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IN THE HIGH COURT OF PUNJAB AND HARYANA
A.B. Chaudhari, J.
Darshan Singh – Appellant
Vs.
State of Punjab – Respondent
CRA-S No. 343-SB of 2005
Decided On : 21-02-2017
NDPS Act - Conviction under Section 15/61/85 - [Section 15/61/85 of the NDPS Act] - The court discussed the prosecution's failure to prove conscious possession of the contraband, the importance of intact evidence, and the error in giving the benefit of doubt to the prosecution rather than the accused. The judgment was set aside, and the appellant was acquitted.
Fact of the Case:
The appellant was convicted for possession of poppy-husk under Section 15/61/85 of the NDPS Act. The police conducted a raid based on secret information and seized the contraband, leading to the appellant's trial and conviction.
Finding of the Court:
The court found that the prosecution failed to prove the appellant's conscious possession of the contraband and erred in giving the benefit of doubt to the prosecution. It also highlighted the lack of evidence regarding intact samples and the perversity of justice in convicting the appellant based solely on his presence at the spot.
Issues: The issues included the possession of poppy-husk without a permit, the identity of the accused, and the conscious possession of the contraband.
Ratio Decidendi: The prosecution must prove conscious possession of contraband, the importance of intact evidence, and the burden of proof lies on the prosecution. The court emphasized the need for caution in evaluating official witnesses' testimony.
Final Decision: The judgment and order convicting the appellant were set aside, and the appellant was acquitted of the charge under Section 15/61/85 of the NDPS Act. Any fine paid by the appellant was to be refunded.
A.B. Chaudhari, J.
Being aggrieved by the judgment and order dated 07.02.2005 passed by the Special Court, Hoshiarpur, in Sessions case No.77 of 2002 by which the appellant was convicted for offence under Section 15/61/85 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short 'NDPS Act') and was sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/-, the present appeal was filed by the appellant.
2. In view of the case of the prosecution that on 26.07.2002, SI Paramjit Singh of Police Station Mahilpur along with police staff were on patrol duty at bus-stop. They received a secret information that the appellant and Kuldeep Singh alias Achhru were selling poppy-husk in the jungle on the eastern side of the village Jandiala and therefore, the raid was required to be conducted. They believed the information and went to the place that was disclosed to them. When the police party went to the spot, they noticed two persons present by the side of the bags, but on looking at police party, one person fled away and another was nabbed by the police who on query, disclosed his identity as Darshan Singh-appellant. Thereafter, the procedure was followed and the seizure of 29 kg 500 grams of poppy-husk was made. The sample was sent and it was found as poppyhusk. The appellant was presented after investigation and the appellant was put on trial. Appellate denied to have committed any offence. Trial Court framed three ponits for determination which I quote hereunder:-
"(i) Whether on 26.7.02 at about 7 PM in the jungle of village Jandiala, accused Darshan and Kuldeep Singh were found in possession of five bags of poppy husk each bag containing 30 kgs. poppy husk, without permit or licence?
(ii) Whether the identity of the accused Kuldeep Singh was established to be the same person who slipped away at the time of conducting the raid?
(iii) Whether the accused can be attributed with the conscious possession of the poppy husk?"
3. Trail Court, thereafter, heard and appreciated the evidence and facts as stated above.
4. Trial Court acquitted Kuldeep Singh who ran away from the spot. Trial Court recorded the following findings in Paras 18 and 20 of its judgment which read thus:-
"18. It is no doubt true that no public witness was joined by the Investigating Officer before conducting the search. The Investigating Officer, however, reduced the secret information into writing and transmitted the same to police station for further sending the same to the higher officers of the police and wasted no time in conducting the raid at the disclosed place and was successful in the raid and apprehending accused Darshan Singh from the spot. However, one accused slipped away. The IO-PW-3 SI Paramjit Singh, however, called Sh. Navjot Singh DSP, Garhshankar to the spot before conducting the search and the seizure. Therefore, non-joining of the public witness in the peculiar circumstances of the present case, in itself is not sufficient to disbelieve the entire version of the prosecution but rule of caution has to be followed that the testimony of the official witnesses has to put a closer scrutiny. Applying the said test, we find that testimony of PW-3 SI Paramjit Singh IO, PW-4 SI Rajinder Singh, recovery witness and PW-5 Shri Navjot Singh DSP is quite consistent and reliable and no material could be brought in their cross-examination is accordingly repelled.
xxx.
20. The argument of the learned defence counsel, however, is without any merit in as much as, the case property and the samples were initially produced in the court of Ilaqa Magistrate who verified the intactness of the case property. It may be that the slips which are pasted on the bags of the case property might have got detached due to wear and teat. Otherwise the bags were in tact condition bearing the seals of Investigating Officer and Shri Navjot Singh DSP."
5. At the outset, I find as discussed in Para 20 of the judgment above that the samples were m
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