Kuldeep Singh vs State of Punjab

M. Jeyapaul, J.—Accused Kuldeep Singh was convicted for the offence u/s 15 of the NDPS Act and was sentenced to undergo 10 years R.I. and to pay a fine of Rs. 1 lac and in default to further undergo R.I. for 1 year. Though the prosecution was laid as against accused Kuldeep Singh and accused driver Bittu, driver Bittu has absconded and consequently, he was declared as Proclaimed Offender.

The prosecution story reads a follows: On 9.6.1999, PW2 S.I. Tehal Singh proceeded for patrolling and checking the suspected vehicles. When he reached Basti Jodhewal Chowk, he received a secret information. Based on the secret information he prepared ruqqa (Ex.PC) and despatched to the Police Station for registration of a formal FIR. Accordingly, ASI Lakhwinder Singh registered a formal FIR (Ex.PC/1). Immediately after despatching the ruqqa for registration of a formal FIR, he passed on a message to DSP Harmohan Singh to reach the chowk of Khasi Kalan. The raiding party headed by PW3 stopped a truck coming from the side of village Bhukhri without bearing any registration number. The truck was stopped. Accused Kuldeep Singh was apprehended on the spot, but the driver of the truck had sped away from the scene of occurrence. Accused Kuldeep Singh was informed of his right to insist for search by a Gazetted Officer or a Magistrate. As per the above right exercised by him, PW5 DSP Harmohan Singh who was present having disclosed his identity to the accused participated in the search that was conducted. Five gunny bags containing poppy husk was recovered from the truck. Two samples of 250 gms. each were separated and converted into parcels from each of the bags. The remaining content of the bags weighed 341/2 kgs. each. All the 10 sample parcels and 5 gunny bags containing the remaining poppy husk were sealed by PW3 with his seal bearing impression ''TS''. Sample seal chit was prepared. The seal after use was handed over to PW4 ASI Dharampal. The case property was taken into possession by the investigating officer. Accused was arrested. A sum of Rs. 740/- was recovered on personal search of the accused. PW3 SI Tehal Singh deposited the case property with MHC Balbir Singh with the seals intact. The samples were sent for examination. The FSL report (Ex.PH) would show that the sample contained Churra Poppy Heads. Challan was laid as against the accused.

Accused Kuldeep Singh come out with a total denial as regards the incriminating circumstances brought to his notice u/s 313 Code of Criminal Procedure

The trial Court having relied upon the evidence of PW1 MHC Balbir Singh, PW3 SI Tehal Singh, PW4 ASI Dharampal and PW5 DSP Harmohan Singh in the background of FSL report returned a verdict of conviction as against the accused.

Learned Counsel appearing for the Appellant would submit that independent witness Jagtar Singh was not examined by the prosecuting agency. The seal was not handed over to the independent witness. The sample was not sent in time. There was no explanation from the prosecuting agency as to what happened to the sample which was returned by the FSL on 14.6.1999 till 26.9.1999 when it was redespatched to the FSL. The mandatory provision u/s 42 of the NDPS Act was not adhered to by PW3. It was his last submission that the conscious possession of the narcotic drugs by the accused was not established by the prosecution, nor was any question put to the accused u/s 313 Code of Criminal Procedure as to his conscious possession of the narcotic drugs. Therefore, it is his submission that the accused is entitled to acquittal.

Per contra, Mr. Sandeep Moudgil, learned DAG, Punjab appearing for the State would submit that non-examination of the independent witness does not go to the root of the case, inasmuch as, the other witnesses have categorically spoken to the recovery of the narcotic drugs from the possession of the accused. Of course, there was some delay in sending the sample to the FSL, but mere delay in sending the sample does not materially effect the case of the prosecution, inasmuch as, the FSL Report would disclose that the sample was received by them intact. It is his further submission that ruqqa (Ex.PC) did contain the secret information received by PW3 and the same was the basis for the formal FIR recorded by the ASI Lakhwinder Singh. It is his further submission that DSP Harmohan Singh was very much present immediately on an information shared by PW3 and therefore, the question of non-compliance of the mandatory provision u/s 54 of the NDPS Act does not arise for consideration. Drawing the attention of this Court of the provisions u/s 42 of the NDPS Act, learned DAG, Punjab would submit that conscious possession will have to be presumed once the prosecution has established that narcotic drug was in fact recovered from the possession of accused Kuldeep Singh. Therefore, it is his submission that the judgment of the trial Court does not call for interference.

PW13 SI Tehal Singh was the head of the raiding party. He has categorically deposed that as per the secret information received, he stopped the truck without any number coming from the side of village Bhukhri and searched the truck in the presence of PW5 DSP Harmohan Singh and found 5 gunny bags of poppy husk in the truck. Though accused Kuldeep Singh was arrested, the driver of the truck, namely, Bittu gave a slip to the raiding party. He has also spoken to drawal of two samples of 250 gms. from each of the gunny bags. PW1 MHC Balbir Singh has spoken about the deposit of the sample contraband by PW3, the despatch of sample to the FSL on 14.6.1999 and redespatch of the sample after compliance of the return by the FSL on 29.6.1999. The FSL report (Ex.PH) disclosed that the sample was received with the seal intact and the same was subjected to analysis and the sample contained Churra Poppy Heads. PW5 DSP Harmohan Singh who participated on the request made by PW3 in the search conducted on the truck would also speak about the recovery made from the accused as spoken to by PW3. PW4 ASI Dharampal who was also present during the process of search has also lent corroboration to the case of the prosecution.

Of course, no independent witness was examined in this case. The prosecution has failed to examine the only independent witness Jagtar Singh who was associated for the purpose of search. The prosecuting agency should have examined the independent witness Jagtar Singh in all fairness to support the case of the prosecution. But, when the prosecution could establish the charge as against the accused under the NDPS Act by examining the other witnesses whose evidence inspires confidence, the non-examination of the independent witness Jagtar Singh would not cut the root of the case. The Court also cannot simply ignore the current trend in the society that no independent witness volunteers to give evidence against an accused.

The investigating official PW3 should have handed over the sample seal to the independent witness Jagtar Singh, but it appears that the sample seal was entrusted to PW4 ASI Dharampal. The law does not mandate that seal should be entrusted to only an independent witness. It is only out of precaution it is suggested that the sample seal should be entrusted to an independent witness. I do not doubt the veracity of the evidence of PW4 ASI Dharampal as to the proper custody of the sample seal entrusted to him. Therefore, the non-entrustment of the sample seal with the independent witness Jagtar Singh does not weaken the case of the prosecution. The records would reflect that sample collected from the bulk quantity of 5 gunny bags were despatched by PW1 MHC Balbir Singh on 14.6.1999 to FSL, but the FSL returned the sample forthwith to the Police Station on the ground that the docket sent alongwith the sample was found defective. It is not as if the sample was returned on a specific ground that the seal was tampered with. It is true that there has been some delay in sending the sample to the FSL. Every delay in sending the sample to the FSL would not prove fatal to the case of the prosecution. It appears that the recovery was made on 9.6.1999 by the PW3. The sample was duly deposited with PW1 MHC Balbir Singh. He having got the sample intact with seal, despatched the same on 14.6.1999. PW1 has taken some time to comply with the return and redespatch the same to FSL on 29.6.1999. Inasmuch as, the FSL report would disclose that the sample received from the police Malkhana was found intact. I do not entertain any doubt with respect to the sample collected and sent for examination by the FSL.

Section 42 of the NDPS Act would mandate the raiding police official to go in for search of suspected contraband either based on his personal knowledge or based on the information shared by other and taken down in writing. The raiding officer who takes down any such information in writing has been mandated to send a copy of such information reduced into writing to the higher officer within 22 hours.

In the instant case, the secret information passed on to PW3 was reduced into writing in the form of ruqqa. A ruqqa contained virtually the information shared by an informer to PW3. When the ruqqa which was prepared contained virtually the secret information shared by a third party to the raiding official, preparation of a separate document containing the secret information is found superfluous. In the instant case, the ruqqa was sent to the police station for the purpose of registering a formal FIR. The DSP concerned, who is the superior officer of PW3 has been duly informed by PW3 and the DSP who was examined as PW5 came down to the raiding place to oversee the search that was to be conducted by PW3. Inasmuch as, the superior officer PW5 DSP Harmohan Singh was duly informed of the raid to be conducted by PW3, and the ruqqa containing a secret information was also despatched to the police station concerned. I find that PW3 has sufficiently complied with the mandates u/s 42 of the NDPS Act.

Learned Counsel appearing for the Appellant citing a decision of the Hon''ble Supreme Court would contend that the prosecution has miserably failed to establish the conscious possession of the narcotic drugs by accused Kuldeep Singh. In Avtar Singh v. State of Punjab 2002 (4) RCR (Crl.) it has been held as follows:

Possession is the core ingredient to be established before the accused in the instant case are subjected to the punishment u/s 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of Clause (xiv) of Section 2, it is for them to account for such possession satisfactorily; if not, the presumption u/s 54 comes into play. We need not go into the aspect whether the possession must be conscious possession. Perhaps taking clue from the decision of this Court in Inder Sain Vs. State of Punjab, arising under the Opium Act, the learned trial Judge charged the accused of having conscious possession of poppy husk. Assuming that poppy husk comes within the expression poppy straw, the question, however, remains whether the prosecution satisfactorily proved the fact that the accused were in possession of poppy husk. Accepting the evidence of PW 4 the Head constable, it is seen that Appellant No. 3 (Accused No. 4) was driving the vehicle loaded with bags of poppy husk. Appellants 1 and 2 (Accused Nos. 1 and 2) were sitting on the bags placed in the truck. As soon as the vehicle was stopped by ASI (PW 2), one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. No investigation has been directed to ascertain the role played by each of the accused and the nexus between the accused and the offending goods. The word ''possession'' no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three Appellants one of whom was driving the vehicle and other two sitting on the bags, were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from evidence that the Appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods.

That was a case where the driver of the vehicle loaded with bags of poppy husk and two persons sitting on the bags placed in the truck were charged with an offence u/s 15 of the NDPS Act. The Hon''ble Supreme Court in the facts and circumstances of the said case having found that no investigation was conducted to ascertain the role played by each of those accused and the nexus between the accused and offending goods held that the prosecution failed to establish the conscious possession of those accused in the said case. It appears that one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled away from the truck at the time when the truck was intercepted. When the prosecuting agency could not zero in on the exact role of those persons who had already fled away from the scene of occurrence, the Hon''ble Supreme Court found that it was difficult to establish the case of the prosecution that it was only the driver and two persons sitting on the bags placed in the truck alone who were the proprietors and the contraband were in their conscious possession. In the instant case, apart from the driver, accused Kuldeep Singh was the only person who travelled in the truck. It is not as if a small quantity of contraband was found in the truck driven by the absconding driver. In such a case the Court can presume that the driver might have kept such a small quantity of contraband in the truck even without the knowledge of the person who travels in the truck. The prosecution has come out with a case that 5 big bags of poppy husk were found in the truck. Therefore, there could be no one except the accused who could be the proprietors having conscious possession of the contraband.

Yet another decision of the Hon''ble Supreme Court in State of Punjab v. Balkar Singh and Anr. 2004 SCC (Cri.) 838 was also cited by the learned Counsel appearing for the Appellant. That case also is factually distinguishable. That was a case where some persons were found sitting on 100 bags of poppy husk in a field. In such a scenario, the Hon''ble Supreme Court held that no inference can be drawn from the fact that such persons were sitting upon a large number of bags of poppy husk in a field that they were the proprietors of those poppy husk and they were in conscious possession thereof. In the instant case, accused Kuldeep Singh was the only person travelling in the truck alongwith the driver. The possession of those poppy husk from the truck in which the accused was found travelling was established by the prosecution u/s 54 of the NDPS Act. The Court can draw an inference that the accused from whose possession 5 bags of poppy husk were recovered was in conscious possession thereof. In my considered view, both the above decisions of the Hon''ble Supreme Court would not apply to the facts and circumstances of this case.

I find that the trial Court having thoroughly analyzed the evidence on record and applying the correct principles of law returned a verdict of conviction as against the accused. There is no warrant for interference with the well merited judgment of the trial Court. Therefore, confirming the judgment of the trial Court, the appeal stands dismissed.

If Appellant Kuldeep Singh is on bail, his bail bonds stand cancelled. The Chief Judicial Magistrate shall take necessary steps in accordance with the provisions of law to comply with the judgment within 15 days from the date of receipt of certified copy of this order.