Bhola Singh v. State Of Punjab

Nirmal Yadav, J. — This is an appeal against the judgment and order dated 15.3.2004 passed by Shri Dharam Singh, Special Judge, Mansa. convicting the accused under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act, and sentencing him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-. In default of payment of fine, he was to further undergo rigorous imprisonment for a period of six months. The learned Special Judge tried five accused in all under the above charge, out of which four have been acquitted and only present appellant has been convicted and sentenced as referred above.

2. In brief, case of the prosecution is that on 23.9.1999 Sukhwinder Singh SI along with other police officials and an independent person Surjit Singh alias Sita son of Puran Singh, resident of Sardoolgarh, was holding Nakabandi on the kacha passage leading from Lohgarh to Beeranbandi, in the revenue estate of Lohgarh. At about 5.30 A.M at the place of Naka one Eicher Tractor with a trolley was seen coming to village Lohgarh from village Beeranbandi, which was signalled to be stopped. Immediately, when the tractor stopped, four persons jumped out of the trolley and managed to escape in the Narma crop by taking the benefit of darkness. However, appellant Bhola Singh, driver of the tractor was apprehended at the spot. He disclosed the names of the persons who had jumped and ran away from trolley. The investigating officer on search found some bags lying in the trolley along with one motor-cycle and one scooter. He suspected some contraband in the bags so found in the trolley. He gave offer to Bhola Singh to get the search conducted in the presence of a Gazetted Officer and on his answering in the affirmative, Amarjit Singh DSP, Sardoolgarh was requested to reach the spot. The DSP also disclosed his identity to Bhola Singh. Bhola Singh was satisfied and gave his consent for conducting the search of bags lying in the trolley. Consent memo was prepared and was attested by the witnesses. On search he found all the 14 bags containing poppyhusk. From each of the bags, two samples of 100 grams each were taken out and the weighment was made. On weighment, each bag was found containing 34 kilograms 800 grams of poppyhusk. Thereafter the samples taken out of all the 14 bags were converted into parcels and sealed with the seal of SS. Sample seal was separately prepared. All the samples, sample seal, remaining contraband and the tractor alongwith trolley bearing registration No. HRQ-2045, motor-cycle bearing registration No. HR-22-B-1408 and Scooter No. HR24-D-9023 were taken into possession vide recovery memo which was attested by SI Satpal Singh. Seal after use was handed over to PW Surjit Singh. Ruqqa was sent to police station through constable Hardev Singh for registration of FIR. Special reports were also sent to the higher officers through constable Karan Singh immediately. The investigating officer SI Sukhwinder Singh was the SHO of Police Station and, therefore, he completed the investigation by recording statements of the witnesses and thereafter produced the case property and Bhola Singh accused in the Court of Illaqa Magistrate. The other accused were arrested lateron. On completion of the investigation, challan was presented. All the accused were charged under Section 15 of the Narcotic Drugs and Psychotropic Substances Act to which they pleaded not guilty and claimed trial.

3. In order to prove its case, the prosecution examined Balwant Singh PW1, Suraj Bhan PW2, SI Sukhwinder Singh PW3, SI Sukhpal Singh PW4, Amarjit Singh PW5, Om Parkash, Clerk to SDM as PW6 and Budh Ram, Ahlmad in the Court of S.D J.M Sirsa, as PW7. Other witnesses were given up as unnecessary. Independent witness Surjit Singh was given up as having been won over by the accused persons. The trial Court after taking into consideration the facts and evidence on record, convicted and sentenced the appellant as stated in paragraph No. 1. Hence this appeal.

4. Learned counsel for the appellant has challenged the conviction of the appellant submitting that the prosecution has failed to prove the alleged recovery of poppyhusk from the conscious possession of the appellant. It is contended that from the statements of the official witnesses examined by the prosecution neither recovery of the alleged contraband from the person of the appellant or from his conscious possession has been proved, particularly when Surjit Singh, the alleged eye witness, has not been examined by the prosecution to support the recovery of the alleged contraband from the possession of the appellant. Learned counsel further contended that the prosecution has failed to adduce any evidence to show the ownership of the poppyhusk. The mere fact that the appellant was driving the tractor-trolley does not prove that he was in possession of the bags containing alleged contraband. He further argued that the prosecution should have conducted further investigation to prove the ownership and to prove that the appellant was really in possession of the contraband article. The learned counsel took the Court through the statement of the accused recorded under Section 313 Cr.P.C and argued that not a single question was put to the accused that he was the person in possession of poppyhusk loaded in the trolley. The only question put to Bhola Singh accused is as follows :—

“At about 5.30 AM, a tractor trolley was seen coming from Beeranwandi side which was driven by you. SI Sukhwinder Singh gave signal and the same was stopped. Megha and Gurmit Singh alias Kala fled away. SI searched the trolley and found 14 bags alongwith one motor cycle and one scooter. SI Sukhwinder Singh suspected some incriminating article in those bags and asked you that search of the bags is to be conducted and you had right to get the same searched before a Magistrate or Gaz. Officer or you could be taken before them. You opted that search be conducted in presence of Gaz. Officer. In this respect memo Ex. PW was prepared which was signed by you and attested by SI Satpal and Surjit Singh PW. What you have to say about it?”

In support of his contentions the learned counsel relied upon the cases reported as State of Punjab v. Balkar Singh, 2004 Supreme Court Cases (Criminal) 838 and Avtar Singh and others v. State of Punjab, 2002 (7) Supreme Court Cases 419.

5. The learned counsel further argued that there is a serious infirmity in the prosecution case, as, if the appellant was transporting the offensive material without permit of authorisation as required by law, he should have been charged under Section 8 of the Act. There is no such charge framed against the appellant. In these circumstances, the counsel for the appellant vehemently argued that alleged recovery cannot be said to be effected from the conscious possession of the appellant.

6. Learned counsel further contended that the prosecution failed to prove the link evidence connecting the appellant with the seizure of the contraband and further sending of the same to the Chemical Examiner. It has failed to prove that the seal of the sample remained untam-pered throughout. The learned counsel referred to the statement of SI Sukhwinder Singh PW3, who stated that the seal after sealing the samples and the bags containing remaining poppyhusk was handed over to Surjit Singh alleged eye witness. In order to prove this fact, said Surjit Singh has not been produced. It is further contended that as per the investigating officer SI Sukhwinder Singh PW3 filled up Form No. 29 Ex. PR on 29.9.1999, whereas it should have been prepared on the day sample was taken and should have been deposited along with the case property in the Malkhana.

7. The learned counsel referred to the statement of SI Sukhwinder Singh wherein it is stated that he filled Form No. 29 on 29.9.1999 and handed over the samples along with sample seal impressions to constable Balwant Singh for depositing the same in the office of F.S.L, Punjab Chandigarh. It is argued that if Form No. 29 was filled on 29.9.1999, it would mean that the sample seals were also affixed on the form on that day, but there is no evidence as to how the seal which was handed over to the independent witness Surjit Singh came in possession of investigating officer. There is no evidence that Form No. 29 was deposited in the Malkhana along with the case property. The learned counsel argued that the very purpose and object of preparing Form No. 29 at the time of seizure of the contraband and separating its representative sample is to ensure that the sample would not be tampered with subsequently. The learned counsel further argued that the sample of the recovered contraband should be sent for chemical examination immediately within a period of 72 hours of the seizure of the contraband to avoid any legal objection. He referred to the Standing Instructions No. 1 dated 15.3.1988 issued by the Narcotics Control Bureau. New Delhi. In the instant case, the samples were sent through constable Balwant Singh to the F.S.L, Punjab Chandigarh, on 29.9.1999, but he returned back without depositing the same on 1.10.1999 and handed over the sample to the investigating officer. Thereafter on 12.10.1999 the investigating officer handed over Form No. 29 along with the samples to constable Balwant Singh for depositing the same with the F.S.L, Punjab, Chandigarh. The learned counsel contended that from above facts it is apparent that possibility of tampering with the alleged sample cannot be ruled out.

8. On the other hand, learned State, counsel contended that huge quantity of contraband has been recovered from the tractor-trolley, driven by the appellant early in the morning at 5.30 A.M He has argued that there is no contradiction or discrepancy in the statements of the recovery witnesses. The arrest, search and seizure was conducted by an empowered gazetted officer of the rank of a Deputy Superintendent of Police.

9. On careful consideration of the arguments of counsel for the parties and going through the record of the case, 1 am of the opinion that the appeal deserves to be allowed. The mere fact that the appellant was driving the truck, it cannot the held that he was in conscious possession of poppyhusk. The prosecution should have satisfactorily proved that the appellant was in possession of the poppyhusk. It is true that Section 15 provides for punishment if any person, in contravention of any provisions of the Act or any rule or order made or condition of a licence granted thereunder, produces, possesses, transports, imports inter-State, exports inter-State, sells, purchases, uses or omits to warehouse poppy straw or removes or does any act in respect of warehoused poppy straw shall be punishable. Section 8 enacts a prohibition against cultivation, production, manufacture, possession, sale, purchase, consumption, import etc. any drug or psychotropic substance, except for medical or scientific purposes ………..In the instant case, the allegations against the appellant are with regard to possession and transportation of the contraband. However, the charge against the appellant is confined only to the possession of the appellant. As per the prosecution case, appellant was driving the tractor with a trolley loaded with bags of poppyhusk, but it has failed to bring any cogent evidence on the record to prove the nexus between the appellant and the alleged contraband.

10. The word “possession” has different meanings and is quite elastic in its connotation. Possession and ownership cannot always go together but the requisite element which has to be satisfactorily proved is custody or control over the goods. Without any link evidence it is difficult to reach at such conclusion beyond reasonable doubt. Admittedly, there were four other persons sitting in the trolley, who had jumped away from it. There could be probability that any of them or some other person was the owner of the goods. Other co-accused have been acquitted and the prosecution has failed to prove if any one of them was the owner of the contraband. Even in the course of examination under Section 313 Cr.P.C, not even a single question was put to the appellant that he was in possession of poppyhusk loaded in the trolley. The only questions put to him, as referred above, are that 14 bags were lying in the trolley and the investigating officer suspected some incriminating articles in the same. The appellant categorically denied any incriminating articles having been recovered from him. It is strange enough that no question was put to him about the possession of the contraband.

11. There is another infirmity in the prosecution case. Section 8 of the Act enacts a prohibition against production, transportation etc. of the contraband. In case prosecution was of the view that appellant was transporting the contraband he should have been charged for transporting the same without permit or authorisation as required by law, but no such charge has been framed against the appellant. In Balkar Singh's case (supra) the Supreme Court also observed that the police should have conducted further investigation with regard to ownership of poppyhusk to prove that the appellant was in possession of the contraband.

12. Even from the statements of two official prosecution witnesses the conscious possession of the appellant has not been proved. Both of them have stated that about 5.30 A.M one tractor-trolley was seen coming from Beerabandi side and when it reached near them, it was signalled to stop. The tractor was being driven by Bhola Singh appellant while four other persons sitting in the tractor-trolley, namely, Megha Singh, Sat Pal, Ramu and Gurmeet Singh alias Kala, fled away. They searched the trolley and found 14 bags along with one motor-cycle and a scooter. They suspected some incriminating article in the bags and gave information to the appellant for conducting the search before a Magistrate or a Gazetted Officer. It is also the prosecution case that one independent witness namely Surjit Singh, was also accompanying the police party. However, he had not been examined. Neither any prosecution witness stated that they had tried to establish and ascertain that the bags containing poppyhusk belonged to the appellant, nor any effort was made to know whether the tractor-trolley from which poppyhusk was recovered belonged to the appellant or some one else. Thus, the prosecution failed to prove that the alleged contraband was recovered from the conscious possession of the appellant. Therefore, the provisions of Section 54 of the Act cannot be invoked to raise a presumption of guilt against the appellant.

13. There is another circumstance creating doubt in the prosecution case. The prosecution has failed to prove the link evidence with regard to the seizure of the contraband till the same reached the office of Chemical Examiner. PW 3 SI Sukhwinder Singh, after sealing the sample parcels of the contraband as well as remaining contraband, handed over the seal to Surjit Singh, the independent eye witness, but said Surjit Singh has not been examined. It is well settled that till the case property had not been despatched to the Forensic Science Laboratory, the seal should not be available to the prosecuting agency and in the absence of such safeguard the possibility of seal, contraband and the sample being tampered with cannot be ruled out. SI Sukhwinder Singh in his examination-in-chief stated that Form No. 29 was prepared on 29.9.1999 on which specimen of seal was affixed. The said form was supposed to be deposited along with the sample and the case property in the Malkhana, but it is not clear from the statements of S.I Sukhwinder Singh or any other prosecution witnesses that the said form was deposited in the Malkhana on 29.9.1999 itself. In Emma Charlotte Eve v. Narcotic Control Bureau.., 2000 (4) RCR (Criminal) 386 & Shaiffullah v. State, 49 (1993) DLT 193, it was held that “where the seals remained with the police after use and the CFSL form was neither prepared on the spot nor deposited in the Malkhana, such circumstance would be fatal to the prosecution case”. Filling of such form at the spot is a very valuable safe-guard to ensure that the seal sample is not tampered with till its analysis by the F.S.L The CFSL form should not only be prepared and sealed by the officer making seizure at the place where the case property is seized from the accused, it should also be sealed by the S.H.O to whom the sample and the case property is handed over and the same should accompany the sample to Chemical Examiner. The idea behind taking such a precaution is to complete the material link in the prosecution evidence by eliminating the possibility of the sample being tampered with. The prosecution has miserably failed to prove the link evidence.

14. In the result, the appeal is allowed and the conviction and sentence awarded to the appellant by learned Judge, Special Court, Mansa, vide judgment and order dated 15.3.2004 is set aside. The appellant is acquitted of the charges framed against him. He be set at liberty forth-with if not required in any other case.

Appeal allowed.