Criminal Appeal No. 1482-SB of 2001 1 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1482-SB of 2001 Date of Decision: 02.02.2010 Makhan Singh son of Lakha Singh, r/o village Ranke, P.O. Humbia, Tehsil Jagraon, District Ludhiana. ... Appellant Versus State of Punjab. ...Respondent Criminal Appeal No. 77-SB of 2002 Date of Decision: 02.02.2010 Darshan Singh alias Neela son of Wazir Singh (wrongly spelt/written on the judgement of trial Court as Harjit Singh) son of Sahib Singh, Cultivator, r/o Kul Gehna. ... Appellant Versus State of Punjab. ...Respondent Criminal Appeal No. 312-SB of 2002 Date of Decision: 02.02.2010 Jang Singh son of Nachhattar Singh son of Sajjan Singh, aged 36 years, Truck Driver, r/o Jat Pura, District Ludhiana (since demised). ... Appellant Versus State of Punjab. ...Respondent Criminal Appeal No. 1482-SB of 2001 2 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Ashok Aggarwal, Senior Advocate, with Mr. S.S. Rana, Advocate, for the appellant, in Criminal Appeal No. 1482-SB of 2001. Mr. S.S. Rana, Advocate, for the appellant, in Criminal Appeal No. 77-SB of 2002. Mr. Sandeep Khunger, Advocate, for the appellant (since demised), in Criminal No. 312-SB of 2002. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. This judgement shall dispose of Criminal Appeal No. 1482- SB of 2001, filed by Makhan Singh, Criminal Appeal No. 77-SB of 2002, filed by Darshan Singh alias Neela, and, Criminal Appeal No. 312-SB of 2002, filed by Jang Singh (since deceased), accused/appellants, against the judgement of conviction and order of sentence, dated 25.10.01, rendered by the Court of Additional Sessions Judge, Ludhiana, vide which, it convicted the accused (now appellants), for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be 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, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of one year each, for having been found in Criminal Appeal No. 1482-SB of 2001 3 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 possession of 50 bags, each containing 40 kgs of poppy husk, without any permit or licence, falling within the ambit of commercial quantity. 2. The facts, in brief, are that, on 28.07.94, Kanwarjit Singh, Deputy Superintendent of Police, Rural, Ludhiana, received a secret information, that Makhan Singh, Jang Singh, and Darshan Singh, accused, were bringing poppy husk, in truck, bearing No. MKH-6825, for the purpose of selling it, in the area, and could be apprehended, if a raid, was conducted. On receipt of this information, Kanwarjit Singh, Deputy Superintendent of Police, alongwith Surinder Singh, Assistant Sub Inspector, Naginder Singh, Sub Inspector, and other Police Officials, held a picket, in the area of village Malakpur. At about 12.30 noon, truck bearing No. MKH-6825, came from the side of Ludhiana, which was signalled to stop by Kanwarjit Singh, Deputy Superintendent of Police. The truck was being driven by Jang Singh, accused, and Darshan Singh, accused, was sitting besides him, on the front seat of the truck, whereas, Makhan Singh, accused, was sitting, on the gunny bags, in the main body of the truck. Kanwarjit Singh, Deputy Superintendent of Police, disclosed his identity, to the accused, and gave them the option for their search, from a Magistrate, but they reposed confidence, in him, and consented for being searched by him. The truck, was found loaded with 100 bags containing salt, and 50 gunny bags, each containing 40 kgs of poppy husk. Two samples of 250 gms, from each of the bags, were taken out, and the remaining poppy husk, was put in the same bags. The samples and bags, Criminal Appeal No. 1482-SB of 2001 4 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 containing the remaining poppy husk, were converted into parcels, duly sealed and taken into possession, alongwith the bags containing salt and the truck, vide separate recovery memo. The accused were arrested. After the completion of investigation, they were challaned. 3. On their appearance, in the Court of the Committing Magistrate, the accused, were supplied the copies of documents, relied upon by the prosecution. 4. After the case was received by commitment, in the Court of Sessions, charge under Section 15 of the Act, was framed, against the accused, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Surinder Singh, Assistant Sub Inspector (PW1), who produced the case property alongwith the sample parcels, before the Illaqa Magistrate, Baldev Singh, Head Constable (PW2), who was posted as MMHC, in the Police Station, when the case property and the sample parcels, alongwith the truck, were deposited with him, and, he handed over the same, to Surinder Singh, Assistant Sub Inspector, for producing the same, in the Court, Kanwarjit Singh, Superintendent of Police (D) (PW3), at the relevant time, Deputy Superintendent of Police, and a witness, to the recovery, Naginder Singh, Inspector (PW4), the Investigating Officer, Dharam Singh, Chief Judicial Magistrate, Kapurthala (PW5), before whom, the case property and the sample parcels, were produced, and, Balwinder Kumar, Constable (PW6), who Criminal Appeal No. 1482-SB of 2001 5 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 took the sample parcels, to the office of the Chemical Examiner, and deposited the same there. Thereafter, the Additional Public Prosecutor, for the State, closed the prosecution evidence. 6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Jang Singh, accused, stated that, no recovery of poppy husk, was affected from him. It was further stated by him that, on 18.07.94, his brother Jagsir Singh, who is driver, took his truck No. MKH-6825, to Calcutta, for transportation. It was further stated by him that some Police Officials, from Police Station Sadar, Ludhiana, came to his house, at 8.30 AM, on 20.07.94, and told that his truck, had caused damage to their vehicle. It was further stated by him that, they took him to Police Station Sadar, Ludhiana, and detained him, in the lock up. It was further stated by him that one Sukhdev Singh son of Karnail Sigh, was also detained therein. It was further stated by him that the Police, thereafter, left him at Police Station Division No. 4, Ludhiana, where Rakesh Kumar son of Ram Saran, was detained. It was further stated by him that, on 22.07.94, the Police detained him, in the lock up, at Police Station Focal Point, Ludhiana, where Sher Singh and Charan Singh, were already detained. It was further stated by him that, thereafter, he was taken to Police Station Kotwali, Ludhiana, on 24.07.94, and detained in Police Station alongwith one Vijay Kumar. It was further stated by him that, Criminal Appeal No. 1482-SB of 2001 6 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 thereafter, he was taken to Police Station Focal Point, Ludhiana, on 25.07.94, and kept there, till 26.07.94, where one Naresh son of Diwan Chand, was also detained. It was further stated by him that , on 27.07.94, at about 10.00/11.00AM, he was again brought to Police Station Sadar, Ludhiana, and detained there. It was further stated by him that four-five persons, were already detained therein, including Makhan Singh and Darshan Singh. It was further stated by him that he came to know of their names later on, as they were not known to him earlier. It was further stated by him that they had been involved with him falsely, in the instant case. It was further stated by him that the Police, demanded an amount of Rs. 25,000/-, as compensation for damage to their vehicle. It was further stated by him that the Police, kept him detained, in different stations, and, on 28.07.97, he was falsely involved, in the instant case, when he failed to make payment to the Police. 7. Makhan Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that, no recovery, was affected from him. It was further stated by him that the Police Officials, came at 6.00 AM, on 26.07.94, at the house of his maternal uncle, at village Kullah, where he was residing with his family. It was further stated by him, that the Police, took away him his uncle's son Darshan Singh and his brother-in-law Sunder Singh, to Police Station Sadar, Ludhiana. It was further stated by him that, on that date, his wife Malkiat Kaur, mother Partap Kaur, Ujjagar Singh, Sarpanch and other Criminal Appeal No. 1482-SB of 2001 7 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 persons of village Ranike, came after him, at Police Station Sadar, Ludhiana. It was further stated by him that all of them met Kanwarjit Singh, Deputy Superintendent of Police, but, he did not listen to them. It was further stated by him that, no recovery of any contraband, was effected from them. It was further stated by him that, then the Police, whisked him, his brother-in-law Sunder Singh, and cousin Darshan Singh. It was further stated by him that his wife Malkiat Kaur, moved an application to the Senior Superintendent of Police, Ludhiana, on 26.07.94, bearing the signatures of Sarpanch Ujjagar Singh, Tarsem Lal, Kartar Kaur, Member Panchayat, Bachan Kaur, and Darshan Singh, but, no action was taken. It was further stated by him that, on 27.07.94, his relative Harnek Singh resident of village Kullah, gave a telegram, to the Station House Officer, Ludhiana. It was further stated by him that the Police, illegally detained him, in the Police Station, and thereafter falsely involved him, in the instant case, alongwith Jang Singh and Darshan Singh, who were not known to him. It was further stated by him that his brother-in-law Sunder Singh, was also falsely involved, in a separate case. It was further stated by him that the Police, had falsely involved him and his cousin Darshan Singh, on account of enmity. It was further stated by him that, on 13.08.92, some Police Officials of Police Station Dakha, killed his brother Jallah Singh, and case FIR No. 134/1981, under Section 304 IPC, was registered, at Police Station Dakha. It was further stated by him that Gurmit Singh, Assistant Sub Inspector, was one the accused, in that incident, who was Criminal Appeal No. 1482-SB of 2001 8 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 promoted, as Deputy Superintendent of Police, in the year 1984. It was further stated by him that he (Gurmit Singh, Deputy Superintendent of Police) was the relative of Kanwarjit Singh, Deputy Superintendent of Police. It was further stated by him that he was innocent. It was further stated by him that the witnesses, were Police Officials, and they had deposed falsely, being subordinate to Kanwarjit Singh, Deputy Superintendent of Police. 8. Darshan Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that, the case was false. It was further stated by him that the witnesses were false. It was further stated by him that he alongwith Mandir Singh, was taken away, by the Police, from their houses, as his father committed suicide by drowning, in the river, when the Police conducted raid on him. It was further stated by him, that he filed applications, against the Police Officials. It was further stated by him, that the Investigating Officer, forced him, to withdraw the aforesaid applications, moved against the guilty Police Officials, to which, he disobeyed, as a result whereof, he had been falsely implicated, in the instant case. 9. The accused examined Sukhdarshan Singh, Head Constable (DW1), Beant Singh, Complaint Clerk (DW2) (wrongly numbered as DW1), Baldev Singh, Moharrir Head Constable (DW3) (wrongly numbered as DW2), Ujjagar Singh (DW4) (wrongly numbered as DW3), Hardev Singh, Moharrir Head Constable (DW5) (wrongly numbered as DW4), Devidender Singh, Moharrir Head Constable Criminal Appeal No. 1482-SB of 2001 9 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 (DW6) (wrongly numbered as DW5), and, Chaman Singh, Moharrir Head Constable (DW7) (wrongly numbered as DW6). Thereafter, they closed the defence evidence. 10. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 11. Feeling aggrieved, the instant appeals, were filed by the appellants. 12. During the pendency of appeal, Jang singh, one of the appellants, died. Since the appeal, had also been filed by him, against the sentence of fine, the appeal, as a whole, could not abate, in view of the provisions of Section 394(2) of the Code of Criminal Procedure. Accordingly, his Counsel, submitted that, he would address the arguments, on merits. 13. I have heard the Counsel for the parties, and, have gone the evidence and record of the case, carefully. 14. The Counsel for the appellants, at the very outset, submitted that a secret information, as per the prosecution story, was received, but the same was neither reduced into writing, nor the question of sending the same, to the Officer superior arose. They further submitted that, thus, there was complete violation of the mandatory provisions of Section 42 of the Act, as a result whereof, the trial, conviction and sentence stood vitiated. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Criminal Appeal No. 1482-SB of 2001 10 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 The recovery, in this case, was not effected, from a building or an enclosed place, or from a vehicle, parked in an enclosed place. On the other hand, the recovery, in this case, was effected, from the aforesaid truck, in transit at the public place. Under these circumstances, the provisions of Section 42 of the Act, were not applicable, to the instant case, but, on the other hand, the provisions of Section 43 of the Act, were applicable. The provisions of Sections 42 and 43 of the Act, 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, conveyance or place; Criminal Appeal No. 1482-SB of 2001 11 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 (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 -- (a) seize, in any public place or in transit, any narcotic drug or Criminal Appeal No. 1482-SB of 2001 12 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 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. 14-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 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 Criminal Appeal No. 1482-SB of 2001 13 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 to the public. 15. 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.” 15-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 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. 16. 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 Criminal Appeal No. 1482-SB of 2001 14 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 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 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.” In view of the principle of law, laid down, in the aforesaid cases, the trial Court was right, in holding that since the provisions of Section 42 of the Act were not applicable to the facts of the instant case, the question of compliance of the same did not at all arise. This argument, thus, being devoid of merit, stands rejected. 17. The Counsel for the appellants, however, placed reliance, Criminal Appeal No. 1482-SB of 2001 15 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 on Karnail Singh Vs. State of Haryana (2009) 3, SCC (Crl.), 887, a case, decided by a Constitution Bench of the Apex Court, in support of their contention, that violation of the provisions of Section 42 of the Act, must result into vitiation of trial, conviction and sentence. The perusal of the ratio of law, laid down, in the aforesaid case, clearly goes, to show, that it was held therein, that the provisions of Section 42 of the Act, being mandatory, in nature, non-compliance therewith, will be a suspicious circumstance. In Karnail Singh's case (supra), the Apex Court also held, that the provisions of Section 42 of the Act, would not be applicable, to the search, made from a vehicle, in transit, at a public place. On the other hand, in para 26 of the report, the difference between the provisions of Sections 42 and 43 of the Act, was highlighted. It was stated, in para 26 of the report that, under Section 43 of the Act, the empowered Officer, has the power of seizure of the articles etc. and arrest of a person, who is found to be in possession of any narcotic drug or psychotropic substance, in a public place, where such possession appears to him to be unlawful. Thus, even in Karnail Singh's case (supra), it was held, that the provisions of Section 43 of the Act, applicable to the search and seizure