Merely physical presence of accused in proximity with Contraband does not infer that accused was in conscious possession

Narcotic Drugs and Psychotropic Substances Act, 1985 Section 15 Conscious possession - Accused would be guilty of offence under Narcotic Drugs And Psychotropic Substances Act, if it is established that he was in conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity of the object - In the instant case two accused were sitting on two bags of poppy husk - Cannot be inferred that they were in conscious possession.

PUNJAB AND HARYANA HIGH COURT

Before :- Satish Kumar Mittal, J.
Criminal Appeal No. 136-SB of 1992. D/d. 23.11.2004

Baldev Singh - Appellant
Versus
State of Punjab - Respondent

For the Appellant :- Mr. A.P.S. Deol, Advocate.
For the Respondent :- Mr. S.S. Randhawa, A.A.G., Punjab.
Punjab and Haryana High Court, Chandigarh Judgments

ORDER

Satish Kumar Mittal, J. - This appeal is directed against the judgment and order dated 14.3.1992, passed by Additional Sessions Judge, Bathinda, vide which the appellant Baldev Singh has been convicted under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985
(hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lac.

2. As per the prosecution version, during the intervening night of 5/6.8.1990, when SI Balbir Singh along with other police officials was going for patrolling in the Govt. jeep No. PJB-3379 from Police Station City Mansa to the illaqa of City Mansa, one Piara Singh was associated. When the police party reached in the area of Mansa Khurd, the appellant and one Ghukar Singh (who died during the trial) were found sitting on two bags in a plot. On seeing the police party, they became perplexed and tried to slip away. On the basis of suspicion, they were apprehended. Option of search before some gazetted officer or the Magistrate was given to them, but they reposed confidence in the Investigating Officer. Thereafter, on search of the bags, poppy husk was recovered. From their personal search, Rs. 5/- and Rs. 10/- were recovered from the appellant and his co-accused Ghukar Singh, respectively. Samples of 250 grams each were taken from both the bags. The remaining poppy husk in both the bags, on weighment, was found 40 kgs. each. The samples as well as both the bags containing remaining poppy husk were sealed with the seal having impression B.S. and the recovered contraband with samples were taken into possession vide recovery memo Ex. PB. Thereafter, ruqa Ex PH was sent to the police station, on the basis of which formal FIR Ex. PH/1 was recorded by Gurcharan Singh Moharar Head Constable. The samples were sent for chemical examination. As per report of the Assistant Chemical Examiner, Ex. PG, the contents of the sample were of poppy husk. After completing the investigation, challan was filed against both accused and charge under Section 15 of the Act was framed, to which they did not plead guilty and claimed trial.

3. In order to prove the charges against the accused, the prosecution examined ASI Balwant Singh (PW-1) and SI Balbir Singh (PW-2). Affidavits of HC Gurcharan Singh, Ex. PE, and Constable Hari Ram, Ex. PF, were also tendered.

4. The appellant, in his statement recorded under Section 313 Criminal Procedure Code, denied the allegations and claimed himself to be innocent. He alleged that in fact a dispute took place between Ghukar Singh and one Gurdev Singh and that he had gone there to settle the matter. He further stated that the police apprehended Ghukar Singh and on this an altercation took place between him and the police, on which the police took him to the police station, where he was falsely implicated in this case. In defence, the appellant examined Ajmer Singh, Gurbax Singh and Constable Dalbir Singh.

5. On consideration of the aforesaid evidence led by both the parties, the trial court convicted and sentenced the appellant under Section 15 of the Act. Hence, this appeal.

6. Counsel for the appellant submitted that in this case, the prosecution has failed to prove the alleged recovery of the poppy husk from the conscious possession of the appellant. He submitted that from the statements of both the official witnesses, examined by the prosecution, neither recovery of the alleged contraband from the person of the appellant nor his conscious possession of the same has been proved, particularly when Piara Singh, the alleged independent witness, has not been examined by the prosecution to support the recovery of the alleged contraband from the possession of the appellant. Counsel further submitted that as per the prosecution version, when the police party saw the accused in the light of the jeep, they were sitting on the bags, lying in a plot, and on seeing the police, they tried to fleed away. The recovery of bags was effected from the plot. Thereafter, search of the bags was conducted, which were found to be containing poppy husk. Nothing incriminating was found in possession of the accused. Undisputedly, the plot, where the two bags were alleged to be lying, was an open and accessible place. Counsel for the appellant contended that neither any investigation was made by the police nor any evidence has been collected and led by the prosecution to prove the fact that either the plot, from where the alleged bags containing poppy husk were recovered, or the alleged bags were belonging to the appellant. In these circumstances, counsel for the appellant contended that the alleged recovery cannot be said to be effected from the conscious possession of the appellant.

7. Counsel for the appellant further submitted that in this case, the prosecution has failed to prove all the links starting from the seizure of the contraband till the same reached the office of the Chemical Examiner, in order to prove that seal of the sample remained untempered throughout. In this regard, counsel for the appellant submitted that as per statements of the prosecution witnesses, after sealing the samples and the bags containing the remaining poppy husk, seal was handed over to Piara Singh, the independent witness. This fact has not been established, as the aforesaid independent witness has not been examined. Secondly, counsel for the appellant submitted that Form M 29, Ex. PG, was not prepared on the day of taking the sample and it was not even deposited along with the case property in the Malkhana. In the affidavit, Ex. PE, HC Gurcharan Singh has not stated that any such form was deposited in the Malkhana. Counsel for the appellant contended that Form M 29 was prepared by SI Balbir Singh (PW-2) on 22.8.1990, whereas the samples were alleged to have been taken on 6.8.1990. He further contended that the very purpose and object of preparing this Form at the time of seizure of the contraband article and separation of its representative sample is to ensure that the sample may not be changed or tampered with subsequently.

8. Counsel for the appellant further submitted that the sample of the recovered contraband should be sent for chemical examination immediately within a period of 72 hours. In this regard, he referred to the Standing Instruction No. 1/88 dated 15.3.1988 issued by the Narcotics Control Bureau, New Delhi, according to which the sample must be despatched to the Laboratory within 72 hours of its seizure to avoid any legal objection. However, in the present case, as per Form M 29 itself, the sample was forwarded to the Chemical Examiner on 22.8.1990. From these facts, counsel for the appellant submitted that possibility of tampering with the alleged sample cannot be ruled out.

9. After hearing the arguments of counsel for the parties and going through the record of the case, in my opinion, the appeal filed by the appellant deserves to be allowed. It is well settled, as held by the Hon'ble Apex Court in Syed Mohd. Syed Umer Syed and others v. State of Gujarat, JT 1995(3) SC 489, that unlawful possession of the contraband is the sine qua non for conviction under the Act and that fact has to be established by the prosecution beyond reasonable doubt. Though possession has not been defined in the Act but has been judicially construed to be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity of the object. There are two essential elements of possession; firstly the corpus - the element of physical control and secondly, the animus or intent with which such control is exercised. It is conscious and intelligent possession of any contraband which attracts penal provision of the Act and it is for the prosecution to establish that the accused was found in conscious and intelligent possession of the contraband.

10. In the instant case, from the statements of two official prosecution witnesses, the conscious possession of the appellant has not been established. Both the witnesses have stated that when the police party saw the accused in the light of the jeep in the night, they were sitting on the bags, lying in a plot, and on seeing the police party, they tried to slip away from the spot. Then, on suspicion, they were arrested. Admittedly, at that time, one independent witness, namely Piara Singh, was also accompanying the police party, but he has not been examined. In the statements of both the officials witnesses, examined by the prosecution, there is nothing to establish that the police tried to ascertain that both the bags, containing poppy husk, were belonging to the accused. Even no effort was made to know that the plot, in which the poppy husk was recovered, was belonging to the accused or some one else. Merely because when the police party saw the accused, they were sitting on the bags, does not infer that they were in conscious possession of those bags. In the similar circumstances, the Hon'ble Apex Court in State of Punjab v. Balkar Singh and another, 2004 Supreme Court Cases (Crl.) 838 has held as under :-
"... The evidence by the prosecution consisted of the testimony of PW-1 Balbir Singh and PW-2 ASI Jarnail Singh. Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in Village Lohgarh. The respondents belonged to different villages. The respondent Balkar Singh is a resident of Village Bira Bedi in District Hisar while respondent Munish Chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the accused for being present on that place itself does not prove that they were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any infirmity in the judgment passed by the High Court."

11. Thus, in the instant case, from the statements of the two prosecution witnesses, it cannot be said that the alleged contraband was recovered from the conscious possession of the appellant. In my view, the prosecution has failed to prove beyond shadow of doubt that the alleged contraband was recovered from the conscious and intelligent possession of the appellant. Consequently, the provision of Section 54 of the Act cannot be invoked to raise a presumption of guilt against the appellant.

12. There is yet another staggering circumstance, which has shaken the foundation of the prosecution case to an irreparable extent. In this case, the prosecution has failed to prove all the links starting from seizure of the contraband till the same reached to the office of Chemical Examiner in order to show that seal of the sample remained untempered with throughout. PW-2 SI Balbir Singh has categorically stated that after sealing the sample of the alleged contraband as well as the remaining recovered contraband, the seal was handed over to Piara Singh, the independent witness. But the said witness has not been examined. It is well settled that till the case property has not been despatched to the office of the Forensic Science Laboratory, the seal should not be available to the prosecuting agency and in absence of such safeguard, the possibility of the seal being tampered with, substance being changed and the containers being re-sealed cannot be ruled out. In the instant case, Form M 29 was prepared on 22.8.1990, on which specimen of the seal was fixed. The said Form was supposed to be deposited with the alleged contraband in the Malkhana, but as per affidavit of HC Gurcharan Singh, Ex. PE, it is not clear that the said form was deposited in the Malkhana on 6.8.1990, when the recovered contraband along with samples was deposited. In Shafiullah v. State, 1993(49) DLT 193, where the seals remained with the police officers after use and the CFSL form was neither prepared on the spot nor deposited in the Malkhana, such circumstance was held to be fatal to the prosecution case. In Mool Chand v. The State, 1992(2) RCR(Crl.) 353 (SC) : 1993(II) CCR 964, Delhi High Court observed as under :-
"..... The very name given to this form as C.F.S.L. Form suggests the object of its preparation at the time of seizure of a contraband article and separation of its representative sample. The specimen seal impressions used at that time are affixed on it, so that it can be deposited with case property in the Malkhana and forwarded to C.F.S.L. along with the sample parcel so that seal impressions affixed on the sample parcel are duly compared with the seal impression on the C.F.S.L. form. The idea behind taking such precaution is to complete a material link in the prosecution evidence by eliminating the possibility of the sample being tampered with. The sentence provided under this Act is very severe. It cannot be less than 10 years R.I. and a fine of Rupees one lac. If the sentence is so severe, the Courts will naturally insist for the standard of proof also beyond shadow of all reasonable doubt against an accused. Suspicion, however strong, cannot take the place of positive proof....."

13. Thus, from the aforesaid facts, it is clear that in the instant case, the prosecution has failed to establish that the adequate precautions were taken by the prosecuting agency to eliminate possibility of the sample being tampered with. The benefit arising out of such a doubtful situation must necessarily go to the appellant.

14. In view of the aforesaid, the appeal is allowed and the conviction and sentence of the appellant is set aside. He is, therefore, acquitted of the charge framed against him.

Appeal allowed.
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