Allowed

Sukhdev Singh v. State of Punjab

Punjab & Haryana HC14 Jan 2014CRA-S/577/2002

Case brief

AI extract

What is this about?

High Court Punjab Allowed criminal appeals against conviction and sentence for possessing poppy husk, awarding acquittal due to failure to examine independent witness, lack of opportunity for accused to rebut conscious possession presumption, and missing alternative charge.

What did the court decide?

Accused acquitted of charges framed against them; judgment of conviction and order of sentence set aside.

Sukhdev Singh Vs State of Punjab — Narcotics (NDPS) | Punjab & Haryana HC (2014)

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Criminal Appeal No. S-577-SB of 2002

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Criminal Appeal No. S-577-SB of 2002 Date of decision: January 14, 2014

Sukhdev Singh

..Appellant

Versus

State of Punjab

..Respondent

Criminal Appeal No. S-885-SB of 2002

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Mohd. Karim ..Appellant

Versus

State of Punjab

..Respondent

CORAM: HON'BLE MRS. JUSTICE DAYA CHAUDHARY

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Present: Mr. Amarjit Markan, Advocate, for the appellants in both the appeals.

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Mr. Rupam Aggarwal, DAG, Punjab for the respondent – State.

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Daya Chaudhary, J.

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By this judgment two appeals bearing Criminal Appeal

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No. S-577-SB of 2002 and Criminal Appeal No. S-885-SB of 2002

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Criminal Appeal No. S-577-SB of 2002

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shall be disposed of as both the appeals have been filed against the judgment of conviction and order of sentence dated 15.02.2002 passed by Judge, Special Court, Sangrur. However, the facts are being extracted from Criminal Appeal No. S-577-SB of 2002.

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Briefly, the facts of the prosecution story are that on 20.09.2000, a Police party headed by ASI Veer Singh in a Police vehicle driven by Constable Pal Singh was on patrolling duty. One Gajjan Singh met the Police party. Meanwhile, a truck bearing No. PB-13-D-8825 was coming from the side of Village Khannewal. On seeing the Police party, the driver of the truck at once stopped the truck but tried to run away. He was apprehended on the spot on having suspicion his truck was searched out. Before conducting search, an option was given to the accused as to whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate, however, accused reposed confidence in ASI Veer Singh. Statement of accused Sukhdev Singh was recorded, which was duly signed by him and attested by ASI Jarnail Singh as well as PW Gajjan Singh. Accused Mohd. Karim was cleaner on the truck and was sitting along with accused Sukhdev Singh. On conducting search, three gunny bags containing poppy husk were recovered from the truck. Out of said bags, two samples of 250 gms were separated and converted into separate parcels. The remaining poppy husk from each gunny bag came to be 29½ kgs, which was converted into separate parcels. All the parcels were sealed by ASI Veer Singh, Investigating Officer,

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Criminal Appeal No. S-577-SB of 2002

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with his own seal bearing impression “vs”. Sample seal chit was separately prepared and seal after use was handed over to ASI Jarnail Singh. The entire case property including the truck and its RC was taken into possession by the Investigating Officer. On personal search of accused-Sukhdev Singh, currency notes of Rs.45/- were also recovered but nothing was recovered from accused-Mohd. Karim. Ruqa was sent to Police Station, on the basis of which, a formal FIR was registered by ASI Inder Singh. The accused were arrested and the case property including sample seal were deposited with MHC Jagdev Singh. On the next day, the case property along with accused were produced before the Illaqa Magistrate and thereafter, the case property was deposited with MHC Jagdev Singh. On receiving report of the Chemical Examiner and on completion of investigation, the challan was presented against the accused persons before the Court. The copies of the documents were supplied to the accused as per provisions under Section 207 Cr.P.C. The accused were charged under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') to which they pleaded not guilty and claimed trial.

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The prosecution in support of its case examined as many as seven witnesses i.e., PW1-MHC Jagdev Singh, PW2-ASI Jarnail Singh, PW3-Sudesh Kumar, Reader, PW4-Sukhjit Singh, Registration Clerk, PW5-SI Harmik Singh, PW6-SI Veer Singh and PW7-Constable Sukhpal Singh.

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Criminal Appeal No. S-577-SB of 2002

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After closure of prosecution evidence, the statements of accused under Section 313 of the Code were recorded wherein they denied the prosecution allegations and pleaded false implication.

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In defence, they examined DW1-Baljit Singh, ETO and DW2-Surinder Singh, Municipal Commissioner.

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On appraisal of evidence and after hearing counsel for the parties, the trial Court convicted both the accused for offence under Section 15 of the Act and sentenced to undergo RI for a period of 10 years and to pay fine of Rs. 1 lac with default clause vide judgment dated 15.02.2002.

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The judgment of conviction and order of sentence passed by the Judge, Special Court, Sangrur, is subject matter of challenge in both the appeals.

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Learned counsel for the appellants has raised various arguments while assailing judgment of conviction like the independent witness Gajjan Singh was associated with the Police party but he was not examined by the prosecution. The seal was not handed over to independent witness but it was handed over to ASI Jarnail Singh, which creates serious doubt about the recovery and hence, possibility of false implication cannot be ruled out. Learned counsel for the appellants also submits that the judgment of trial Court is contrary to the evidence as the case property, which was produced before the Court was not found in intact condition as one of the gunny bag produced in the Court did not have any seal and upon

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Criminal Appeal No. S-577-SB of 2002

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another gunny bag, there was only one seal, which shows that the case property has been tempered with and benefit should have been given to the accused. Learned counsel for the appellants also submits that there is violation of mandatory provisions as serious contradictions and discrepancies are there in the statements of prosecution witnesses. Learned counsel for the appellants also submits that the independent witness remained with the police for whole of the time, still he was not examined and no reason whatsoever has been given as to why he was not examined. Learned counsel for the appellants also submits that the truck from where the recovery was effected was not produced before the Court and link evidence is also missing. The conscious possession of the accused appellants have also not been proved. It is also the argument of learned counsel for the appellants that separate consent statements of accused were not recorded and provisions of Section 50 of the Act were not strictly complied with. The case property was not deposited with MHC and there was violation of Section 55 of the Act. It is also the argument of learned counsel for the appellants that the vehicle was transferred in the name of accused-Sukhdev Singh on 29.11.2000 as has been stated by PW4-Sukhjit Singh. Learned counsel for the appellants has also relied upon the judgment of full Bench of this Court in Kashmir Singh vs. State of Punjab, 2006 (2) RCR (Criminal) 477 as well as other judgments of this Court in Sukhdev Singh and another vs. State of Punjab, 2006(4) RCR

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Criminal Appeal No. S-577-SB of 2002

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(Criminal) 263, Karan Singh vs. State of Haryana, 2010(3) RCR (Criminal) 790, Nirmal Singh vs. State of Punjab, 2010(3) RCR (Criminal) 54, Surinder alias Sudama vs. State of Haryana, 2010 (3) RCR (Criminal) 86, Basir Mohammad vs. State of Haryana, 2008(3) RCR (Criminal) 244, Amarjit Singh vs. State of Punjab, 2011(2) RCR (Criminal) 471 and Amrik Singh vs. State of Punjab, 2010 (3) RCR (Criminal) 653 in support of his arguments.

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Learned State counsel opposes the submissions made by learned counsel for the appellants and submits that judgment of trial Court is well reasoned and is based upon proper appreciation of evidence. The prosecution has proved its case beyond reasonable doubt and no interference is required by this Court. Learned State counsel has also relied upon the judgment of Hon'ble the Supreme Court in Sumit Tomar vs. State of Punjab, (2013) 1 Supreme Court Cases 395 as well as judgment of this Court in Jarnail Singh vs. State of Haryana, 2013(2) RCR (Criminal) 580 in support of his arguments.

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Heard arguments of learned counsel for the appellants as well as learned State counsel and have also perused the evidence available on the record.

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The judgment of conviction and order of sentence has been challenged mainly on the ground that the independent witness was not examined, whereas, independent witness remained with the Investigating Officer. There is non compliance of sections 50 as well

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Criminal Appeal No. S-577-SB of 2002

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as 55 of NDPS Act,1985. Link evidence is missing. The vehicle from which the recovery has been effected was transferred in the name of accused Sukhdev Singh on 29.11.2000, whereas, the recovery was effected on 20.11.2000. The option was given to accused Sukhdev Singh only and not to the other accused.

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Admittedly, one independent witness, namely, Gajjan Singh was associated with the police party but he was not examined by the prosecution on the ground that he was won over. The said Gajjan Singh appeared as defence wittiness and stated that no recovery was effected from the accused in his presence. No doubt, the statement of official witnesses cannot be discarded or disbelieved merely on the ground that the independent wittiness was not examined but the testimony of official witness is to be scrutinized with due care and caution. In the present case,, the seal after use was not handed over to independent witness but it was given to ASI Jarnail Singh. Admittedly, no special report was sent to the senior Officers and there is violation of Sections 52 and 57 of the Act. Although provisions of Section 55 of the Act are not mandatory but they are directory in nature. The case property produced in the Court was not found to be in intact condition as one of the gunny bags did not have any seal which shows that tampering with the case property cannot be ruled out. As per statement of Baljit Singh, DW1, who was ETO posted at Khanauri Barrier, Sangrur the alleged truck passed from Khanauri barrier on 19.9.2000 at 1.04 p.m.,

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Criminal Appeal No. S-577-SB of 2002

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whereas, recovery was effected on 20.9.2000 and not on 19.11.2000. Originally, the truck was registered in the name of Raghbir Chand and thereafter it was transferred in the name of M/s. Anand Tulsi Road Carrier, Dhuri and it was transferred in the name of accused Sukhdev Singh on 29.11.2000, whereas, recovery from the said truck was effected on 20.9.2000. This fact has been proved from the statement of Sukhjit Singh, Registration Clerk, DTO Office, Sangrur who deposed on the basis of record while appearing as PW4.

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The judgment of the conviction has also been challenged on the ground that conscious possession of the contraband has not been proved. As per case of the prosecution, the recovery was effected from the truck. Even no question with respect to presumption of conscious possession has been put to the accused as envisaged under Section 313 CrPC. As per case of the prosecution, the accused was found carrying offensive contraband stuff in the truck and he cannot be held guilty for commission of offence as no alternative charge under Section 8 of the Act for transporting offensive goods were framed against the accused. In judgment of Supreme Court in Madan Lal v. State of HP 2003(4) RCR (Crl.) 100 it was held as under:

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“ The word 'possession' means the legal right to

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possession. The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in

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Criminal Appeal No. S-577-SB of 2002

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contextually different backgrounds. Possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.

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The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended.

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Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.”

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Admittedly, no such question was put to the accused with regard to presumption of conscious possession as required under Section 313 CrPC. Section 8 of NDPS Act deals with the provisions of certain operations, which reads as under:

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“(a) cultivate any coca plant or gather any portion of coca plant; or

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(b) cultivate the opium poppy or any cannabis

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Criminal Appeal No. S-577-SB of 2002

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plant; or

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(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import interState, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance,except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any

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requirement by way of licence, permit or authorization also in accordance with the terms and conditions of such licence, permit or authorization:

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Provided that, and subject to the other provisions of this Act and the rules made thereunder,the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official

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Criminal Appeal No. S-577-SB of 2002

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Gazette, specify in this behalf:

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[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]

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Similar observation has been made by Hon'ble Apex Court in paragraph 7 of the judgment in Avtar Singh v. State of Punjab 2002(4) RCR (Criminal) 180 (SC) which is as under:

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“Coming to the case of the third appellant who was driving the vehicle, there is one more infirmity in the prosecution case. He would have charged alternatively for transporting the offensive goods without permit or authorization as required by law; but such a charge was not laid. There was no even reference to section 8 of the Act. The result is, he too goes scot free.”

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Under similar circumstances, the accused was acquitted in Sukhdev Singh's case (supra) by giving benefit of doubt to the accused. Similar view has been held in Karan Singh's case (supra), Nirmal Singh's case (supra), Surinder alias Sudama's case (supra) and Bashir Mohammad's case (supra).

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As per provisions of Section 313 of the Code for fair trial and to give the accused an opportunity to explain the case agaisnt him, the trial Court has not given any such opportunity. Unless such opportunity is not given to prove that he had no mental state as

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Criminal Appeal No. S-577-SB of 2002

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presumed agaisnt him under Section 54 of the Act, no such presumpion can be raised agaisnt him. Moreover, no specific question with regard to consicous possession was put to him while examining him under Section 313 of the Code. As such neither conscious possession was established nor the presumption under sections 35 and 54 of the Act can be drawn in favour of the prosecution. This view has been held in F.B. Judgment of this Court in Kashmir Singh's case (supra).

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Although the independent witness was joined at the time of recovery but he was not examined. The prosecution should have examined him to reveal the truth inspite of the fact that he was won over by the accused as has been held in State of Punjab v. Surjeet Singh 2008(1) RCR (Crl.) 266 (Pb. & Hr.).

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In view of the facts as mentioned above and law position as discussed in the judgments quoted above, there is merit in the contentions raised by learned counsel for the appellants and the accused are entitled for benefit of doubt.

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Accordingly, the appeals are allowed. Judgment of conviction and order of sentence are set aside and the appellants are acquitted of the charges framed against them.

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(DAYA CHAUDHARY) JUDGE

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January 14, 2014 neetu

Sukhdev Singh v. State of Punjab

Case brief

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Sukhdev Singh v. State of Punjab

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