Gurmail Singh vs State of Punjab

V.M. Jain, J.—This is an Appeal against the judgment and order dated 5.8.1999, passed by the Additional Sessions Judge, Patiala, convicting the accused-appellant u/s 25 of the NDPS Act (hereinafter referred to as the Act) and sentencing him to undergo RI for 10 years and to pay a fine of Rs 1.00 lakh and in default of payment of fine, to further undergo RI for one year.

The facts in brief are that Raghubans Singh Gill, Excise and Taxation Officer, on 27.2.1989, was posted at Shambhu Excise Check Barrier. At about 11 p.m., on the night intervening 27/28.2.1989, truck No. CHW 9495 came from Ambala side and one person by the name of Makhan Singh gave the documents of the truck at the check barrier for checking and considering the documents to be suspicious, he (Raghubans Singh Gill) himself went to the truck, which was parked on the road near the barrier and meanwhile, said Makhan Singh slipped away. The said truck along with its contents was detained. From the registration certificate, the name of the owner was found to be accused, Gurmail Singh. HC Nirmal Singh and Constable Paramjit Singh were deputed to watch the truck. On the morning of 28.2.1989, Raghubans Singh Gill became off duty and came on duty on 3.3.1989. On the same day, at about 4 p.m., Inspector Gurmit Singh Randhawa and other officials visited the barrier in connection with patrol duty and at that time, he told them that he had detained the said truck with its contents under suspicious circumstances and gave his report Ex. PE to Inspector Gurmit Singh Randhawa. Thereafter, Inspector Gurmit Randhawa and other Police Officials went to the truck and the truck was got unloaded. On search, 109 bags of poppy and 10 bags of oil cake were recovered from the said truck. On weighment, each bag of poppy was found containing 36 kgs of poppy. Sample of 250 gms was taken from each bag of poppy and thereafter the sample and the bulk of poppy were duly sealed and the same were taken into possession along with 10 bags of oil cake and the said truck, vide recovery memo. As per the statement of Gurmit Singh. DSP, after the completion of investigation, the challan was put in the Court.

Initially, accused-Gurmail Singh was charged u/s 15 of the Act on 6.11.1992. Evidence of the prosecution was recorded. Thereafter, the APR for the State closed the prosecution evidence. The Statement of accused u/s 313, CrPC, was also recorded and thereafter, the accused tendered certain documents in his defence. Thereafter, on 23.12.1996, the accused closed the defence evidence. Arguments were heard and the case was fixed for orders for 24.12.1996. The learned Additional Sessions Judge found that no offence u/s 15 of the Act was made out against the accused and rather offence u/s 25 of the Act was made out against him. Accordingly, exercising the powers u/s 216, CrPC, the charge was altered and re-framed u/s 25 of the Act, vide order dated 24.12.1996. Thereafter, the prosecution evidence was recorded again. After recording the statement of the accused and after the accused had closed the defence evidence, the learned Additional Sessions Judge, on 5.8.1999, convicted and sentenced the accused-appellant, as referred to above. Aggrieved against this judgment and order of the learned Additional Sessions Judge that the accsed-appellant, Gurmail Singh, has filed the present Appeal in this Court.

I have heard learned counsel for the parties and gone through the record carefully.

Learned counsel for the accused-appellant submitted before me that no case u/s 25 of the Act was made out against the accused-appellant. It was submitted that the star witness of the prosecution was Raghubans Singh Gilt. ETO, in whose presence, the occurrence took place on 27.2.1989 as also on 3.3.1989. However, after the charge was altered from Section 15 to Section 25 of the Act, the prosecution had tailed to examine Raghubans Singh Gill. ETO. It was further submitted that even according to the case of the prosecution, the truck remained parked at the barrier from 27.2.1989 to 3.3.1989 and the possibility of the bags of poppy-husk having been loaded in the truck, during the said period, could not be ruled out. It was submitted that only Nirmal Singh was examined as PW3, whereas. Constable Paramjit Singh was not examined. It was further submitted that even otherwise, the petitioner, being the owner of the truck, could not be convicted u/s 25 of the Act, as there is nothing on the record to show that the petitioner had knowingly allowed the truck to be used for the commission of the crime.

There is considerable force in the arguments of the learned counsel for the appellant. Initially, the accused-appellant was charged u/s 15 of the Act and after recording the prosecution evidence, statement of the accused u/s 313, CrPC, and the defence evidence, the arguments were heard and the case was fixed for orders. However, learned Additional Sessions Judge found that no case u/s 15 of the Act was made out against the accused-appellant and accordingly, the charge was altered from Section 15 to Section 25 of the Act on 24.12.1996, Thereafter, the case was again fixed for prosecution evidence. However, the prosecution failed to examine Raghubans Singh Gill, ETO, as prosecution witness. He was the prime witness, inasmuch as the truck was apprehended on 27.2.1989 in his presence and he had got the truck parked. It was in this presence that ultimately the recovery was effected on 3.3.1989. However, the prosecution had failed to examine him in this case. The non-examination of this witness is a serious infirmity in the case of prosecution.

Furthermore, according to the case of the prosecution, the truck remained parked at the barrier from 27.2.1989 to 3.3.1989. Only PW3, Nirmal Singh, was examined by the prosecution to show that during the said period, no one had tampered with the said truck. However, in my opinion, the evidence of PW3 would not be sufficient in this regard. The mere statement of PW3 that he and Constable Paramjit Singh kept a watch on the truck from 27.2.1989 to 3.3.1989, cannot be accepted, especially when the prosecution had failed to examine Constable Paramjit Singh as witness in this case. It was also stated by PW3 that from 27.2.1989 to 3.3.1989, neither he had sent any intimation to police that the truck was lying parked at the barrier nor he himself had taken search of the said truck, during the said period. In these circumstances, the possibility of the bags of poppy-husk having been loaded in the said truck could, not be ruled out.

As referred to above, in the present case, the accused-appellant has been charged u/s 25 of the Act. As per Section 25 of the Act, a person being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, etc. knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of the Act, shall be punishable. In the present case, there is absolutely no evidence on the record to show that the appellant being the owner of the truck in question had knowingly permitted it to be used for the commission, by another person, of an offence punishable under the Act. If the truck driver/cleaner had used the said truck for transportation of poppy-husk and there is no evidence on the record to show that the appellant had knowingly permitted it to be used for the said purpose by the driver/cleaner, in my opinion the accused-appellant cannot be held guilty u/s 25 of the Act. Before a person can be held guilty u/s 25 of the Act, it has to be shown that he had knowingly permitted the vehicle to be used for the commission of the offence under the Act by any other person. However, in the present case, the prosecution had not led any evidence on the record to show that the appellant had knowingly permitted the truck to be used to any other person for commission of offence under the Act. Thus, in my opinion, the appellant cannot be held guilty under the Act.

In view of the above, in my opinion, the conviction of the accused- appellant u/s 25 of the Act is liable to be set aside.

Accordingly, the present Appeal is allowed, the judgment and order dated 5.8.1999, passed by the Additional Sessions Judge, are set aside and the accused-appellant is acquitted of the charge framed against him.

Appeal allowed.