Mukhtiar Singh vs The State of Haryana

K.C. Puri, J.—By this common order, I intend to dispose of Criminal Appeal No. 16 SB of 2007 filed by Mukhtiar Singh: Criminal Appeal No. 7 SB of 2007 filed by Devender Singh @ Pappu: Criminal Appeal No. 897 SB of 2007 filed by Sukvinder Singh ; Criminal Appeal No. 2578 SB of 2006 filed by Jasbir and Criminal Appeal No. 343 SB of 2007 filed by Palvinder alias Pillu as these appeals have arisen out of the common judgment and same incident. For convenience, facts are being taken from Criminal Appeal No. 16 SB of 2007.

Mukhtiar Singh Appellant and aforesaid Appellants have directed the present appeal against the judgment dated 7.12.2006 and order dated 8.12.2006 passed by learned Judge, Special Court, Kaithal vide which accused/Appellants have been convicted u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short - the Act) and sentenced them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of three years.

Briefly stated, the facts of the case are that on 23.9.2002, Inspector/SHO, Lachhman Singh along with HC Shiv Kumar and other police officials was present in the area of village Theh Banhera in connection with detection of crime. They saw a white colour Tata Sumo coming from the side of village Kakrala-Kakrali, bearing registration No. HR 09A 4895. On seeing the police party, they stopped the said vehicle. The said Tata Sumo was driven by Jasbir Singh. Sukhvinder @ Bittu was sitting by his side (conductor side), ran away from the Tata Sumo along with the bag. Both these persons were known to him previously because both the above said persons were driver in the taxi union at Cheeka. Two other boys were sitting in the Tata Sumo, who were apprehended at the spot, who told their names as Palvinder Singh @ Pillu son of Harbans Singh. Devinder Singh @ Pappu son of Amir Singh. On search, two bags were found in the diggy of Tata Sumo. The Investigating Officer suspected some narcotic substance in the bags, so Investigating Officer served notice u/s 50 of the NDPS Act to accused Palvinder Singh @ Pillu and Devinder Singh @ Pappu and offer was given to the accused as to whether they wanted to be searched by some Gazetted Officer or Magistrate. Upon this, accused opted to be searched by some Gazetted Officer.

ASP Sibash Kavi Raj, reached at the spot and on his direction the Investigating Officer checked the bags and found poppy husk in the bags. Two samples of 250 grams each were separated from each bags. One bag weighed 39kgs and 500gms of poppy husk and the second bag weighed 14kgs 500gms of poppy husk. Recovery memo was prepared at the spot. The Investigating Officer affixed his seal LS and ASP affixed his seal SK on all the parcels. The Investigating Officer handed over his seal after use to HC Shiv Kumar, whereas ASP Shibas Kavi Raj retained his seal himself. Two bags, four sample parcels and vehicle No. HR 09A/4895 were only taken into police possession.

Rukka was sent to the police station through constable Raj Pal. Report u/s 57 of the NDPS Act was also prepared at the spot. Rough site plan was prepared along with marginal notes. Disclosure statement of Palvinder was recorded in which he disclosed that he along with other three accused, namely Palvinder, Devinder, Jasbir and Sukhvinder brought the poppy husk from U.P. and for this they took Tata Sumo of Mukhtiar Singh @ Babloo which bears No. HR 09A 4895 and gave him 15 kgs poppy husk in lieu of rent. He also disclosed that they gave some money to Mukhtiar Singh in shape of rent of vehicle. He further disclosed that Jasbir and Sukhvinder had ran away along with poppy husk of their shares. The disclosure statement was got signed by Palvinder Singh and signed by HC Shiv Kumar etc. as witnesses. Thereafter accused, Devinder Singh was also interrogated as of Palvinder Singh. The accused were arrested in the present case and information was given to their relations. After completion of the investigation, the Investigating Officer along with accused, case property and witnesses reached back in the police station. The Investigating Officer deposited the bags, four sample parcels etc. with MHC and the accused were lodged in the police lock-up.

On 7.11.2002, the Investigating Officer along with other police officials were coming back from Bhagal to Cheeka received a secret information that Jasbir Singh son of Dhanpat Singh, Sukhvinder Singh @ Bittu son of Dewan Singh Prajapat, were sitting in Bhiwani temple, Cheeka. The Investigating Officer raided at the above said place and apprehended the accused. The Investigating Officer interrogated both the accused. Jasbir Singh accused disclosed that on 23.9.2002, he was driving the Tata Sumo in question, he along with the Palvinder, Devinder, Sukhvinder brought poppy husk from U.P. On seeing the police party, the Investigating Officer along with Sukhvinder fled away along with the bags of poppy husk in which 15 kgs of poppy husk was lying. Out of said poppy husk they had given 10 kgs poppy husk to Mukhtiar Singh @ Babloo and remaining 5 kgs poppy husk was retained by them. The said 5 kgs poppy husk was kept concealed by them in the batoras situated on Cheeka to Balbehra road and they can get the same recovered after demarcation. Disclosure statement of Jasbir Singh was signed by him, whereas similar disclosure statement of accused Sukhvinder Singh @ Bittu was also suffered by him and was thumb marked by him. These disclosure statements were signed by the witnesses.

First of all, accused Jasbir Singh got demarcated the place where they kept concealed 5 kgs of poppy husk regarding which demarcation memo was prepared. Thereafter, accused Sukhvinder led the police party to the place where they kept concealed 5 kgs poppy husk and demarcated the same, regarding which demarcation memo was prepared. Thereafter, accused told that they do not want to search the bags in the presence of any Gazetted Officer, regarding which unwillingness memo was prepared and signed by HC Krishan Dutt and DSP Tej Bir Singh and by the accused. At the time of demarcation both the accused got recovered the said katta prior to it. The Investigating Officer checked the katta/bags and found poppy husk in it. Two samples of 250gms each poppy husk was separated and residue on weighment was found to be 4kgs 500gms. The samples and residue were converted into separate parcels and were sealed with the seal of LS of Investigating Officer. Seal after use was handed over to HC Krishan Dutt. The sample parcels and residue katta were taken into possession of the police vide recovery memo which was signed by the witnesses. Rough site plan was prepared. The Investigating Officer recorded the statements of the witnesses. The accused were arrested. After the completion of necessary investigation and other formalities of the case, the accused were challaned to face trial.

On appearance of the accused, copies of documents were supplied to them. On finding a prima facie case against the accused under Sections 15 of the Act charge was framed against them. The accused pleaded not guilty and claimed trial.

In support of its case, the prosecution examined ASI Mohan Lal as (P.W. 1), UGC Sultan Singh as (P.W. 2), Constable Ram Kumar as (P.W. 3), Constable Joginder Singh (P.W. 4), SI Zile Singh as (P.W. 5), ASI Raghbir Singh as (P.W. 6), HC Chain Singh (P.W. 7), HC Rajinder Singh (P.W. 8), Sibhas Kaviraj Superintendent of Police, Karnal, as (P.W. 9), HC Krishan Dutt ( P.W. 10 ) and SI/SHO Lachman Singh as (P.W. 11) and closed the evidence.

The accused was examined u/s 313 Code of Criminal Procedure, he pleaded his innocence and false implication in the case.

The accused examined Baaj Singh as (D.W. 1) in his defence.

The learned trial Court, after hearing the learned Counsel for the parties, convicted and sentenced the accused/Appellants vide judgment dated 7.12.2006 and order dated 8.12.2006, as aforesaid.

Feeling dissatisfied with the aforesaid judgment and order, the Appellants have preferred the present appeal.

Learned Counsel for Appellant-Mukhtiar Singh has submitted that as per the original version of the prosecution on 23.9.2002 a Tata Sumo bearing registration No. HR 09A 4895 was stopped. The same was driven by Jasbir Singh and Sukhvinder Singh was sitting by the side of Jasbir Singh. Sukhvinder Singh alias Bittu run away along with the bag. They were known to Station House Officer being driver in the Taxi Union at Cheeka. It is further alleged that Palvinder Singh alias Pillu son of Harbans Singh resident of village Daban Kheri and Devinder Singh alias Pappu son of Amir Singh caste Jat Sikh resident of Daban Kheri were sitting on the back side of said Tata Sumo. It is further alleged that two bags containing 55 Kgs of poppy husk were recovered from the said Tata Sumo. Name of Mukhtiar Singh did not appear anywhere in the FIR as well as in the further investigation. It is further submitted that even on 7.11.2002 the name of Mukhtiar Singh Appellant has not cropped up. According to the prosecution version on that day Jasbir Singh and Sukhvinder Singh were interrogated and on their interrogation they alleged that 10kgs of poppy husk was given to the Appellant Mukhtiar Singh and 5 kgs poppy husk was got recovered by them as per their disclosure statements.

Learned Counsel for Appellant-Mukhtiar Singh has further submitted that vehicle in question was admittedly owned by Shiv Kumar and not by Mukhtiar Singh. The said vehicle was given on superdari to Shiv Kumar.

It is further submitted that house of Mukhtiar Singh is adjacent to the police station and in case the police have any doubt against Mukhtiar Singh in that case they must have raided after 23.9.2002 but according to the prosecution the first time raid was conducted against Mukhtiar Singh only on 11.11.2002. After the recovery on 23.9.2002, the Appellant Mukhtiar Singh and Jasbir Singh and Sukhvinder Singh would not have kept the contraband with them. So, the second recovery is planted one.

Learned Counsel for the Appellants has further submitted that P.W. 11 has stated that case property produced in the Court does not bear any seal, so the authenticity of the case property is vanished on that account.

It is further submitted that no question of conscious possession was put to any of the accused in their statements u/s 313 Code of Criminal Procedure. And as such the prosecution has failed to prove the conscious possession of contraband against any of the Appellants.

It is further submitted that prosecution has concocted the story that on 11.11.2002 Mukhtiar Singh Appellant made confessional statement that he has taken Tata Sumo on hire and was plying a Taxi. The driver of Taxi registration No. HR 09A 4895 was Jasbir Singh and he was paying Rs. 2000/- per month for plying Taxi. It is further alleged that he confessed before the police that Sukhvinder Singh ran away with 15 kgs of poppy husk and 10kgs was given to him out of which 5 kgs has been sold by him and remaining 5 kgs was got recovered by Mukhtiar Singh. It is alleged that the confession before the police is inadmissible in evidence and there is no other evidence on the file to connect Mukhtiar Singh Appellant with the offence complained of. He has further contended that he cannot be fasten liability in respect of recovery on 23.9.2002. As per Section 25 of the Evidence Act only that part of the statement can be read against the Appellants which led to the recovery of incriminating evidence. Even if the recovery of 5 kgs of poppy husk is taken as a gospel truth against the accused, in that case, he cannot be convicted for having been found in possession of commercial quantity in respect of contraband recovered on 23.9.2002. As per conviction slip, he has already undergone incarceration for a period of three years, four months and twenty three days in respect of FIR in question and that sentence is much more than the normal sentence awarded for keeping in possession of 5 kgs of poppy husk.

It is further submitted that non-compliance of Section 52 of the Act, creates doubt in the prosecution version.

It is further submitted that FSL form has not been filled at the spot. That also creates doubt in the prosecution version.

So far as counsel for the Devender Singh @ Pappu and Palwinder Singh are concerned have submitted that prosecution has failed to prove the conscious possession of Appellant in respect of the contraband. It is submitted that according to the prosecution two bags of poppy husk were found in the dicky of the vehicle. The Appellants Devender Singh and Palwinder Singh have simply taken the lift in the said vehicle on payment.

They have been falsely implicated in the present case.

Learned Counsel for the Appellants Jasbir Singh and Sukhvinder Singh alias Bittu have submitted that prosecution story against them is highly unnatural. It was not possible for these Appellants i.e. Jasbir Singh and Sukhvinder Singh to run away from the spot in the presence of Station House Officer and other police officials. The police party was fully equipped with arms and the Appellants Jasbir Singh and Sukhvinder Singh alias Bittu would not have dared to run away from the spot. Otherwise the story of the prosecution that Sukhvinder Singh ran away with a bag containing 15 kgs of poppy husk is highly unnatural in case he is being chased by the police in that case he would not have taken the contraband on his head as he would try to save himself and not to save the contraband.

Learned Counsel for the Appellants have submitted that no offer to join the independent witness was made by the prosecution. Without independent corroboration, the conviction u/s 15 of the Act cannot be confirmed. It is further submitted that case property has not been produced before the Illaqua Magistrate, which also creates doubt.

It is further contended that the police officials have kept the seal use for the offence themselves which also creates doubt in the prosecution version.

It is further submitted that second recovery has not been put up to the Appellants in their statements u/s 313 Code of Criminal Procedure and as such the Appellants cannot be convicted in respect of second recovery.

It is further submitted that no test identification parade in respect of Appellants Jasbir Singh and Sukhvinder Singh was got conducted.

Learned State counsel has supported the judgment of the trial Court.

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

As per allegations of the prosecution Tata Sumo bearing registration No. HR 09A 4895 was driven by Jasbir Singh, Sukhvinder Singh was sitting by his side whereas Palwinder Singh and Devinder Singh were sitting on the back side of said Tata Sumo. The said Tata Sumo was apprehended and 55 kgs of poppy husk were recovered from two bags. So, first of all the case of these four accused has to be considered in respect of recovery of commercial quantity of poppy husk. The learned Counsel for Appellant Jasbir Singh and Sukhvinder Singh has submitted that the story of running away of Devinder Singh and Sukhvinder Singh along with 15 kgs of poppy husk is not probable but that submission is without any substance. There was no reason for the police official to implant such a huge quantity of poppy husk which is commercial in nature upon these four accused. Mere fact that case property produced in the Court does not bear any seal does not create dent in the prosecution version. After the lapse of such a period during handling of bags to the Court and back the seals can broke. No undue advantage in this regard can be given. Mere fact that ownership of vehicle was in the name of Shiv Kumar does not make the case of the prosecution doubtful. Mukhtiar Singh has taken the said vehicle on lease and document in this regard has been placed on the file. Shiv Kumar has taken the vehicle only on super Dari on account of that he was the registered owner. It cannot be said that prosecution has failed to prove conscious possession in respect of contraband recovered on 23.9.2002. Mere fact that contraband was recovered from the dicky of the vehicle does not absolve Appellants Palwinder Singh and Devinder Singh and other accused Jasbir Singh and Sukhvinder Singh.

Section 35 of the Act lays down that in any prosecution for an offence under this Act which requires culpable mental state of accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Section 54 of the Act lays down that in a trial under this Act, it may be presumed, unless and until contrary is proved, that the accused has committed an offence under this Act, in respect of possession of contraband, if possession is proved.

So, in view of the said provisions of law, the Appellants cannot take the plea that they were not in conscious possession. Mere fact that no question regarding conscious possession in statement recorded u/s 313 Code of Criminal Procedure has been asked, does not create doubt in the prosecution case. All the accused have been put the question that 55 kgs of contraband was found in possession on 23.9.2002 from the vehicle in which these four accused-Appellants were traveling.

So far as the submission made by counsel for the Appellants that since no independent witness has been examined and on that account prosecution story is doubtful, is concerned that submission is without any substance. It is a case of chance recovery and in these circumstances, non-joining of independent witness is not fatal to the prosecution case.

Section 52 of the Act is not mandatory in nature. There is no basis for the argument that Forensic Science Laboratory form has not been filled at the spot, as no question was put to the witnesses in this regard. Mere fact that seal after use was handed over to the official witness, does not create any doubt on the prosecution version. The Court sometimes insist on independent corroboration, where there is some doubt or there could be reason of false implication of the accused. In the present case, there is nothing on the file that prosecution witnesses have any reason to falsely implicate the accused. There was no necessity of taking the test identification parade as according to the prosecution the Appellants were known previously being members of Taxi union.

So far as the argument of learned Counsel for the Appellant-Mukhtiar Singh to the effect that prosecution has failed to prove about the conscious possession of Mukhtair Singh in respect of 55 kgs of poppy husk on 23.9.2002 is concerned, that carries weight.

The name of Appellant-Mukhtiar Singh is not mentioned in any proceedings conducted on 23.9.2002. Thereafter on 7.11.2002, 5 kgs of poppy husk was alleged to be recovered from Jasbir Singh and Sukhvinder Singh and on that day also name of Mukhtiar Singh Appellant has not cropped up. On 11.11.2002 when 5 kgs of poppy husk was recovered from him on his disclosure statement stands proved on the file. The prosecution has also been able to prove that 5 kgs of poppy husk was recovered from Jasbir Singh and Sukhvinder Singh on 7.11.2002 on the basis of their disclosure statements.

So, in view of the above discussion, the appeals preferred by Palwinder Singh, Devinder Singh, Jasbir Singh and Sukhvinder Singh are without any merit and the prosecution has been able to prove the conscious possession of 55 kgs of poppy husk from these four accused and has been further able to prove that 5 kgs of poppy husk from Jasbir Singh and Sukhvinder Singh on 7.11.2002.

Consequently, their appeals stand dismissed and the conviction recorded by the trial Court against them stands affirmed.

However, so far as appeal of Mukhtiar Singh is concerned, that stands partly accepted. It is held that prosecution has been able to prove the recovery of 5 kgs of poppy husk from him without any license or permit but has failed to prove that he has connection with 55 kgs of poppy husk recovered on 23.9.2002 from Jasbir Singh, Sukhvinder Singh Pal winder Singh and Devinder Singh Appellants.

However, the appeal preferred by Mukhtiar Singh is partly accepted. He is convicted u/s 15 of the Act for having been found in possession of 5 kgs of poppy husk. However, he stands acquitted for having been found in possession of 55 kgs of poppy husk after giving him benefit of doubt. Mukhtiar Singh-accused-Appellant has undergone incarceration for a period of three years, four months and twenty three days. So, the sentence of Mukhtiar Singh stands reduced to the period already undergone.

41 So, all the five appeals stand disposed of in the manner, indicated above.

The accused, who are on bail, shall be arrested to undergo the remaining part of their sentence.

A copy of this judgment be sent to the trial Court for strict compliance.