Avtar Singh And Ors.(Avtar ... vs State Of Punjab
2023 Latest Caselaw 550 P&H

CRA-S-1733-SB-2003 (O&M)                                                 1



       IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH
323
                                         CRA-S-1733-SB-2003 (O&M)
                                         Decided on : 12.01.2023


Avtar Singh (Died) and another
                                                           . . . Appellant (s)
                                    Versus
State of Punjab
                                                          . . . Respondent(s)

CORAM: HON'BLE MR. JUSTICE SANJAY VASHISTH
PRESENT: Mr. Lokesh Sharma, Advocate,
         Legal Aid Counsel for the appellant.

            Mr. Jaswinder Singh Arora, DAG, Punjab.
            ****

SANJAY VASHISTH, J. (Oral)

1. Present appeal is filed by appellants - Avtar Singh and

Balkar Singh, against the judgment of their conviction and order of

sentence dated 21.08.2003, passed by Ld. Judge, Special Court,

Jalandhar, in Sessions Case No.35 of 2003, arising from FIR No. 49

dated 01.07.1997, under Section 15 of the Narcotic Substances and

Psychotropic Substances Act, 1985 (for brevity 'NDPS Act'), Police

Station Adampur.

2. For the recovery of 140 KG of poppy-husk, appellants

(hereinafter referred to as 'accused'), were sentenced to undergo RI for a

period of 10 years each and to pay a fine of Rs.1 lac each, and in default

of payment of fine to further undergo RI for one year each.

1 of 15

3. Order dated 15.12.2022 passed by this Court says as under:

"Ld. Legal Aid Counsel appears and submits

that out of three convicts, present appeal was filed by

Avtar Singh and Balkar Singh, and Avtar Singh had

died. Another, appeal i.e. CRA-1679-SB-2003 (O&M),

filed on behalf of Jagir Singh, has already been

decided on 11.02.2010, by the Coordinate Bench of

this Court, wherein, said Jagir Sijngh has been

acquitted.

Ld. Legal Aid Counsel also points out the order

dated 13.12.2018, by which present appeal qua

appellant No.1 - Avtar Singh, has already been

noticed to be abated. Order dated 13.12.2018 says as

under:-

"Learned State counsel on instructions from

ASI Narinder Singh of Police Station Adampur, stated

that appellant - Avtar Singh died on 15.12.2005,

therefore, qua him appeal stand abated.

It has been pointed out by learned counsel for

the appellants that Jagir Singh filed appeal CRA-

1679-SB-2003 titled as Jagir Singh Vs State of

Punjab and the same was allowed by this Court vide

2 of 15

judgment dated 11.02.2010.

Learned State counsel seeks time to verify as to

whether judgment in case of Jagir Singh, has been

challenged before the Hon'ble Supreme Court of

India or not?

Adjourned to 23.01.2019."

In view of the fact recorded in the order dated

13.12.2018, present appeal stands abated qua

appellant No.1 - Avtar Singh, and is now left with the

issue to decide the fate of appeal on behalf of

remaining appellant i.e. Balkar Singh.

Adjourned to 20.12.2022, for arguments.

Registry is directed to attach the file of

Criminal Appeal No.1679-SB-2003 (Jagir Singh Vs.

State of Punjab) along with present appeal, for the

date fixed."

4. In view of the fact recorded in the said order, present appeal

stands abated qua appellant No.1 - Avtar Singh, and is now left with the

issue to decide the fate of appeal on behalf of remaining appellant i.e.

Balkar Singh.

5. Today, while opening the arguments, Mr. Lokesh Sharma,

Advocate, Legal Aid Counsel for the appellants, appointed by this Court

vide order dated 14.11.2022, points out that Criminal Appeal filed by 3rd

3 of 15

accused Jagir Singh i.e. CRA- 1679-SB-2003 was allowed on

11.02.2010. While citing the judgment, which is now uploaded as 'Jagir

Singh v State of Punjab,', CRA- 1679-SB-2003, Law Finder Doc ID

#212260, learned counsel for the appellant submits that while recording

statement under Section 313 Cr.P.C., accused- Jagir Singh (already

acquitted) and Balkar Singh (appellant in the present appeal) have

adopted the same plea and in defence, they had examined one witness

i.e. Satnam Singh as DW 1. Counsel refers to paragraphs 6 to 19 of the

said judgment and submits that case of the present appellant is entirely

covered with the arguments addressed in Jagir Singh's case (supra)

decided by this Court.

Paragraphs 6 to 19 of the said judgement are reproduced

here below:

"6. After hearing the learned Additional 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, Jagir Singh

accused has preferred this appeal.

7. I have heard the learned counsel for the parties,

besides perusing the record with due care and

circumspection.

8. On behalf of the appellant, it has been

4 of 15

strenuously urged that a glance through Ex.PA affidavit

of HC Sukhdev Singh with whom the case property was

allegedly deposited would reveal that it has no where

been stated in it as to on which date the sample parcels

were handed over to Gurnam Singh C-II. To add further

to it, as follows from the contents of this affidavit, the

sample parcels were handed over to C-II Gurnam Singh

whereas in the statutory statement of the appellant Jagir

Singh recorded under Section 313 Criminal Procedure

Code it has been put to him in question No. 10 that

"Ex.PA is the affidavit of MHC Sukhdev Singh and

Ex.PW-1/A is affidavit of Constable Avtar Singh to the

effect that the case property and samples remained

intact till the same remained in their possession." It is,

thus, inferable that it has not been put to the appellant

that the sample parcels for the purpose of carrying the

same to the office of the Chemical Examiner were

handed over to CII Gurnam Singh rather as per the

statutory statement these were given to Constable Avtar

Singh. On putting these facts together, it comes out that

there is dent in the prosecution case. It has been further

argued that a glance through the prosecution evidence

would reveal that no independent witness was attempted

5 of 15

to be joined and the seal after use was handed over to

HC Arjan Singh. Thus, the possibility of tampering with

the contents of the sample parcels/after taking back the

seal from said Head Constable cannot be ruled out. To

crown it all, a careful delving into the statement of the

appellant recorded under Section 313 of Criminal

Procedure Code would reveal that no specific question

has been framed nor put to him to the effect that he was

found in conscious possession of the recovered poppy

husk bags and thus, it does not lie in the mouth of the

prosecution to contend that the conscious possession of

the appellant qua these bags has been established in

view of the ratio decidendi laid down by the Full Bench

of this Court in Kashmir Singh v. State of Punjab,

2006(2) Apex Criminal 24 : 2006(2) RCR (Criminal)

477, wherein it has been observed as under :-

"12. When the Trial Judge records the statement of an accused

person under Section 313 Criminal Procedure Code with regard

to the circumstances which have appeared in evidence against

him, the learned judge gives the accused an opportunity to

explain those circumstances. The accused generally denies the

prosecution case against him but it is an opportune moment for

him to plead any type of defence that he may like to take.

Therefore, by extending the provisions of Section 313 Criminal

6 of 15

Procedure Code and on first principles of fair trials as well, there

is need to give every accused person an opportunity to explain

the case against him. Wheresoever the presumption under

Sections 35 & 54 is to be raised, it would be advisable for the

Trial Court to frame a question under Section 313 Criminal

Procedure Code in order to give the accused a fair opportunity to

rebut the presumption but it is strange that Trial Courts do not

give the accused this opportunity. Unless the accused have been

given the opportunity to prove that he had no such mental state

as presumed under Section 35 or that he had satisfactorily

accounted for the possession which was being presumed against

him under Section 54, the respective presumptions cannot be

raised against the accused. 19. For the above reasons we would

answer the question raised by stating that no presumption under

Section 35 and 54 should be used against the accused unless he

has been given an opportunity to rebut the presumptions in his

statement under Section 313 Criminal Procedure Code by being

called upon to explain the circumstances which give rise to the

presumptions. Thereafter the accused should be given an

opportunity to lead evidence in defence in support of his stand.

However, there is no real or apparent conflict regarding the

correct meaning of "possession" which needs to be resolved."

9. It is further canvassed at the bar on behalf of the

appellant that owner of the truck has neither been

associated in the investigation nor challaned.

10. To overcome these submissions, the learned State

7 of 15

counsel pressed into service that as per Chemical

Examiner's report Ex.PK, when the sample parcels were

received in the office for chemical analysis, the seals

affixed on the sample parcels were intact and agreed

with the sample seal, and thus possibility of tampering

with the contents of sample parcels stands ruled out.

The learned State counsel could not reconcile the other

contentions in a successful manner."

11. I have given a deep and thoughtful consideration

to the rival contentions.

12. Ex.PA the affidavit of MHC Sukhdev Singh with

whom the case property including sample parcels was

deposited being absolutely silent about the date on

which sample parcels were delivered to C-II Gurnam

Singh for being carried to the office of the Chemical

Examiner for analysis, the link in the chain of evidence

is missing. It was incumbent upon the Public

Prosecutor, whosoever was conducting the case in the

learned Trial Court to have checked this affidavit before

it was exhibited. A glance through Ex.PW-1/A the

affidavit of C-II Gurnam Singh would reveal that the

sample parcels of this case were handed over to him

though it has been put to the appellant during his

8 of 15

examination under Section 313 of Criminal Procedure

Code that the sample parcels were given to Constable

Avtar Singh for being delivered in the office of

Chemical Examiner. Thus to the utter consternation of

the prosecution, there is dent in the prosecution case.

13. In case Avtar Singh v. State of Punjab, 2002(4)

RCR (Criminal) 180, the accused were travelling in a

truck belonging to accused No. 5 in the small hours of

7.8.1989. The vehicle was carrying 16 bags of poppy

husk being driven by Balbir Chand appellant No. 3.

One person, who was sitting in the front seat by the side

of the driver and another person sitting on the back side

of the truck ran away leaving the vehicle. The Apex

Court held that "A case of drawing presumption under

Section 114 of the Evidence Act could perhaps be made

out then to prove the possession of the accused, but, the

fact remains that in the course of examination under

Section 313 Criminal Procedure Code not even a

question was asked that they were the persons in

possession of poppy husk placed in the vehicle. The only

question put to them was that as per the prosecution

evidence, they were sitting on the bags of poppy husk.

Strangely enough, even the driver was questioned on

9 of 15

the same lines. The object of examination under Section

313, it is well known, is to afford an opportunity to the

accused to explain the circumstances appearing in the

evidence against him. It is unfortunate that no question

was asked about the possession of goods. Having

regard to the charge of which appellants were accused,

the failure to elicit their answer on such a crucial

aspect as possession, is quite significant. In this state of

things, it is not proper to raise a presumption under

Section 114 of the Evidence Act, nor is it after to

conclude that the prosecution established beyond

reasonable doubt that the appellants were in possession

of poppy husk which were being carried by the vehicle.

The High Court resorted to the presumption under

Section 35 which relates to culpable state of mind,

without considering the aspect of possession. The trial

Court invoked the presumption under Section 54 of the

Act without addressing itself to the question of

possession. The approach of both the courts is

erroneous in law. Both the courts rested their

conclusion on the fact that the accused failed to give

satisfactory explanation for travelling in the vehicle

containing poppy husk at an odd hour. But, the other

10 of 15

relevant aspect pointed out above were neither adverted

to, nor taken into account by the trial Court and the

High Court. Non-application of mind to the material

factors has thus vitiated the judgment under appeal."

14. In Raj Kumar v. State of Punjab, 2005(1) RCR

(Criminal) 70, a bag containing opium lying between

Raj Kumar and Hawa Singh's seat was recovered. The

Division Bench of this Court held that both the accused

have been charged for possession of opium, but neither

of them had been asked any question in their statements

under Section 313 Criminal Procedure Code that he

was in conscious possession of opium. Therefore,

neither presumption under Section 35, nor the

presumption under Section 54 of the Act would be

attracted.

15. In State of Punjab v. Hari Singh and others,

2009(2) R.A.J. 175 : 2009(2) RCR (Criminal) 143,

sixteen bags of poppy husk were recovered. The

conviction has been set aside by the Apex Court by

observing that evidence on record showed that the

accused was in conscious possession but no question

was put to the accused during his examination under

Section 313 Criminal Procedure Code that he was in

11 of 15

conscious possession of contraband. Questioning of

accused under Section 313 Criminal Procedure Code is

not an empty formality.

16. Coming back to the present one, a meticulous

perusal of the statement recorded under Section 313 of

Criminal Procedure Code would reveal that no question

regarding conscious possession has been put to the

accused. Thus, in view of the afore- extracted

observations, the presumption arising under Sections 35

and 54 of the Act would not be available to the

prosecution.

17. It surfaces in the cross-examination of Sub

Inspector/SHO Sucha Singh PW-5 the Investigator that

"I have not contacted the owner of the truck." It is in his

further evidence that Anand Parkash Power of Attorney

has been joined in investigation. He has not

apportioned any reason for nonjoining or interrogating

the owner. He has nowhere stated that Anand Parkash

was interrogated and what was the outcome. Thus, the

provisions of Section 25 of the Act have been given a go

by for the reasons best known to the Investigator.

18. For the reasons indicated above, this appeal

succeeds and is accepted by setting aside impugned

12 of 15

judgment/order of sentence. The accused/appellant is

hereby acquitted of the charged offence by giving him

benefit of reasonable doubt. He be released forthwith, if

not wanted in any other case.

19. Since the appeal has been decided, all pending

Criminal Miscellaneous,if any, also stand disposed of."

6. Learned State counsel very fairly submits that already this

issue has been dealt with by this Court in Jagir Singh' case (Supra)

which has attained finality as per his instructions, therefore, there is no

material with him to address any different argument as has already been

submitted and considered in the appeal of Jagir Singh.

7. In view of the circumstances that already appeal of the co-

accused- Jagir Singh i.e. CRA-1679-SB-2003 has been allowed by

acquitting the accused-Jagir Singh on the same ground and arguments,

there is nothing available with this Court also to deviate from the view as

already taken by this Court in Jagir Singh'case (supra).

8. Moreover, learned counsel for the appellant has also

substantiated the arguments addressed by him on his law point with the

judgement of Kashmir Singh V. State of Punjab, CRA-407-DB-1999,

decided on 22.02.2006, (Law Finder Doc ID #120127) passed by Full

Bench of Punjab and Haryana High Court.

Relevant paragraph 12 of the said judgment which deals

13 of 15

with the said arguments is as under:

"12. When the Trial Judge records the statement of

an accused person under Section 313 Criminal

Procedure Code with regard to the circumstances

which have appeared in evidence against him, the

learned Judge gives the accused an opportunity to

explain those circumstances. The accused generally

denies the prosecution case against him but it is an

opportune moment for him to plead any type of

defence that he may like to take. Therefore, by

extending the provisions of Section 313 Criminal

Procedure Code and on first principles of fair trials

as well, there is need to give every accused person

an opportunity to explain the case against him.

Wheresoever the presumption under Sections 35 &

54 is to be raised, it would be advisable for the Trial

Court to frame a question under Section 313

Criminal Procedure Code in order to give the

accused a fair opportunity to rebut the presumption.

Indeed Sections 35 and 54 do entitle the accused to

rebut the presumptions but it is strange that Trial

Courts do not give the accused this opportunity.

Unless the accused have been given the opportunity

14 of 15

to prove that he had no such mental state as

presumed under Section 35 or that he had

satisfactorily accounted for the possession which

was being presumed against him under Section 54,

the respective presumptions cannot be raised against

the accused."

9. Considering the aforementioned circumstances, judgement

of conviction and order of sentence dated 21.08.2003 passed by learned

trial Court, are hereby set-aside, and consequently, appeal is allowed by

acquitting the appellant-Balkar Singh from all the charges levelled

against him.

10. Appeal stands disposed of.

                                                      (SANJAY VASHISTH)
                                                            JUDGE
12.01.2023
Riya
Whether speaking/reasoned:           Yes/No
Whether Reportable:                   Yes/No




                               15 of 15