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PUNJAB & HARYANA HIGH COURT
K.S.Garewal and Pritam Pal JJ.
Bikkar Singh
Versus
State Of Punjab
Criminal Appeal No. 558 of 2001,
Decided On : MARCH 22, 2006
Possession of Contraband Substance - Narcotic Drugs & Psychotropic Substances Act, 1985 - Section 15 - The appellant was convicted under Section 15 of the Act for possession of poppy-husk. The court analyzed the provisions of the Act, including Sections 42 and 67, which specify the powers and duties of the Investigating Officer. The court also considered the requirement of proving possession beyond reasonable doubt. The court highlighted the importance of proper handling of samples and the consequences of tampering. The court referred to relevant case law, including State of Punjab v. Balkar Singh and another, Gopal v. State of Madhya Pradesh, Avtar Singh v. State of Punjab, and Narinder Singh alias Nindi v. State of Punjab.
Fact of the Case:
Appellant-Bikkar Singh was convicted under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 for possession of poppy-husk. The prosecution alleged that the appellant and his co-accused were selling a large quantity of poppy-husk. The appellant was found sitting on gunny bags containing the substance. The defense argued that there was no conscious possession of the contraband substance and that the Investigating Officer was not competent to investigate the case. The defense also raised concerns about tampering of seals on the samples sent to the Forensic Science Laboratory. The court found that the prosecution failed to prove the appellant's guilt beyond reasonable doubt and acquitted him of the charge.
Finding of the Court:
The court considered the ownership of the sugar-cane fields where the contraband substance was recovered and found that they did not belong to the appellant. The court also noted that the Investigating Officer did not conduct further investigation to establish the appellant's possession of the substance. The court found that the appellant was not given an opportunity to explain his presence near the gunny bags. The court also questioned the competence of the Investigating Officer to exercise the powers specified in the Act. The court raised concerns about the delay in sending the samples for analysis and the possibility of tampering. Based on these factors, the court concluded that the prosecution failed to prove the appellant's guilt beyond reasonable doubt.
Ratio Decidendi: The court held that mere presence at the place where contraband substance is found and failure to give a satisfactory explanation does not prove possession. The court also held that an Investigating Officer must be competent to exercise the powers specified in the Act. The court emphasized the importance of timely and proper handling of samples to avoid tampering.
Result: The appeal is allowed. The conviction and sentence are set aside. The appellant is acquitted of the charge.
Pritam Pal, J.
1. Appellant-Bikkar Singh (55 years) has filed this appeal against judgment and order dated July 17, 2001 whereby he was 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 a period of 13 years with a fine of Rs. one lac and in default of payment of fine to further undergo RI for a period of one year. The prosecution story is like this :
2. On June 10, 1993, at about 4.00 p.m., PW-2 SI Gurmail Singh, the Investigating Officer in this case, received a secret information at Police Station, Sudhar (Ludhiana) that the present appellant and three others, namely, Pritam Singh (P.O.), Joginder Singh (since acquitted vide order dated 22.3.2001) and Resham Singh (PO) were selling a large quantity of poppy-husk lying in the sugar-cane fields of one Ajaib Singh of Village Mohi and if a raid is conducted then they could be apprehended. On receiving this information, the Investigating Officer recorded the FIR (Ex. PA) and then raided the disclosed place after joining a public witness, namely, Gian Singh. When the police party reached at the aforesaid given place, there appellant Bikkar Singh and his co-accused Pritam Singh were found sitting on the gunny bags which were stacked in the sugar-cane fields of Ajaib Singh. They both were apprehended at the spot and then an option of search before a Gazetted Officer or Magistrate was given by the Investigating Officer. However, both of them reposed their trust in the Investigating Officer. Thereafter the gunny bags were counted which were found 120 in number. Each gunny-bag was found to have contained 35 Kgs. of poppy-husk. Two samples of 250 gms. from each recovered bag were taken. The samples as well as the remaining quantity of gunny bags were made into separate parcels and sealed at the spot by the Investigating Officer with the seal bearing letter "MS" belonging to ASI Mohinder Singh (PW-4). The bulky case property and the samples were taken into possession by the Investigating Officer vide recovery memo Ex. PB attested by ASI Mohinder Singh, ASI Karnail Singh and public witness, namely, Gian Singh. The seal after use was handed over to ASI Karnail Singh (PW-3). On reaching the Police Station, the Investigating Officer produced appellant Bikkar Singh and co-accused Pritam Singh along with the case property before DSP Paramjit Singh (PW-6) who also checked the case property and verified the facts of the case. He also put his own seal bearing letter "PS" on the case property. Thereafter, the case property was handed over to MHC Gurtej Singh (PW-5). 120 samples were got tested from the Forensic Science Laboratory, Punjab, Chandigarh and vide its report, Ex. PF, the same were found to be of poppy-husk.
3. Ultimately, the appellant along with his co-accused Pritam Singh and Joginder Singh was challaned for commission of offence and they were charge- sheeted vide order dated 26.4.1996 under Section 15 of the Act, to which they pleaded not guilty and claimed trial.
4. Prosecution, in order to substantiate its case, examined as many as 6 witnesses, namely, PW-1 Shamsher Singh Constable No. 299. On 12.8.1993 he had taken the parcels, docket and specimen of seals for depositing the same in the office of F.S.L., Punjab, Chandigarh; PW-2 SI Gurmail Singh, he is the Investigating Officer of this case; PW-3 SI Karnail Singh, and PW-4 ASI Mohinder Singh are witnesses to the recovery memo Ex. PB; PW-5 ASI Gurtej Singh, he was the AMHC of Police Station, Sudhar, with whom, case property was deposited on June 11, 1993; and PW-6 DSP Paramjit Singh. After effecting the recovery of case property, appellant Bikkar Singh along with co-accused Pritam Singh was produced before him and thereafter, he had also verified the facts of the case and then put his own seal bearing impression "PS" on each bag and each sample parcel. Gian Singh, a public witness, who was associated
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