Crl.Appeal No.840-SB of 1998 1 Crl. Appeal No.853-SB of 1998 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : April 30, 2008 Crl.Appeal No.840-SB of 1998 Malkiat Singh S/o Vir Singh ....Appellant R/o Village Lauhka, Tehsil Patti. Versus The State of Punjab ....Respondent Crl. Appeal No.853-SB of 1998 1. Balbir Singh S/o Dalip Singh ....Appellants R/o Rayya, District Amritsar. 2. Skattar Singh S/o Sarvan Singh, R/o Village Rayya Tehsil Baba Bakala, District Amritsar. Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr.V.K.Chaudhary, Advocate, with Mr. Pardeep Bajaj, Advocate, for the appellant, in Crl.Appeal No.840-SB of 1998. Mr. Sandeep Mann, Advocate, for the appellants, in Crl. Appeal No.853-SB of 1998. Mr. S.S.Bhullar, Deputy Advocate General, Punjab, for the respondent. SHAM SUNDER, J. This judgment shall dispose of the aforesaid two appeals, arising out of the judgment dated 5.8.1998, rendered by the Special Judge, Amritsar, vide which it convicted all the accused/appellants, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter called as 'the Act' only) and sentenced them to undergo rigorous imprisonment, for a period of ten years each, and to pay a fine of Rs.1 lac each, Crl.Appeal No.840-SB of 1998 2 Crl. Appeal No.853-SB of 1998 and in default of payment of the same, to undergo further rigorous imprisonment for a period of six months each, for having been found in possession of 10 bags, each containing 40 Kgs. poppy-husk, without any permit or licence. 2. On 16.9.1996, Dharam Singh, SHO, Police Station Khalchian, alongwith other police officials, was present at Bus Adda Khalchian, where he received a secret information, to the effect that a truck bearing registration No.PBW-8095, containing contraband, was approaching, from the side of village Kaleke. On receipt of this information Jagtar Singh, member Panchayat, was associated with the police party, and thereafter, the police party proceeded towards Butari. In the meanwhile, a wireless message was flashed to Rashpal Singh, DSP, requiring him, to reach the drain bridge, in the area of village Butari, at Kaleke road, and around 11.00 AM, a picket was set up there. At about 11.30 AM, the DSP reached the aforesaid place. At about, 12.00 noon, the truck aforesaid came. A signal was given to stop the same, as a result whereof, it was stopped by Mukhtiar Singh, who was driving the same. Balbir Singh, accused, owner, Skattar Singh, accused, cleaner, and Malkiat Singh, driver, were apprehended. The search of the truck was conducted, in the presence of Rachpal Singh, DSP, in accordance with the provisions of law. 10 bags, cntaining poppy-husk, concealed under-neath the cement, were recovered, from the body of the truck. Each bag was found containing 40 Kgs. poppy- husk. A sample of 250 grams of poppy-husk from each bag, was taken out, and the remaining poppy-husk, was put into the same bags. The samples, and the bags, containing the remaining poppy-husk, were sealed with the seals, bearing impressions 'DS' and 'RS', and taken into possession, vide a separate recovery memo Ex.PB, alongwith the truck, as well as its registration certificate. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Personal search of the accused was also conducted. A sum of Rs.200/- was Crl.Appeal No.840-SB of 1998 3 Crl. Appeal No.853-SB of 1998 recovered from Balbir Singh, accused, and a sum of Rs.50/- was recovered from Malkiat Singh, accused. The same were taken into possession, vide memo Ex.PC. Rough site plan of the place of recovery, with correct marginal notes, was prepared. The accused were arrested. After the completion of investigation, they were challaned. 3. On their appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against them, to which they pleaded not guilty and claimed trial. 4. The prosecution, in support of its case, examined Tarsem Singh, ASI (PW-1), Dharam Singh, Inspector (PW-2), Gurnam Singh, Constable (PW-3), Balwinder Singh, HC (PW-4), and Rachhpal Singh, DSP (PW-5). Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence. 5. The statements of the accused under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Balbir Singh, accused, in his statement recorded under Section 313 Cr.P.C., stated that his truck had been taken by driver Malkiat Singh and cleaner Sakatar Singh, for bringing cement from Rajasthan. He further stated that he did not accompany the truck. He further stated that he was falsely implicated, in the instant case, as he had a dispute with Sarbjit Singh S/o Joginder Singh. He further stated that he (Sarabjit Singh) had promised to pay the amount, due from him, by 17.10.1996, but instead of paying the said amount, he got him involved, in this case, in connivance with the police. 5-A. Malkiat Singh, accused, in his statement, recorded under Section 313 Cr.P.C., stated that the cement was loaded in the truck from inside the factory, and it was in an open condition. He further stated that it was not Crl.Appeal No.840-SB of 1998 4 Crl. Appeal No.853-SB of 1998 possible to put the bags, containing poppy-husk, under the cement. He further stated that no recovery was effected, from the truck, in question. He further stated that this case was foisted on them, due to enmity of the owner of the truck, with some person, who got the truck driven to the Police Station. 5-B. Sakattar Singh, accused, also took up the same plea, as was taken up, by Malkiat Singh, accused. 5-C. The accused, however, examined Baljit Singh, AMHC (DW-1), Shamsher Singh, LC (DW-2), Rajinder Kalia, (DW-3), and Gurdip Singh (DW-4), and, thereafter, closed their defence evidence. 6. After hearing the Addl. Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction and the order of sentence, rendered by the lower Court, the instant appeals, were filed by the aforesaid accused/appellants. 8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the accused/appellants, at the very outset, contended that there was complete violation of the provisions of Section 50 of the Act, as a result whereof, the investigation, and the trial, stood vitiated. The submission of the Counsel for the accused/appellants, in this regard, does not appear to be correct. In the instant case, the recovery of the contraband, was not effected from the personal search of the accused, but it was effected from the body of the truck. Thus, the provisions of Section 50 of the Act, were not at all attracted, to the facts of the instant case. Had the recovery been effected from the search of the person of the accused, it would have been said that there was some force, in the argument, advanced by the Counsel for the accused. In State of Punjab Vs. Baldev Singh, 1999(6) S.C.C. 172, a Constitution Bench of Crl.Appeal No.840-SB of 1998 5 Crl. Appeal No.853-SB of 1998 the Apex Court settled beyond doubt, that the language of Section 50, was implicitly clear that the search had to be in relation to a person, and not in relation to the premises, vehicles, or articles. Similar view was taken in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. In these circumstances, it can be said that the consistent, and particularly the view of the larger Bench of the Supreme Court, appears to be that the search, must relate to the person, and not vehicles, other luggage and articles, and then alone the provisions of Section 50 would be attracted. Since, in view of the principle of law, laid down, in the aforesaid authorities, the provisions of Section 50 were not applicable, to the search, in the instant case, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 10. The Counsel for the appellants, however, placed reliance on Ram Prasad Vs. State of Haryana 2005(2) RCR (Criminal) 288. In the said case, at the time of search, it was not known to the Police, as to whether the accused was carrying the contraband, on his person, or the same was in the almirah, and, in these circumstances, it was held that the provisions of Section 50 of the Act, were attracted to the same. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. In the instant case, when the truck was stopped, on the signal, having been given by the police party, it was searched. From the body of the truck 10 bags, containing poppy-husk, referred to above, were recovered. The police party, therefore, very well knew that the contraband was in the truck, and not on the person of the appellants. In this view of the matter, no help can be drawn by the Counsel for the appellants, from Ram Prasad's case (supra), the facts thereof, being distinguishable from the facts of the instant case. Even otherwise, in view of the principle of law, laid down in Baldev Singh's case (supra), decided by a Constitution Bench of the Apex Court, any principle of law, to the contrary, laid down by any other Court, on the same point, would not hold the field. In this view of the matter, Crl.Appeal No.840-SB of 1998 6 Crl. Appeal No.853-SB of 1998 the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellants, that though there was a prior secret information, the same was neither reduced into writing, nor sent to the Officer Superior, and, as such, there was violation of the provisions of Section 42 of the Act, resulting into vitiation of the trial. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. With a view to properly deal with the argument of the Counsel for the appellants, it would be appropriate to notice the provisions of Sections 42 and 43 of the Act, which read 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 or of the Border Security Force 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, olice or any other department of a State Government, if he has reasons to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, (a) enter into an search any such building, Crl.Appeal No.840-SB of 1998 7 Crl. Appeal No.853-SB of 1998 conveyance or place; (b) in case of resistance, break open any door and remove any which 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 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 offence under Chapter IV relating to such drug or substance : 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 Chapter IV relating to such drug or substance: 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 an offence takes down any information in writing under sub-Section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior.” “43. Power of seizure and arrest in public place. -- Any officer of any of the department mentioned in Section 42 may -- Crl.Appeal No.840-SB of 1998 8 Crl. Appeal No.853-SB of 1998 (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance article 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 an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be useful, arrest him and any other person in his company. 11-A A conjoint reading of Sections 42 and 43 of the Act, shows that these sections are independent of each other. Section 43 authorises any Officer of the departments, mentioned in Section 42, for search, seizure, arrest and detention in any public place, or in transit, in respect of any narcotic drug or psychotropic substance, in respect of which he has reason to believe that an offence punishable under Chapter IV has been committed, whereas Section 42 of the Act empowers the officer for search, seizure and arrest in a building, conveyance or enclosed place. When the information is with regard to concealment of some narcotic, in a vehicle, in transit, then the provisions of Section 43 of the Act are applicable. The word 'public place' has been Crl.Appeal No.840-SB of 1998 9 Crl. Appeal No.853-SB of 1998 explained for the purpose of Section 43 of the Act, which includes any public conveyance, hotel, shop or other places, intended for use or accessible to the public. 12. A Division Bench of this Court in Dharminder Kumar Vs. State of Punjab, 2002(4) RCR (Crl.)278 has held as under :- “Thus it is evident that if seizure is made from any animal, conveyance or article in a public place or in transit then Section43 of the Act would be applicable. Section 43 and Section 42 of the Act operate in different spheres. Since the conveyance has been specifically included in Section 43 of the Act also, therefore, the conveyance which is found in a public place or in transit would be covered under the provisions of Section 43 of the Act whereas conveyance used in Section 42 of the Act has to be read as conveyance which is other than a public place. This interpretation is the only harmonious interpretation of Sections 42 and 43 of the Act.” 12-A. It is well settled principle of law that the provisions of a Statute are to be construed, in harmonious manner, so that none of the same is rendered nugatory. By harmonious construing Sections 42 and 43 of the Act, it can be safely concluded that, if a conveyance, is intercepted or apprehended, at a public place, or in transit, then the provisions of Section 42 of the Act, would not be applicable. 13. It was held in State of Haryana Vs. Jarnail Singh and others 2004(2) RCR (Crl.) 960 (SC) as under :- “7. Section 43 of the NDPS Act provides that any officer of any of the departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance etc. in respect of which he has reason to believe that an offence Crl.Appeal No.840-SB of 1998 10 Crl. Appeal No.853-SB of 1998 punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public. 8. Sections 42 and 43, therefore, contemplate two difference situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise.” 14. In the instant case, Dharam Singh, SHO, was present at Bus Adda Khalchina, where he received an information, to the effect that the truck bearing registration No.PBW-8095, containing contraband, was approaching from the side of village Kaleke. On receipt of the aforesaid information, he sent a wireless message to Rashpal Singh, DSP, and thereafter, reached the place of recovery. It was, at that time, that the appellants, came in a truck, and from the body of the truck, 10 bags, each containing 40 Kgs. Poppy-husk, were recovered. The recovery was effected, when the truck was in transit, at a public place. Thus, the provisions of Section 43 were applicable, and not the Crl.Appeal No.840-SB of 1998 11 Crl. Appeal No.853-SB of 1998 provisions of Section 42. In this view of the matter, the question of compliance of the provisions of Section 42, did not at all arise. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 15. The Counsel for the appellants, however, placed reliance on Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat 2000(1) RCR (Criminal) 611, to contend that the prior information was required to be reduced into writing, and failure to do so, must prove fatal to the case of the prosecution. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. In Abdul Rashid Ibrahim Mansuri's case (supra), what was held was that if the prior information is not reduced into writing, nor its copy is sent to the Superior Officer, then, at the most, the case of the prosecution becomes suspect. It was not held, therein, that on account of this reason, the trial would stand vitiated. It may be stated here, that, in the instnt case, a secret information was received by Dharam Singh, SHO, that a truck was approaching, with poppy-husk contained therein, at a particular place. Under these circumstances, there was no time with the Investigating Officer, to reduce into writing the information, and send the same to the Officer Superior. Had he done so, the delay would have been caused, resulting into the escape of the accused, thereby defeating the very purpose of the raid. In Sajan Abraham Vs. State of Kerala (2001) 6 Supreme Court Cases 692, a case decided by a three Judge Bench of the Apex Court, in somewhat similar circumstances, it was held by the Apex Court, that substantial compliance with the provisions of Section 42 would be sufficient, and the strict compliance should not be insisted upon. The facts of Sajjan Abraham's case (supra) were to the effect that HC (PW-3), got information at about 7 PM, that the appellant was selling injectable narcotic drugs at a particular place. When he proceeded for the Police Station to give this information to his immediate superior, Sub Inspector of the police Crl.Appeal No.840-SB of 1998 12 Crl. Appeal No.853-SB of 1998 (PW-5), he found him (PW-5) alongwith his police party, which was on patrol duty coming, hence the said information was communicated there by PW-3 to PW-5. Thereafter, PW-5 alongwith his police party and PW-3 proceeded immediately towards the place, where the appellant was standing, and apprehended him. It was contended that, PW-5, had not reduced into writing the information, given by, PW-3, with respect to the accused/appellant's involvement, before proceeding to arrest him, nor he had communicated it to his immediate superior, which constituted violation of Section 42. The said contention of the Counsel for the appellants, was repelled by the Apex Court, holding that, PW-5, could not have recorded the information given by PW-3, and communicate to his superior, while he was in motion, being on patrol duty, in a jeep, before proceeding to apprehend the accused. Had he not acted immediately, the appellant would have escaped. On these facts, it was held by the Apex Court, that no inference could be drawn, that there had been any violation of the provisions of Section 42 of the Act. Assuming that Section 42 of the Act was applicable to this case, no prejudice was shown to have been caused to the accused, on account of non-strict compliance, of the same, as there was substantive compliance of the same, in, as much as, the information was sent to the DSP, a Superior Officer immediately. Under these circumstances, no help can be drawn from Abdul Rashid Ibrahim Mansuri's case (supra), by the Counsel for the appellants. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 16. The Counsel for the appellants, further contended that the conscious possession of the appellants, in respect of the contraband was not proved by the prosecution witnesses, beyond a reasonable doubt. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Malkiat Singh, accused, was driving the said truck, while Balbir Crl.Appeal No.840-SB of 1998 13 Crl. Appeal No.853-SB of 1998 Singh, accused, owner, and Skattar Singh, accused, cleaner, were sitting in the same (truck), and 10 bags, each containing 40 Kgs. poppy-husk, were lying in the truck aforesaid. Once the physical possession of and control of the accused, in respect of 10 bags, containing poppy-husk, was proved, presumption under Sections 35 and 54 of the Act, operated against them, that they were in conscious possession thereof. It was for them, to rebut the presumption, by leading cogent and convincing evidence. However, the appellants failed to rebut that presumption, either during the course of cross-examination of the prosecution witnesses, or by leading defence evidence. In these circumstances, the trial Court was right, in holding that the accused were in conscious possession of the contraband. In Madan Lal and another Vs. State of H. P. 2003 SCC (Crl.) 1664 it was held as under:- The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of