SURINDER GUPTA, J.
Appellants Gurbachan Singh and Balkar Singh faced trial for the offence punishable under Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’) and were convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lac each, in default of payment of fine to further undergo rigorous imprisonment for six months each.
Brief Facts:
2. A police party headed by ASI Davinder Singh of Police Station Dhilwan, District Kapurthala, was holding a Nakabandi near T-point of village Mander Bet on 06.05.2001 where it joined Darshan Singh as independent witness. After some time, a tractor-trolley came from the side of Railway Crossing of village Gadana, which was being driven by appellant Gurbachan Singh, whereas appellant Balkar Singh was sitting in the trolley. ASI Davinder Singh suspected some contraband in the trolley and gave offer to the appellants to get the search to be conducted before a Gazetted Officer or a Magistrate. They opted their search to be conducted before a Gazetted Officer vide memo Ex.PA On request, Harmail Singh, Deputy Superintendent of Police, Bholath reached the spot. He disclosed his identity to the appellants as Deputy Superintendent of Police, a Gazetted Officer and gave offer to the appellants to get the search to be conducted from any Magistrate or before him. Vide consent memo Ex.PB, the appellants reposed their confidence in DSP Harmail Singh. On search of trolley, three bags, kept concealed under the wheat chaff (Turi) being carried in the trolley, containing poppy-husk were recovered. A sample of 250 grams was separated from each bag and remaining poppy-husk on weighment came to 34 Kgs and 750 grams in each bag. Parcels of sample and remaining poppy-husk were prepared and sealed with the seal of DSP Harmail Singh bearing seal impression ‘HS’. Sample seal was prepared. The seal after use was retained by the Deputy Superintendent of Police. The case property including the samples were taken into possession vide recovery memo Ex.PC along with the tractor-trolley. Ruqa Ex.PG was sent to the police station whereupon formal FIR Ex.PG/1 was recorded. The appellants were formally arrested and required investigation was carried out. Inderjit Singh SHO, Police Station Dhilwan came to the spot. The case property along with appellants were produced before him. He checked the case property and interrogated the appellants and then fixed his seal bearing impression ‘IS’ on the case property and also prepared the sample seal impression. On return to the police station, case property was deposited with MHC and on the next day, it was produced before the Illaqa Magistrate, who after seeing the case property, put his initial over it. Case property was deposited with Inspector Inderjit Singh, on return to the police station, who further deposited the same with MHC under his supervision. The samples were sent to the Chemical Examiner and vide report Ex.PJ, these were declared to be that of poppy-husk. After completion of investigation, challan against the appellants was presented before the Court.
3. Copies of documents as relied upon by the prosecution were supplied and finding a prima facie case, the appellants were charge-sheeted for the offence punishable under Section 15 NDPS Act to which they pleaded not guilty and claimed trial.
4. In support of its case, the prosecution examined Head Constable Pargat Singh PW1 who was member of the police party headed by ASI Davinder Singh and a witness of recovery of poppy-husk from the appellants. ASI Davinder Singh, Investigating Officer appeared as PW2 and made statement supporting the prosecution case. DSP Harmail Singh, in whose presence the recovery was effected, appeared as PW3. PW4 Head Constable Gurmail Singh is a formal witness, PW5 Head Constable Shinder Singh was posted as MHC in the police station with whom the case property was deposited. Head Constable Santokh Singh and ASI Mohinder Singh were given up as unnecessary while independent witness Darshan Singh was given up as having been won over by the appellants. SI Inderjit Singh, SHO, Police Station Dhilwan appeared as PW6. Himmat Singh Clerk of the office of D.T.O Ferozepur appeared and PW7 and has stated that Baj Singh and Balkar Singh sons of Sunder Singh are recorded as owners of tractor-trolley recovered in this case. To similar effect is the statement of PW8 Balbir Singh.
5. After completion of prosecution evidence, statements of appellants under Section 313 Code of Criminal Procedure (for short ‘Cr.P.C’) were recorded, wherein they denied the incriminating circumstances appeared against them. Appellant Balkar Singh stated in his defence as follows:-
“I am 70 years old and do not know driving. I was active member of Akali Dal ruling party at that time. The Assembly election was coming soon. I left the said ruling party and joined Tohra Group. I was having good reputation. The leader of Akali Dal was feeling apprehension that I will cause harm to Akali Dal Badal, in Assembly elections. In order to spoil my career and reputation and to lower down my modesty in the eyes of general public, the Local MLA got registered this false case against me, so that I may loose my reputation amongst the voters.”
6. Appellant Gurbachan Singh stated in his defence as follows:-
“I am innocent. I have no connection with the tractor trolley as alleged by the prosecution nor I was driving the same on the alleged day of recovery. I am serving in Indian Army for the last 30 years. The present case has been falsely planted on me.”
7. In their defence, the appellants examined Lakhbir Singh as DW1, Darshan Singh, eyewitness of the occurrence as DW2. Appellant Gurbachan Singh tendered in evidence copy of his identity card as Ex.D1
8. I have heard learned counsel for the appellants, learned State counsel and have gone through the paper book with their assistance.
9. Learned counsel for the appellants have argued that the prosecution has failed to prove that the appellants were in conscious possession of the contraband. Appellant Balkar Singh was sitting in the trolley and as per the prosecution case, the contraband was concealed under the wheat chaff (Turi) loaded in the trolley and was not visible, as such, Balkar Singh who was sitting in the trolley, cannot be held to be in conscious possession of the same. Appellant Gurbachan Singh was driving the tractor-trolley. No investigation was made to find the origin of the contraband or to connect it with Gurbachan Singh, thereby ruling out his conscious possession over the contraband. The independent witness joined by the police was not examined, rather he had appeared as DW2 and denied any recovery of contraband effected from the possession of appellants. The seal after use was not handed over to the independent witness Darshan Singh, who was allegedly present when the recovery was effected and case property was sealed. Form-29 (CFSL form) was not prepared at the spot. In the statements of appellants recorded under Section 313 Cr.P.C, the appellants were nowhere put any question of their conscious possession of the contraband. There was also delay of two days in sending the samples for analysis to the Chemical Examiner and this delay has not been explained. There is also violation of provisions of Section 55 NDPS Act. Section 55 NDPS Act requires officer in-charge of the police station to keep the case property in his safe custody, pending orders of the Magistrate, but in this case, case property was deposited with MHC before it was taken to the Magistrate. Learned counsel for the appellants have argued that all the above facts and circumstances taken together create a serious dent in the prosecution case, raising suspicion of false implication of the appellants in this case due to political reasons.
10. Learned State counsel has argued that appellants Balkar Singh was the owner of the tractor-trolley in which the contraband was being carried. He was sitting in the trolley and has not come up with any version explaining the contraband kept concealed under the wheat chaff in the trolley. His defence of false implication due to political rivalry find no support from the evidence on file. Gurbachan Singh was driving the tractor and has not come up with any version of lack of knowledge that contraband was being carried in the tractor-trolley. The presumption of culpable mental state of both the appellants and of possession of contraband from their possession arises against appellants as per the provisions of Section 35 of NDPS Act. Independent witness Darshan Singh was given up as having been won over by the appellants. It is usually found that independent witness either avoid joining the police party in the investigation of a case and even if they join, they side with the accused instead of police party. The fact that the seal was not handed over to the independent witness or origin of the contraband was not traced and form-29 (FSL form) was not prepared at the spot, are immaterial and in no manner cast any doubt about the prosecution case. The provisions of Section 55 were duly complied in this case as the case property was produced before the SHO, Police Station Dhilwan at the spot and he had put his seal over the case property. Even otherwise, the provisions of Section 55 NDPS Act are not mandatory but directory in nature. While recording the statements under Section 313 Cr.P.C, the appellants were confronted with all the incriminating facts and recovery of poppy-husk from the trolley. Even if, this fact was not specifically put to the appellants that they were in conscious possession of the contraband, the same can be inferred from the circumstances and incriminating evidence against the appellants produced by the prosecution.
11. The submissions made by learned counsel for the appellants and learned State counsel call for answering the following questions in this appeal:-
(i) Effect of non-examination of independent witness Darshan Singh by the prosecution and his appearing as defence witness.
(ii) Effect of not handing over the seal of Deputy Superintendent of Police used for sealing the case property to the independent witness.
(iii) Effect of non-preparation of form-29 (FSL form) at the spot.
(iv) Whether there was non-compliance of provisions of Section 55 of NDPS Act.
(v) Effect of delay of 2 days in sending the samples to the Chemical Examiner.
(vi) Whether the poppy-husk weighing 105 Kgs was recovered from the conscious possession of the appellants.
(i) Effect of non-examination of independent witness Darshan Singh by the prosecution and his appearing as defence witness.
12. The police party, which apprehended the appellants, had joined Darshan Singh, Lambardar of village Dhilwan in the police party before apprehending the appellants. He has been given up as having been won over. While appearing as DW2, he has stated that nothing was recovered from Gurbachan Singh and Balkar Singh in his presence and his signatures were obtained on some blank papers. He has further stated that police usually cite him as witness in a number of cases but has not specified any such case. The tone and tenor of the statement of this witness shows that being a Lambardar, he has preferred to side with the appellants instead of supporting the prosecution version. He was cited as prosecution witness in this case in May, 2001. He appeared as defence witness in April, 2007 to denounce his joining as independent witness. During six years, he had not made any representation to the higher police officials or District authorities regarding his citing as witness by the police in different cases or obtaining his signatures on blank papers.
13. It is usually seen that the independent witness either avoid joining the police party and if at all they join, they side with the accused and the reason for this is quite obvious. The villagers avoid to buy animosity of the person, accused of an offence by the police, in which they have no personal interest, by deposing against him. The testimony of official witnesses in this case is unshattered and unreliable. The prosecution has examined DSP Harmail Singh, who reached the spot and in whose presence the recovery was effected. PW1 Head Constable Pargat Singh, who was the member of the police party and Investigating Officer ASI Davinder Singh PW2, have fully supported the prosecution case and no material contradiction has been pointed out in their statements during the course of arguments.
14. Now the question arises as to whether any adverse inference be drawn against the prosecution due to non-examination of independent witness.
15. The Hon'ble Division Bench of this Court in the case of Ramesh Kumar v. State of Punjab, 2013 (4) RCR (Criminal) 320, has observed that the testimony of official witnesses cannot be discarded until it is proved that they have any animus or hostility against the accused for his false implication. While discussing the question of non-joining of the independent witnesses, it was observed that they are averse to join the police and depose in favour of prosecution as they are afraid of the fact that joining the police and deposing in favour of the prosecution may expose them to serious consequences.
16. In the case of Sumit Tomar v. State Of Punjab., (2013) 1 SCC 395, Hon'ble Supreme Court on the point of non-examination of independence witness joined by the police, has observed as follows:
“In view of the above discussion, we hold that though it is desirable to examine independent witness, however, in the absence of any such witness, if the statements of police officers are reliable and when there is no animosity established against them by the accused, conviction based on their statement cannot be faulted with. On the other hand, the procedure adopted by the prosecution is acceptable and permissible, particularly, in respect of the offences under the Narcotic Drugs and Psychotropic Substances Act.”
17. In view of the above observations, the contention raised by the learned counsel for the appellant to the effect that evidence of PW1 (HC Pargat Singh), PW2 (ASI Davinder Singh) and PW3 (DSP Harmail Singh) cannot be relied upon for want of corroboration by the evidence of independent witness, is repelled.
(ii) Effect of not handing over the seal of Deputy Superintendent of Police used for sealing the case property to the independent witness.
18. Seal of DSP Harmail Singh bearing impression ‘HS’ used for sealing the case property and the sample, after use was retained by the DSP with him. Relying upon the observations in the case of Jaswinder Singh v. State of Punjab, 2013 (1) RCR (Criminal) 257, learned counsel for the appellants has argued that the adverse inference be drawn against the prosecution, for not handing over the seal after use to the independent witness.
19. The above contention of learned counsel for the appellant has no merits. In this case the sample taken at the spot have reached the office of chemical examiner in intact condition. The investigating officer had used the seal of DSP Harmail Singh to seal the case property and after use returned the seal to him. He thereafter had no access to the seal. No suggestion was given to PW2 ASI Davinder Singh that he has tampered the case property after it was produced before the SHO. SI Inderjit Singh, SHO, had reached the spot and affixed his seal bearing impression ‘IS’ over the case property. Before examination of the samples, the chemical examiner had found all the seals on the sample affixed in this case as intact. Under these circumstances this fact is not material that the seal after use was not handed over to independent witness and this question is answered against the appellants.
(iii) Effect of non-preparation of form-29 (CFSL form) at the spot.
20. The fact that form No. 29 was not filled at the spot, do not affect the case of the prosecution in any manner. There is no rule of evidence or procedure that every document must be prepared at the spot of recovery. In case of Wazir Singh… v. State Of Haryana…., 2010 (1) RCR (Criminal) 480 (P&H) (SB), it was observed that non-filling up of the CFSL form at the time of recovery does not create any doubt about the recovery of contraband from the accused. In para 17 of the aforesaid judgment it was observed as follows:
“17. Of course, it does not surface in the testimony of Maha Singh (sic) that the CFSL form was filled at the spot. It is pertinent to point out here that the CFSL form is to be prepared for sending the same to the Laboratory along with the sample so that the laboratory can test the sample and give its result. Such document contains the details of the seals affixed on the samples, FIR number, date and place of seizure, date of deposit of samples and the date of withdrawal of sample from the Malkaha. True that, as revealed by the FSL report, CFSL form was filled up on 10.12.2001 though the recovery was made on 02.12.2001, but its preparation on the said date in no manner evidences the prejudice, if any, caused to the appellant particularly when the certification on Exh. PK tends to show that the seals were intact and tallied with the specimen seal as per forwarding authority's letter. The filling up of this form on the aforesaid date in itself does not create any doubt about the recovery of Charas from the appellant.”
21. In view of the above observation, the argument of learned counsel for the appellants on this point is also rejected.
(iv) Whether there was non-compliance of provisions of Section 55 of NDPS Act.
22. In the present case, after recovery of the contraband at the spot, samples were drawn and the same along with remaining case property were sealed. SI Inderjit Singh SHO, Police Station Dhilwan reached the spot. The case property was produced before him and he sealed it with his seal bearing letters ‘IS’ and prepared sample seal impression and then handed over the case property to ASI Davinder Singh. Section 55 NDPS Act requires officer incharge of the police station to take charge of the contraband and keep the same in safe custody pending order of the Magistrate. On return to the police station, Investigating Officer ASI Davinder Singh deposited the case property with MHC. He took the same on the next day for presentation before the Magistrate. After presenting the case property before the Magistrate, he deposited it with SI Inderjit Singh, SHO.
23. The provisions of Section 55 of NDPS Act are not mandatory but are directory in nature. In case Babubhai Odhavji Patel v. State of Gujarat (2005) 8 SCC 725, Hon'ble Supreme Court has observed in para No. 8 as follows:-
“8. The learned counsel further contended that the seized articles were not kept in proper custody and that there was violation of Sections 52, 55 and 57 of the NDPS Act. He placed reliance on Valsala v. State of Kerala 1993 Supp (3) SCC 665. We do not think that there is much force in this contention. This Court in Gurbax Singh v. State Of Haryana. (2001) 3 SCC 28 held that these provisions are not mandatory provisions and they are only directory.
xxxx”
24. In the present case, the procedure adopted by the Investigating Officer nowhere suggest the violation of the spirit of Section 55 of NDPS Act. The objective required to be achieved by keeping the case property in safe custody of the officer incharge of the police station, is to ensure its sanctity, which in this case was maintained where the officer incharge of police station has affixed his seal over the case property at the spot. The sanctity of the case property was duly maintained till it was produced before the Magistrate, thereby causing no prejudice to the appellants. This question is accordingly answered against the appellants.
(v) Effect of delay of 2 days in sending the samples to the Chemical Examiner.
25. The delay of two days in sending the samples to the Chemical Examiner, cannot be terms as inordinate delay. After recovery on 06.05.2001, case property was produced on the next day before the Magistrate and on the very next day, the samples were sent to the Chemical Examiner. This indicates no delay in sending of samples to the Chemical Examiner. Head Constable Gurmail Singh who had taken the sample to the office of chemical examiner while appearing as PW-4 has stated by way of his affidavit Ex.PK that he kept the sample intact during the period it remained in his custody.
26. The Hon'ble Supreme Court in the case of State of Punjab v. Lakhwinder Singh (2010) 4 SCC 402, did not find the delay of seven days in sending the samples to Chemical Examiner as relevant when it is proved that the seals were intact when the samples reached the office of Chemical Examiner.
27. In view of the facts discussed above, this question is also answered against the appellants.
(vi) Whether the poppy-husk weighing 105 Kgs was recovered from the conscious possession of the appellants.
28. The prosecution has examined PW1 Head Constable Pargat Singh, who was member of the police party headed by ASI Davinder Singh. He has fully supported the prosecution case and stated that three bags of poppy-husk weighing 35 kgs each were recovered from the trolley in which appellant Balkar Singh was sitting. That trolley was attached with the tractor being driven by appellant Gurbachan Singh. ASI Davinder Singh, the Investigating Officer while appearing as PW2 has narrated the manner in which the recovery was effected. In cross-examination of this witness, nothing could be extricated to create a dent in the prosecution version. DSP Harmail Singh had reached the spot on receipt of wireless message of the investigating officer and recovery of contraband was effected in his presence. From the testimonies of these witnesses, the prosecution has been able to prove that the recovery of three bags containing 35 kgs of poppy-husk in each bag was effected, from the trolley in which Balkar Singh was sitting.
29. Now the question which arises for consideration is as to whether both the appellants were in conscious possession of the contraband. The expression ‘possession’ is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is not possible to work out a completely logical and precise definition of ‘possession’ uniformally applicable to all situations in the context of all statutes. The word ‘possession; means legal right to possess. It need not be physical possession but can be constructive having power and control over the article. Once the possession is established, the person who claims that it was not a conscious possession, has to establish it because the fact as to how he came to be in possession of the said article, is within his special knowledge.
30. Section 35 NDPS Act deals with the presumption of culpable mental state, which reads as follows:-
“35. Presumption of culpable mental state.-(1) In any prosecution for an offence under this Act which requires a culpable mental state of the 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.
Explanation.- In this section “culpable mental state” includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.”
31. The onus was heavily on the prosecution to lead some evidence to prove beyond reasonable doubt that appellant Gurbachan Singh was aware of the contraband kept beneath the wheat chaff (Turi) in the trolley. The presumption of culpable mental state of Gurbachan Singh cannot be drawn in view of the fact that he was not alone while driving the tractor. The owner of the tractor was also sitting in the trolley. The prosecution has produced no evidence to prove that Gurbachan Singh, in any manner, was related to owner of tractor-trolley. ASI Davinder Singh was aware that Gurbachan Singh was employed as Porter in Army at the time of registration of FIR in this case. This implies that he was not employee of Balkar Singh, appellant. When the owner was in the trolley from which the contraband was recovered, the presumption of possession of the contraband arises against him until or unless the facts, circumstances and evidence on file in a particular case suggest the possession of other persons in the vehicle and/or the driver of that vehicle.
32. In view of the above facts and circumstances, the arguments of learned counsel for appellant Gurbachan Singh have merits that appellant Gurbachan Singh was not proved to be in conscious possession of the contraband recovered in this case and the same are accepted.
33. However, the parameters, as applicable to the case of appellant Gurbachan Singh, are not applicable to the case of appellant Balkar Singh, who was owner of the tractor-trolley and was sitting in the trolley over the wheat chaff (Turi) at the time of recovery. There is presumption of his specific knowledge, as to what had been loaded in the tractor-trolley. The defence taken by him regarding the political rivalry as cause of his implication in this case is not supported by any evidence. The bald statement of Lakhbir Singh DW1 that switch over of appellant Balkar Singh from ruling Akali Dal to Tohra Group was the cause of his false implication cannot be given weight in the absence of any cogent evidence to indicate and prove the above contention. It is not believable that appellant Balkar Singh was carrying wheat chaff (Turi) which was harvested by combine in his tractor trolley and was not aware of three bags containing contraband in that trolley concealed under the wheat chaff. This raises very strong circumstance against appellant Balkar Singh to prove his conscious possession over the contraband carried in the trolley leading to presumption of his culpable mental state under Section 35 NDPS Act and presumption under Section 54 NDPS Act.
34. While recording statement of Balkar Singh under Section 313 Cr.P.C, he was confronted with entire incriminating circumstances appearing against him leading to the recovery of 105 Kgs of poppy-husk from the trolley in which he was sitting. However, the trial Court did not put a specific question to appellant Balkar Singh regarding his conscious possession over the contraband. While recording the statement under Section 313 Cr.P.C, appellant Balkar Singh was specifically apprised of the incriminating circumstances appearing in the evidence that he was sitting in the trolley from which three bags containing poppy-husk were recovered. In the charge-sheet framed on 08.08.2001, this fact was specifically mentioned that appellant Balkar and his co-accused were found in possession of 105 kgs of poppy-husk. The sample from the contraband were drawn in his presence. It is not a case where many persons were sitting in the tractor-trolley and it has to be determined as to from whose possession, the recovery was effected. Once appellant Balkar Singh was made aware of his possession of contraband article and the facts, circumstances and the evidence on file indicate his exclusive possession over the contraband, it was for him to explain the circumstances appearing against him regarding the recovery of contraband found in his possession which he has utterly failed to explain.
35. In case of Swaran Singh v. State Of Punjab 2011 (5) R.C.R (Criminal) 802, the above contention was examined by a Single Bench of this Court and it was observed as follows:-
“28. This Court is of the opinion that the view formulated by the Full Bench of this Court in Kashmir Singh's case (supra) is being misunderstood. It is not imperative for the Presiding Officer to use the words ‘conscious possession’ in the statement of accused under Section 313 Cr.P.C If the charge and the statement under Section 313 Cr.P.C state that the accused was found in possession of poppy husk or a contraband article and recovery of the same was effected and the samples were drawn, as it was done in the present case, the requirement of law is fulfilled. It is not a case where recovery was effected from many persons. Once the accused is made aware of his possession of a contraband article, it is for him to say and explain that he never knew the contents of the article, which was found in his possession. Therefore, the first question is answered against the appellant.”
36. In the case of Avtar Singh v. State of Punjab (2002) 7 SCC 419, Hon'ble Supreme Court has observed that the object of examination under Section 313 Cr.P.C, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him.
37. In case of Megh Singh v. State Of Punjab. (2003) 8 SCC 666, Hon'ble Supreme Court in para 17 and 18 observed as follows:-
“17. The decision in Avtar Singh v. State of Punjab (2002) 7 SCC 419 was rendered in a different factual background. In that case, the articles were being carried in a truck. There were several persons in the truck. It had not been established by evidence that any one of them had any conscious possession. That also was not the only factor taken note of. While the accused was examined under Section 313 of the Code of Criminal Procedure, 1973 (for shot “the Code”), the essence of accusations was not brought to his notice, more particularly with the possession aspect. It was also noticed that the possibility of the accused persons being labourers of the truck was not ruled out by the evidence. Since the decision was rendered on consideration of several peculiar factual aspects specially noticed in that case, it is of no assistance to the accused also.
18. Circumstantial flexibility, one additional or different fact may make a world of different between conclusion in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is more pronounced in criminal cases where the backbone of adjudication is fact-based.”
38. In the case of Gian Chand v. State of Haryana 2013 AIR (SC) 3395, three occupants of a jeep were coming at high speed but on witnessing the police party, they took U-turn and in the process hit the wall of a house and tried to run away but were caught and recovery of ten bags containing 41 kgs of poppy-husk in each bag, was effected from the jeep. While discussing the scope of Section 313 Cr.P.C it was observed that the citation Avtar Singh v. State of Punjab (supra), does not lay down the law of universal application as it has been decided on its own facts. The Hon'ble Supreme Court in other similar cases while referring to its observations in case Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR 2011 SC 200, observed as follows:-
“In Paramjeet Singh @ Pamma v. State of Uttarakhand, (supra), after considering large number of cases on the issue, this Court held as under:-
“Thus, it is evident from the above that the provisions of Section 313 Cr. P.C make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of an inadvertent omission on the part of the court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court”
39. Appellant Balkar Singh has not only failed to discharge the presumption arising against him under Section 54 NDPS Act but has also not explained as to what prejudice was caused to him by not putting to him his “conscious possession” of contraband recovered from vehicle owned by him in which he himself was sitting over the contraband concealed under the wheat chaff (Turi). In the facts and circumstances of this case, presumption of culpable mental state can be safely drawn against him.
40. In view of the facts and circumstances discussed above, this question is answered against appellant Balkar Singh and in favour of appellant Gurbachan Singh.
Conclusion
41. As a sequel of my above discussion, the appeal filed by appellant Gurbachan Singh bearing No. CRA-S-1033-SB of 2007 has merits and the same is allowed. The prosecution has failed to prove the charge for the offence punishable under Section 15 NDPS Act against appellant Gurbachan Singh beyond shadow of reasonable doubt, hence, giving benefit of doubt, he is acquitted of the charge framed against him. The judgment of the trial Court convicting and sentencing him for the offence punishable under Section 15 NDPS Act is set aside.
42. The appeal filed by appellant Balkar Singh bearing No. CRA-S-1144-SB of 2007 has no merits and the same is dismissed. The judgment of the trial Court convicting him for the offence punishable under Section 15 NDPS Act and the sentence awarded to him are maintained. Appellant Balkar Singh, who is on bail, be taken into custody and sent to jail to undergo the remaining part of sentence awarded to him.
43. Copy of this judgment be sent to the trial Court and the Chief Judicial Magistrate, Kapurthala for taking appropriate action.
Comments