Mukhtiar Kaur and Another vs State of Punjab

Harbans Lal, J.—This appeal is directed against the judgment/order of sentence dated 8.9.2006 passed by the court of learned Judge, Special Court, Barnala whereby he convicted and sentenced the accused Mukhtiar Kaur and Amritpal Singh to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1.00 lac each u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, the Act) and in default of payment of fine the defaulter to further undergo rigorous imprisonment for two years.

The minimal facts are that on 4.1.2003 ASI Nahar Singh accompanied by other police officials happened to be present at Grain Market Sehna at 1.00 P.M. He received a secret information interalia to the effect that accused Mukhtiar Kaur as well as Amritpal Singh deal in the sale and purchase of poppy husk and they were going on canter bearing registration No. PB-03F-2242 carrying poppy husk. This information was embodied into a ruqa, which was sent to the Police Station, wherein on its basis F.I.R. was registered. The police party went to the disclosed place and set up a naka. One Balbir Singh an independent witness alongwith HC Jasbir Kaur and Constable Swaran Kaur was associated with the police party. The D.S.P. Sukhminder Singh Mann also came at the spot. After a short while, the aforementioned canter was spotted approaching from the opposite direction. The same was signalled to stop. The driver stopped this vehicle at some distance and managed to escape. He was identified as Amritpal Singh accused. The lady sitting by his side in the vehicle, disclosed her name as Mukhtiar Kaur. She told the police that the escaper was her son Amritpal Singh. She was offered to be searched before a Gazetted Officer or a Magistrate. She opted to have the search in the presence of a Gazetted Officer. She reposed confidence in the aforesaid DSP. On search of the vehicle two bags were recovered. The contents of each bag which were found to be poppy husk, when weighed came to 34 Kgs out of which two samples each weighing 250 grams were drawn and converted into parcels. The case property including the sample parcels were sealed with seal NS. The seal after use was handed over to aforesaid Balbir Singh. She was arrested. On 12.1.2003 the accused Amritpal Singh was put under arrest. After completion of investigation, the charge-sheet was filed in the court for trial of the accused.

The accused Mukhtiar Kaur as well as Amritpal Singh were charged u/s 15 of the Act to which they did not plead guilty and claimed trial. In order to bring home guilt against the accused, the prosecution examined PW-1 HC Gurpal Singh, PW-2 Constable Baldev Singh, PW-3 S.I. Paramjit Singh, PW-4 Raj Kumar Junior Assistant in DTO Office, Moga, PW-5 DSP Sukhminder Singh Mann, PW-6 ASI Nahar Singh and closed its evidence.

When examined u/s 313 of Cr.P.C., both the accused denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded innocence as well as false implication. Mukhtiar Kaur has put forth as under:

I am innocent. Nothing was recovered from me and my son Amritpal Singh. That on 4.1.2003, four bags of poppy husk were recovered from Mewa Singh alias Jagmail Singh son of Darshan Singh resident of village Bilaspur, P.S. Nihal Singh Wala and out of which two bags were implanted upon said Mewa Singh and two remaining bags have been implanted upon me and my son. The police conducted raids in our village to arrest my son Amritpal Singh and that he was not available at home as he used to run a shop in village Jhandiana in District Moga and in his absence, the police took me alongwith canter vehicle after breaking the steering lock of the vehicle as the keys were not available and the said vehicle was brought by a pick up van. I and my son have been falsely implicated in the present case.

Her co-accused Amritpal Singh adopted the same plea. In their defence, they examined DW-1 HC Maghar Singh, DW-2 Darshan Singh and DW-3 Manjit Singh.

After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced both the accused as noticed at the outset. Feeling aggrieved therewith, they have preferred this appeal.

This case was shown on the net number of times, but none has appeared for the appellants. I have heard the learned State counsel, besides perusing the record with due care and circumspection.

As pleaded in the grounds of appeal, the mandatory provisions of Section 50 of the Act were not complied with in this case. If the accused Mukhtiar Kaur had opted for being searched in the presence of a Gazetted Officer, then the Gazetted Officer of the department other than the police department should have been summoned. S.I. Paramjit Singh PW-3 did not produce the case property before the concerned Ilaqa Magistrate at the earliest opportunity. Thus, the provisions of Section 52 of the Act were not adhered to. Balbir Singh a public witness whom the seal after use was allegedly entrusted has not been examined with the result, the appellants have been deprived of their valuable right to cross-examine him. The CSFL Form No. 29was not admittedly prepared at the spot though the police was required to do so after allegedly apprehending the accused-appellant Mukhtiar Kaur. There is nothing on the record to show that the police had prepared any such CSFL Form. The affidavits of HC Gurpal Singh PW-1and Constable Baldev Singh PW-2 do not have proper verification and that being so, these are required to be excluded from consideration. Furthermore, no road certificate had been prepared by the police at the spot. The signatures of the appellant Mukhtiar Kaur were not taken on the sample parcels. The number of the F.I.R. of this case stands mentioned in the seizure memo, personal search memo, arrest memo as also in all other material documents relating to this case. All this cumulatively shows that these documents have been prepared after the registration of the F.I.R. There is no conclusive evidence on the record to show that the Analyst had really examined the samples containing the contraband which had been sent to the Forensic Science Laboratory, Chandigarh. The link evidence has not been put to the appellants, while they were being examined u/s 313 of Cr.P.C. Some other incriminating circumstances which have been used against the appellants were also not put to them. Thus, grave miscarriage of justice has been caused to the appellants. Balbir Singh public witness was the stock witness of the police as has been established on the record. After the arrest of Amritpal Singh appellant, no test identification parade was got held. There is nothing on the record to show that either appellant was in conscious possession of the contraband. The police without any basis has alleged that the Driving Licence of Amritpal Singh appellant was recovered out of the canter. The mere fact that Mukhtiar Kaur appellant was found sitting in the canter did not establish that she was in conscious possession of the contraband. The case property which was produced in the court had broken seals on it. Thus, the prosecution has failed to establish that the contraband produced in the court did relate to this case. The secret information was neither reduced into writing, nor sent immediately to the Superior Officers. Thus, the mandatory provisions of Section 42 of the Act have been given go bye.

To overcome these submissions, the leaned State counsel pressed into service that on evaluating the entire prosecution evidence, it emerges out that the charged offence stands fully established against the appellants. This contention merits rejection for the discussion to follow hereinafter.

It is in the cross-examination of ASI Nahar Singh PW-6 the Investigator that " It is correct that seals on both the residual parcels are in broken condition (volunteered) due to passage of time and mishandling the same may have been broken." The Presiding Officer of the learned Trial Court has recorded his visual observations that "the court has examined the articles and found that the seals on both these parcels have withered away and the particulars of the case are not legible at certain places though the slips of the malkhana carrying the particulars have been separately affixed thereon." It is deducible from this evidence that the particulars of the case were not legible on the case property. If the particulars of the case had already been written on the case property, then there was no necessity to affix the said slips on it. It gives an inkling that to connect the case property with the appellants, subsequently separate chits were affixed. In such a sorry state of affairs, it is very difficult to say that the bags produced at the trial Court as case property were verily the same, as were allegedly recovered from the appellants. In Avtar Singh v. State of Punjab 2007 (4) RCR (Cri) 898, which was also a case u/s 15 of the Act, when the case property was produced in the court, the seals of some of the bags were found partially broken. It was held by this Court that the prosecution has failed to explain this aspect of the matter completely. The conviction was set aside. In the instant one too, the prosecution has failed to explain as to under what circumstances the seals affixed on the case property got broken. Thus, it does not lie in the mouth of the prosecution to contend that it has been able to connect the case property with the appellants.

It surfaces in the cross-examination of the Investigating Officer that "Balbir Singh(referring to the independent witness) was not known to us prior to the recovery. I do not know if he is an accused in a number of criminal cases and had also been cited as a witness by police in criminal cases of P.S Sehna." Palpably, he has given an evasive reply to a very material question. It arouses suspicion that he was a stock witness of the police. So, it was not difficult for the Investigator to obtain his signatures on the relevant documents. Thus, it cannot be said with absolute certitude that the recovery in this case was effected in a manner as suggested by the prosecution. To add further to it, Balbir Singh has not been examined though the seal was entrusted to him. In Satnam Singh v. State of Punjab 1996 (3) RCR (Cri) 396 (P & H) it has been held that "when the prosecution alleged that a material witness has been won over by the accused, it is still necessary that such witness must be produced and examined at the trial to reveal the truth especially when the seal is allegedly entrusted to him after use." Had this witness Balbir Singh been tendered for cross-examination, it could have been wrenched out as to after how many days the seal was returned by him. There could be every possibility that the samples were tampered with by getting back the seal from this witness and a similar view has been taken by the Division Bench of this Court in State of Punjab v. Surjit Singh 2008 (1) RCR(Cri) 266.

As testified by DSP Sukhminder Singh Mann PW-5 in his cross-examination that "It is correct that all the parcels, sample seal impressions do not carry either my seal or my signatures." It is in his further cross-examination that "though I have mentioned in my statement the colour of the vehicle of the accused but I cannot say if the same finds mentioned in my statement or not. The colour was sky-blue. Ex.DB in my statement u/s 161 of Cr.P.C. it is correct that at point A of this statement, the space has been left blank and no colour of the vehicle stands mentioned." These facts when put together make me to believe that the recovery was not effected witnin the view of this police officer and his signatures were obtained when he was sitting in his office or somewhere else. As a matter of abundant caution, he would have affixed his own seal on the case property as well the sample parcels to rule out the possibility of their contents being tampered with at any stage by the investigator or any other police official. If he had seen the vehicle at the spot, the space meant for mentioning the colour of the same would not have been left blank in his aforementioned statement. This D.S.P. has solemnly affirmed in his further cross-examination that "the keys of the vehicle were left in the vehicle itself. I cannot say even today the steering lock of the vehicle is broken. I cannot say how this vehicle is produced in the Court." It is also in the cross-examination of the Investigator that "though I have seen Cantessa vehicle out of the court but I have not seen if its steering lock is broken or not." He has deliberately given reply in unequivocal terms to this significant question. Darshan Singh DW-2 has deposed that ''on 4.2.2003 two police officials came to me and told me to accompany them to the house of Dalip Singh for opening the steering lock of canter vehicle and when I went there Mukhtiar Kaur was alone in the house and there were other three police officials. Darshan Singh and Manjit Singh of our village also came there and the police told us to break the steering lock. I had broken the lock of the steering by means of a screw driver. The vehicle was towed away. Mukhtiar Kaur was taken away by the police. It was 8.00 a.m." If the matter is viewed in the backdrop of this evidence the recovery is falsified. As shall appear in the evidence tendered by PW-4 Raj Kumar, Junior Assistant, DTO Office Moga, who has deposed from the official record the registered owner of the vehicle in question is Dalip Singh son of Maghar Singh resident of village Butter Tehsil and District Moga. There is nothing on the record, to show if this registered owner was joined in the investigation. The Investigating Officer was obligated to associate him in the investigation, to ferret out as to whether or not he had intentionally permitted the appellants to use this vehicle for transporting the alleged contraband. If it would have been surged to the surface during investigation that he did so, then he would have also been challaned u/s 25 of the Act. The Investigator has not given any explanation worth the name for non-joining of Dalip Singh in the investigation for the reasons best known to him.

Under the stress of cross-examination, the investigating Officer has deposed in his cross-examination that "no test identification parade of accused Amritpal Singh was conducted. ASI Nahar Singh(sic) has stated that "the vehicle was being driven by a man and along side a lady was sitting and on our signal, the driver stopped his vehicle and ran backwards and inspite of our efforts, we could not apprehend him and the lady on questioning disclosed her name as Mukhtiar Kaur and disclosed that the other person was her son Amritpal Singh. I identify both these persons now present in the court and they are the same very persons." It does not stand to the logic that Mukhtiar Kaur appellant in the normal course of events would have confessed before the police that the driver of the vehicle was her own son Amritpal Singh.

The prosecution has not examined any witness in proof of the fact that the escaper was Amritpal Singh appellant. However, the Investigator went on to say that Amritpal Singh is the same person. The Apex Court has discussed the scope of Section 9 of the Evidence Act at length in the case of Heera and Anr. v. State of Rajasthan 2007 (3) RCR (Cri) 517, wherein it has been interalia laid down as under:

Much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court.

Evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad day light, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes.

Needless to say that herein this case, the Investigator was totally stranger to the appellant Amritpal Singh. It does not appear in his evidence that he was known to him earlier. Furthermore, there is nothing on the record to show that the Investigating Officer had an opportunity of seeing this appellant for some length of time. Thus, there can be no escape from the finding that the prosecution has dismally failed to establish the identity of Amritpal Singh appellant.

In Kashmir Singh v. State of Punjab 2006 (2) RCR (Cri) 477, the Full Bench of this Court has observed as under:

When the Trial Judge records the statement of an accused person u/s 313 Cr.P.C. with regard to the circumstances which have appeared in evidence against him, the learned judge gives the accused an opportunity to explain those circumstances. The accused generally denies the prosecution case against him, but it is an opportune moment for him to plead any type of defence that he may like to take. Therefore, by extending the provisions of Section 313 Cr.P.C. and on first principles of fair trials as well, there is need to give every accused person an opportunity to explain the case against him. Wheresoever the presumption under Sections 35 & 54 is to be raised, it would be advisable for the Trial Court to frame a question u/s 313 Cr.P.C. in order to give the accused a fair opportunity to rebut the presumption, but it is strange that Trial Court do not give the accused this opportunity. Unless the accused have been given the opportunity to prove that he had no such mental state as presumed under S. 35 or that he had satisfactorily accounted for the possession which was being presumed against him u/s 54, the respective presumptions cannot be raised against the accused.

For the above reasons, we would answer the question raised by stating that no presumption u/s 35 and 54 should be used against the accused unless he has been given an opportunity to rebut the presumptions in his statement u/s 313 Cr.P.C. by being called upon to explain the circumstances which give rise to the presumptions. Thereafter, the accused should be given an opportunity to lead to the presumptions. Thereafter the accused should be given an opportunity to lead evidence in defence in support of his stand. However, there is no real or apparent conflict regarding the correct meaning of "possession" which needs to be resolved.

In State of Punjab v. Hari Singh and Ors. 2009 (2) RCR (Cri) 143 it has been observed by the Apex Court as under:

For the above reasons, we would answer the question raised by stating that no presumption under Sections 35 and 54 should be used against the accused unless he has been given an opportunity to rebut the presumptions in his statement u/s 313 Cr.P.C. by being called upon to explain the circumstances which give rise to the presumptions. Thereafter the accused should be given an opportunity to lead evidence in defence in support of his stand. However, there is no real or apparent conflict regarding the correct meaning of "possession" which needs to be resolved.

In view of the afore-quoted law, it was obligatory upon the learned trial Court to have framed a specific question with regards to conscious possession and put the same to the appellants, while they were being examined u/s 313 of Cr.P.C. To the utter dismay of the prosecution, a glance through the statutory statements of the appellants would reveal that it has no where been put to them that they were in conscious possession of the recovered poppy husk bags. In this way, their conscious possession is not established. Sequelly, the presumption arising u/s 35 or 54 of the Act does not operate in favour of the prosecution.

No other material point has been urged or agitated by either counsel.

For the reasons indicated above, this appeal succeeds and is accepted, setting aside impugned judgment/order of sentence. The accused-appellants are hereby acquitted of the charged offence by giving them benefit of reasonable doubt.

Since the appeal has been decided, all pending Criminal Miscellaneous, if any, also stand disposed of.