Crl.Appeal No. 985-SB of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.985-SB of 2008 Date of decision: 22.3.2011 Karnail Ram @ Kailly … Appellant Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.D.N.Ganeriwala, Advocate, for the appellant. Mr.P.S.Sidhu, Addl.AG, Punjab. … JORA SINGH, J. Karnail Ram @ Kailly directed this appeal against the judgment of conviction and order of sentence dated 7.3.2008 passed by Judge, Special Court, Nawanshahr, in Sessions Case No.303 of 2003, arising out of FIR No.295 dated 31.8.2003, PS Banga, under Section 15 of Narcotic Drugs and Psychotropic Substances Act,1985 (for short `the Act’). By the said judgment, he was convicted under Section 15 of the Act and 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 six months. Prosecution story, in brief, is that on 31.8.2003, police party headed by SI/SHO Rajan Parminder Singh, PS Banga, in connection with patrol duty and checking of anti-social elements was present near `T' Point in the area of Village Karnana. During checking, police party headed by SI Satnam Singh also came there. In the meantime, SI/SHO Rajan Parminder Singh received secret information that Karnail Ram @ Kailly deals in the Crl.Appeal No. 985-SB of 2008 2 business of poppy husk. At present, he along with his two companions with gunny bags is sitting near bridge of canal minor in the area of Village Kamam and is waiting for the customers. Without delay, if there is a raid, then he can be apprehended along with his companions with poppy husk. Taking the information to be credible, ruqa was sent to the police station, on the basis of which, formal FIR was recorded. As per secret information, police party headed by SI/SHO Rajan Parminder Singh had gone to raid the place where Karnail Ram was sitting with his companions. DSP, Banga, was requested to reach at the spot. Police party headed by SI/SHO Rajan Parminder Singh had gone to the spot, then sighted one person sitting on the gunny bags. On seeing the police party, he tried to slip away but was apprehended on suspicion. On enquiry, he disclosed his name as Karnail Ram @ Kailly son of Gurmej Ram, resident of Village Kamam. In the meantime, DSP Dilbag Singh Pannu came at the spot along with his gunman. He had disclosed his identity to the accused as Gazetted Officer and DSP, Banga. Then offer was given to the accused as to whether he wanted search of the bags in the presence of any other Gazetted Officer or a Magistrate but the accused reposed faith in the DSP. Consent memo was prepared, which was thumb marked by the accused and attested by the witnesses. As per direction of the Gazetted Officer, IO had searched the bags, which were found to be 6 in number, containing poppy husk. 250 grams was eparated from each bag to serve as sample and remaining poppy husk on weighment was found to be 34.750 kgs in each bag. 6 samples and remaining poppy husk in 6 bags were separately sealed by the IO with his own seal bearing impression `RS’ and with the seal of Gazetted Officer bearing impression `DS'. Seal Crl.Appeal No. 985-SB of 2008 3 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 ASI Joginder Singh. Case property was taken into police possession vide separate memo attested by the witnesses. Rough site plan with correct marginal notes was prepared. Statements of the witnesses were recorded. Case property was kept by the IO in his safe custody for production before the Ilaqa Magistrate. On the next day, IO had produced the accused along with case property before the Ilaqa Magistrate. Seals were found intact. Case property was deposited with the Incharge of Malkhana. During investigation on 2.9.2003, accused suffered disclosure statement that he has kept concealed six bags of poppy husk near the canal. He knew about the same and could get the same recovered. Disclosure statement was thumb marked by the accused and attested by the witnesses. Intimation regarding disclosure statement was given to DSP, Banga. As per disclosure statement, police party along with the accused had gone to the spot. In the meantime, DSP, Banga, also came at the spot with his gunman. In pursuance of disclosure statement, accused got recovered 6 bags of poppy husk. 250 grams was separated from each bag to serve as sample and remaining poppy husk on weighment was found to be 34.750 kgs in each bag. 6 samples and remaining poppy husk in 6 bags were separately sealed by the IO with his own seal bearing impression `RS’ and with the seal of Gazetted Officer bearing impression `DS'. 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 ASI Joginder Singh. Case property was taken into police possession Crl.Appeal No. 985-SB of 2008 4 vide separate memo attested by the witnesses. Rough site plan with correct marginal notes was prepared. Statements of the witnesses were recorded. Sample parcels were deposited in the laboratory and as per report of the laboratory, contents of the sample parcels were found to be poppy husk. After completion of investigation, challan was presented in the Court. Accused was charged under Section 15 of the Act, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 Constable Amarjit Singh and PW6 HC Sucha Singh tendered their affidavits, Ex.PA and Ex.PN, respectively. PW2 ASI Joginder Singh and PW3 SI Satnam Singh are the recovery witnesses. They have supported the prosecution story. PW4 DSP Dilbag Singh Pannu stated that on 31.8.2003 on receipt of wireless message, he had gone to the spot. Accused was found present with gunny bags with the police party. He had disclosed his identity as Gazetted Officer posted as DSP, Banga. Offer was given to the accused as to whether he wanted search of the bags in the presence of any other Gazetted Officer or a Magistrate but the accused reposed faith in him. IO was directed to search the bags. Bags were 6 in number. 250 grams was separated from each bag to serve as sample and remaining poppy husk on weighment was found to be 34.750 kgs in each bag. 6 samples and remaining poppy husk in 6 bags were separately sealed by the IO with his own seal bearing impression `RS’ and with his seal bearing impression `DS'. Seal impressions of both the seals used were prepared separately. Seal of the IO after its use was handed over to ASI Joginder Singh, whereas Crl.Appeal No. 985-SB of 2008 5 he had retained his own seal with him. Case property was taken into police possession vide separate memo attested by the him. On 2.9.2003, as per request of the IO, he had gone to the spot to effect recovery as per disclosure statement suffered by the accused. In pursuance of disclosure statement, accused got recovered 6 bags of poppy husk from the specified place. 250 grams was separated from each bag to serve as sample and remaining poppy husk on weighment was found to be 34.750 kgs in each bag. 6 samples and remaining poppy husk in 6 bags were separately sealed by the IO with his own seal bearing impression `RS’ and with his seal bearing impression `DS'. Seal impressions of both the seals used were prepared separately. Seal of the IO after its use was handed over to ASI Joginder Singh, whereas he had retained his own seal with him. Case property was taken into police possession vide separate memo attested by him. PW5 SI Rajan Parminder Singh is the Investigating Officer. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Opportunity was given to lead evidence but no defence was led. After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file. Learned defence counsel for the appellant argued that police Crl.Appeal No. 985-SB of 2008 6 party headed by SI/SHO Rajan Parminder Singh, PS Banga, had secret information but the same was not reduced into writing. Appellant was not the owner of the place from where recovery was effected. Place of recovery was thoroughfare. Police party had ample opportunity to join independent witnesses but no one was joined. After receipt of secret information, offer was not given by the IO under Section 50 of the Act as to whether appellant wanted search before any Gazetted Officer or a Magistrate. There is a violation of Section 50 of the Act. Second recovery was while in custody. While in custody, it is very easy to plant 6 bags of poppy husk. First recovery was effected on 31.8.2003 and second on 2.9.2003, whereas sample parcels were deposited in the laboratory on 4.9.2003. No evidence on the file that case property was produced before the Ilaqa Magistrate and seals were found intact. So, delay in sending sample parcels in the laboratory is fatal. Learned State counsel argued that on 31.8.2003, police party headed by SI/SHO Rajan Parminder Singh had received secret information. Then ruqa was sent to the police station. Intimation was also sent to DSP, Banga. Offer was given to the appellant as to whether he wanted search of the bags in the presence of any other Gazetted Officer or a Magistrate. Recovery was not from the person of the appellant. Section 50 of the Act was not applicable, but keeping in view serious nature of the case when stringent punishment, then offer was given to the appellant as to whether he wanted search of the bags before any other Gazetted Officer or a Magistrate. After recovery of 6 bags, case property was produced in Court. Second recovery was in pursuance of disclosure statement in the presence of Gazetted Officer. Case property was sealed with the seal of IO and DSP. Crl.Appeal No. 985-SB of 2008 7 Office of DSP was separate from the office of IO. On 4.9.2003, sample parcels were deposited in the laboratory. Delay is not fatal. Before recovery, police officials had no enmity with the appellant. There was no idea to plant 12 bags of poppy husk, each weighing 35 kgs. No complaint to any authority that case is false. First submission of learned defence counsel was that police party headed by SI/SHO Rajan Parminder Singh had secret information. Secret information was not reduced into writing and was not sent to superior officers. But after going through the evidence on the file, I am of the opinion that submission of learned defence counsel is not correct one. Police party headed by SI/SHO Rajan Parminder Singh on 31.8.2003 at about 6.30 PM was present near `T' point in the area of Village Karnana. Police party was checking anti-social elements. During checking, police party headed by SI Satnam Singh also came there. In the meantime, SI/SHO Rajan Parminder Singh received secret information that the appellant along with his two companions was present near bridge of canal minor in the area of Village Kamam. If without delay, there is a raid immediately, then he can be apprehended along with his companions with poppy husk. On receipt of secret information, ruqa (Ex.PH) was sent to the police station at 6.30 PM. Intimation was also sent to DSP, Banga, to reach at the spot. Information was by name and immediately, information was sent to the higher officer. No violation of Section 42 of the Act. Next submission of learned defence counsel for the appellant was that there is violation of Section 50 of the Act. Section 50 of the Act is mandatory. After receipt of secret information, offer was not given by the IO as to whether appellant wanted search of the bags before any Gazetted Crl.Appeal No. 985-SB of 2008 8 Officer or a Magistrate. In support of his contention, learned defence counsel for the appellant cited AIR 2011 SC 77, Vijaysinh Chandubha Jadeja vs. State of Gujarat. No dispute about the law laid down in the above said authority, but in the present case, recovery was not from the person of the accused. Recovery was from the gunny bags lying near bridge of canal minor in the area of Village Kamam. On receipt of secret information, ruqa was sent to the police station. Intimation was also given to DSP, Banga, to reach at the spot. Police party had raided the place where appellant was present with gunny bags. In the meantime, DSP, Banga, with his gunman came at the spot. DSP had disclosed his identity as Gazetted Officer and DSP, Banga. Offer was given to the appellant as to whether he wanted search of the bags before any other Gazetted Officer or a Magistrate. Reply of the appellant was that search be conducted in the presence of the DSP. As per direction of the DSP, IO had searched the bags, which were found to be 6 in number, containing poppy husk. 250 grams was separated from each bag to serve as sample and remaining poppy husk on weighment was found to be 34.750 kgs in each bag. No prejudice was caused to the appellant if IO failed to give offer to the appellant as to whether he wanted search of the bags before any Gazetted Officer or a Magistrate. Before search, offer under Section 50 of the Act was given to the appellant. Offer can be oral or in writing. After offer under Section 50 of the Act, it was for the appellant to see whether he wanted search before any other Gazetted Officer or a Magistrate. Relevant para No.22 of the authority cited above is reproduced as under:- “22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50 Crl.Appeal No. 985-SB of 2008 9 (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 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 that 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 Cri.L.J. 2485) (supra) and Prabha Crl.Appeal No. 985-SB of 2008 10 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 Cri.L.J. 3672). Needless to add that the question whether or not the procedure prescribed has been followed and 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 creditworthiness 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.” So, keeping in view the facts of this case, I am of the opinion that no violation of Section 50 of the Act. Next submission of learned defence counsel for the appellant was that appellant was not the owner of the place from where recovery was effected. Place of recovery was thoroughfare. Independent witness was not joined. So, non-joining of independent witness is fatal but submission of learned defence counsel for the appellant is without any force. Police party headed by SI/SHO Rajan Parminder Singh at about 6.30 PM had secret information. After receipt of secret information, raid was conducted. Crl.Appeal No. 985-SB of 2008 11 Intimation was also sent to DSP, Banga, to reach at the spot. No evidence on the file that independent witnesses were available. Admittedly, place of recovery was thoroughfare but if appellant was not the owner of the place where he had kept the gunny bags containing poppy husk, then on this short ground, appellant is not to be acquitted. Suppose independent witnesses were available and no offer to join independent witness, then on this ground also, story is not to be ignored because in these days, when there is a request by the police to join any one, then no one is ready to join the party. If some body agrees to join the party, then fails to appear in Court to support the story and if appears in Court, then rarely supported the story. Before recovery, police had no enmity with the appellant. Question is why the appellant was chosen. To implicate the appellant, there must be some reason. Simple allegation of the appellant is that he is innocent. No complaint to any authority that he was falsely implicated. If the police had intention to implicate the appellant, then 5-10 kgs. of poppy husk could easily be planted. There was no idea to plant 12 bags of poppy husk. Firstly, as per secret information, there was recovery of 6 bags, each containing 35 kgs of poppy husk. After recovery of 6 bags, appellant along with case property was produced in court. Seals were found intact. Appellant was remanded to police custody. During police remand, appellant was interrogated and suffered disclosure statement. In pursuance of disclosure statement, appellant got recovered 6 more bags, each containing 35 kgs. Without disclosure statement, second recovery was not possible. Second recovery was also in the presence of Gazetted Officer. When appellant was produced in Court, then appellant did not lodge protest. After recovery, when appellant was produced in Court for the first time, then he Crl.Appeal No. 985-SB of 2008 12 could easily move application that case is false. If appellant was brought from his house without recovery, then he could easily produce any respectable person in defence. So, after recovery, it is very easy to state that case is false. But as discussed earlier, to implicate the appellant falsely, there must be some reason. In the light of all discussed above, I am of the opinion that evidence on the file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is ordered to be upheld. Appeal without merit is dismissed. 22.3.2011 (JORA SINGH ) pk JUDGE