CRA No.106-SB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.106-SB of 2001 Date of Decision : 12th November, 2010 Gurbux Singh .......Appellant Versus Union of India .......Respondent CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. S.C. Chhabra, Advocate, for the appellant. Ms. Geeta Singhwal, Sr.P.C., for the UoI. **** JITENDRA CHAUHAN, J. 1. The present appeal is directed against the judgment and order dated 08.1.2001 (hereinafter as ‘impugned judgment’) passed by the learned Special Judge, Ferozepur (hereinafter as ‘trial Court’), whereby the accused-appellant has been convicted for the commission of offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in default thereof, to further undergo rigorous imprisonment for a period of one year. 2. The brief facts of the present case are that Shri Ramesh Sharma, Inspector, Customs Department, Fazilka, received a secret information on 26.4.1993 regarding the sale of opium by one Gurbux CRA No.106-SB of 2001 2 Singh, herein appellant, at his dhani. Pursuant to the secret information, a raiding party comprising of Inspector Harvinder Singh and Inpsector Mahesh Kumar Sharma with other Custom Officials headed by Inspector Ramesh Sharma under the garb of bogus customers, contacted the suspect-accused while other Custom Officials stayed back hiding in the fields of wheat crop. After a good deal of negotiations, the suspect agreed to sell opium to the bogus customers. The suspect went to a nearby field where he had kept the opium in the wheat crop and came back with a bag and started coming to the bogus customers. While he was returning, the Customs Officers gave a signal to the hiding party who immediately came out of the hiding spot. On seeing this, accused Gurbux Singh became suspicious and tried to run away with his bag. He was chased and apprehended after a minor scuffle. Two independent witnesses, namely, Pawan Kumar and Kamaljit, were joined as independent witnesses. On search of said bag, two polythene bags containing opium were found. Another small jeans bag containing metallic weighing scale along with weights of 100 gms., 50 gms. and one rupee coin and one 25 paise coin duly wrapped in a polythene paper, were recovered from the said small bag. On weight, opium weighing 1.5 Kg. was recovered from both the bags being carried by the accused-Gurbux Singh. 3. After completion of investigation and other formalities, the accused was challaned for committing the offence under Section 18 of the Act, to which he pleaded not guilty and claimed trial. 4. In order to substantiate its case, the prosecution examined as many as three witnesses, namely, Ramesh Sharma, Inspector, CRA No.106-SB of 2001 3 Customs Department and Investigating Officer, as PW1; Mahesh Kumar, Inspector, Customs Department, as PW2; and Harvinder Singh Chhatwal, Inspector, Customs Department, as PW3. Independent Witnesses, namely, Pawan Kumar and Kamaljit, were given up as having been won over and Inspector Baljit Singh was given up being unnecessary. 5. When examined under Section 313 Cr.P.C., the appellant has denied the entire incriminating material appearing in prosecution evidence and pleaded his false implication. However, he did not lead any evidence in his defence. 6. After hearing learned counsel for both the parties and considering material/evidence on record, the learned trial Court recorded the finding while observing that the case of the prosecution cannot be discarded solely on the ground that all the witnesses were of the Customs Department, who were interested in the success of their case. It was further held that there was no violation of Section 50 of the Act. Accordingly, the learned trial Court convicted and sentenced the appellant for the offence and term indicated at the outset of this judgment. 7. Feeling aggrieved from the judgment of conviction and order of sentence, the present appeal is directed by the appellant which was admitted by this Court on 29.01.2001 and the appellant was admitted to bail vide order dated 01.05.2001. 8. Learned counsel for the appellant has submitted that there is no compliance of Section 50 of the Act. The offer made to the accused regarding search is not a clear and complete offer. There is CRA No.106-SB of 2001 4 no statement of the appellant on record showing that he gave consent for recording his statement by the Custom Officers. The learned counsel further submits that there is no whisper of reposing faith in the raiding team by the accused-appellant. 9. The learned counsel has further argued that as per the case of the prosecution, the secret information was received by Shri Ramesh Kumar, PW1, on 26.04.1993. However, the same was neither reduced to writing nor sent to the higher authorities, as required under Section 42 of the Act. Therefore, the mandatory requirement has not been fulfilled and, thus, there is a total violation of Section 42 of the Act and the accused-appellant deserves acquittal on this count alone. 10. The learned counsel has further argued that the link evidence in the instant case is missing. As per the statement of PW1- Mr. Ramesh Sharma, I.O., initially the sample was sent to the Chemical Examiner, Delhi, on 27.4.1993. However, the said Chemical Examiner returned the same with the remarks that the samples were not sent along with proforma. Thereafter, the samples were again sent to the Chemical Examiner on 24.06.1993 after a gap of about two months. The learned counsel has argued that this delay is unexplained and, therefore, is fatal to the case of the prosecution. 11. The learned counsel has lastly argued that neither the seal was handed over to the independent witnesses, namely, Pawan Kumar and Kamaljit, nor they were examined by the prosecution. Thus, according to the learned counsel for the appellant, an adverse inference deserves to be drawn against the prosecution version. CRA No.106-SB of 2001 5 12. On the other hand, learned counsel for the respondent- UoI has argued that the case against the appellant is proved beyond reasonable doubt and that the impugned judgment passed by the learned trial court does not suffer from any infirmity. 13. I have heard learned counsel for the parties and perused the record. 14. Admittedly, the recovery was effected in pursuance of the secret information after laying a trap and the alleged recovery of opium, weighing 1.5 Kg., was effected in the presence of two independent witnesses, namely, Pawan Kumar and Kamaljit. From the scrutiny of the record, it emerges that there is no clear and express offer made to the accused whether he reposed faith in the officer of the raiding party or wanted to be searched in the presence of a Magistrate/Gazetted Officer. At the same time, there is nothing on record which may even remotely suggest that the secret information received by Ramesh Kumar, PW1, was further transmitted to the higher authorities and no explanation whatsoever has been put forth by the prosecution on this account. Before proceeding further, reproduction of Sections 42 and 50 of the Act, would be necessary to adjudicate upon the matter in hand:- “42. Power of entry search, seizure and arrest without warrant or authorisation (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 CRA No.106-SB of 2001 6 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 persons 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 for forfeiture under Chapter V A 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; CRA No.106-SB of 2001 7 (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 Chapter V A 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 authorisation 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 an 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 official superior. CRA No.106-SB of 2001 8 50. Conditions under which search of persons shall be conducted (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female.” 15. In view of the discussion made hereinabove, I have no hesitation to hold that in the instant case, provisions of Sections 42 and 50 of the Act have not been complied with. While dealing with a similar situation under identical facts and curcumstances, Hon’ble the Supreme Court, in a case titled as State of Karnataka Vs. Dondusa Namasa Baddi, 2010(4) RCR (Criminal) 367, took a similar view and observed thus:- CRA No.106-SB of 2001 9 “3. Concededly in the present matter, no information was taken down in writing by the police officer or conveyed to the immediate police officer. Shri A.K. Mishra, the learned State counsel has, however, forcefully argued that there was evidence in the oral evidence of P.W.10, the investigating officer, that he had complied the formalities enjoined by Section 42(2). 4. It is not the case of the prosecution that sufficient time was not available to record the information in writing and send it to the superior officer and in the fact of it, we are of the opinion that any oral evidence of the police officer will not be in compliance with the provisions of Section 42(2) of the Act.” 16. Admittedly, the seized opium was sent to the Chemical Examiner after a long gap of about two months. However, there is no chemical examiner report to the effect whether at the time of receipt of the samples of opium, the seal of the samples was intact. Moreover, it has not been explained by the prosecution as to whom the seal was entrusted after its use. 17. The prosecution has not examined the best witnesses in support of its case, the independent witnesses, namely, Pawan Kumar and Kamaljit. From the perusal of the record, it emerges that they were declared hostile, however, no fact or circumstances are pointed out for drawing this inference by the prosecution especially when both of them were not examined. The record further revealed that even their examination-in-chief was not conducted. This fact gives rise to CRA No.106-SB of 2001 10 the legitimate suspicion that perhaps, no independent witness was ever joined at the time of recovery. 18. In the circumstances, I am of the considered view that there is non-compliance of Sections 42 and 50 of the Act in the instant case. There is no explanation whatsoever to the effect that under what circumstances, the secret information received by PW1 was not reduced into writing and sent to the superior authorities. It is not that the case cannot be accepted only on the evidence of the official witnesses but the present case is ridden with deficiencies and defects which renders the alleged recovery of opium doubtful. 19. Resultantly, the present appeal is allowed. The impugned judgment and order passed by the learned trial Court is set aside. The appellant is stated to be on bail. His bail bonds shall stand discharged. ( JITENDRA CHAUHAN ) 12.11.2010 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No