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2010 Supreme(P&H) 1418
PUNJAB AND HARYANA HIGH COURT
Harbans Lal, J.
Nirmal Singh - Appellant
Versus
State of Punjab - Respondent
Criminal Appeal No. 922-SB of 2007 (O&M).
Decided On : 7 April, 2010
For the Appellant :Mr. N.S. Sodhi, Advocate.
For the Respondent: Mr. R.S. Rawat, AAG, Punjab.
The central legal point established in the judgment is the requirement for the prosecution to prove conscious possession and the accused's right to rebut presumptions under Sections 35 and 54 of the Act.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Possession - Section 15 - 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Summary of Acts and Sections: The court discussed the provisions of Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and referenced key legal principles related to conscious possession, presumption under Sections 35 and 54, and the need for the accused to be given an opportunity to rebut the presumptions in his statement under Section 313 Criminal Procedure Code.
Fact of the Case:
The accused was found sitting on bags containing poppy straw and was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The accused denied the incriminating circumstances and claimed innocence.
Finding of the Court:
The court found that the prosecution failed to establish conscious possession of the accused over the bags of poppy straw and did not give the accused an opportunity to explain the circumstances against him. The court acquitted the accused due to reasonable doubt.
Issues: The issues revolved around the conscious possession of the accused, the failure of the prosecution to establish possession, and the need to give the accused an opportunity to rebut the presumptions.
Ratio Decidendi: The court emphasized the importance of establishing conscious possession and giving the accused an opportunity to explain the circumstances against him. It highlighted the need for the prosecution to prove possession and the accused's right to rebut presumptions.
Final Decision: The accused was acquitted of the charged offence due to reasonable doubt.
Harbans Lal, J. - This Appeal is directed against the judgment dated 29.3.2007, order of sentence dated 30.3.2007 passed by the Court of learned Special Judge, Moga whereby he convicted and sentenced the accused Nirmal Singh to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1.00 lac each under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, the Act) and in default of payment of fine to further undergo rigorous imprisonment for one year.
2. The factual score records that on 16.10.2002, Sub Inspector Kirpal Singh amongst other Police Officials was going on Government van bearing Registration No. PB-04C-7206 being driven by Constable Sarabjeet Singh. When the Police party was 1-1/2 kilometers short of village Korewala Kalan, the accused was noticed sitting on the bags lying in a deserted place on the left side of the road. He was apprehended on the basis of suspicion after having stopped the van. Meanwhile, one Karamjit Singh came there. He was associated with the Police party. The accused was offered to have search of the bags in the presence of a Gazetted Officer or a Magistrate. He opted to have their search before a Gazetted Officer. On receipt of message, Nachhatar Singh DSP came at the spot. He also disclosed his identity to the accused. On search, the contents of the bags were found to be poppy straw. Sample of 250 grams poppy straw was drawn from each bag and converted into a parcel. The residue of each bag when weighed, came to 34.750 grams. It was also made into parcels. The case property along with sample parcels was sealed with seals KS and NS and seized vide recovery memo. Ruqa was sent to the Police Station, where on its basis, formal F.I.R. was recorded. The accused was put under arrest. After completion of investigation, the charge- sheet was laid in the Court for trial of the accused.
3. The accused was charged under Section 15 of the Act to which he did not plead guilty and claimed trial. In order to bring home guilt against the accused, the prosecution examined PW-1 DSP Nachhatar Singh, PW-2 Kirpal Singh, Investigator, PW-3 HC Pavittar Singh, PW-4 Constable Des Raj, PW-5 ASI Resham Singh, PW-6 MHC Gurmail Singh and closed its evidence.
4. When examined under Section 313 Criminal Procedure Code, the accused denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded innocence as well as false implication.
5. After hearing the learned Public Prosecutor for the State, the learned defence Counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this Appeal.
6. I have heard the learned Counsel for the parties, besides perusing the record with due care and circumspection.
7. Learned Counsel for the appellant maintained with a good deal of force that conscious possession of the appellant is not established. To buttress this stance he has relied upon Raj Kumar v. State of Punjab 2005(1) Recent Criminal Reports(Criminal) 70 (P&H), Baldev Singh v. State of Punjab [2005(3) All India Criminal LR (Pb. & Hry.) 3091, State of Punjab v. Balkar Singh & Others AIR 2004 Supreme Court 4606. He has further argued that Karamjit Singh PW has been given up by the prosecution as usually it happens in State cases. If he would have been in attendance at the spot, the seal after use would have certainly been given to him. To fortify his contention he has relied upon State of Punjab v. Rattan Lal 1992(3) Recent Criminal Reports(Criminal) 286.
8. To tide over these submissions, the learned State Counsel maintained that prosecution has established possession of the appellant over the bags of poppy husk. If he claims that it was not a conscious possession he is to establish it as to how it came to be in his possession. He further puts that case of the prosecution should not be thrown out of hand merely
