Crl.Appeal No.533-DB of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.533-DB of 2007 Date of Decision: 4.01.2012 [ENTITY] & Anr. Appellants Vs. [ENTITY] Respondent Crl.Appeal No.671-DB of 2007 [ENTITY] Appellant Vs. [ENTITY] Respondent [CASE NUMBER] [ENTITY] Appellant Vs. [ENTITY] Respondent CORAM Hon'ble Mr.Justice [ENTITY], Hon'ble Mr. Justice [ENTITY], Present: Mr.[ENTITY], Advocate, for the appellant in CRA No.533-DB of 2007. Mr.[ENTITY], Advocate,Amicus Curiae. In CRA No.990-DB of 2009. Mr.[ENTITY], Advocate, for the appellant in Crl.A.No.671-DB of 2007. Crl.Appeal No.533-DB of 2007 2 Mr.[ENTITY], Addl.A.G., Punjab. [ENTITY], J.
This judgment shall dispose of three criminal appeals bearing [CASE NUMBER] and [CASE NUMBER], titled [ENTITY] & Anr. Vs. [ENTITY] and [ENTITY] Vs. [ENTITY] and [ENTITY] Vs. [ENTITY], respectively, as they arise out of common judgment.
Vide impugned judgment dated 18.04.2007 all the four accused/appellants were convicted and sentenced to undergo rigorous imprisonment for a period of 20 years and to pay a fine of Rs.2 lacs each under [SECTION] of the [ACT] (for short the Act).
The case relates to the recovery of 30 bags of poppy husk each bag containing thirty kilograms.
On 22.09.2003 at about 2 PM Inspector [ENTITY] of CIA Staff, Mansa was present near Bus Stand, Fatta Maloka in connection with patrolling where he received a secret information that [ENTITY] and other accused were indulging in the sale of poppy husk and they were coming in a truck bearing registration No.HR-46A- 7777 and if picket is laid on Jatana Road, they could be apprehended with 30 bags of poppy husk. Believing the information to be credible, the Investigating Officer recorded a note and dispatched it to the Police Station, Sardulgarh through constable [ENTITY], on the basis of which formal FIR was recorded. After associating, [ENTITY] an independent witness (later on given up as won over) the Investigating Officer laid a picket on Rori-Jatana Road. In the meantime, the accused [ENTITY] while driving truck No.HR-46A-7777 carrying poppy husk came from the side of village Rori. On giving signal, the accused stopped the truck. [ENTITY] (owner of the truck) was sitting by his side. The other accused namely [ENTITY] and [ENTITY] were sitting on the rear portion of the truck. The Investigating Officer while informing them that they were carrying some narcotic material in the body of the truck, and if they wanted to get the search conducted in the presence of a Gazetted Officer or Magistrate then necessary arrangement could be made. In this regard four memos were prepared separately.
As desired, [ENTITY] DSP was called to reach the spot. On his arrival, the truck was searched and 30 bags of poppy husk were recovered. Out of which, two samples of 100 grams each from each of 30 bags were taken out. Thereafter, all the samples as well as the bags were sealed with the seal bearing impression LS and seal after use was handed over to PW [ENTITY]. It may also be noticed here that each bag was containing 30 kilograms of poppy husk and after drawing of samples, the remaining 29 kilograms 800 grams of poppy husk in each bag, were converted into parcels. After completion of the formalities and after informing the accused persons the grounds of arrest, they were arrested.
On return to the police station, Inspector [ENTITY] handed over all the four accused and the case property as well as samples to Station House Officer [ENTITY] who after verifying the investigation affixed his own seals and kept the case property as well as accused in his custody. Station House Officer also dispatched a special report in terms of [SECTION] of the Act. He produced the accused and the case property as also the truck before the area Magistrate on 23.9.2003 along with inventory of the case property by way of an application. Since there was paucity of space in the Judicial Malkhana, therefore, the case property was kept in Police Malkhana.
On 24.9.2003 Station House Officer after completing FSL form handed over the same along with sample parcels (duly sealed) to the constable [ENTITY] for depositing the same with FSL, Punjab, Chandigarh, who after depositing the same as per directions returned the receipt issued by the Laboratory to the Station House Officer on 26.9.2003. On receipt of report of Forensic Science Laboratory, Punjab, Chandigarh, challan was presented against the accused.
All the four accused were charged for an offence punishable under [SECTION] of the Act to which they pleaded not guilty and pleaded their false implication.
Irrespective of the fact that accused [ENTITY] being the owner of the truck could also be charged for an offence under [SECTION] of the Act, but the trial court did not apply its mind, we do not deem it expedient, at this stage. to remit the case for framing such charge.
In order to substantiate the charge framed against the accused, prosecution examined [ENTITY] DSP (PW 1), [ENTITY] (PW 2), Inspector [ENTITY] (PW 3) and Constable [ENTITY] (PW 4). After tendering the report of Chemical Examiner Ex.PR, prosecution closed its case.
When examined under [SECTION] of the [ACT], the accused denied all the incriminating circumstances appearing against them and pleaded their innocence. Accused [ENTITY] further added that since he could not oblige Inspector [ENTITY] for delivering him the truck on Begar he was implicated in the case.
In defence, the accused examined [ENTITY], Municipal Commissioner, [ENTITY] (DW 1), [ENTITY], Mechanic, Budhalda (DW 2), [ENTITY], Shopkeeper [ENTITY] (DW 3), [ENTITY] (DW 4), [ENTITY], [ENTITY] (DW 5) and [ENTITY], [ENTITY] (DW 6).
Heard. Record perused.
The first contention raised by the learned counsel for the appellants is that the case is based on the official testimony. Sole independent witness so joined by the prosecution has been given up.
In this regard, it may be observed that 30 bags of poppy husk were recovered from the accused. Such huge quantity could not be manufactured/procured by the Investigating Officer for fastening upon the accused that too without any enmity, motive or animus against them. No such enmity has been alleged or proved by the accused against the Investigating Officer. In any case, the Investigating Officer joined Deputy Superintendent of Police as well as In-charge of the Police Station namely [ENTITY] Inspector. No allegation of connivance on their part has been levelled by the accused. In these circumstances official witnesses having no grudge against the accused would be treated as good witnesses as independent witnesses. So their testimonies could not be discarded or discredited without creating any dent in their statements by showing some material inconsistencies or contradictions but such is not the case. The witnesses have withstood the test of cross- examination.
Inspector [ENTITY], who had apprehended the accused, has stated that after the truck was stopped, he apprehended the accused and they were given option to be searched by a Gazetted Officer or Magistrate, then as required and desired by the accused, [ENTITY] DSP was summoned at the spot, and in his presence the truck was searched and 30 bags of poppy husk were recovered. DSP has corroborated the statement of [ENTITY] in all material particulars and he has also proved his seal affixed over the case property. The Investigating Officer did not make any delay in producing the case property before the Ilaqqa Magistrate rather it was produced on 23.9.2003. On 24.9.2003 he completed the FSL form and handed over the same along with samples to constable [ENTITY] PW 4 who has also deposed in the court that he after getting the samples as also FSL form got the same forwarded from Superintendent of Police and went to FSL, Laboratory and after handing over the same returned the receipt to the Station House Officer on 26.9.2003. In these circumstances, link evidence is also complete in the case. There is no delay in sending the samples to the FSL, Punjab, Chandigarh.
The main argument advanced by the learned counsel for the appellant in the instant case is that there is no compliance of [SECTION] of the Act, therefore, the recovery stands vitiated.
Having pondered over the contention, we are of the view that the same is devoid of any merit. Secret information was reduced into writing at 3 PM and it reached the police station at about 3.30 PM. The Investigating Officer after making a note about the secret information had sent it to the SHO Police Station Sardulgarh. Therefore, as per information, recovery was effected at about 4.15 PM. FIR Ex.PF/1 reveals that it was completed at 4.45 PM and it also indicates that special reports were sent to the Ilaqqa Magistrate and to the Senior Officers through constable [ENTITY] at 5.30 PM. Police Control Room, Mansa was also informed through wireless Message.
In order to find out, if the requirements of law as envisaged under [SECTION] of the Act stand fulfilled, it is essential to go into the relevant provision which is reproduced as under:-
"42. Power of entry, search, seizure and arrest without warrant or authorization - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under [SECTION] of this Act is kept or concealed in any building conveyance or enclosed place, may between sunrise and sunset -
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under [SECTION] of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief."
(2) Where any officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto he shall within seventy two hours send a copy thereof to his immediate officials superior."
While interpreting the aforesaid provisions, the Apex Court in case [ENTITY] Ibrahim Mansuri v. State of Gujarat (2000) 2 SCC 513, had held that compliance of [SECTION] of the Act is mandatory and failure of the police officer to take down the information received by him in writing and to forthwith send a report to his immediate official superior would cause prejudice to the accused, whereas, in case of [ENTITY] vs. State of Kerala 4 (2001) 6 SCC 692 it was observed that [SECTION] was not mandatory and substantial compliance was sufficient. In view of the conflicting opinion regarding, scope and applicability of [SECTION] of the Act in the matter of entry, search seizure and arrest without warrant or authorization, a reference was made to be decided by the Larger Bench, then five Judge Bench of Apex Court in case [PRECEDENT] while examining the earlier contradictory views laid down the following guidelines :-
"17. In conclusion, what is to be noticed is [ENTITY] did not require literal compliance with the requirements of [SECTION] and [SECTION] nor did [ENTITY] hold that the requirements of [SECTION] and [SECTION] need not be fulfilled at all. The effect of two decisions was as follows :-
(a) The officer on receiving the information (of the nature referred to in [SECTION]) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of [SECTION].
(b) But if the information was received when the officer was not present in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per [SECTION] and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of [SECTION] and [SECTION] in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of the urgency and expediency. (d) While total non-compliance of requirements of [SECTION] is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of [SECTION].
To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the officials superior forthwith, may not be treated as violation of [SECTION]. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of [SECTION] of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of [SECTION] of the Act. Whether there is adequate or substantial compliance with [SECTION] or not is a question of fact to be decided in each case. The above position got strengthened with the amendment of [SECTION] by [ACT]."
The aforesaid rules, thus, impliedly had relaxed the compliance of the provisions of [SECTION] of the Act. In other words, the crux of the guidelines is that:
(i) If the Investigating Officer receives any information while in the police station and had sufficient time, then he is bound to record such information into writing in the concerned register and forthwith send copy thereof to the officials superior.
(ii) If he is on road and receives such information and delay would have resulted in the goods or evidence being removed or destroyed, he considers it emergent to cause such raid and apprehends that the time if consumed may cause leaking of information or it would not be feasible or practical to take down in writing the information and if there were some chances that on account of delay in conducting raid, the purpose of raid could be frustrated then non sending copy of such information to the officer superior forthwith may not be treated as violation of [SECTION] of the Act.
(iii) The purpose of reducing the information into writing is to confirm about the ground of his raid or to avoid any such hanky panky on the part of the police officer to falsely implicate the accused.
(iv) No special proforma or document is required for sending the information and it could be in any shape i.e. may be in the shape of a ruqua, wireless message, telephone, telex or otherwise. The court should not be hesitant about a particular note but it could gather from the surrounding circumstances only if the object of the section has been served.
Sensitivity of the issue could well be assessed from the facts and circumstances prevailing over the case. [ENTITY] was posted as Inspector in CIA Staff, Sardulgarh. He was on his routine checking. When he received secret information, he reduced the same into writing and sent it to the police station at 3.30 PM and he himself without wasting any time, rushed to the informed place; placed a picket and apprehended the truck carrying 30 bags of poppy husk. FIR also discloses that besides the note which was sent to the Officer superior, an information was also given to the DSP and he was also requested to reach the spot. FIR also reveals that information qua the commission of the crime was given to the superior officers including the Ilaqa Magistrate. In such circumstances, no violation of provisions of [SECTION] of the Act could be said to have been made.
As regards the judgment delivered by the apex court in the case of [PRECEDENT] observing that there was a violation of [SECTION] of the Act, as such the accused was entitled to acquittal, it may be observed that the court, while holding so noticed that the Investigating Officer had admitted during cross-examination that he had not prepared the record about secret information received by him in writing and had sent such intimation to the higher authorities. Even DSP [ENTITY] did not utter a single word about the receipt of any written information from his junior officer Inspector [ENTITY]. In that case the Apex Court had held that there was noncompliance of [SECTION] of the Act.
Inspector [ENTITY] in this case has categorically stated that note Ex.PF was recorded and was sent to the Police Station through constable [ENTITY] which was also used for incorporating the first information and FIR Ex.PF/1 by ASI [ENTITY]. He also informed the DSP [ENTITY] on wireless set who had also reached the spot.
No such question was asked to the witness if he had not sent the information to his superior officers regarding apprehension of commission of crime by the accused.
Thus, we are not inclined to approve the contention raised by the learned counsel for the appellants that the provisions of [SECTION] of the Act were not complied with by the Investigating Officer before effecting search upon the accused persons.
Faced with this situation, learned counsel for the appellants has urged for taking lenient view in the matter with regard to the quantum of sentence. In this regard, while considering his contention and other attending circumstances of the case, we are inclined to hold that the sentence awarded by the trial court appears to be harsh and on higher side and the same is required to be modified.
No other argument was advanced before us.
In the result, all the three appeals are dismissed with the modification in the sentence part which is reduced from 20 years to 10 years and a fine from Rs.2 lacs to Rs.1 lac to each accused. However, in default of payment of fine the accused persons would further undergo rigorous imprisonment for one year each. Copy of the judgment be sent to the court of Chief Judicial Magistrate, Mansa for compliance.
([ENTITY]) ([ENTITY]) Judge Judge 4.01.2012 rp