Lakhvinder Singh vs State of Haryana

P.K. Jain, J.

This appeal is directed against the judgement/order dated March 1, 1995 and March 2, 1995 passed by Additional Sessions Judge, Kaithal whereby the appellant has been convicted for an offence under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1 lac and in default of payment of fine to further undergo rigorous imprisonment for two years.

The prosecution case lies in a narrow compass. On 15.10.1991, Sub Inspector Deep Chand of Police Station Guhla alongwith other police officials was on patrolling duty and was passing through Agondh in the area of Daban Kheri. He noticed that one person had concealed himself behind the heap of ''Paroli''. On suspicion, he was detained and questioned. On suspicion ''Paroli'' was removed and 36 bags were found lying concealed therein. Sub Inspector Deep Chand wanted to take search of the bags and as such made an offer to the appellant, if he wanted the search to be made by him or a Gazetted Officer. The appellant gave his consent vide memo Ex. PF that the search could be taken by the said Sub Inspector. On taking search of the bags, the same were found to contain poppy husk. Each of the 36 bags was found to contain 40 kilograms of poppy husk. One sample weighing 250 grams of the contents was taken out from each of the said 36 bags, the said samples and the gunny bags were then sealed with the seal of DC and were seized vide memo Ex. PC. Sample of the seal impression was also retained and the seal after use was handed over to Head Constable Suraj Bhan. Ruqa Ex. Ex. PD was sent to the Police Station on the basis of which First Information Report of this case was recorded, copy of which is Ex.PD/1.

Site plan of the spot of occurrence was prepared. The appellant was arrested. The appellant and the gunny bags were produced before the D.S.P. who checked the contents of the gunny bags and resealed with the seal of RS. The samples were sent to the Forensic Science Laboratory and on the receipt of the report of the Chemical Examiner, the investigation was completed and a chargesheet was filed against the appellant.

A charge under section 15 of the Act was framed against the appellant which he denied and claimed trial.

In support of its case, the prosecution examined five witnesses. M.H.C. Rama Nand (PW1) has tendered his affidavit Ex. PA regarding the deposit of the case property and sample seal with him. Constable Balwan Singh (PW2) has also tendered his affidavit Ex.PB. He had taken the sealed parcels alongwith the sample seals and deposited the same in the office of the Forensic Science Laboratory. Head Constable Vijender Singh (PW3) is a witness of recovery. A.S.I. Ajmer Singh (PW4) had recorded formal First Information Report of this case, copy of which is Ex.PD/1. S.I. Deep Chand (PW5) is the Investigating Officer who is alleged to have recovered the contraband from inside the ''Paroli''.

After the close of the prosecution case, the appellant was examined under section 313 of the Code of Criminal Procedure, wherein he denied allegations of the prosecution and pleaded innocence and stated that he had been falsely implicated.

While placing reliance upon the testimony of various witnesses examined by the prosecution as well as the report of the Chemical Examiner and disbelieving the defence version, the Additional Sessions Judge, Kaithal convicted and sentenced the appellant as stated above. Feeling aggrieved, the convict has come in appeal.

I have heard the counsel for the parties who have taken me through the record of the trial court.

Although Shri K.S. Dhaliwal, Advocate, the learned counsel for the appellant, has assailed the conviction and sentence of the appellant on several grounds yet it is not necessary to make a reference to all of them. The vital question which falls for decision in this appeal is as to whether the prosecution has established beyond doubt that the appellant was in possession of the said 36 gunny bags containing poppy husk.

The term "possession" has not been defined in the Act nor it is possible to work out a completely logical and precise definition of this term uniformly applicable to all situations in the context of all the statutes. In the Dictionary of English Law (Earl Jowitt) (1959), at p. 1367, "possession" is defined as: "Possession", the visible possibility of exercising physical control over a thing coupled with the intention of doing so, either against all the world, or against all the world except certain persons. There are, therefore, three requisites of possession. First there must be actual or potential physical control. Secondly physical control is not possession, unless accompanied by intention; hence, if a thing is put into the hand of a sleeping person, he has not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed...." This definition has been recognised by the House of Lords in a well known case reported as Warner v. Metropolitan Police Commissioner (1969)2 A.C. 256 which has been followed with approval by the Supreme Court of India in Inder Sain v. State of Punjab, AIR 1973 SC 2309. Thus, the term "possession" would imply dominion and control. A person cannon be said to be in possession of an article if he is not in a position to exercise any dominion over it. The exercise of dominion would be possible only if there is knowledge of its existence or presence at a particular place. It is true that it is not necessary that the contraband must be found on the person of an accused or in his house alone. A person can be held responsible for something which was found on the premises, which are in his control but in such a case there should be something in the circumstances that the said person had the knowledge of the existence of the contraband on the said premises.

In the present case, even accepting the prosecution case at its best, the position that emerges is that no evidence was brought forward before the court in order to indicate that the land from where gunny bags were allegedly recovered belonged to the appellant or that he was in possession of that land and that he was dealing, holding or was concerned in any manner with the same. The learned trial court has approached this vital aspect of the matter from a very different angle and observed that the appellant himself had admitted that the field belonged to him, which finding is erroneous and without any support.

In the First Information Report copy of which is Ex.PD/1 there is no whisper even regarding the ownership or possession of the land in question by or of the appellant. Head Constable Vijender Singh (PW3) is a recovery witness. According to his testimony when they reached near the field of the appellant, the latter hid himself behind the heap of ''paroli''. This witness has nowhere stated that the heap of ''paroli'' was inside the field of the appellant. Sub Inspector Deep Chand (PW5) is main prosecution witness as well as the Investigating Officer. In his crossexamination he has categorically admitted that he does not know about the ownership of the land. With a view to improve the case, he has further stated that the accused admitted the same to be his own but he did not verify the ownership of the land from any corner. Thus no evidence was collected on this vital aspect of the case by S.I. Deep Chand as to whom this field belonged and as to who was in possession thereof at the relevant time. The mere fact that on seeing the police party, appellant hid himself behind the ''paroli'' cannot be said to be enough to hold that he was in possession of the ''paroli'' or the bags alleged to have been concealed therein. It is also important to note that in his examination under section 313 Cr.P.C., it was never put to him that the heap of ''paroli'' allegedly concealing 36 bags of poppy husk, was on the land belonging to him or in his possession. Suspicion, however strong, cannot take the place of proof. Thus there is not an iota of evidence on record to prove that on the alleged date, time and place, appellant was in possession of the alleged 36 bags of poppy husk. The finding of the trial court on this vital aspect of the matter, is erroneous and cannot stand the judicial scrutiny on the basis of the evidence available on the record. Therefore, I am constrained to hold that the prosecution has miserably failed to prove its case against the appellant.

As a result of the above discussion, this appeal is allowed. The conviction and sentence of the appellant are set aside and he is acquitted of the charge under section 15 of the Act. He shall be released forthwith, if not wanted in any other case.