Crl.Appeal No.249-SB of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.249-SB of 1996 Date of Decision :July 28, 2008 Tehal Singh son of Bed Ram, 27 years, agriculturist, r/o village Tharash, District Kullu. ... Appellant. Versus The State of Haryana .... Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: None for the appellant. Mr. A.K. Jindal, AAG, Haryana for the respondent-State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 15.12.1995 and the order of sentence dated 16.12.1995, rendered by the Court of Additional Sessions Judge, Faridabad, vide which it convicted the accused/appellant, for the offence punishable under Section 20 (b)(ii) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him to undergo rigorous imprisonment, for a period of ten years, and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo further rigorous imprisonment for a period of three years, for having been found in possession of 1 KG 500 Grams charas, falling within the purview of commercial quantity, without any permit or licence. Crl.Appeal No.249-SB of 1996 2 2. The facts, in brief, are that on 18.11.1994, Ramesh Pal, Inspector, SHO (PW6) along with other police officials, was present in a Government Jeep, near Ford Factory, Faridabad, in connection with patrol and crime checking duty. In the meanwhile, Jaimal Singh ( PW2) met the police party. When Ramesh Pal, ASI was talking to him, a secret information was received that one person was coming from the side of Budoli with charas in a bag ( thela ) towards bye-pass. Thereafter, the police party reached near the gas agency along with Jaimal Singh. The accused was seen coming from the side of Budoli Bridge, who, on seeing the police party, turned towards the bushes, but was apprehended. Search of the bag was conducted, in accordance with the provisions of law, in the presence of Rajbir Singh, DSP (HQ), who was called to the spot by sending a VT message as a result whereof 1 KG 500 grams charas was recovered therefrom. A sample of 100 grams was drawn, from the recovered charas. The sample and the remainder were made into separate parcels, sealed with the seals bearing impressions “RP” and “RBS” and taken into possession, vide recovery memo Ex.PA. Ruqa Ex. PF was sent to the police station, on the basis of which, FIR was recorded. Rough site plan Ex.PG was prepared. The statements of the witnesses were recorded. The accused was arrested. After the completion of investigation, the challan was presented. Crl.Appeal No.249-SB of 1996 3 3. On his appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Section 20(b)(ii) of the Act, was framed against him, to which he pleaded not guilty and claimed trial. 4. The prosecution, in support of its case, examined Rajbir Singh, DSP, (PW-1), a witness to the recovery, Jaimal Singh (PW-2), an independent witness, to the recovery, Abhey Singh, Head Constable,(PW-3), who tendered his affidavit Ex.PD, Anoj Kumar, Draftsman, (PW-4), who prepared the site plan Ex.PE, Sahi Ram, ASI ( PW-5 ), who recorded the FIR Ex.PF/1, Ramesh Pal, Inspector (PW-6), the Investigating Officer, Hans Raj, Constable ( PW-7 ), who tendered his affidavit Ex.P 1 and Ami Lal, Inspector (PW8 ), who partly investigated this case. Thereafter, the Public Prosecutor for the State, closed the evidence. 5. The statement of the accused, under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He however, produced no evidence in his defence. Crl.Appeal No.249-SB of 1996 4 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 trial Court, the instant appeal, was filed by the aforesaid accused/appellant. 8. None appeared, on behalf of the appellant, despite due notice, to his Counsel that the appeal was fixed for final hearing. Under these circumstances, no alternative was left with this Court, than to go through the evidence, record, trial Court judgment, hear the arguments of the respondent, and decide the appeal, on merits, as that amounted to due compliance of the provisions of Sections 385 and 386 of the Code of Criminal Procedure, in view of the ratio of law laid down, in Dharampal v. State of UP, 2008(1) Law Herald (SC) 225. 9. I have heard Mr. A.K. Jindal, AAG, Haryana, for the respondent-State, and have gone through the evidence and record of the case, carefully. Crl.Appeal No.249-SB of 1996 5 10. One of the grounds, taken up, in the memorandum of appeal, was to the effect, that the Investigating Officer miserably failed to comply with the mandatory provisions of Section 50 of the Act, and, as such the conviction and sentence stood vitiated. It may be stated here, that the recovery, in this case, was not effected, from the person of the accused, but from the bag, being carried by him. 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 aforesaid ground. In State of Punjab Vs. Baldev Singh, 1999(6) S.C.C. 172, a Constitution Bench of 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 search in the instant case, whether it was a joint consent memo, or otherwise, hardly mattered. The question of Crl.Appeal No.249-SB of 1996 6 violation of Section 50 of the Act, therefore, did not at all arise. In this view of the matter, the ground taken up by the appellant, in the memorandum of appeal, does not hold good. 11. The next ground taken up, in the memorandum of appeal, was to the effect, that though there was a secret information, against the accused, the mandatory provisions of Section 42 of the Act, were not complied with, as a result whereof, the trial and the subsequent proceedings stood vitiated. The provisions of Section 42 of the Act, in the instant case, were not applicable, as the recovery was effected from the bag, being carried by the accused, at a public place, in the area of Dadoli Bridge. On the other hand, the provisions of Section 43 of the Act were applicable to this case With a view to properly deal with the ground, taken up, in the memorandum of appeal, 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 Crl.Appeal No.249-SB of 1996 7 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, 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 Crl.Appeal No.249-SB of 1996 8 (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 -- (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 Crl.Appeal No.249-SB of 1996 9 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. 12-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 of a person in any public place, or a vehicle 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 and seizure and arrest in a building, conveyance or enclosed place. The word 'public place' has been 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. Crl.Appeal No.249-SB of 1996 10 13. 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.” 13-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 the provisions of Sections 42 and 43 of the Act, it can be safely concluded, that if a person is intercepted or apprehended, at a public place, and search of the bag being carried by him, is conducted, on suspicion that it contained some contraband, then the provisions of Section 42 of the Act would not be applicable. Crl.Appeal No.249-SB of 1996 11 14. 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 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 Crl.Appeal No.249-SB of 1996 12 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.” 15. As stated above, in the instant case, a secret information was received against the accused that he was coming with charas, and if a raid was conducted, he could be apprehended. Since the recovery was effected from the bag, being carried by the accused, at the public place, the question of violation of provisions of Section 42 of the Act, did not at all arise. The principle of law, laid down, in the aforesaid authorities, is fully application to the facts of the instant case. In this view of the matter, the ground, referred to above, does not hold good. 16. The next ground, taken up, in the memorandum of appeal, was to the effect that the provisions of Section 55 of the Act, were not complied with, as a result whereof, prejudice was caused to the accused. It may be stated here that Ramesh Pal, Inspector, who was the Investigating Officer, in this case, was also posted as SHO, Police Station Central Faridabad, on the date of recovery. Since he himself was the Station House Officer of the Police Station, he was not required to produce the case property, the sample parcel, the accused and the witnesses, before any other Superior Officer. It may be stated here, that Rajbir Singh, DSP was, however, called to the spot and the search of the bag, being carried by the accused, was Crl.Appeal No.249-SB of 1996 13 conducted, in his presence. The Superior Officer, in this case was thus, completely in knowledge of the facts and circumstances of the case, recovery effected, from the accused as also other details. Under these circumstances, the question of violation of the provisions of Section 55 of the Act, did not at all arise. No prejudice, whatsoever, was thus, caused to the accused. This ground also does not hold good. 17. The next ground, taken up, in the memorandum of appeal, was to the effect, that the provisions of Section 57 of the Act, were not complied with. It may be stated here, that according to Section 57 of the Act, the Investigating Officer, is required to send report within 48 hours, from the date of search and seizure, to the Officer Superior, so as to apprise him of the facts and circumstances of the case, as also other details. In the instant case, the DSP aforesaid, was called to the spot by sending a VT message, and he reached there. It was, in his presence, that search was effected. Not only this, from the spot, ruqa was sent to the Police Station, by the Investigating Officer, on the basis whereof, the FIR was recorded. Copy of the FIR was sent to the Superior Officer. The FIR contained the details with regard to the search and seizure, as also the arrest of the accused. It means that within the stipulated time, report was sent to the Officer Superior, by sending copies of the FIR, to them. Therefore, due compliance of Section 57 of the Act, was made. This ground therefore, does not hold good. Crl.Appeal No.249-SB of 1996 14 18. Another ground, which was taken up, by the appellant, was to the effect, that the presence of Rajbir DSP (PW1) at the spot, was most doubtful. It was stated, in the memorandum of appeal, that during the course of cross- examination Rajbir Singh, DSP stated that 500 grams charas was recovered. It was thus tried to be made out, that had he been present, at the spot, at the time of the alleged search and seizure, he would not have made such a wrong statement, as the alleged recovery of 1 KG and 500 grams charas was effected and not of only 500 grams charas. It may be stated here, that it was only on account of the slip of the tongue,or inadvertence that, in his cross-examination, the quantity of charas recovered from the accused could not be correctly mentioned, by the aforesaid DSP. However, towards the end of his cross- examination, he corrected himself, and stated that the quantity of charas, recovered from the accused, was 1 Kg. and 500 grams. If a mistake made by a witness, in cross-examination, is corrected by him during his further cross-examination, then it could not be said that the case of the prosecution was doubtful. This, therefore, did not go to prove that Rajbir Singh, DSP, was not present at the time of search and seizure. The trial Court was right in holding so. This Court after re-appraisal of the evidence, also comes to the same conclusion. This ground, therefore, does not hold good. Crl.Appeal No.249-SB of 1996 15 19. Another ground, taken up, in the memorandum of appeal, was to the effect that the affidavits Ex.PD of Abhey Singh, HC (PW3) and Ex.P1 of Hans Raj, Constable, were in- admissible, as no opportunity for cross examination was afforded to the appellant, by the trial Court. A perusal of the record, clearly shows that an opportunity was granted to the accused to cross examine Abhey Singh, Head Constable ( PW3) and Hans Raj, Constable ( PW7). The Counsel for the accused also cross-examined them. They are formal witnesses . Under these circumstances, it could not be said that no opportunity was afforded to the accused, to cross-examine them. Their affidavits are thus admissible into evidence. The link evidence was, thus complete. The trial Court was right in holding so. This Court also, after appraisal of the evidence, comes to the same conclusion. This ground also does not hold good. 20. The next ground, taken up, in the memorandum of appeal, was to the effect, that Jaimal Singh, an independent witness, who appeared in the witness box as PW2, did not support the case of the prosecution, during the course of cross- examination, conducted by the counsel for the accused. It was further stated that the trial Court adopted a wrong procedure in allowing the Public Prosecutor, for the State, to further cross examine this witness, after the cross-examination, was conducted by the Counsel for the accused. It may be stated Crl.Appeal No.249-SB of 1996 16 here, that Jaimal Singh, PW2, in his examination-in-chief, fully supported the case of the prosecution. However, during the course of cross-examination, by the Counsel for the accused, he was apparently won over by the accused and thus, he did not stick to the statement, made by him, in his examination-in- chief. However, when he was further cross-examined by the public prosecutor for the State, with the permission of the Court, he admitted that recovery of charas was effected in his presence. No wrong procedure was adopted by the Counsel for the accused as the witness resiled from his statement, during the course of the cross-examination, by the Counsel for the accused. The Public Prosecutor for the State, was competent, as per the provisions of the Evidence Act, to cross-examine the witness, as he was making statement contrary to the one, made by him, in his examination-in-chief. It is settled principle of law, that the evidence of a witness, who has resiled, cannot be ignored completely. Whatever portions of his evidence, are reliable and corroborated by other evidence, the same can be acted to hold the accused guilty. Even if, the statement of Jaimal Singh ( PW2 ), is taken off the record, as he was won over by the accused, during the course of cross-examination by his Counsel, the other evidence, produced by the prosecution, being cogent, convincing, reliable and trust-worthy, could be said to be sufficient to bring home the guilt to the accused. It is settled principle of law, that, even if, an independent witness Crl.Appeal No.249-SB of 1996 17 resiles from his statement and the other evidence, produced by the prosecution, is found to be sufficient, to bring home the guilt of the accused, then the case of the prosecution cannot be thrown out. Since the case of the prosecution stood proved, from the other evidence, produced, even if the statement of Jaimal Singh (PW 2 ) is ignored, that did not affect the merits of the same. The trial Court was right in holding so. This Court, after re-appraisal of the evidence, produced by the prosecution, also comes to the same conclusion. This ground also does not hold good. 21. No other ground, to assail the judgment of conviction and the order of sentence of the trial Court, was taken up, in the memorandum of appeal. 22. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are based, on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld. 23. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction dated 15.12.1995, and the order of sentence dated 16.12.1995, are upheld. If the accused-appellant is on bail, his bail bond and the surety bond shall stand cancelled. The Chief Judicial Magistrate, Faridabad, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the Crl.Appeal No.249-SB of 1996 18 applicability of the provisions