. The Assistant Sub Inspector apprised the appellant 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 Ram Kumar, who had reached the spot after the receipt of the V.T message, directed the Investigating Officer to conduct the search of the gunny bags. Assistant Sub Inspector Ram Bhaj thereafter conducted search of the bags as per law. Five bags were filled to their capacity whereas the sixth bag was half-filled. Poppy husk was found in each of the bag. From each bag, 100 grams of poppy husk were separated as samples and their parcels were prepared. Remaining poppy straw in five bags was found to be 39 Kgs and 900 grams each whereas in the sixth bag it was found to be 19 Kgs and 900 grams, on weighment. The bags containing bulk poppy straw were sealed. All these parcels were thereafter taken into possession. The -4- Criminal Appeal No.1826 -SB of 2003. accused-appellant could not show any permit to keep the poppy husk in his possession. The appellant was arrested. On inquiry, appellant Jagsir Singh disclosed the names of his co-accused as Sukhdev Singh and Teja Singh (acquitted accused). 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 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 they did not plead guilty and claimed trial. In order to prove its case against the accused, the prosecution examined Sub Inspector Harish Chander (P.W.1), Head Constable Ram Kumar (P.W.2), Assistant Sub Inspector Ram Bhaj (P.W.3), Sub Inspector Ramphal (P.W.4), Head Constable Chhatarpal Singh (P.W.5), Deputy Superintendent of Police Ram Kumar (P.W.6), Inspector Jaipal (P.W.7) and Anand Kumar (P.W.8). In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused-appellant denied the prosecution allegations and pleaded false implication. However, no evidence was led by the accused in defence. I have heard the learned counsel for the parties and have -5- Criminal Appeal No.1826 -SB of 2003. 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 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 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 straw 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 appellants, I find sufficient force in the same. In this case, the appellant, along with the acquitted accused, was found sitting on six bags of poppy husk near the `Semnala'. There is no evidence on record to show the ownership of the poppy husk by the appellant. The police, in all fairness, should have conducted further investigation to prove that the appellants were really in possession of these bags. 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 -6- Criminal Appeal No.1826 -SB of 2003. 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. The independent witness, namely, Manohar Lal was given up by the prosecution. 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 -7- Criminal Appeal No.1826 -SB of 2003. 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. 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 -8- Criminal Appeal No.1826 -SB of 2003. 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 sentencer order. April 06, 2010. ( MOHINDER PAL ) JUDGE