Crl.Appeal No. 1534-SB of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of decision: 15.3.2011 (I) Crl.Appeal No.1534-SB of 2005 Chhindo … Appellant Versus State of Punjab … Respondent (II) Crl.Appeal No.1615-SB of 2005 Pal Singh … Appellant Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.H.S.Rakhra, Advocate, for the appellants. Mr.P.S.Sidhu, Addl.AG, Punjab. … JORA SINGH, J. Crl.Appeal No.1534-SB of 2005 and Crl.Appeal No.1615-SB of 2005 were preferred by Chhindo wife of Guljara Singh and Pal Singh son of Banta Singh, respectively, to challenge the judgment of conviction and order of sentence dated 17.8.2005 passed by Judge, Special Court, Hoshiarpur, in Sessions Case No.37 of 1.8.2002, arising out of FIR No.68 dated 12.5.2002, PS, Garhshankar, under Section 15 of Narcotic Drugs and Psychotropic Substances Act,1985 (for short `the Act’). By the said judgment, they were convicted under Section 15 of the Act and were sentenced to undergo RI for five years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for one Crl.Appeal No. 1534-SB of 2005 2 month each under Section 15 of the Act for possessing 35 kgs poppy husk. Chhindo was also sentenced to undergo RI for ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to further undergo RI for one year under Section 15 of the Act for possessing 105 kgs. poppy husk. However substantive sentences of Chhindo were ordered to run concurrently. Prosecution story, in brief, is that on 12.5.2002, police party headed by Inspector Maninder Bedi, SHO, Police Station, Garhshankar, was present near T-Point, Kalewal Lallian, PS, Garhshankar, then received secret information that Pal Singh son of Banta Singh, and Chhindo wife of Guljara Singh, both residents of Village Denowal Khurd, are in the habit of selling of poppy husk and in case there is a raid in the house of Chhindo, then poppy husk in large quantity can be recovered. Taking the information to be credible, ruqa was sent to the police station at 8.30 PM, on the basis of which, formal FIR was recorded. Intimation was given to the control room to send DSP, Garhshankar, at the house of Chhindo, situated in the revenue estate of Village Denowal Khurd. After receipt of secret information, Lady Constable Tejinder Kaur was joined from PS Garhshankar. Then raid was conducted at the house of Chhindo. Pal Singh and Chhindo were found present in the house. In the meantime, DSP Navjot Singh also came to the house of Chhindo. He had disclosed his identity as Gazetted Officer and DSP, Garhshankar. Offer was given to the accused separately as to whether they wanted search to be conducted in the presence of any other Gazetted Officer or a Magistrate but accused had agreed to be searched in his presence. Consent memos were prepared separately, which were signed/thumb marked by the accused and Crl.Appeal No. 1534-SB of 2005 3 attested by the witnesses. One bag was found present near the room to store chaff. As per direction of the Gazetted Officer, IO had searched the bag and the same was found to be containing poppy husk. On weighment, it was found to be 35 kgs. Two samples, each weighing 250 grams, were separated to serve as sample. Samples and remaining poppy husk were separately sealed by the IO with his own seal bearing impression `MB’ and with the seal of Gazetted Officer bearing impression `NS'. Seal impressions of both the seals used were prepared separately. Seal of the Gazetted Officer after its use was retained by him, whereas seal of the IO after its use was handed over to SI Iqbal Singh. Chhindo was interrogated and on interrogation, she suffered disclosure statement. In pursuance of disclosure statement, she got recovered three bags from the specified place and on search of the bags, same were found to be containing poppy husk. On weighment, each bag was found containing 35 kgs. poppy husk. Two samples, each weighing 250 grams, were separated to serve as sample from each bag. Samples and remaining poppy husk were separately sealed by the IO with his own seal bearing impression `MB’ and with the seal of Gazetted Officer bearing impression `NS'. Seal impressions of both the seals used were prepared separately. Case property was taken into police possession vide separate memo attested by the witnesses. Regarding personal search of the accused, memos were prepared separately. Arrest memos were also prepared separately. Intimation regarding arrest was given to the relations of the accused. Four sealed sample parcels were handed over to Constable Satnam Singh for depositing in the laboratory on 30.5.2002. As per report of the laboratory, contents of the sample parcels were found to be poppy husk. Crl.Appeal No. 1534-SB of 2005 4 After completion of investigation, challan was presented in the Court. Accused were charged under Section 15 of the Act, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 MHC Daljit Singh stated that he was the Incharge of Malkhana. On 12.5.2002, case property was deposited with him by the IO. On 13.5.2002, case property was handed over to SI Iqbal Singh for production in the Court and after production of case property in the Court, again case property was redeposited with him. On 30.5.2002, four sealed sample parcels were handed over to Constable Satnam Singh for depositing in the laboratory. PW2 Constable Satnam Singh stated that on 30.5.2002, four sealed sample parcels were handed over to him by MHC Daljit Singh for depositing in the laboratory. PW3 SI Iqbal Singh, PW4 DSP Navjot Singh and PW5 HC Jaswant Rai are the recovery witnesses. They stated that raid was conducted at the house of the appellants. Appellants were found present there. Offer was given to the accused as to whether they wanted the search to be conducted in the presence of any other Gazetted Officer or a Magistrate or before DSP Navjot Singh but accused had agreed to be searched in the presence of DSP Navjot Singh. 35 kgs poppy husk was recovered from the bag found lying near the room meant to store chaff. Two samples, each weighing 250 grams, were separated to serve as sample. Samples and remaining poppy husk were separately sealed by the IO with his own seal bearing impression `MB’ and with the seal of DSP Navjot Singh bearing Crl.Appeal No. 1534-SB of 2005 5 impression `NS'. Seal impressions of both the seals used were prepared separately. After that, Chhindo was interrogated and got recovered three bags from the specified place and on search of the bags, same were found to be containing poppy husk. On weighment, each bag was found containing 35 kgs. poppy husk. Two samples, each weighing 250 grams, were separated to serve as sample from each bag. Samples and remaining poppy husk were separately sealed by the IO with his own seal bearing impression `MB’ and with the seal of DSP Navjot Singh bearing impression `NS'. Seal impressions of both the seals used were prepared separately. Seal of the DSP after its use was retained by him, whereas seal of the IO after its use was handed over to SI Iqbal Singh. After close of the prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. After hearing learned PP for the State, learned defence counsel for the appellants and from the perusal of evidence on the file, appellants were convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellants, learned State counsel and have gone through the evidence on file. Learned defence counsel for the appellants argued that police party headed by Inspector Maninder Bedi, SHO, Police Station, Garhshankar, was present near T-Point, Kalewal Lallian, PS, Garhshankar, then received secret information. On receipt of secret information, ruqa was sent to the police station at 8.30 PM and after that, Lady Constable Tejinder Kaur was joined from PS Garhshankar. Then raid was conducted at the house of the appellants. Recovery between sunset and sunrise on the Crl.Appeal No. 1534-SB of 2005 6 intervening night of 12/13.5.2002, but before search, warrant was not obtained from the Magistrate. Recovery was not per chance but as per secret information. IO had sufficient time to obtain warrant. If due to shortage of time or to avoid escape of the appellants, IO had the power to carry out search or arrest between sunset and sunrise, then he should have recorded his reasons of belief. No explanation why IO failed to record his reasons of belief. IO was not examined on the allegation that he had gone to foreign country. There is a violation of mandatory provisions of Section 42 of the Act. After recovery, case property was deposited with the Incharge of Malkhana and on the next day, case property was handed over to SI Iqbal Singh for production in the Court but SI Iqbal Singh as PW3 did not state a word that he had obtained case property from the Incharge of Malkhana on 13.5.2002 and had produced the same in the Court and after production of case property in the Court, had redeposited case property with the Incharge of Malkhana. 8 sealed sample parcels and 4 bags containing remaining poppy husk were deposited with the Incharge of Malkhana. Ex.DA is the statement of MHC Daljit Singh but according to the statement, only 4 sealed sample parcels, each weighing 250 grams, were deposited. After secret information and joining Lady Constable, raid was conducted at the house of the appellants. While recording consent memos, FIR number was not with the party. Space was left in the consent memos to write FIR number. While preparing recovery memo (Ex.PC), FIR number was not with the party. After recovery of first bag, weighing 35 kgs, then Chhindo was interrogated. At that time also, FIR number was not with the party. But while preparing recovery memo qua recovery of 3 bags, FIR number was with the party and this fact is clear from recovery memo (Ex.PE). After Crl.Appeal No. 1534-SB of 2005 7 recovery, personal search memos and arrest memos were prepared. While preparing personal search memos and arrest memos, space was left to write FIR number. When FIR number was with the party while preparing recovery memo qua 3 bags, then FIR number should have been written in the personal search memos and arrest memos. But no explanation why FIR number was not written and space was left to write FIR number while preparing personal search memos and arrest memos. Recovery was on 12.5.2002, whereas sample parcels were deposited in the laboratory on 30.5.2002. There was delay of 18 days. Delay is fatal and possibility of tampering with the case property cannot be ruled out, when evidence is missing regarding production of case property in the Court. In fact, Pal Singh as a Member Panchayat used to visit police station. Earlier, house of Chhindo was raided. Police was falsely implicating Chhindo, then objection was raised by Pal Singh. After that, both the appellants were implicated in the present case. Learned State counsel argued that recovery was from the bags after secret information. On receipt of secret information, ruqa was sent to the police station. There is compliance of Section 42 of the Act. Before search, offer was given to the appellants. After that, bag was searched. After search of first bag, then second recovery of 3 bags was as per disclosure statement. Before recovery, police party was not inimical towards the appellants. So, there was no reason to implicate the appellants. According to story, 4 bags containing poppy husk were recovered as per secret information, whereas defence version of the appellants was that case is false. Now the question is whether recovery was as per prosecution story and story inspires confidence or defence version Crl.Appeal No. 1534-SB of 2005 8 seems to be more probable than prosecution story. First submission of learned defence counsel for the appellants was that there was violation of provisions of Section 42 of the Act because recovery was between sunset and sunrise. IO failed to record his reasons of belief. Warrant was not obtained. Submission of learned defence counsel for the appellants seems to be reasonable one. Police party headed by Inspector Maninder Bedi, SHO, PS, Garhshankar, at about 8.30 PM on 12.5.2002 while present near T-Point of Village Kalewal Lallian, then had received secret information that appellants are dealing in the business of poppy husk and if there is a raid, then they could be apprehended with poppy husk. At 8.30 PM, ruqa was sent to the police station. After that, Lady Constable was joined from PS, Garhshankar. Place where police party received secret information was at a distance of 1 km from the police station. After joining Lady Constable, party had raided the house of the appellants. House of the appellants was in the abadi but no independent witness was joined. DSP Navjot Singh had given offer to the appellants as to whether they wanted the search to be conducted in the presence of any other Gazetted officer or Magistrate. Reply of the appellants was that they were ready to be searched in his presence. Consent memos of both the appellants were prepared separately. Ex.PA and Ex.PB are the consent memos. After that, one bag was noticed lying near the door of the room meant to store chaff. Then as per direction of the DSP, bag was searched by the IO. Two samples, each weighing 250 grams, were separated to serve as sample. Samples and remaining poppy husk were separately sealed by the IO with his own seal bearing impression `MB’ and with the seal of Gazetted Officer bearing impression `NS'. Seal impressions of both the seals used Crl.Appeal No. 1534-SB of 2005 9 were prepared separately. Seal of the Gazetted Officer after its use was retained by him, whereas seal of the IO after its use was handed over to SI Iqbal Singh. After the recovery of first bag, then Chhindo was interrogated. In pursuance of disclosure statement, 3 bags were got recovered. From each bag, two samples, each weighing 250 grams, were separated to serve as sample. Samples and remaining poppy husk were separately sealed by the IO with his own seal bearing impression `MB’ and with the seal of Gazetted Officer bearing impression `NS'. As per evidence, again seal impressions of both the seals used were prepared separately. That means, recovery was between sunset and sunrise. At 8.30 PM, IO had received secret information. After that, Lady Constable was joined from PS Garhshankar. Then house of the appellants was raided. That means, IO had sufficient time to obtain warrant. If IO was of the opinion that while obtaining search warrant, there was possibility of escape of the appellants or concealment of evidence, then after recording the grounds of his belief, he should have carried out search between sunset and sunrise. IO was not examined on the allegation that he had gone to foreign country but nothing on the file whether he had gone to foreign country before presentation of challan or after number of dates were given for prosecution evidence. When report came that IO had gone to foreign country, then application was moved under Section 311 Cr.P.C. and after the application was allowed, then HC Jaswant Rai was examined as PW5. IO was to explain as to why he failed to obtain search warrant. If due to some reason, i.e., shortage of time or to avoid escape of the appellants, search warrant was not possible, then why he failed to record the grounds of his belief. After receipt of secret information, IO could easily record the grounds of his belief if he was not in Crl.Appeal No. 1534-SB of 2005 10 a position to obtain search warrant due to shortage of time or to avoid escape of appellants. In 1994(1) RCR (Crl.) 736, State of Punjab vs. Balbir Singh, Hon'ble Supreme Court held that under Section 42(2) the empowered officer if has a prior information should necessarily take down in writing- If the officer has reason to believe from personal knowledge that offence under Chapter IV have to be committed, he may carry out arrest or search without warrant between sunrise and sunset- This provision does not mandate that he should record his reasons of belief, but under Section 42(1) if such officer has to carry out search between sunset and sunrise, he should record the ground of his belief. This is mandatory. In AIR 2011 SC 77, Vijaysinh Chandubha Jadeja vs. State of Gujrat, short question before Hon'ble Supreme Court was that whether Section 50 of NDPS Act casts a duty on the empowered officer to inform suspect about existence of his right that if he so requires, he shall be searched before Gazetted Officer or Magistrate, or as to whether suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the Section. In para No.22, Hon'ble Supreme Court observed as under:- “22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered Crl.Appeal No. 1534-SB of 2005 11 officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re: Presidential Poll, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. “The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.” We are of the opinion that the concept of “substantial compliance” with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (2000 Crl. LJ 3485) (supra) and Prabha Shankar Dubey (AIR 2004 SC 486 (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (1999 Crl. LJ 3672) (supra). Needless to add that the question whether or not the procedure prescribed has been followed and Crl.Appeal No. 1534-SB of 2005 12 the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and credit-worthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.” As discussed earlier, admittedly, recovery was between sunset and sunrise. IO not appeared as prosecution witness. No evidence on the file as to why IO failed to record his reasons of belief, if after secret information, he was unable to obtain search warrant. That means, Section 42(1) of the Act was not complied with. Next submission of learned defence counsel for the appellants was that link evidence was missing. Possibility of tampering with case property cannot be ruled out because recovery was on 12.5.2002 and on 13.5.2002, case property was handed over to SI Iqbal Singh for production in the Court but SI Iqbal Singh is silent regarding production of case property in the Court. 8 sealed sample parcels, each weighing 250 grams, and 4 sealed bags containing remaining poppy husk were deposited with the Incharge of Malkhana, namely, Daljit Singh, but according to the statement of MHC Daljit Singh (Ex.DA), only 4 sealed sample parcels, each weighing Crl.Appeal No. 1534-SB of 2005 13 250 grams, were deposited. Submission of learned defence counsel for the appellants seems to be reasonable one. Recovery was on 12.5.2002. After recovery, case property was deposited with the Incharge of Malkhana, i.e., 8 sealed sample parcels, each weighing 250 grams, and 4 sealed bags containing remaining poppy husk on 12.5.2002. On 13.5.2002, case property was handed over to SI Iqbal Singh for production in the Court but SI Iqbal Singh did not state a word that on 13.5.2002, he had collected case property from MHC Daljit Singh and the same was produced in the Court. After production of case property in the Court, he had redeposited the case property with the Incharge of Malkhana. 8 sample parcels, each weighing 250 grams, and remaining poppy husk in 4 sealed bags were deposited with the MHC. Ex.DA is the statement under Section 161 Cr.P.C. of MHC but according to Ex.DA, 4 sealed sample parcels, each weighing 250 grams, were deposited with remaining case property. Recovery was on 12.5.2002 but sample parcels were handed over to Constable Satnam Singh for depositing in the laboratory on 30.5.2002. There was delay of 18 days in depositing the sample parcels in the laboratory. Regarding production of case property in the Court, no evidence on the file. So, delay of 18 days shows that possibility of tampering with the case property cannot be ruled out. Next submission of learned defence counsel for the appellants was that place of recovery was within abadi. Independent witnesses were available but no one was joined. In fact, Pal Singh was a Panch and he used to visit the police station. Before present recovery, house of Chhindo was raided. Pal Singh raised objection as to why Chhindo was being implicated. Then police felt offended then both the appellants were implicated in the Crl.Appeal No. 1534-SB of 2005 14 present case. Submission of learned defence counsel for the appellants carries weight. Admittedly, house of the appellants was within abadi. Police party had secret information. Independent witnesses were available but no one was joined. HC Jaswant Rai in cross-examination admitted that earlier, house of Chhindo was raided. Recovery was possible on normal search of the house. Children were present in the house. There were 8-10 houses in the same building. PW3 SI Iqbal Singh admitted that Pal Singh as Panch used to visit the police station. Evidence on the file shows that after secret information, raid was conducted at the house of the appellants. As per intimation to the control room to send DSP, Garhshankar, DSP Navjot Singh came at the house of the appellants. DSP after disclosing his identity, gave offer to the appellants under Section 50 of the Act. Before offer under Section 50 of the Act, bag lying near the door of the room meant to store