Balbir Singh vs State of Haryana

T.H.B. Chalapathi, J.

This appeal is directed against the conviction and sentence imposed by the learned Session Judge, Sirsa on the accusedapplicants in Sessions Case No. 20 of 1988 for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (for short the N.D.P.S. Act).

The case of the prosecution is that on 3.9.1987 Inspector Ram Kishan of C.I.A. Staff, Sirsa was present at the Takhatmal Barrier and he received a secret information at about 6.15 A.M. that a truck carrying chura post (poppy husk) was coming on Mammerkhera minor and if a Nakabandi was held, the poppy husk could be recovered. Accordingly, he alongwith the police officials and one Jit Singh, member of the Panchayat held a Nakabandi in the village of Krangawali and they saw a truck bearing No. DEL 2847 from the side of village Krangawali on the embankment of the minor. Then the Inspector stopped the truck. The truck was driven by Balbir Singh, accused No. 3 (who is appellant No. 1 herein) and Nirmal accused No. 4 (who is appellant No. 2 herein) alongwith one Gursewak Singh, accused No. 5 were sitting on the bags in the truck and the accused were asked to get down from the truck and the bags in the truck were covered with a tarpaulin. Then the Inspector got the bags in the truck unloaded which were found 85 in number. Out of 85 bags in the truck, 84 of them contained poppy husk weighing 40 Kgs. each. He took the sample of 250 Gms from each bag. The samples and the bags were separately sealed. The Inspector also recovered two licences, a route permit and a sum of Rs. 5500/ on further search of the truck. The Inspector offered the accused whether they wanted to be searched in the presence of a Gazetted Officer, but the accused desired to be searched by the Inspector. On the basis of the ruqa, and FIR was registered and the investigation was taken up. After completion of the investigation, the chargesheet was filed against all the accused five in number.

After committal, the learned Sessions Judge framed a charge against all the accused for the offence under Section 15 of the N.D.P.S. Act.

In order to prove the guilt of the accused, the prosecution examined three witnesses. After closure of the evidence for the prosecution, the accused were examined under Section 313 Cr.P.C. In their statements, the accused stated that the case was foisted against them. Though Balbir Singh and Nirmal offered to adduce evidence, but they did not examine any witness.

On a consideration of the evidence on record, the learned Sessions Judge convicted the accused Balbir Singh (who is appellant No. 1 herein) and Nirmal (who is appellant No. 2 herein) for the offence under Section 15 of the N.D.P.S. Act and sentenced them to undergo rigorous imprisonment for a period of 10 years and pay fine of Rs. one lac each while Babu Singh (accused No. 2) and Parmanand (accused No. 1) were acquitted by the learned Sessions Judge earlier by an order dated 6.6.1989 as there was no evidence against them.

Aggrieved by the said conviction and sentence imposed by the learned Sessions Judge, Balbir Singh and Nirmal filed the present appeal.

At this stage, it may be noted that Gursewak singh, accused No. 5 absented himself during the trial and proceedings under Section 299 Cr.P.C. were separately taken.

PW1 is the Sub Inspector of Police at the relevant time. According to him on 3.9.1987, he received a ruqa and he registered an FIR which is marked as Exhibit PA/1. PW2 is the Assistant Sub Inspector of Police. He deposed that on 3.9.1987 he was present alongwith other police officials at Takhatmal Barrier. Then Ram Kishan Inspector alongwith other police officials came there. The Inspector received a secret information that a truck loaded with chura post would be coming to the Mmmarkhera minor and if Nakabandi was held, recovery could be effected. Then the police party proceeded to that place they joined Jit Singh as a witness. Thereafter they saw a truck coming which was stopped by the Inspector. Balbir Singh (accused No. 3) was driving the said truck. There was bags loaded in the truck covered by a tarpaulin and Nirmal and Gursewak Singh accused were sitting on the tarpaulin. Thereafter the bags were unloaded from the truck. There were 85 bags in the truck. Out of them, 84 bags were found to contain chura post. Each bag was weighing about 40 Kgs. Thereafter the Inspector took sample of 250 Gms from each of the bags and sealed the same. He admitted in the crossexamination that the secret information was not reduced to writing by him.

PW3 is the person who held Nakabandi and who obtained the secret information about the truck in which the chura post was being transported. He deposed that at about 6.15 A.M. on 3.9.1987 when he was present at Takhatmal Barrier, he received the secret information that a truck loaded with chura post coming on the bank of Mammerkhera minor. Accordingly, he held a Nakabandi and he saw a truck coming and he stopped it and the accused Balbir Singh was driving the same and Nirmal and Gursewak Singh were sitting on the bags in the truck and he asked them to get down and the bags were covered by a tarpaulin. Then he got the bags unloaded from the truck and there were 85 bags in the same. Out of them, 84 bags were found containing chura post. Thereupon he took sample of 250 Gms from each of the bags and separately sealed the same and the bags were again sealed. He further stated that arrested Parma Nand Babu Ram on 7.9.1987. He also admitted that he did not send any information in writing to the higher officials about his receiving the secret information.

There is nothing in the evidence of PW3 to suggest that the accused appellants had any knowledge that the bags loaded in the truck contained chura post (poppy husk). The Ist appellant is only a Driver of the truck whereas the second appellant was only sitting on the bags covered with tarpaulin. The prosecution failed to adduce any evidence in what capacity the second appellant Nirmal and the other accused Gursewak Singh were sitting in the truck. Both of them were said to be sitting on the tarpaulin in the truck. Unless the prosecution proves the conscious possession of the contraband by the accused, they cannot be convicted for being in possession of the chura post. There is also no evidence to show that either Balbir Singh, driver, the Ist appellant or the second appellant Nirmal and Gursewak Singh knew that the bags which were loaded in the truck contained chura post (poppy husk). To this effect, there is absolutely no evidence adduced by the prosecution. When the prosecution failed that the accusedappellants had no knowledge that the bags which have been loaded in the truck, contained chura post (poppy husk), no conviction can be based on the evidence of PW2 and PW3. No efforts were made by the prosecution to find out that the appellants and Gursewak Singh had any knowledge that the bags loaded in the truck contained poppy husk.

In this view of the matter, I am of the opinion that the accused appellants are entitled to be acquitted of the charges framed against them under Section 15 of the N.D.P.S. Act.

The appeal is accordingly allowed, the conviction and sentence imposed on the accusedappellants are hereby set aside and they are acquitted of the charges framed against them. Their bail bonds shall stand cancelled.