Karnail Singh, Manphool Singh, Shiv Kumar and Others vs State of Punjab

Kanwaljit Singh Ahluwalia, J.—Criminal Appeal No. 540-SB of 2002 has been preferred by Karnail Singh son of Bir Singh, Mohinder Singh and Ginder Singh, both sons of Nihal Singh, all residents of village Bajigar, Dhuri, District Sangrur.

Criminal Appeal No. 733-SB of 2002 has been instituted by Manphul Singh son of Hira Lal, resident of village Ahwan, Police Station and District Fatehabad, Haryana, and Kundan Singh son of Lakhan Thakur, resident of Dehradun, Uttar Pradesh, whereas Criminal Appeal No. 26-SB of 2003 has been instituted by Shiv Kumar son of Bhagwan Dass, resident of House No. 54, Aligarh, Uttar Pradesh.

All the appellants were found guilty of offence u/s 15 of the Narcotics and Psychotropic Substances Act, 1985 (hereinafter referred to as "1985 Act") by the Court of Judge, Special Court, Sangrur, vide judgment dated 14.3.2002. Vide separate order passed on the same date, they were sentenced to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs. 1,00,000/- each, in default whereof to further undergo rigorous imprisonment for a period of two years each.

Since these three appeals are directed against the judgment of conviction and order of sentence dated 14.3.2002, rendered by the Court of Judge, Special Court, Sangrur, the same shall be decided by a common judgment.

All the appellants on 8.5.1994 at about 7.20 A.M., in the area of village Kakkarwal, were found in unlawful possession of 14 gunny bags of poppy husk each weighing 36 Kgs. These gunny bags were loaded in the Tempo bearing registration No. DDL-3795. For this act, they were named as accused in case FIR No. 61 dated 8.5.1994, registered at Police Station Dhuri, u/s 15 of the 1985 Act.

For deciding all the three appeals, it will be necessary to notice the facts as they emanate from FIR Ex.PB/1, which was registered on the basis of ruqa Ex.PB sent by PW.2 Gurbhajan Singh, Sub Inspector/Station House Officer of Police Station Dhuri. On 8.5.1994, at about 3.50 A.M., Gurbhajan Singh, Sub Inspector, along with his companion police officials, was going in a Government vehicle Allwyn Nissan bearing registration No. PB-13-B-1576, driven by Suresh Kumar, Constable, in connection with the raids on hideouts. When the police party arrived at Rode Phakat in village Kakkarwal, then one Tempo bearing registration No. DDL-3795, coming from their front side, was made to stop. The driver of the Tempo was asked to switch on the light of the cabin. On the other side of the cabin near the window of cleaner Karnail Singh alias Kaila son of Biru, who indulges in sale and purchase of poppy husk, was found sitting. Along with Karnail Singh, another young man was sitting. Gurbhajan Singh, Sub Inspector, alighted from the Allwyn Nissan and went towards the Tempo. During this period, Karnail Singh had jumped out of the Tempo and decamped from the spot. Harnek Singh, Assistant Sub Inspector, and Gurmail Ram, Punjab Home Guard, were asked to chase Karnail Singh. The Tempo was surrounded by the police personnel. On checking, it was found that the Tempo was loaded with gunny bags and three persons were sitting upon them. Out of those three persons, Joginder Singh, Assistant Sub Inspector, had identified two persons as Mohinder Singh and Ginder Singh. Both of them also jumped out of the Tempo and ran towards the fields. Joginder Singh, Assistant Sub Inspector, had followed those persons. The third person, who was sitting on the bags, was apprehended and disclosed his name as Manphul Singh. Kundan Singh was the driver of the Tempo and Shiv Kumar was sitting with him. The persons apprehended at the spot had disclosed that the gunny bags contained poppy husk. The Deputy Superintendent of Police, Malerkotla, was sent a wireless message with a request to reach at the spot. Harnek Singh, Assistant Sub Inspector, was directed to bring weights and scales, empty bags and independent persons. Jagjit Singh Gill, Deputy Superintendent of Police, had arrived at the spot along with his Gunman. Harnek Singh, Assistant Sub Inspector, returned back accompanied by PW. Dharam Singh. In the presence of Deputy Superintendent of Police, Malerkotla, search of 14 gunny bags was conducted. Two samples of 250 grams each of poppy husk were drawn from the bags and 14 gunny bags containing case property weighed 35 kgs. 500 grams each. Gurbhajan Singh, Sub Inspector, and Jagjit Singh Gill, Deputy Superintendent of Police, had affixed their seals on the samples and the case property. A memo Ex.PA reflecting recovery of the contraband article was prepared at the spot. The personal search of the accused, apprehended at the spot, was carried and rough site plan Ex.PC of the place of recovery was also prepared.

The above said FIR was investigated. The accused were arrested and the report u/s 173 Cr.P.C. was submitted.

The accused were charge sheeted by the trial Court to which they pleaded not guilty and claimed trial.

Gurbhajan Singh, Sub Inspector, who was the then Station House Officer at Police Station Dhuri, appeared as PW.2. He stated that on 8.5.1994, he along with Joginder Singh, Harnek Singh, Assistant Sub Inspectors and other police officials, was going in a Government vehicle towards village Kakkarwal through katcha path from village Kaheru in connection with raid on hideouts of the criminals. At about 3.50 A.M., one Tempo bearing registration No. DDL-3795 was seen coming from the opposite side. When the same crossed away the railway track, it was stopped. The driver of the Tempo was asked to switch on the light of the cabin. In the light, Karnail Singh, accused present in the Court, was seen sitting near the window of the cleaner side. Two more persons including driver were sitting with Karnail Singh. While this witness, after alighting from the Government vehicle, was going towards the Tempo, Karnail Singh jumped out and fled away. Harnek Singh, Assistant Sub Inspector and Jagmel Ram, Punjab Home Guard, were asked to chase Karnail Singh. Thereafter, in the back of the vehicle, three persons were found sitting on the gunny bags. Joginder Singh, Assistant Sub Inspector, told that Mohinder Singh and Ginder Singh were among the three persons who were sitting on the bags. They had also jumped out of the Tempo and ran away. Manphul Singh was the third person who was sitting in the back of the Tempo and was apprehended. The name of two persons including the driver were learnt as Kundan Singh and Shiv Kumar. A ruqa Ex.PB was prepared, proceedings were carried, arrest of the accused was effected and 14 gunny bags were taken into possession. The samples taken were exhibited as Ex.P3 to Ex.P16 and gunny bags as Ex.P17 to Ex.P30. On 24.5.1994, all the three persons, who escaped from the Tempo, were arrested. In cross-examination, this witness admitted that Karnail Singh, Mohinder Singh and Ginder Singh were neither the owners nor the drivers of the Tempo. This witness further admitted that the alleged recovery was effected between sunset and sunrise. It was a dark night. They had left the Police Station at about 3.05 A.M. from where the place of recovery was at a distance of 2 Kms. This witness has stated that it was not in his knowledge that Dharam Singh, who was brought to the spot by Harnek Singh, Assistant Sub Inspector, was the stock witness of the police. He further stated that when the accused were produced before the Illaqa Magistrate, the case property was not produced. In cross-examination, this witness stated that the persons, who ran away from the spot, were arrested from Sherpur Bye-pass, Dhuri and their particulars were told to him by the other accused as well as the police officials. He further stated that Manphul Singh was the resident of village Aherwan in District Fatehabad, Haryana, whereas Kundan Singh was resident of Dehradun, Uttar Pradesh.

PW.5 Joginder Singh, Assistant Sub Inspector, corroborated the testimony of PW.2 Gurbhajan Singh, Sub Inspector. This witness had flashed torch light on the back of Tempo where the alleged gunny bags were lying and three persons were found sitting. In his presence, Mohinder Singh and Ginder Singh ran away from the spot. On all the material aspects, this witness reiterated as to what was stated by PW.2 Gurbhajan Singh, Sub Inspector. In cross-examination, this witness stated that no search warrant u/s 42 of the 1985 Act was taken by the Investigating Officer before conducting search of the Tempo. It is further admitted that Karnail Singh, Mohinder Singh and Ginder Singh were neither the owners nor the driver of the Tempo. He further admitted that the case property was not produced before the Illaqa Magistrate. This witness also stated that he is not in a position to divulge any information as to whether Dharam Singh was the stock witness or not.

Jagjit Singh Gill, Deputy Superintendent of Police, who was requested to arrive at the spot by PW.2 Gurbhajan Singh, Sub Inspector, appeared as PW.1. In his presence, the recovery was effected and he had attested the recovery memo Ex.PA. In cross-examination, this witness stated that on 8.5.1994, he was working as Deputy Superintendent of Police in his own rank and pay and was holding a substantive rank of Inspector. He became a regular Deputy Superintendent of Police in the year 1995. This witness further stated that he had not brought the log book of the vehicle in which he reached at the spot. He withstood the test of cross-examination.

PW.3 Gurdip Singh, Constable, had tendered into evidence his affidavit Ex.PM to prove link evidence. He stated that on 16.5.1994, Pritpal Singh, Moharrir Head Constable, had handed him over 14 samples for depositing in the laboratory of Chemical Examiner at Chandigarh. After getting the dockets issued from the office of the Senior Superintendent of Police, the samples were deposited in the laboratory of Chemical Examiner at Chandigarh on 17.5.1994. In cross-examination, this witness stated that till these samples were in his possession, the same remained intact and were not tampered with. He admitted that earlier he had given affidavit dated 18.8.1994 Ex.DA. He further stated that on 16.5.1994, he stayed for a night in Police Lines, Sangrur. He further stated that he did not know as to whether on the same day, he had taken other samples also. This witness further stated that after the samples were entrusted to him and dockets were issued, he had not deposited the same in malkhana of the Police Station but on the next day he had deposited the same in the laboratory of the Chemical Examiner.

PW.4 Pritpal Singh, Moharrir Head Constable, had tendered into evidence his affidavit Ex.PN. In cross-examination, he admitted that he had given another affidavit Ex.DB duly attested from the Judicial Magistrate Ist Class, Dhuri.

After tendering into evidence the report of Chemical Examiner Ex.PX, the prosecution had closed its evidence.

The statements of the accused were recorded u/s 313 Cr.P.C. All the incriminating evidence was put to them but they denied the same and pleaded their false implication due to enmity with the police.

Accused Ginder Singh, in defence, had tendered copy of judgment dated 21.11.1997 as Ex.DA and photocopy of report u/s 173 Cr.P.C. as Mark A.

Mr. Vivek Singla, Advocate, appearing for the appellants, has contended that in the present case, the independent witness Dharam Singh, who was associated by the raiding party, was given up as won over without giving a valid reason and explanation. It was further contended that the entire prosecution case rests upon the testimony of police personnel. It is a case of chance recovery. Therefore, examination of the independent witness was imperative especially when out of the six accused, three were stated to have decamped from the spot. It was further submitted that in the present case, no test identification parade was conducted qua the three persons who allegedly ran away from the spot. In support of this contention, learned Counsel has relied upon a judgment rendered in Buta Singh v. State of Punjab 2006 (1) R Cri R 835.

Learned Counsel has also urged that in the present case, two persons, who were sitting on the back of the vehicle and the driver cannot be held to be in conscious possession. No question to this effect was recorded u/s 313 Cr.P.C. Therefore, the present appellants are entitled to acquittal.

It was brought to the notice of this Court that in the present case recovery was effected on 8.5.1994 and on the same day the samples were drawn but PW.3 Gurdip Singh, Constable, had deposited the samples in the office of the Chemical Examiner on 17.5.1994. Thus, there was a delay of nine days in sending the samples. To support this contention, reliance was placed upon judgment rendered in Baldev Singh v. State of Punjab 2005 (1) R Cri R 823. It was held in this judgment that as per the standing instruction No. 1/88 dated 15.3.1988 issued by the Narcotic Control Bureau, New Delhi, a sample of contraband article should be sent to the Chemical Examiner within 72 hours of its seizure to avoid any legal objection. It was further urged that in the present case, the seal was not handed over to the independent witness. A reliance was also placed upon the judgment rendered by a Division Bench of this Court in Tarsem Singh v. State of Punjab 2005(4) R Cri R 300, wherein it was held that until it was proved that the vehicle is owned by the accused or he was driver of the vehicle, no conviction can be sustained. Relying upon the testimony of witnesses, it was urged that Karnail Singh, Mohinder Singh and Ginder Singh were neither the owners nor the driver of the vehicle.

Learned Counsel for the State has urged that the testimony of the police witnesses aspire confidence.

I have given my thoughtful consideration to the arguments advanced before this Court and have perused the record of the case.

The questions No. 1 and 2 put to the accused u/s 313 Cr.P.C., read as under:

Q.1. It is in evidence against you and your co-accused namely Ginder Singh and Karnail Singh and Manphool Singh, Kundan Singh and Shiv Sharma that you were apprehended on 8.5.94 by SI Gurbhajan Singh in the area of Kaheru in the presence of other PWs while you all were coming on tempo No. DDL-3795 while you and your co-accused Ginder Singh and Karnail Singh ran away from the spot leaving behind the tempo containing 14 bags of poppy husk and your co-accused Manphool Singh, Shiv Kumar and Kundan were apprehended. What do you have to say about it.

A. It is incorrect.

Q.2. It is in evidence against you and your co-accused that then SI Gurbhajan Singh sent wireless message to DSP Mkl. with the request to reach at the spot who after some time reached at the spot and disclosed his identity to your co-accused namely Manphool Singh, Kundan Singh and Shiv Kumar Sharma and then on his direction IO conducted the search of the tempo and same was found to contain poppy husk. Two samples of 250/250 gms each were taken out from each bag and remaining poppy husk on weighment comes to 35 killo 500 gms in each bag. All the parcels were duly sealed with the seal of GS and seal of DSP JS. All the parcels along with tempo and R.C. were taken into possession through memo Ex.PA. What do you have to say about it.

A. It is incorrect.

Thus, it cannot be said that the accused were not made aware of the fact that the recovery was effected from them. Once it is brought to the notice of the accused that the poppy husk was recovered from their possession, it is for them to explain that they were not in the conscious possession of the contraband. This Court in Swaran Singh v. State of Punjab Criminal Appeal No. 40-SB of 2002, decided on 17.3.2010, observed as under:

A perusal of these questions shows that it was brought to the notice of the accused that he is in possession of some intoxicant material. It was further told to him that the search had resulted into recovery of poppy husk from 25 bags. The accused was also acquainted with the fact that a sample of 250 grams of poppy husk was separated from each bag and remaining poppy husk weighing 34 kilograms and 750 grams was taken into possession. Once, it is disclosed to the accused in his statement recorded u/s 313 Cr.P.C. that poppy husk has been recovered, is it necessary to say in exact words that the possession of the accused was conscious. The statement of the accused recorded u/s 313 Cr.P.C. is a statement without oath. The object of this statement is to make the accused aware of incriminating circumstances. When the accused is told that a contraband article, as in the present case poppy husk, has been recovered, he is made aware that he is in possession of something which is not legally permissible. It is at that stage for the accused to say that his possession was not conscious and he was transporting the contraband article without knowing its contents. Merely because the words ''conscious possession'' were not used, the statement recorded u/s 313 Cr.P.C. will not be rendered a nullity. A perusal of the conclusion arrived at in Kashmir Singh''s case (supra) makes it apparent that an opportunity should be given to the accused to rebut the presumption regarding his possession. Therefore, in the humble opinion of this Court, it is not necessary that the words ''conscious possession'' should also be used in the statement u/s 313 Cr.P.C. A reference can be made to Hari Singh''s case (supra), where in para 17 it was observed by their Lordships as under:

Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. This possession was highlighted in Madan Lal and Anr. v. State of Himachal Pradesh 2003(4) RCR (Criminal) 100 : 2004 (1) Apex Criminal 426 : 2003 (6) SCALE 483.

A perusal of the above observation makes it clear that the prosecution has to establish the possession. It is for the person, who claims himself to be not in a conscious possession, to establish as to how he came into possession, as the same is within his special knowledge. Counsel for the appellant has made reference to para 18 of Hari Singh''s case (supra), which reads as under:

In the present case, though, there was evidence regarding conscious possession, but, unfortunately, no question relating to possession, much less conscious possession was put to the accused u/s 313 Cr.P.C. The questioning u/s 313 Cr.P.C. is not an empty formality.

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 u/s 313 Cr.P.C. If the charge and the statement u/s 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.

Regarding delay in sending the samples also, in the above said appeal, this Court had formulated the following view:

No doubt, the delay in sending the sample and not handing over the seals to the independent person are the circumstances which cause dent in the prosecution case, but they in themselves are not sufficient to record acquittal of the accused. The delay depends on facts and circumstances of each case. In those cases, where the testimony of official witnesses aspires confidence, there is no need for the Court to look for safeguards. Where the Court is not in a position to place implicit reliance upon the testimony of witnesses, it may consider these circumstances as having eroded the prosecution case. Therefore, the first and the foremost duty of the Court is to appraise the testimony of the witnesses. Where the witnesses are wholly reliable, the delay in lodging of the FIR is not per-se fatal. Similarly, where the testimony of witnesses aspire confidence, simply because the sample was sent late and the seal was not handed over to the independent witness, will not be sufficient to throw the testimony of the witnesses to the wind.

Having held the same, this Court has to apprise the evidence of PW.1 Jagjit Singh Gill, Deputy Superintendent of Police and PW.2 Gurbhajan Singh, Sub Inspector. These witnesses were subjected to searching cross-examination. The defence failed to cause any dent. These witnesses were categoric that the recovery of 14 bags were effected from the accused. Thus, delay in sending the samples itself will not render the prosecution case doubtful. However, this Court is of the view that three appellants namely Karnail Singh, Mohinder Singh and Ginder Singh were not arrested at the spot. It is improbable that in the presence of the contingent of the police, these witnesses could be allowed to escape. The entire version regarding escape of these three appellants is improbable. It cannot be ruled out that once the recovery was effected, the police officials in overzeal had inflated the number of accused. It has been admitted by these witnesses that Karnail Singh, Mohinder Singh and Ginder Singh were neither the owners nor the driver of the vehicle. Thus, as a matter of abundant caution, benefit of doubt can be extended to these three appellants.

Hence, Criminal Appeal No. 540-SB of 2002 preferred by Karnail Singh, Mohinder Singh and Ginder Singh is accepted. The conviction and sentence imposed upon these appellants is set aside and they are acquitted of the charge.

However, there is no merit in Criminal Appeals No. 733-SB of 2002 preferred by Manphul Singh and Kundan Singh, and No. 26-SB of 2003 preferred by Shiv Kumar and the same are dismissed.