Criminal Appeal No. 301-SB of 1999 1 In the High Court of Punjab and Haryana, Chandigarh. Criminal Appeal No. 301-SB of 1999 Date of Decision: 25.01.2008. Shingara Singh and Another …Appellants Versus State of Punjab …Respondent CORAM: HON’BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. S.P.S. Sidhu, Advocate for the appellants. Mr. Mehardeep Singh, Assistant Advocate General, Punjab, for the State. Kanwaljit Singh Ahluwalia, J. This criminal appeal has been filed by Shingara Singh son of Rattan Singh, resident of Tashpur, Police Station Sultanpur, District Kapurthala, and Swaran Singh son of Gurbachan Singh, resident of Daulewala, Police Station Zira, District Ferozepur, against their conviction and sentence awarded by the Court of learned Sessions Judge, Faridkot. Both the appellants/accused have been convicted under Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short to be referred as “the Act”), and have been sentenced to undergo rigorous imprisonment for ten years and fine of Rs.1,00,000/- each and in default of payment of fine to further undergo rigorous Criminal Appeal No. 301-SB of 1999 2 imprisonment for one and a half years. Both the appellants were tried along with Devinder Singh son of Rachhpal Singh, resident of Rukka Khurd, Police Station Goraya, District Jalandhar, who is said to have died during the pendency of trial. FIR Ex.PC/1 bearing No. 21 dated 5.3.1993, was registered at Police Station City Moga on the basis of ruqa Ex.PG. It is stated therein that Gurmej Singh, Inspector/Station House Officer of Police Station City Moga along with his companion police officials on a Government canter vehicle was on a patrol duty at Chowk Akalsar Road, Moga, where a special informant came and disclosed that at night some bad elements would be transporting narcotic substance. Thereafter, he, along with his companions proceeded for nakabandi and in the way at Joginder Chowk Moga, Durlabh Singh met them. He was joined in the police party and nakabandi was held. In the night at about 12.15 A.M., one truck was seen coming from Zira which, with a signal of torch, was made to stop. The truck was being driven by accused Shingara Singh son of Rattan Singh, whose name and particulars he came to know later on enquiry and in the truck Swaran Singh and Devinder Singh were also present. They were apprehended. He further stated that fourth person had escaped. He gave them an offer to get the search effected from a Magistrate or a Gazetted Officer, who reposed confidence in him and from truck 80 gunny bags of 40Kgs. each of poppy husk were recovered. Out of gunny bags, two samples of 250 grams each were also taken. He carried on the investigation, made a rough site plan, sent the samples to the Chemical Examiner and on receipt of report of Chemical Examiner and after conclusion of investigation, he submitted Criminal Appeal No. 301-SB of 1999 3 the challan. The appellants/accused were charged by the Court of learned Sessions Judge, Faridkot, to which they pleaded not guilty and claimed trial. Prosecution examined PW.2 Darshan Lal, Clerk in the office of District Transport Officer, Jalandhar, to prove ownership of Truck No. PIQ-4806, which according to record maintained, was in the name of Surjit Singh Bhogal son of Sh. Munshi Ram, resident of House No. 114, Banda Bahadar Nagar, Jalandhar. No cross-examination was conducted qua this witness. PW.3 Bachan Singh Singh Randhawa, Deputy Superintendent of Police, Khana, stated that he received a wireless message from Inspector Gurmej Singh. He reached at the spot. Recovery had already been effected from the truck. In cross-examination, he stated that 14/15 persons were present at the spot when he reached there. The abadi was at a distance of 300-400 yards from the place of recovery. He admitted that the canal minor adjoins grain market and there is an Octroi Post near the canal minor bridge. Eye witness Durlabh Singh was given up as won over. PW.4 Constable Gobind Singh tendered his affidavit Ex.PD to prove the link evidence. PW.5 Inspector Baldev Singh has stated that on 5.3.1993, he was posted as Additional Station House Officer, Police Station City Moga. He was member of police party which was headed by Inspector Gurmej Singh. He gave the details of the information received. Offer was given to the accused to get the search effected by a Gazetted Officer or Magistrate. He was testified qua proceedings carried out Criminal Appeal No. 301-SB of 1999 4 regarding search, seizor, and recovery of contraband. Admittedly, the search was conducted during night. He stated that no reasons were recorded regarding non-obtaining of the search warrants. He admitted that the place of recovery adjoins the grain market Moga. Except this nothing was gained in the cross-examination. PW.6 Assistant Sub Inspector Sukhdev Singh stated that he partly investigated the case. No cross-examination was made. PW.7 Gurmej Singh is retired Deputy Superintendent of Police, who was the then Station House Officer and was heading the raiding party. He has given the details regarding the information received, and investigation carried at the spot, which has resulted into recovery from the truck. He admitted that he had not reduced into writing the secret information before proceedings to the place of recovery no such writing was sent to the higher authorities including the Deputy Superintendent of Police. He also admitted in cross-examination that after receiving the secret information he passed in front of Police Station City, Moga and house of Illaqa Magistrate. All the incriminating evidence was put to the accused. They have stated that they have been falsely implicated in the case and their signatures have been taken on blank papers. Mr. S.P.S. Sidhu, learned counsel for the appellants has vehemently urged before this Court that in the present case once secret information was received, it was incumbent upon PW.7 Gurmej Singh to reduce the same into writing and send the same to the superior officers. He further stated that the conduct of this investigating team assume importance as the raiding party before going to the spot had passed in Criminal Appeal No. 301-SB of 1999 5 front of the police station and the house of the Illaqa Magistrate. Therefore, he urges that Section 42 of the Act has not been complied with. He has relied upon the judgment of Hon'ble the Apex Court render in Babubhai Odhavji Patel etc. v. State of Gujarat AIR 2006 Supreme Court 102 and he has further relied upon another judgment rendered in G. Srinivas Goud v. State of A.P. 20-05 (4) R.C.R. (Criminal) 353 to contend that Section 42 of the Act is mandatory and non-compliance of the same is fatal to the prosecution. He has further stated that Durlabh Singh independent witness, who had joined was given up on the false pretext of won over and non examination of the independent witness is to be considered against the prosecution. I have gone through the evidence and considered the submissions made by learned counsel for the appellants. Firstly Section 42 of the Act is not attracted in the case of recovery from a vehicle. In that case, Section 43 of the Act will be attracted. If we go to the intention of legislature, it is apparent that when recovery is to be made from a vehicle or conveyance, which are mobile and not static, therefore, at that point of time, it is not incumbent that the Investigating Officer should reduce the secret information into writing and after despatching the same he should proceed to the spot. He has every fear that the vehicle or a conveyance which was moving at a high speed would move further and the police party would never be able to nab the offending vehicle. Therefore, this Court rejects this contention of learned counsel for the appellants that the secret information should have been reduced into writing. There is ample difference between Sections 42 and 43 of the Act. Section 42 of the Act is mandatory, Criminal Appeal No. 301-SB of 1999 6 whereas Section 43 of the Act is directory. In case of violation of Section 43 of the Act, the appellants have to plead prejudice. In the present case, recovery had been made from a truck. Accused have been apprehended at the spot. Therefore, the appellants are not entitled to say that any prejudice had been caused to them. No foundation has been laid in cross-examination or nothing has brought on record to urge that there were some attending features, which make sending of the information necessary as envisaged under Section 43 of the Act. Non-examination of independent witness in the present case will have no effect. Recovery is very heavy. It is 80 bags of poppy husk. Such a recovery cannot be foisted. This Court has always given importance to cross-examination of independent witness in cases where the quantity is not very large. Therefore, the present appeal, being devoid of merit, is dismissed. (Kanwaljit Singh Ahluwalia) Judge January 25, 2008 “DK”