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2008(1) LAW HERALD (P&H) 653
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Kanwaljit Singh Ahluwalia
Criminal Appeal No. 238-SB of 2001
Baldev Singh
v.
State of Punjab
{Decided on 09/01/2008}
(Para 15)
(B) Criminal Procedure Code, 1973, Section 313—Examination of account—The object of examination under Section 313, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. (Para 14)
(C) Narcotic Drugs and Psychotropic Substances Act, 1985, Section 18—Criminal Procedure Code, 1973, Section 313—Contraband—Appeal against conviction—Conviction upheld—Chance recovery—Recovery of 5 kgs. of opium from the glove box of scooter of accused—Conscious possession of accused proved—No cross examination has been made to dispel conscious possession of the appellant—No plea has been taken in the statement under Section 313 Cr.P.C. that the appellant was not in conscious possession of the contraband—Court cannot come to the rescue of the appellant—Conviction affirmed—Held; Interalia—Once the possession has been established, it is for the person, who has been found to be in possession, to discharge the onus of proving that he was not in conscious possession.
(Para 15)
K.S. Ahluwalia, J. (Oral) Baldev Singh appellant has been convicted by the learned Judge, Special Court, Kapurthala under Section 18 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter to be referred as ‘the Act’) and has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/-, in default of payment of which to further undergo RI for one year.
2. The accused-appellant was prosecuted in case FIR No. 176 dated 21-9-1999 registered by the police of police station Kotwali-Kapurthala.
3. It is stated in the FIR that on 21.9.1999 Inspector Gurmukh Singh along with his companion police officials was present at metalled road, Mundi Mour in connection with special nakabandi. At about 4-30 AM he spotted a man coming on a scooter. He was directed to stop and was apprehended. He disclosed his name as Baldev Singh son of Kundal Singh. An offer for search was given to him in consonance with Section 50 of the Act. From the gloves box of his scooter, 5 Kgs of opium was recovered, out of which 100 grams was taken as sample.
4. After completion of investigation, report under Section 173 Cr.P.C. was submitted. The learned Judge, Special Court charged the appellant under Section 18 of the Act, to which he pleaded not-guilty and claimed trial.
5. The prosecution examined as many as 5 witnesses:
6. PW1 Ram Partap Constable tendered his affidavit Exhibit P1 to prove link evidence.
7. PW 2 ASI Sukhdev Singh proved ruqqa Exhibit P2 and the formal FIR Exhibit P3. He stated that the case property and the sample were produced before him.
8. PW 3 DSP Darshanjit Singh Dhindsa, in whose presence search, seizure and recovery was effected.
9. PW 4 is Gurmukh Singh Inspector, who not only carried out investigation but had effected recovery from the appellant.
10. PW 5 HC Satpal, being a witness of formal nature, tendered his affidavit (Exhibit P9) to substantiate the link evidence.
11. All incriminating evidence was put to the accused in his statement under Section 313 Cr.P.C. He pleaded false implication on the ground that the police were inimical to him.
12. In defence he examined DW1 Kashmir Singh, Member Panchayat to vouchsafe his antecedents and to further state that he was forcibly taken from his house.
13. DW2 Suridner Kaur is another Member Panchayat, who also corroborated the version of DW1.
14. DW3 Balwinder Singh, additional Moharrir Head Constable, police station Kotwali, Kapurthala stated that as per entry in a case titled ‘State Vs. Baldev Singh’, the case property and the sample had only one seal bearing impression ‘DS’. However, in cross-examination he conceded that entry No.203, sought to be proved from him, is not in his hand.
15. Sh. Chowdhri while assailing the judgment of the Court below has vehemently contended that in this case Section 42 of the Act is attracted and the same being mandatory, has not been complied with as no information in the form of ruqa was sent to the superior officers, especially when the Investigating Officer had got a secret information. Confronted by this Court that since the recovery is from the gloves box of scooter, Section 42 will not be attracted, Mr. Chowdhri has been candid enough to say that in that event Section 42 will not be attracted. However, he is in agreement that it is only Section 42, which is mandatory and Section 43 is directory in nature.
16. The learned counsel has also brought to the notice of this Court various admissions of the witnesses to the effect that no independent witness was joined.
17. This Court while appreciating the evidence is conscious of the fact that recovery in the instant case was effected in wee hours of the morning i.e. at 4-30 AM in the month of September when there are less chances of availability of witnesses at the place of recovery. Sh. Chawdhri persisted with his arguments and has submitted that it was incumbent upon the investigating/prosecuting agency to prove ownership of the scooter. According to him, no
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