Back
2014 Supreme(P&H) 1156
PUNJAB & HARYANA HIGH COURT
Daya Chaudhary, J.
Nazar Singh - Appellant
Versus
State of Punjab - Respondent
Crl. Appeal No. 308-SB of 2005
Decided On : 09-01-2014
For the Appellant :Mr. S.S. Gill, Advocate
For the Respondents: Mr. Rupam Aggarwal, D.A.G., Punjab
The burden of the prosecution to prove the case beyond reasonable doubt, the need for the accused to be given an opportunity to rebut the presumption, and the requirement for compliance with mandatory provisions of the Narcotic Drugs and Psychotropic Substances Act.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Conviction under Section 15 - Summary of Acts and Sections: Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - The court discussed the provisions of Section 35 and Section 54 of the Act, dealing with conscious possession and presumption from possession of illicit articles. The court emphasized the need for the accused to be given an opportunity to rebut the presumption as envisaged in Section 313 of the Code of Criminal Procedure. The judgment also referred to the heightened security test required under the NDPS Act and the burden of the prosecution to prove the case beyond reasonable doubt.
Fact of the Case:
The accused was convicted for possession of contraband under Section 15 of the Narcotic Drugs and Psychotropic Substances Act. The prosecution case involved the recovery of poppy husk from a truck, but the accused challenged the compliance with mandatory provisions of the Act and raised doubts about the prosecution's version.
Finding of the Court:
The court found that the prosecution failed to prove conscious possession of the contraband and did not comply with mandatory provisions of the Act. It highlighted the lack of compliance with Section 50 and Section 42 of the Act, as well as the delay in sending the samples to the Chemical Examiner. The court concluded that the benefit of doubt goes to the accused appellant and set aside the judgment of conviction and order of sentence.
Issues: Non-compliance with mandatory provisions of the Narcotic Drugs and Psychotropic Substances Act, doubts about the prosecution's version, and the failure to prove conscious possession of the contraband.
Ratio Decidendi: The court emphasized the need for the accused to be given an opportunity to rebut the presumption as envisaged in Section 313 of the Code of Criminal Procedure. It also highlighted the heightened security test required under the NDPS Act and the burden of the prosecution to prove the case beyond reasonable doubt.
Final Decision: The appeal was accepted by giving the benefit of doubt to the accused appellant, and the judgment of conviction and order of sentence was set aside. The appellant was discharged from the bail/surety bonds furnished.
The present appeal has been filed to challenge the judgment of conviction and order of sentence dated 19.01.2005 passed by Judge, Special Court, Sangrur, whereby, the accused appellant has been convicted for offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here-in-after referred to as `the Act') and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ` 1,00,000/- and in default thereof, to further undergo rigorous imprisonment for a period of one year. Briefly, the facts of prosecution case are that on 22.10.2002, SI/SHO Jasmail Singh along with other police officials was present on the bridge of Bhakhra Canal RD-460, Patran Road, Khanauri, in connection with Nakabandi. Meanwhile, a truck bearing No. PCI 4746 reached there and on giving signal, it was stopped. One person was driving the truck and another was sitting by his side. On suspicion, they were asked to get the search of the truck conducted. On asking, the driver of the truck disclosed his name as Harjinder Singh and another person as Nazar Singh. An option was given to both of them to be searched either in presence of Magistrate or a Gazetted Officer but they opted to be searched in presence of Gazetted Officer. An intimation was sent to Deputy Superintendent of Police, Moonak to come at the spot but he was found to be away in connection with some official work. A message was given to Control Room, Sangrur to send some Gazetted Officer at the spot. Deputy Superintendent of Police, Sunam reached at the spot, who introduced himself to the accused. Both the accused reposed confidence in Deputy Superintendent of Police and opted to be searched in his presence.
2. After recording statement of both the accused, a search was conducted. On search, 10 full jute bags and one half filled jute bag, which were covered with a blue colour Tarpaulin, were recovered from the tool box of the truck. The bags were found containing poppy husk. Two samples of 250 grams each were separated and remaining poppy husk was weighed with spring balance. However, the remaining recovery from 10 full bags was found to be 29 kgs 500 grams each and half filled bag was found containing 19 kgs 500 grams. All bags were converted into parcels and total 22 samples were sealed by Sub-Inspector with his seal bearing impression `JS', which was attested by Deputy Superintendent of Police. Seal after use was handed over to Khazan Singh. All parcels along with truck were taken into possession and ruqa was sent to police station, on the basis of which, a formal FIR was registered. The case property was deposited with MHC Sukhdev Singh. Owner of the truck-Naranjan Singh, was arrested in this case. Sample parcels were sent to Chemical Examiner and report was received.
3. On completion of investigation, the challan was presented before the Court and copies of the challan were supplied to accused as per provisions of Section 207 Cr.P.C. Charge under Section 15 of the Act was framed against accused Harjinder Singh and Nazar Singh and under Section 25 of the Act, against accused Niranjan Singh. Accused-Harjinder Singh was found juvenile and was produced before Principal Magistrate of Juvenile Justice Board-cum-Chief Judicial Magistrate, Faridkot.
4. The prosecution examined as many as eight witnesses. PW-1 Sudesh Kumar, PW-2 Constable Kulwant Singh, PW-3 Sham Lal Chalana, Judicial Magistrate Ist Class, Sunam, PW-4 Head Constable Sukhdev Singh, PW-5 ASI Babu Singh, PW-6 Sub-Inspector Jasmail Singh, PW-7 Parminderpal Singh, Junior Assistant DTO, Office, Sangrur and PW-8 Gurmit Singh Chauhan, Deputy Superintendent of Police. PW Khazan Singh was won over by the accused. ASI Sukhdev Singh and Constable Ajmer Singh were given up as unnecessary.
5. Statement of accused under Section 313 Cr.P.C. was recorded. Accused examined Head Constable Rachhpal Singh as DW-1, Labh Singh as DW-2 and Gurcharan Singh as DW-3. DWs Labh Singh, Mohinder Sing
