Nirmal Singh vs State of Punjab

Harbans Lal, J.—This Appeal is directed against the judgment dated 29.3.2007, order of sentence dated 30.3.2007 passed by the Court of learned Special Judge, Moga whereby he convicted and sentenced the accused Nirmal Singh to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1.00 lac each under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, the Act) and in default of payment of fine to further undergo rigorous imprisonment for one year.

The factual score records that on 16.10.2002, Sub Inspector Kirpal Singh amongst other Police Officials was going on Government van bearing Registration No. PB04C7206 being driven by Constable Sarabjeet Singh. When the Police party was 11/2 kilometers short of village Korewala Kalan, the accused was noticed sitting on the bags lying in a deserted place on the left side of the road. He was apprehended on the basis of suspicion after having stopped the van. Meanwhile, one Karamjit Singh came there. He was associated with the Police party. The accused was offered to have search of the bags in the presence of a Gazetted Officer or a Magistrate. He opted to have their search before a Gazetted Officer. On receipt of message, Nachhatar Singh DSP came at the spot. He also disclosed his identity to the accused. On search, the contents of the bags were found to be poppy straw. Sample of 250 grams poppy straw was drawn from each bag and converted into a parcel. The residue of each bag when weighed, came to 34,750 grams. It was also made info parcels. The case property along with sample parcels was sealed with seals KS and MS and seized vide recovery memo. Ruqa was sent to the Police Station, where on its basis, formal F.I.R. was recorded. The accused was put under arrest. After completion of investigation, the chargesheet was laid in the Court for trial of the accused.

The accused was charged under Section 15 of the Act to which he did notjlead guilty and claimed trial In order to bring home guilt against the accused, the prosecution examined PW1 DSP Nachhatar Singh, PW2 Kirpal Singh, Investigator, PW3 HC Pavittar Singh, PW4 Constable Des Raj, PW5 AS1 Resham Singh, PW6 MHC Gurmail Singh and closed its evidence.

When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded innocence as well as false implication.

After hearing the learned Public Prosecutor for the State, the learned defence Counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this Appeal.

I have heard the learned Counsel for the parties, besides perusing the record with due care and circumspection.

Learned Counsel for the appellant maintained with a good deal of force that conscious possession of the appellant is not established. To buttress this stance he has relied upon Raj Kumar v. State of Punjab 2005(1) Recent Criminal Reports(Criminal) 70 (P&H), Baldev Singh v. State of Punjab 2005(1) Recent Criminal Reports(Criminal) 823: [2005(3) All India Criminal LR (Pb. & Hry.) 3091, State of Punjab v. Balkar Singh & Others AIR 2004 SC 4606. He has further argued that Karamjit Singh PW has been given up by the prosecution as usually it happens in State cases. If he would have been in attendance at the spot, the seal after use would have certainly been given to him. To fortify his contention he has relied upon State of Punjab v. Rattan Lal 1992(3) Recent Criminal Reports(Criminal) 286.

To tide over these submissions, the learned State Counsel maintained that prosecution has established possession of the appellant over the bags of poppy husk. If he claims that it was not a conscious possession he is to establish it as to how it came to be in his possession. He further puts that case of the prosecution should not be thrown out of hand merely because of the fact that the seal after use was not entrusted to Karamjit Singh PW.

I have given a deep and thoughtful consideration to. the rival contentions.

In re; State of Punjab v. Balkar Singh and another 2004(3) Supreme Court Cases 582 the Apex Court held that �merely by being found to be present at the place where the poppy bags were found and the failure to give any satisfactory explanation for being so present did not prove that the accused persons were in possession of the said poppy bags. In fairness, the Police should have conducted further investigation (as to transportation of poppy bags tojhe place of incident, ownership of the poppy husk etc.) to prove that the accused were really in possession of the said articles.� In the instant one, the Investigator did not take the pains to ascertain as to how the bags of poppy straw were transported to the alleged place of recovery or who was their owner.�

In Baldev Singh''s case (supra) the accused were sitting on two bags of poppy husk. It was held that � the accused would be guilty of offence under NDPS Act, if it is established that he was in conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity of the object. The accused can not be inferred that they were in conscious possession.� In Kashmir Singh v. State of Punjab 2006(2) Recent Criminal Reports (Criminal) 477: [2006(4) All India Criminal LR (Pb. & Hy.]

Full Bench of this Court has observed as under:

�12, When the Trial Judge records the statement of an accused person under Section 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 and 54 is to be raised, it would be advisable for the Trial Court to frame a question under 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 under Section 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 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 under Section 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 anopportunity 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 Others, 2009(2) Recent Criminal Reports (Criminal) 143 it has been observed by the Hon''ble Supreme Court as under

� 19. For the above reasons, we would answer the question raised by stating that no presumption under Section 35 and 54 should he used against the accused unless he has bee,n given an opportunity to rebut the presumptions in his statement under Section 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 Raj Kumar v. State of Punjab, 2005(1) Recent Criminal Reports(Criminal) 70, a bag containing opium lying between Raj Kumar and Hawa Singh''s seat was recovered. The Division Bench of this Court held that both the accused have been charged for possession of opium, but neither of them had been asked any question in their statements under Section 313 Cr.P.C. that he was in conscious possession of opium. Therefore, neither presumption under Section 35, nor the presumption under Section 54 of the Act would be attracted.

A careful delving into the Statutory statement of the appellant would reveal that no specific question with regards to conscious possession has been framed nor put to the appellant while examining him under Section 313 of Cr.P.C. Thus, the conscious possession is not established nor the presumption under Section 3.5 or 54 of the Act can be drawn in favour of the prosecution.

In re: Satnam Singh v. State of Punjab, 1996(3) Recent Criminal Reports Criminal) 396 it has been held that �when the prosecution alleges that material witness has been won over by the accused, still it is necessary that such witness must be produced and examined at the trial to reveal the truth, especially when the seal is allegedly entrusted to hire after use.� In the instant one, it is specific case of the prosecution that seal after use was entrusted to ASI Resham Singh instead of private witness Karamjit Singh after its use. There may be every possibility that the sample was tampered with by getting back the seal from him.

It is in the evidence of PW Nachhatar Singh DSP (sic) that six bags containing something was lying near the accused, whereas Kirpal Singh Investigator PW2 as well as ASI Resham Singh PW5 have deposed that the accused was sitting on the bags. Thus obviously these PWs are discrepant and contradict each other on a very material point. It does not appear in the prosecution evidence that the appellant himself had disclosed the contents of the bags to be poppy husk to the Investigating Officer or any other Police Official. Thus by no stretch of speculation, it can be said that the prosecution has demonstrated conscious possession of the appellant.

No other material point has been agitated or raised by either Counsel.

For the reasons indicated above, this Appeal succeeds and is accepted by setting aside impugned judgment/order of sentence. The accusedappellant is hereby acquitted of the charged offence by giving him benefit of reasonable doubt.

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