Mukhtiar Singh and Joginder Singh vs State of Punjab

Mohinder Pal, J.—This judgment will dispose of the afore-stated two appeals as they arise out of the same First Information Report.

Mukhtiar Singh and Joginder Singh (appellants) have filed these appeals against the judgment of conviction and the sentence order dated

13.9.2005 passed by the learned Judge, Special Court, Kapurthala, whereby they were convicted u/s 15 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred to as `the Act'') and sentenced to undergo rigorous imprisonment for a period of ten years and to pay

Rs. 1 lac each, as fine, in default whereof to undergo further rigorous imprisonment for a period of two years.

It may be mentioned here that Mangal Singh alias Kala, Kashmir Singh and Balwinder Singh (co-accused of the appellants) had absconded and

were declared Proclaimed Offenders by the trial Court.

As per allegations of the prosecution, on 25.11.1987, Inspector Hoshiar Singh along with Assistant Sub Inspector Balbir Singh and other police

personnel was present at Tashpur Chowk in a government vehicle in connection with `Nakabandi''. At that time, a truck bearing registration No.

PAT- 4984 came from the side of Village Malsian, which was signalled to stop. The Driver of the Truck, after coming down from it, tried to run

away. On suspicion, he was apprehended. On an inquiry, he disclosed his name as Mukhtiar Singh (appellant). Four other persons, who were

sitting in the truck, on inquiry disclosed their names as Mangal Singh alias Kala, Kashmir Singh, Balwinder Singh and appellant Joginder Singh.

When the truck was checked, it was found to contain 30 bags of poppy husk and 150 bags of fire clay powder. Inspector Hoshiar Singh gave

an option to the accused as to whether they wanted to get the samples from the bags taken before any Magistrate or a Gazetted Officer. The

accused reposed confidence in Inspector Hoshiar Singh. Separate consent memos of the accused in this regard were prepared.

Search of the bags was conducted. They were found to contain 40 Kgs of poppy husk each. One sample of 250 grams each was separated

from the bags. The samples and the remaining poppy husk contained in the bags were separately sealed and taken into possession by the police.

Rough site plan of the place of recovery was prepared. Ruqa was sent to the Police Station and on its basis formal First Information Report was

registered against the accused u/s 15 of the Act. After registration of the case against the accused, they were formally arrested and memos

containing grounds of their arrest were prepared.

After completion of investigation and on receipt of the report of the Chemical Examiner, report u/s 173 of the Code of Criminal Procedure was

presented in Court against the appellants.

Charge was framed against the accused for the offence punishable u/s 15 of the Act. They did not plead guilty to the charge and claimed trial.

At the trial, the prosecution examined Head Constable Jarnail Singh (P.W.1), Superintendent of Police (Retd.) Hoshiar Singh (P.W.2),

Assistant Sub Inspector Mela Singh (P.W.3), Assistant Sub Inspector Charanjit Singh (P.W.4), Kishan Singh, Steno, office of the District

Transport Officer Gurdaspur (P.W.5), Sub Inspector Prem Kumar (P.W.6) and Kartar Singh (P.W.7).

In their statements recorded u/s 313 of the Code of Criminal Procedure, the appellants denied the prosecution allegations and pleaded false

implication. No evidence was led by the appellants in their defence.

The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case beyond reasonable doubt and that 30 bags,

each containing 40 Kgs of poppy husk were recovered from the appellants. The trial Court convicted and sentenced the appellants, as mentioned

above.

I have heard the learned Counsel for the parties and have gone through the records of the case.

At the outset, learned Counsel for the appellants, by placing reliance on the authorities reported as Avtar Singh v. State of Punjab 2002 (4)

R.C.R (Criminal) 180, State of Punjab v. Hari Singh and Ors. 2009 (2) R.C.R (Criminal) 143 and Dayal Singh and Anr. v. State of Punjab 2007

(2) R.C.R (Criminal) 596 argued that the object of examination of the accused u/s 313 of the Code of Criminal Procedure is to afford an

opportunity to the accused to explain the circumstances appearing in the evidence against him, but in this case no question was put to them

(accused) during their such examination that they were in conscious possession of the contraband. Learned Counsel for the appellants argued that

the recovery in this case was allegedly made from the truck, which was occupied by five persons. However, it was presumed that the appellants

were in possession of the contraband without calling upon them to explain the circumstances giving rise to such presumption. According to the

learned Counsel, it makes the case of the prosecution untrustworthy and entitles the accused to acquittal.

I have given my careful consideration to the argument raised by learned Counsel for the appellants. However, I do not find any substance in

this argument. Each case has its own facts. Therefore, no hard and fast rule can be laid down to define what is or what is not ""possession"" of a

narcotic substance. In the case of Madan Lal and Anr. v. State of Himachal Pradesh 2003 (4) R.C.R (Criminal) 100 wherein recovery of

contraband was made from the search of a car in which five persons were travelling and one of them had stated that the contraband (i.e 820 grams

charas contained in one steel container (dolu) in a black coloured bag, which was recovered from the said car) belonged to him, it was held by the

Hon''ble Supreme Court that this statement of the accused was totally out of context and no credence could at all be attached to the statement

because in his statement recorded u/s 313 of the Code of Criminal Procedure, he (the said accused) did not state that he alone was in possession

of the contraband. In Madan Lal''s case (supra), all the accused were held responsible for possession. In Paras 20, 27 and 28, the Apex Court, in

the said case, observed as under:

Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from

the evidence on record is that all the accused persons were travelling in a vehicle and as noted by the Trial Court they were known to each other

and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.

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.

In the factual scenario of the present case not only possession but conscious possession has been established. It has not been shown by the

accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.

In the case of Avtar Singh v. State of Punjab 2002 (4) RCR (Criminal) 180, the Apex Court observed as under:

The word ''''possession'''' no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not

always go together by the minimum requisite element which has to be satisfied in custody or control over the goods. Can it be said, on the basis of

the evidence available on record, that the three appellants-one of whom was driving the vehicle and other two sitting on the bags, were having such

custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the appellants were not the

only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves

(scarce?) after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be custodian of

goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be

presumed to be in possession of the goods. For instance, if they are labourers engaged merely for loading and unloading purposes and there is

nothing to show that the goods were at least in their temporary custody, conviction u/s 15 may not be warranted. At best, they may be abettors,

but there is no such charge here. True, their silence and failure to explain circumstances in which they were travelling in the vehicle at the odd hours,

is one strong circumstance that can be put against them.

In Megh Singh Vs. State of Punjab, , the decision of the Apex Court in Avtar Singh''s case (supra) was discussed in the following terms but the

Court relying upon the principle of circumstantial flexibility, came to the conclusion that in the factual scenario of Megh Singh''s case (supra), the

accused had failed to show that his possession was not conscious. It was held as under:

Once possession is established, the person who claims that it was not a conscious possession has to establish, 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.

In view of the above, it cannot be concluded that huge haul of 30 bags of poppy husk contained in the truck escaped notice of the accused. It

was within special means of knowledge of the accused as to how 30 bags of poppy husk were found in the truck and to which destination they

were being taken. Once possession of the contraband by the accused is established on record and the accused had been given sufficient

opportunity u/s 313 of the Code of Criminal Procedure to explain the position, microscopic scrutiny of every judicial action cannot be permitted

and the accused cannot be given benefit of hypothetical assumptions. Besides, it is well-settled that omission to bring the attention of the accused to

an inculpatory material does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission.

The facts and circumstances of the case, discussed above, do not show that any prejudice was caused to the accused in this case by not putting a

particular question to the accused during examination u/s 313 of the Code of Criminal Procedure regarding conscious possession of the

contraband. Under the circumstances, taking into account the totality of the evidence led on record by the prosecution, I have no hesitation in

holding that the accused were in conscious possession of the contraband.

Another argument of the learned Counsel for the appellants is that there was non-compliance of Section 50 of the Act as recovery was not

effected in the presence of a Magistrate or a Gazetted Officer and the recovery was effected by Inspector Hoshiar Singh. According to the learned

Counsel, it renders the prosecution version doubtful.

In order to appreciate the argument of the learned Counsel, a reference to the relevant provisions of Section 50 of the Act is necessary, which

are as under:

Conditions under which search of persons shall be conducted. -

(1)When any officer duly authorized u/s 42 is about to search any person under the provisions of Section 41, Sector 42 or Section 43, he shall, if

such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in

Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in

Sub-section (1)

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith

discharge the person but otherwise shall direct that search be made.

(4) xx xx xx

(5) xx xx xx

(6) xx xx xx

(7) xx xx xx

A perusal of the above provisions of Section 50(1) of the Act reveals that incorporation of the words ""when any officer duly authorized u/s 42

is about to search any person"" therein depicts that only when personal search of any person is required to be made, the Police Officer concerned is

required to apprise him of his right existing under this Section i.e as to whether he wanted to be searched before a Gazetted Officer or before a

Magistrate. Such a requirement is not there when the Police Officer concerned is going to search houses, building etc. Such a view was taken by a

Full Bench of this Court in the case of State of Punjab v. Kulwant Singh 1994 (1) Recent CR 303 wherein in para 46 at page 317, it was

observed as under:

xx xx xx. The provisions of Sub-sections (1), (2) and (3) of Section 50 were enacted by the Legislature in its wisdom only qua the personal search

of a person and not regarding the search of houses, building etc. obviously to preserve the human dignity. There is logic behind enacting the special

provisions regarding the personal search, because a person can carry only a small quantity of contraband narcotic drug or psychotropic substance.

Thus, in order to rule out the possibility of planting small quantity of such drugs at the instance of unscrupulous officers of the enforcing agency and

to eliminate the chances of exploitation, the above-referred substantive right has been conferred upon the suspected person. A conjunct reading of

the provisions of Section 50 of the Act leaves no doubt that the Legislature did not intend to confer a distinct right upon the suspect to claim

personal search before a Magistrate or Gazetted Officer and prove his innocence in recognition of the right to human dignity and free from

exploitation flowing from Article 21 of the Constitution.

There was, thus, no violation of the mandatory provisions of Section 50 of the Act, as argued by learned Counsel for the accused-appellant. In

this case recovery of 30 bags of poppy husk was made from the truck. Obviously, no personal search of the accused was to be effected. In this

view of the matter, it is of no consequence whether the search of the bags kept in the truck was made before a Gazetted Officer or before a

Magistrate or not.

Learned Counsel for the appellant further argued that the case of the prosecution is based only on the statements of the official witnesses and

no independent person was joined by the police party. According to the learned Counsel, the police witnesses being interested in the success of

the case, their statements should not be trusted without corroboration from an independent source. It has been submitted that non-joining of any

independent witness has upset the balance of the prosecution case, making the alleged recovery doubtful. After giving a careful thought to the

argument raised by the learned Counsel, I do not find any force therein in the presence of cogent and trustworthy evidence put forth by the

prosecution. Recovery in this case was effected per chance while the police party was patrolling the area. Otherwise also, normally the

independent witnesses do not support the prosecution case as they reside in the same area where the accused-persons reside and they fear to

create ill-will and enmity with criminals. In this case, the official witnesses have fully supported the prosecution case and no material contradiction,

worth the name, has been pointed out in their statements. The accused-appellants have also not alleged any enmity with them (police officials). In

this background, merely the fact that no independent witness was joined to witness the recovery, is not a good ground to discard the testimonies of

the official witnesses. It has been repeatedly held that the prosecution story cannot be discarded on the ground that independent witness has not

been examined. No discrepancy worth the name could be pointed out in the statements of the prosecution witnesses. Otherwise also, there was no

reason for the police to falsely implicate the accused in such a case where stringent punishment has been provided by the Legislature. In these

circumstances, non-joining of any independent witness by the police in this case does not at all affect the veracity of the prosecution case.

For the aforesaid reasons, I do not find any merit in these appeals. The same are hereby dismissed. The truck in which the contraband was

being transported is ordered to be confiscated to the State.