Mander Singh v. State of Punjab

INoTHEoHIGHoCOURToOFoPUNJABoANDoHARYANAoAToCHANDIGARH

(331) CRA-D-184-DB-2005o(Oo&oM) Re e!"e#o$%&o30'01'2025 D()eo$*oP!$%$+%,e-e%)&05'02'2025o Mander Singh .... Appellant V/s State of Punjab ...Respondent CORAM& HON.B/EoMR'oJU0TICEoGUR1INDERo0INGHoGI// HON.B/EoMR'oJU0TICEoJA0JITo0INGHoBEDI Present: Mr. Chirag Girdhar, Advocate for Mr. R.K. Girdhar, Advocate, for the appellant. Mr. Harkanwar Jeet Singh, AAG, Punjab. ***** oJA0JITo0INGHoBEDIo2oJ'o The present appeal has been filed against the judgment of conviction and order of sentence dated 04.08.2004 passed by the Special Judge, Muktsar.

¶2The instant FIR came to be registered on 30.11.1996. The accused4appellant came to be convicted vide judgment of conviction and order of sentence dated 04.08.2004. The present appeal against the conviction was filed on 18.02.2005. The matter has come up for final hearing now after more than 28 years of the registration of the FIR.

¶3The prosecution story, in brief, is that on 30.11.1996 SHO Kirpal Singh, Police Station, Lambi alongwith ASI Gurdip Singh, HC Chander Mohan, LC Gurmej Singh, LC Gurjant Singh, C. Bhajan Singh, I attest to the accuracy andSPO Sukhdev Singh, PHGs Buta Singh, Santokh Singh, Shinderpal Singh, C. Bhupinder Singh and SPO Khushkaran Singh gunman on a Govt. Canter bearing No.PB404B49568 which was being driven by C.Amar Nath, under the leadership of Baljit Singh Buttar DSP (HQ), Muktsar, were going to villages Lohara, Ghumiara etc. in connection with patrol duty and for checking the hiding places of terrorists. When the police party reached Bus Stand Ghumiara, Ranga Singh son of Kapoor Singh, Ex4panch was joined in the police party. When the police party reached 01 km. ahead from village Ghumiara towards village Middu Khera, on the bridge of the water course at about 12400 noon near the bridge on the right side of the road on the search of one abandoned room, the accused was found sitting on a heap of poppy husk on plastic paper. He was apprehended on suspicion and he disclosed his name as Mander Singh s/o Gobind Singh r/o Ghumiara. SHO Kirpal Singh asked the accused that he had a suspicion and that he wanted to get his search conducted. He further stated that he (accused) had a right to get his search conducted in their presence or in the presence of a Magistrate or a Gazetted Officer. The accused said that his search could be conducted in the presence of Ranga Singh independent witness and the DSP, who wеrе already with the police party. A consent memo of the accused4Mander Singh was prepared, which was thumb marked by the accused and witnessed by Ranga Singh and the DSP and also by ASI Gurdip Singh. Then the SHO lifted the polythene paper. From the heap, poppy husk was recovered and from all the four sides, some poppy husk was taken as samples. Total 250 SUKHPREET KAUR grams of poppy husk was separated and made into a parcel. The remaining poppy husk, on weighment, came out to be 350 kgs., which was put into 10 bags, each containing 35 kgs. of poppy husk. Then all the ten bags were made into parcels. Then all the ten bags and the sample parcel were sealed with the seal bearing 'BSB' of the DSP. The sample seal was separately prepared and the seal after use was handed over to Baljit Singh Buttar DSP. Thereafter, all the bags, sample parcel and sample seal, were sealed by Kirpal Singh SHO with his seal bearing impression 'KS' and the seal after use was handed over to ASI Gurdip Singh. The case property was taken into police possession vide separate memo. The accused could not produce any permit or licence for keeping the said poppy husk in his possession. Ruqa Ex. PB was prepared and sent to the police station, on the basis of which a formal FIR Ex.PB/1 was recorded by SI Dharam Singh. Rough site plan of the place of occurrence was prepared with correct marginal notes. Statements of the witnesses were recorded. The accused was made aware of the grounds of arrest and a separate memo to this effect was recorded which was thumb marked by the accused and signed by the witnesses. On his personal search, currency notes of Rs.50/4 were recovered, which were taken into police possession vide separate memo Ex.PG. After completion of the investigation at the spot and on receipt of the FIR No., the same was incorporated in the documents. On return to the police station, the accused was lodged in the lock up and the case property was kept in his custody by SHO Kirpal Singh. On 01.12.1996, ASI Baldev Singh produced the case SUKHPREET KAUR property and the accused before the Illaqa Magistrate, who directed to deposit the case property with the MHC and the accused was sent to the judicial lock up. SHO Kirpal Singh then sent a report under Section 57 of the Act to DSP Malout which was received by DSP on 01.12.1996. After completion of investigation and on receipt of the report of the Chemical Examiner, the challan against the accused was presented in the Court.

¶4Charge under Section 15 of the Narcotic Drugs and Psychotropic Act, Substances 1985 (for short 'the act') was framed against the accused. He pleaded not guilty and claimed trial.

¶5In order to prove it's case, the prosecution examined PW41/LC Gurmej Singh, PW42/SI Dharam Singh, PW43/ASI Baldev Singh, PW44/Nirbhai Singh, Reader to DSP, Muktsar, PW45/ SI Kirpal Singh I.O. of the case and PW46/Baljit Singh DSP. The report of the Chemical Examiner Ex.PN was tendered into evidence.

¶6After closure of the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C. in which he denied all the incriminating evidence appearing against him and pleaded innocence. He stated that the police had come to his house. Nothing incriminating was recovered from his person or house search conducted in the presence of Ajmer Singh and Karnail Singh members of the panchayat and an altercation took place between him and the police on forcibly taking him away to the police station. After illegal detention, he was falsely implicated in this case. Ranga Singh or his father Kapoor Singh had never been members of the village panchayat. In his defence, he examined DW41/Ajmer Singh and closed the defence evidence.

¶7Based on the evidence led, the accused4appellant/Mander Singh came to be convicted and sentenced by the Court of the Special Judge, Muktsar, vide judgment of conviction and order of sentence dated

04.08.2004 as under:4 O**e%,eoU30 0e%)e%,eoRI30I F4%e RI30Io4%o#e*(+5)o$* 6(7-e%)o$*o*4%e 15 of the NDPS Act RI for 12 years Rs.1,00,000/4 RI 02 years

¶8The aforementioned judgment of conviction dated 04.08.2004 passed by the Special Judge, Muktsar, is under challenge before this Court.

¶9The learned counsel for the appellant contends that there is non4 compliance of Section 50 of the Act. As per the case of the prosecution, the appellant was found sitting in an abandoned room with the contraband in question. However, the ownership of the land on which the kothaowas built has not been established. Therefore, the accused could not be said to be in conscious possession. There are material discrepancies in the statements of witnesses which is fatal to the case of the prosecution. He, therefore, contends that the impugned judgment was liable to be set aside.

¶10The learned counsel for the State, on the other hand, contends that the offence stands established beyond reasonable doubt. When the police party was on patrolling duty, they saw an abandoned kothaoand on approaching the same, it was found that the was sitting inside on a heap of I attest to the accuracy andpoppy husk. The recovery of 350 kgs. and 250 kgs. of poppy husk was effected which cannot be planted. Minor discrepancies in the statements of prosecution witnesses which are recorded after a considerable period of time, cannot be said to be fatal to the prosecution case. He, therefore, contends that the present appeal was liable to be dismissed.

¶11We have heard the learned counsel for the parties and gone through the record.

¶12The recovery in the present case is not from the personal search of the accused but from an abandoned kothaowhere the accused was found sitting on the heap of poppy husk. Therefore, Section 50 of the Act has no application. It had been so held in 'StateoofoPunjaboversusoBalbiroSingh andootherso2004(4)oRCRo(Criminal)o999 !oBe that as it may, PW46/Baljit Singh who was a Gazetted Officer was a part of the police party.

¶13The Hon'ble Supreme Court in the case of 'Ra"esho#umar Raghuvanshioversuso$heoStateoofo%adh&aoPradesh'oCriminalo())eal *o!+9,-oofo20+4ode.idedoono+/!0+!202, ' oin the context of conscious possession has held as under:4

14.oThus,obeforeotheoCourtoholdsotheoaccusedoguiltyoofothe offenceounderotheoNDPSoAct,opossessionoisoso ethingothatothe prosecutiononeedsotooestablisho!ithocogentoe"idence.o#fothe accusedoisofoundotoobeoinopossessionoofoanyocontrabando!hichois aonarcoticodrug,oitoisoforotheoaccusedotooaccountoforosuch possessionosatisfactorily,oifonot,otheopresu ptionounderoSection $4oco esointooplace.o 1$.oSectiono$4oofotheoNDPSoActobeingorele"antoinotheoconte%toono 2025.02.06 00:32 handoisoe%tractedohereunderoforocon"enientoreference&o "54. Presumption from possession of illicit articles. —In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of —

(a) any narcotic drug or psychotropic substance or controlled substance;

(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;

(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or

(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily." 1'.oTherefore,oasoen"isagedobyotheopro"isionoitself,ounlessoand untilotheocontraryoisopro"edoinotrialsoofocasesoin"ol"ingooffences co ing o !ithin o theo pur"ie!o of o theo NDPS oAct, o it o ayo be presu edothatotheoaccusedohasoco ittedoanooffenceounderothe Actoinorespectoofoanyoarticlesoprohibitedotoobeopossessedobyohi and o for o the o possession o of o !hich, o he o failed o to o account satisfactorily.oTherefore,oitoisotheoburdenoofotheoprosecutionoto establishothatotheocontrabando!asosei(edofro otheoconscious possessionoofotheoaccused.o)nlyo!henothatoaspectohasobeen successfullyopro"edobyotheoprosecution,otheoonuso!illoshiftotoothe accusedotooaccountoforotheopossessionolegallyoandosatisfactorily.

17.oWeolookedointootheoevidenceoasoregardsopossessionoandoare convincedothatotheoappellantowasofoundotoobeoinoconscious possessionoofotheothreeocartonsocontainingopoppyohusk.oThe defenceoputoforwardobyotheoappellantothatoheohadonooideaoabout theo threeo cartons o and o that o heo got odown o fromo theo coach alongwithotheothreeocartonsoonlyobecauseotheoofficersoaskedohim toocomeooutoofotheocoachoisosomethingowhichoisonotopalatableoto us.o

18.oWeohaveolookedointootheofurtherostatementoofotheoaccused. Weodoonotofindoanyosatisfactoryoreplyooroexplanationoasotoohow comeoheowasosittingoonooneoofotheocartonsoandotheootherotwo cartonsowereocloselyoplacedonextotoohim.

19.oInosuchocircumstances,oSectiono54oreferredotooabove,ocomes intooplayoandotheocourtowouldobeojustifiedoinodrawingothe presumptionothatotheoaccusedowasoinoconsciousopossession.o

20.oSectiono35oofotheoNDPSoActodealsowithotheopresumptionoof culpableomentalostate.oItostatesothatoinoanyoprosecutionounderothe NDPSoAct,otheocourtoshallopresumeothatotheoaccusedohadothe requisiteomentalostate,oincludingointention,oknowledge,oand motive,ounlessotheoaccusedocanoproveootherwise.oThisoshiftsothe burdenoofoproofoontootheoaccusedotoodemonstrateothatothey lackedoknowledgeoorointentoregardingotheopossessionoofothe drugs.o

¶21o Conscious o possession o refers o to o a o scenario o where o an individualonotoonlyophysicallyopossessesoaonarcoticodrugoor psychotropicosubstanceobutoisoalsooawareoofoitsopresenceoand nature.oInootherowords,oitorequiresobothophysicalocontroloand mentaloawareness.oThisoconceptohasoevolvedoprimarilyothrough judicialointerpretationosinceotheotermo"consciousopossession"ois I attest to the accuracy and notoexplicitlyodefinedoinotheoNDPSoAct.oThisoCourtothrough various o of o its o decisions o has o repeatedly o underscored o that possessionounderotheoNDPSoActoshouldonotoonlyobeophysicalobut alsooconscious.oConsciousopossessionoimpliesothatotheoperson knewothatoheohadotheoillicitodrugooropsychotropicosubstanceoin hisocontroloandohadotheointentooroknowledgeoofoitsoillegalonature.

¶22oIn oAbduloRashidoIbrahimoMansuriov.oStateoofoGujarat reportedoino2000o(2)oSCCo513,othisoCourtohighlightedothatoonce theoprosecutionoprovesophysicalopossession,otheoburdenoshiftsoto theoaccusedotooexplainohowoheocameointoopossessionoofothe contrabandoandoproveothatoheowasonotoawareoofoitsopresenceoor nature.oTheoCourtoruledothatoaopersonowhooadmitsothatodrugs wereofoundoinohisopossessionomustoproveothatoheohadono knowledgeoofotheoillicitonatureoofotheosubstance.o

¶23oIn oMadanoLalov.oStateoofoHimachaloPradeshoreportedoin

(2003)o7oSCCo465,othisoCourtowasodealingowithoaocaseowhereoall theoaccusedopersonsowereotravellingoinoaovehicleowhenotheyowere nabbedoandorecoveriesowereomadeofromothem.oTheorelevant extractsofromotheosaidojudgmentoareosetooutobelow:o "19.oWhetherothereowasoconsciousopossessionohasoto be o determined o with o reference o to o the o factual backdrop.oTheofactsowhichocanobeoculledooutofrom theoevidenceoonorecordoareothatoallotheoaccused personsowereotravellingoinoaovehicleoandoasonotedoby theotrialocourtotheyowereoknownotooeachootheroandoit hasonotobeenoexplainedooroshownoasotoohowothey travelledotogetherofromotheosameodestinationoinoa vehicleowhichowasonotoaopublicovehicle.o

20.oSectiono20(b)omakesopossessionoofocontraband articlesoanooffence.oSectiono20oappearsoinoChapteroIV ofotheoActowhichorelatesotoooffencesoforopossession ofosuchoarticles.oItoisosubmittedothatoinoorderotoomake theopossessionoillicit,othereomustobeoaoconscious possession."o /4.o#notheoo"erallo"ie!oofotheo atter,o!eoareocon"incedothatothe ;ighoCourtoco ittedonooerroroinodis issingotheoappealoand therebyoaffir ingotheo.udg entoandoorderoofocon"ictionopassed byotheoTrialoCourt.o /$.o#no"ie!oofotheoaforesaid,otheoappealofailsoandoisohereby dis issed.o

¶14As per the prosecution case, the accused was found sitting on the heap of poppy husk alone in an abandoned kothaoknowing fully well that he was sitting on the heap of the poppy husk. He has not explained how and why he was sitting there. The recovery has been effected from him and a memo in that regard was prepared. Consent memo of the accused was also prepared. The proceedings were conducted under the supervision of PW46/DSP Baljit Singh. Therefore, it cannot be said that the conscious possession of the accused is not established or that the evidence of the prosecution witnesses is not worthy of credit.

¶15As regards discrepancies, the same are minor in nature and have no bearing on the merits of the case. Though, РW45/SI Kirpal Singh has stated that the kotha was abandoned and having no door and that he did not know that the place was owned by the Govt. or any Deptt. and PW46/DSP Baljit Singh has stated that the place on which the kotha was constructed, was owned by the Govt., these discrepancies are minor in nature and do not effect the substructure of the case or make the recovery effected from the accused doubtful. Similarly, the discrepancies with regard to doing the writing work partly in the day light and partly in the light of the Canter and taking a ruqa in a private jeep will not effect the merits of the case.

¶16The link evidence is also complete. The case property was produced immediately before the Illaqa Magistrate who verified the case property. This fact is evident from application Ex.PC dated 01.12.1996 and the order passed by the Illaqa Magistrate Ex.PC/1 dated 01.12.1996. The sample and bags were found duly sealed and they were ordered to be deposited with the MHC, Police Station Lambi. So, it cannot be said that in the said circumstances, the link evidence is missing or that non4entrustment of seal to Ranga Singh has any effect.

¶17In the instant case, the recovery was effected on 30.11.1996 and the witnesses were examined in the Court on 23.12.2002 i.e. after about 06 years. So, minor discrepancies are likely to crop in due to lapse of time. Even otherwise heavy quantity of poppy husk had been recovered from the possession of the accused which cannot be planted. There was no enmity of the prosecution witnesses with the accused to falsely implicate him with such a heavy quantity and therefore, the testimonies of the official witnesses cannot be disbelieved.

¶18In view of the aforementioned discussion, we find no merit in the present appeal and the same stands dismissed.

¶19As regards the imposition of sentence, it may be pertinent to mention here that the occurrence pertains to the year 1996. The appellant SUKHPREET KAUR came to be convicted vide judgment of conviction and order of sentence dated 04.08.2004. The instant appeal was filed in the year 2005. As many as 28 years have elapsed after the registration of the FIR, therefore, the appellant has suffered a protracted Trial. He is also a first time offender as is borne out from the custody certificate dated 30.01.2025. Therefore, while upholding his conviction, we deem it appropriate to modify the sentence of the appellant4Mander Singh as under:4 O**e%,eo+%#e! otie%)e%,eo F4%e I%o#e*(+5)o 0e,)4$% $*o6(7-e%)o$*o*4%e Section 15 NDPS RI for 10 years Rs.1,00,000/4 RI 02 years Act (oGUR1INDERo0INGHoGI//) oJUDGE (oJA0JITo0INGHoBEDI) o ooo o oJUDGE 05'02'2025