Darshan Singh and Another vs State of Punjab

Kanwaljit Singh Ahluwalia, J.—Present appeal has been preferred by Darshan Singh son of Buggar Singh and Gurdas Singh son of Gurdev Singh. They were nominated as accused in case FIR No. 42 dated 30.03.2000 registered at Police Station Sadar Bathinda u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, ''the Act''). The Judge, Special Court, Bathinda vide its judgment and order dated 06.03.2002 found both the appellants guilty of the offence punishable u/s 15 of the Act and sentenced them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1.00 lac each, in default of payment of fine to further undergo rigorous imprisonment for two years.

Aggrieved against the same, present appeal has been filed challenging the conviction and sentence recorded by the Court below.

ASI Ajay Pal Singh PW-1, In-charge of Police Post, Balluana had sent a ruqa Ex.PJ from the Revenue Estate, Rai Ke Kalan at about 3.15 p.m., wherein he stated that he, along with companion police officials, was on patrol duty and was going to village Rai Ke Kalan, when they spotted two persons sitting on the gunny bags in the ditches of the fields. On suspicion, the jeep was stopped and with the aid of companion police officials, both the said persons were apprehended, who disclosed their names as Darshan Singh son of Buggar Singh and Gurdas Singh son of Gurdev Singh. By chance, Balbir Singh former Panch of the village Rai Ke Kalan arrived at the spot and after he was acquainted with the facts, he was made to join the police party. Both the accused were told that the bags, on which they were sitting, contained some contraband article and in case they wanted they could get themselves searched in the presence of a Gazetted Officer or a Magistrate. Both the accused opted to get themselves searched in the presence of a Gazetted Officer. A consent memo to this effect was prepared, which was attested by Balbir Singh former Panch of the village and HC Dhir Singh. The accused Darshan Singh and Gurdas Singh had also appended their signatures on the same. Through wireless message, a request was made to send a Gazetted Officer and after some time, Jaspreet Singh Sidhu, DSP (Rural), Bathinda came on a Govt. Gypsy, who on arrival introduced himself and a consent memo to carry search was prepared. According to the procedure prescribed, all the ten gunny bags, on which the appellants were sitting, were searched and poppy husk was found in them. From each bag, a sample of 200 grams of poppy husk was drawn and the remaining poppy husk in each bag weighing 37 kilograms and 800 grams was taken into custody. Ten samples were prepared, upon which seal of ''APS'' was affixed by the Investigating Officer. The seal after use was handed over to HC Dhir Singh and Serial No. 1 to 10 were assigned to the samples. A recovery memo was prepared, which was attested by the witnesses. Personal search of both the appellants was carried and a memo to this effect was also prepared. The ruqa was sent for registration of the case, as the appellants were found in possession of 3 quintals and 80 kilograms of poppy husk, without any permit or licence.

The above said FIR was investigated and report u/s 173 Cr.P.C. was submitted against the accused appellants.

The Court of Judge, Special Court, Bathinda on 3rd July, 2000 charged the appellants for offence punishable u/s 15 of the Act. The appellants pleaded not guilty and claimed trial.

ASI Ajay Pal Singh appeared as PW-1 and reiterated as to what was stated in the ruqa Ex.PJ on the basis of which formal FIR Ex.PJ/1 was registered. The memo giving offer was exhibited as Ex.PB and consent memo of the accused appellants as Ex.PC. Personal search memos Ex.PE and Ex.PF were also recorded. In cross examination, this witness stated that they were on a private jeep on the day of occurrence but he was unable to tell the registration number of the jeep. He was also not aware of the name of owner of the said jeep. In cross examination, he further stated that the place of recovery was at a distance of 12/13 kilometers from Police Post Balluana. He further stated that while leaving the Police Post, they had not associated any private person. He also stated that the accused were sitting on the Patri adjoining to the canal minor. He admitted that Jathedar Harnek Singh was a member of SGPC. In the Parliament elections, the candidate of Akali Dal was defeated and the candidate of CPI was elected. However, he denied as to whether there was any dispute regarding the fact that the banner of Akali candidate was torn by the appellant Gurdas Singh.

Bhupinder Singh DSP, Sunam appeared as PW-2. He stated that on 30th March, 2000, he was posted as SHO in Police Station Sadar, Bathinda. He further stated that on the same day, case property and the samples were produced before him and he had produced the same before the Illaqua Magistrate. The bulk parcels were exhibited as Ex.P2 to Ex.P11. In cross examination, this witness admitted that some of the seals on the bags were in broken condition and Ors. were intact.

Constable Balbir Singh PW-3 tendered his affidavit Ex.PS to prove link evidence. He had carried the samples on 1st April, 2000 to Forensic Science Laboratory, Chandigarh.

Jaspreet Singh DSP (Vigilance), Bathinda, who had reached at the spot and had carried search and effected the recovery, appeared as PW-4. In cross examination, he admitted that no residential house was near the place of occurrence and that the constable had left the spot with the ruqa at 3.15 p.m.

Thereafter, statements of the accused u/s 313 Cr.P.C. were recorded and all incriminating circumstances were put to them. They denied the same and pleaded false implication.

In defence, the appellants examined Balwinder Singh, Assistant Superintendent, Central Jail, Bathinda as DW-1. This witness was examined to prove alibi of Gurdas Singh appellant on the basis of the records, as it is a case of the appellant Gurdas Singh that on the day of occurrence, he had gone to meet Lakhvir Kaur prisoner.

Balbir Singh Ex-Panch of the village, who was an independent witness associated during search and seizure, appeared as DW-2. He stated that on the day of occurrence, he had gone to the Police Station to resolve some dispute and his signatures were obtained on blank papers and no recovery was effected in his presence.

Mr. D.N. Ganeriwala, Advocate appearing for the appellants, has submitted that in the present case, no effort was made by the prosecution to prove that the accused had any control over the place, wherefrom the recovery was effected. It is stated that no official from the Revenue Department, Sarpanch, Lambardar or Chowkidar had been examined to say that the land, wherefrom the recovery was effected, was owned or possessed by the accused-appellants. It is further submitted that in the statements of the accused-appellants recorded u/s 313 Cr.P.C., nowhere it had been stated that the appellants knew that the gunny bags, on which they were sitting, contained poppy husk. It is submitted that the poppy husk was recovered from the ditches near the Patri (pedestrian path) on the canal minor. It is urged that it cannot be ruled out that the accused appellants, who were walking, just to take rest had sat over the gunny bags.

Mr. J.S. Bhullar, Assistant Advocate General, Punjab appearing for the State, has submitted that the police party had apprehended the appellants sitting on the gunny bags, therefore, the presumption u/s 35 of the Act is to be drawn against them.

I have given my thoughtful consideration to the rival submissions made by counsel for the parties and have perused the record. In State of Punjab Vs. Balkar Singh and Another, , a Division Bench of Hon''ble the Apex Court observed as under:

We heard the counsel for the appellant. The High Court by the impugned judgment stated that the prosecution failed to prove that these respondents were in conscious possession of the poppy husk recovered by the police. The evidence by the prosecution consisted of the testimony of PW 1 Balbir Singh and PW 2 ASI Jarnail Singh. Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in Village Lohgarh. The respondents belonged to different villages. The respondent Balkar Singh is a resident of Village Bira Bedi in District Hisar while respondent Munish Chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any infirmity in the judgment passed by the High Court.

In the present case, the investigating agency had made no effort to find out as to from where the recovered gunny bags containing poppy husk, on which the appellants were found sitting, originated, how were they transported, who had stored them and as to whether the appellants were in possession of the same knowing fully well that they contained poppy husk or they were engaged in the trade of selling poppy husk. No customer or prospective customer had been examined. The observations of the Hon''ble Apex Court in Balkar Singh''s case (supra) are sufficient to discard the case of the prosecution. I have also examined the statements of the appellants recorded u/s 313 Cr.P.C. Two specific questions were put to them. In question No. 1 it was stated that they were sitting on the gunny bags. Question No. 2 stated that the gunny bags were searched and poppy husk was found in them. Nowhere it had been stated that the appellants knew that the gunny bags contained poppy husk.

No revenue official, any Sarpanch, Lambardar, Chowkidar or any villager has been examined to say as to whom the land, where the gunny bags were stacked, belonged to and who was in possession of the same.

Counsel for the appellants has rightly placed reliance upon a judgment of Hon''ble Apex Court rendered in ''State of Punjab v. Hari Singh and Ors.'' 2009 (2) RCR (Criminal) 143 to say that recording of the statement u/s 313 Cr.P.C. is not a mere formality, but is to acquaint the accused with the incriminating circumstances. In the very facts and circumstances of the present case, the observations made by a Full Bench of this Court in ''Kashmir Singh v. State of Punjab'' 2006 (2) RCR (Criminal) 477 also assumes importance. Furthermore, in the present case, the seal was not handed over to the independent witness Balbir Singh DW-2, rather the same was handed over to HC Dhir Singh, who had also not been examined. The appellants could not cross examine HC Dhir Singh to say that during the period when the seal remained in possession of HC Dhir Singh, the same was not misused and the samples were not tampered with. Therefore, the prosecution has failed to prove the link evidence also.

Taking totality of circumstances into consideration, present appeal is hereby accepted and both the appellants are acquitted of the charges after setting aside their conviction and sentence.