Narinder Singh vs State of Punjab

V.S. Aggarwal, J.

Aggrieved by the judgment and the order of sentence passed by the learned Additional Sessions Judge, Amritsar dated 8.9.1995, appellants Narinder Singh and Amrik Singh have preferred the present appeal. By virtue of the impugned judgment, the learned trial court held that the appellants guilty of the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter descried as ''the Act''). On the same day, the appellants were sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. One lac. In default of payment of fine, they were to undergo further rigorous imprisonment for 3 years each.

The relevant facts are that on 5.11.1991 Teg Bahadur Singh was the Officerincharge, Police Station Goindwal Sahib. Accompanied by ASIs Harbhajan Singh, Jagir Singh, Balbir Singh and other police officials, they were present at Canal Minor Bridge in the area of village Chak Mehar. SI Chhinda Singh of the Commando Force was also with them. SI Teg Bahadur Singh received secret information that Savinder Singh Milla son of Teja Singh, Narinder Pal Singh alias Ninda son of Gurdial Singh and Amrik Singh son of Mohan Singh, residents of village Jamarai are selling the poppy husk in the Haveli of Hardial Singh. Information further was that if raid is conducted poppy husk in huge quantity could be recovered. SI Teg Bahadur Singh acted upon the information and sent a ruqa to the police station, on the basis of the ASI Harbans Singh recorded the formal first information report.

Thereafter SI Teg Bahadur Singh alongwith other members of the police force went to village Jamarai. An attempt was made to join independent witnesses. Because of the village faction nobody was willing to join the said police party. The raid was conducted on the Haveli of Hardial Singh. Savinder Singh alias Milla was in possession of the Haveli. Savinder Singh and both the appellants were present. On seeing the police party, all of them succeeded in running away from the other gate of the Haveli. The Haveli was searched. From the room of the Haveli 180 bags of poppy husk were recovered. Each bag contained 44 Kilogram of poppy husk. 250 grams of poppy husk was taken as the sample from each gunny bag. All the 180 samples were converted into sealed parcels. The remaining poppy husk from each bag was placed into the same gunny bag numbering 180. They were all sealed with the seal of ''TS''. Seal after use was give to ASI Harbhajan Singh. The recovered poppy husk and the samples were taken into possession vide a recovery memo Ex. PB. Rough site plan was prepared. The recovered articles were brought to the police station and deposited in the malkhana. Narinder Singh and Amrik Singh appellants were apprehended on 2.2.1992. Subsequently, the representative samples were sent to the Chemical Examiner. Report was received that it was poppy husk. This led to the filing of the report under Section 173 Code of Criminal Procedure against the appellants.

Savinder Singh was declared to be a proclaimed offender.

The learned trial court framed a charge against the appellants for the offence punishable under Section 15 of the Act. The appellants pleaded not guilty and claimed a trial. The prosecution had examined two witnesses namely SI Teg Bahadur Singh and SI Harbhajan Singh. In addition to that the affidavits of MHC Rachhpal Singh Ex.PD and that of C. Gurnam Singh Ex.PE were tendered in evidence. The incriminating evidence of the prosecution was put to the appellants under Section 313 of the Code of Criminal Procedure. The appellants denied recovery of poppy husk from their possession. As per their statements made separately, they have falsely been implicated on account of party faction. In defence the appellants examined one witness Jaswant Singh DW1. He had brought Register No. XIX of Police Station Goindwal Sahib. The witness stated that as per entry No. 17 the case property had been deposited in the Malkhana but added that against entry No. 47, there is nothing entered that samples were taken out for being sent to the Chemical Examiner. During crossexamination he added that it has been mentioned in the register that samples were sent on 17.3.1992 but thereafter the entry was deleted.

The learned trial court on appraisal of the evidence concluded that there is no ground for the State to implicate the appellants falsely. It was further held that it has successfully been shown that appellants were in possession of huge quantity of poppy husk. The plea that there is tampering in register No. XIX and it is not established that the samples actually were sent to the Chemical Examiner, was rejected. With these basic findings, the impugned judgment and the order of sentence were passed.

Learned counsel for the appellants at the outset urged that it was SI Teg Bahadur Singh who headed the police party. The complaint was made at his behest. Therefore, he could not have investigated the case. In his opinion, therefore, it would vitiate the trial. In support of his argument reliance was placed on the decision from the Rajasthan High Court in the case of Gyan Chand v. State of Rajasthan, 1993 Crl. L.J. 3716. In the cited case the Circle Inspector had seized the unauthorised opium. He had investigated the case. It was held that it was improper for further investigation to be effected by him. The proceedings were quashed and appeal was allowed. In paragraph 11 the Single Judge of that Court held :

"I find that status of Investigating Officer, Pratap Singh could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation. In my humble opinion the prosecution in this case suffers from the basic infirmity as aforesaid and it is a question which goes to the very root of the matter and in the facts of the case it must be held to be sufficient to vitiate the whole investigation. Once I find that the whole bedrock of the investigation on the basis of which the appellant has been prosecuted is found to be unfair and against the basic tenets of criminals jurisprudence, the conviction and sentence based on such a highly infirm investigation as aforesaid cannot be sustained in the eye of law and accordingly the whole proceedings based on such investigation as aforesaid deserve to be quashed and set aside, which I hereby do."

Reliance further is being placed on the decision of the Supreme Court in the case of Megha Singh v. State of Haryana, AIR 1995 SC 2339. A similar argument was advanced. The Supreme Court in paragraph 4 held :

"After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the PWs 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing feature in this case. PW3, Siri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."

The decision of the Rajasthan High Court in the case of Gian Chand (supra) will not help the appellants because it is patently clear from the observations made by the Supreme Court in the case of Megha Singh (supra) that proceedings necessarily has not to be quashed. The Supreme Court only expressed a desire that such a practice should not be resorted. Consequently, the case of Gian Chand (supra) hardly to taken to be a good law. The practice that case should be investigated after the recovery in such like matters by another officer is based on fair play. There has to be fair and impartial investigation. Once the police officer who effects the recovery, is taken as the complainant, it is expected that he will not thereupon investigate the case further. But over all even if he investigates further, the effect has to be viewed in light of the fact, if prejudice is caused to the accused appellant or not. If no prejudice is caused, then the proceedings need not be quashed nor appeal allowed on this ground. In the present case as has been noticed above, the recovery is alleged to have been effected in presence of SI Teg Bahadur Singh. After the said recovery, the recovered articles were deposited in the Malkhana and the samples sent for report of the Chemical Examiner. This was not at all an investigation on the basis of which there could be a complaint that prejudice is caused. It is not shown. Very near to the facts of the present case, is the decision of this Court in Criminal Appeal No. 366SB of 1995, Vidhya Dhar v. State of Haryana, decided on 17.4.1996. A similar argument was advanced and rejected. Therefore, this plea must fail.

Before the appellants can be held guilty of the said offence, it has to be established and proved that they were in possession of the huge quantity of poppy husk that was lying in the Haveli. Learned counsel for the appellants urged that in the facts of the present case, it is not established that appellants were found in possession of the said poppy husk.

To appreciate the said argument, reference to the evidence becomes necessary. SI Teg Bahadur Singh appeared as PW1 and added that when he reached the Haveli, all the three including the two appellants were present in the said Haveli. On seeing the police party, they ran away from the other gate. The police party chased them but they managed to escape. He was cross examined and added that even the houses of the appellants were raided. The witness admitted that he had not arrested the appellants in any other case. He admitted that it is Savinder Singh who is in possession of the Haveli. SI Harbhajan Singh PW2 made a similar statement that he knew the appellants before this incident. On seeing the police party, they had made good their escape.

This evidence establishes that Haveli belongs to one Hardial Singh and evidence also indicates that one Savinder Singh who is the proclaimed offender was in possession of the same. In other words, the prosecution evidence itself shows that appellants were not in possession of the said Haveli. Once the appellants are not in possession of the Haveli, before they could be held guilty it had to be established that the poppy husk was in their conscious possession and control. The said evidence unfortunately in the present case is totally missing. Merely because if on seeing the police party, both the appellants ran away will not permit the court to presume and record a finding that they were in possession of the poppy husk. This is for the reason that possession of the Haveli was stated to be with Savinder Singh. Reliance can well be placed on the decision of this Court in the case of Dalip Singh v. State of Punjab, 1989(1) RCR 260. In the said case recovery of opium was effected from the farm house. The sons of the owner of the farm house were also present. It was held that they could not be taken to be in possession and the sons as such were acquitted. The latest pronouncement of the Supreme Court in the case of Mohd. Alam Khan v. Narcotic Control Bureau and another, 1996(2) JT 636 also supports the above findings and helps the appellants. In the said case, on the pointing of the coaccused raid was conducted. The premises were owned by the appellants. Before the Supreme Court since the prosecution failed to establish the ownership to be that of the said appellant, he was acquitted holding that it could not be said that he was in possession of the contraband material. In other words, possession had to be proved to be conscious and the person must have the control of the said article. In the facts of the present case as noted above, the possession of the Haveli is stated to be with Savinder Singh and appellants were simply present therein. In the absence of any other evidence, it could not be held that they were in conscious possession having control over the poppy husk. Consequently, the findings of the trial court in this regard cannot be sustained.

For these reasons, the appeal is allowed. The judgment and the order of sentence passed by the learned trial court are set aside. The appellants are acquitted giving them the benefit of doubt. They be released if not required in any other case.