Crl. Appeal No.545-SB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.545-SB of 2002 Date of decision : 26.03.2010 Lakhwinder Singh .... Appellant VERSUS State of Haryana ....Respondent CORAM:- HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Navkiran Singh, Advocate with Mr. Gursimran Singh Advocate, for the appellant. Mr. Manish Deswal, DAG, Haryana. KANWALJIT SINGH AHLUWALIA, J. (ORAL) The present appeal has been preferred by Lakhwinder Singh son of Lal Singh resident of village Talheri. He was named as accused in case FIR No.162 dated 9.9.1998 registered at Police Station Ismailabad under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, 'the Act'). In the abovesaid FIR, appellant was tried by the Court of Special Court, Kurukshetra. The trial Court found the appellant guilty of Section 15 of the Act and sentenced him to undergo RI for 10 years and pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo RI for a period of two years. The present appeal is directed against the finding of conviction and sentence awarded by the trial Court. Crl. Appeal No.545-SB of 2002 -2- Criminal law was set into motion against the appellant on the basis of ruqa Ex.PF sent by Jagdish Chander, Inspector, CIA, Staff, Kurukshetra on 9.9.1998 at 1.10 PM. On the basis of ruqa Ex.PF, formal FIR Ex.PF/1 was registered. In the ruqa sent to the SHO, Police Station, Ismailabad, Jagdish Chander, Inspector, PW-6 has stated that secret information was received that Lakhwinder Singh, Ex-sarpanch, the present appellant, has concealed sufficient poppy husk which was transported by one Sethi, resident of Ambala and a owner of a Tanker. The ruqa further stated that poppy husk belong to Gurcharan Singh alias Channa, son of Hazara Singh and these persons sell poppy husk in partnership and in case, house of the appellant is raided immediately, poppy husk in sufficient quantity can be recovered. Believing information to be reliable, a ruqa (writing) was sent to Police Station for registration of the case. As it will be seen from the evidence, it is the case of the prosecution that the appellant after taking the key had opened the lock and from the kotha got recovered 148 bags of poppy husk each containing 19 kgs. and 500 grams poppy husk. Different parcels of 200 gms each were prepared from each bag. The recovery was effected on 9.9.1998. The abovesaid FIR was investigated and report under Section 173 Cr.P.C. was submitted. Then the appellant was charged under Section 15 of the Act. The appellant pleaded not guilty and claimed trial. Prosecution examined Naresh Kumar PW-1, photographer, who in examination-in-chief has stated that he had neither gone at the spot nor taken any photograph at the spot. The witness was declared hostile as he resiled from the previous statement and was cross- Crl. Appeal No.545-SB of 2002 -3- examined by the Public Prosecutor. This witness stated that photographs Ex.P1 to P4 were developed by him but he had not gone to the spot and had not taken these photographs. SI Des Raj, PW-2 on completion of the investigation had submitted the report under Section 173 Cr.P.C. In cross-examination, this witness stated that DSP Pehowa was the supervisory officer and a challan was forwarded through Sh. K.K. Rao, DSP Kurukshetra by the Inspector CIA Staff with the name of Jagdish Chander. MHC Roshan Lal PW-3 stated that on 9.9.1998, Jagdish Chander, Inspector of CIA Staff, Kurukshetra deposited 148 bags of poppy husk along with 148 packets of the samples. He further stated that specimen of the seals used were also deposited by Inspector Jagdish Chander to him on 9.9.1998. On 22.9.1998, samples along with specimen of the seals were sent to Director, FSL Madhuban. In cross-examination, this witness stated that case property was deposited by Inspector CIA Staff, Jagdish Chander at 10.30/10.45 PM on 9.9.1998. This witness further stated that no receipt was issued to Inspector Jagdish Chander but an entry was made in the register no.19. This witness further stated that neither the Station Officer nor any Senior Officer signed in the register no.19 on 9.9.1998 to verify the deposit of the case property. Constable Jeet Singh, PW-4 on 22.9.1998 was entrusted with samples for depositing the same in FSL, Madhuban. This witness after depositing the samples in the Laboratory, obtained acknowledgment and gave the same to MHC, Police Station, Ismailabad. This witness stated that till the samples remained in his possession, the same were not tampered with. Sh. K.K. Rao, Deputy Crl. Appeal No.545-SB of 2002 -4- Superintendent of Police, Kurukshetra, PW-5 deposed that on receipt of the telephonic message from Jagdish Chander, Inspector, CIA, Kurukshetra he reached at the spot. An offer was given to the accused to the effect that search of the Dera of the accused could be taken in the presence of a Magistrate or any other Gazetted Officer . The accused consented to be searched in his presence and a memo to this effect under Section 50 of the Act was prepared. The accused disclosed that he had concealed the key of the lock and can get the poppy husk recovered. Accused made a disclosure statement to this effect. An attempt was made to join independent person but nobody came forward from public to associate himself as an independent witness. This witness further stated that accused Lakhwinder Singh led the police party to a specified place thereafter got recovered the key of the lock and opened the lock of the room with the help of key. Every movement was being photographed after the lock was opened. Recovery of 148 bags of poppy husk was effected. In cross- examination, this witness stated that police party and the accused were found present at open place in front of the house of the accused. The house of the accused adjoins the house of his brother. There is no other house in the immediate vicinity of these two houses. Neither the brother nor any family member was found present in the said house. The house was closed. Even the family members of the accused were not present in the house. During the course of arguments, counsel for the petitioner has laid much stress on the following portion of the cross-examination:- "I do not recollect if Ranjit Singh, a son of the Crl. Appeal No.545-SB of 2002 -5- accused, had filed complaints before the Chief Justice and higher police officers to the effect that we had rounded up his father accused Lakhwinder Singh with effect from 7.9.1998. It is not in my notice that if Chhabeg Singh a close relation of accused Lakhwinder Singh, had made any complaint to the higher authorities, that Inspector Jagdish Chander and S.I. Niranjhan Singh had taken a sum of Rs.50,000/- for releasing accused Lakhwinder Singh, who was taken in wrongful confinement on 7.9.1998. I also do not recollect if it was also a further complaint that still a sum of Rs.20,000/- more was being demanded. I do not know if Sub Inspector Niranjan Singh was apprehended red-handed, while accepting Rs.20,000/- as a bribe from Chhabeg Singh, a close relation of accused Lakhwinder Singh. I do not know even if Sub Inspector Niranjan Singh was arrested after registration of a case under Corruption Act. However, he is under suspension. However, I do not know on what charges he has been placed under suspension." Jagdish Chander, Inspector, CIA, Staff, Kurukshetra, who sent the ruqa Ex.PF, on the basis of which formal FIR was registered, appeared as PW-6. This witness deposed regarding sending of ruqa, requisitioning the services of DSP at the spot, conducting search and effecting recovery of the contraband article. This witness further stated that accused had taken the key from underneath the brick and had opened the lock of the room from where the recovery was effected. In cross-examination, this witness stated that he had noticed the contents of secret information and some persons had met him before going to the place of recovery. This witness further stated that Crl. Appeal No.545-SB of 2002 -6- he had not examined any person to ascertain as to whether the place of recovery was a part of residential Dera of the accused and he was in conscious possession thereof. This witness had also not noticed in writing the names of the persons who met him and declined to join the investigation. He further stated that no action was initiated against the person who refused to join the raiding party as an independent witness. This witness admitted that Chhabeg Singh had got a case registered under the Prevention of Corruption Act vide FIR No.19 of 1998 against him and SI Niranjan Singh in Police Station, Vigilance Ambala but the witness reiterated that it was a false case against him. However, this witness admitted that SI Niranjan Singh was arrested in connection with the said FIR. However, this witness cannot tell whether SI Niranjan Singh was caught red handed while accepting Rs.20,000/- as bribe. This witness further stated that Ajit Singh son of Lakhwinder Singh arrived at the place of recovery at 9.45 PM on 9.9.1998. This witness further stated that he has not brought any police photographer to take the photographs. He further admitted that photographs Exs.P1 to P4 were not picked in the presence of any police officer. Sub Inspector, Gurdawaya Ram, Police Lines, Kurukshetra, PW-7 corroborated the testimony of PW-6 Jagdish Chander, Inspector, CIA, Staff, Kurukshetra as he was member of the police party which conducted the raid. In cross-examination, this witness stated that when they arrived at the Dera of the accused, no brother or any member of the family of the accused was found at the spot. This witness in cross-examination further stated that in his presence, Crl. Appeal No.545-SB of 2002 -7- nobody was examined to ascertain whether the accued was the owner or occupier of the room wherefrom the recovery was effected. Sub Inspector, Sher Singh, SHO, P.S. Shahabad, PW-8 stated that on 9.9.1998 the case property and the witnesses were produced before him by Inspector Jagdish Chander, CIA, Staff, Kurukshetra. Constable, Pawan Kumar, PW-9 stated that on 10.09.1998 he was posted as Assistant Reader to the Superintendent of Police, Kurukshetra and a writing was received which was perused and signed by the Superintendent of Police. A report under Section 57 of the Act was also received. Thereafter, ASI Jai Gopal, P.S. Shahabad, PW-10 stated that on receipt of Ex.PF, formal FIR Ex.PF/1 was registered. Thereafter the statement of the accused was recorded under Section 313 Cr.P.C. It will be pertinent to notice one specific question put to the accused under Section 313 Cr.P.C.:- "Q. That thereafter in pursuance of your statement, you took out the key from underneath the brick and opened the lock of your room and in the meantime, Naresh Kumar PW-1 had also arrived and took the photographs of that movement which are Ex.P1 to Ex.P4. and negatives Ex.P5 to Ex.P8 and then you got recovered 148 bagas of poppy husk. On weighment each bag was found to contain 19.500 kgs. of poppy husk. 200 gms. of poppy husk was separated from each of bag and the samples were put in different parcles. The residue poppy husk was again put in those very bags. The bags and samples were sealed by the Inspector Jagdish Chander with the seal bearing impression GR, belonging to SI Crl. Appeal No.545-SB of 2002 -8- Gurdawaya Ram. Shri K.K. Rao PW-5 had also affixed his seal bearing impression KK on each bag and on each sample packet. The sample of the seals so used was also retained and the sealed parcels of the samples and the residue contained in Ex.P9 to Ex.P156 were taken into possession vide memo attested by Shri K.K. Rao DSP, SI Gurdawaya Ram and SI Niranjan Singh. What have you to say? Ans. It is incorrect." However, in answer to the last question, accused gave following version:- "I am innocent. I was taken by CIA staff Police including SI Niranjan Singh on 7.9.98 and was kept in wrongful confinement. It was done by SI Niranjan Singh at the instance of his relatives Mukhtiar Singh and Balkar Singh of my village who are known criminals and my enemies, as I have been Sarpanch for two terms. SI Niranjan Singh and Inspector Jagdish Chander indulge in poppy selling with criminals. SI Niranjan Singh and Inspector Jagdish Chander demanded money to release me from illegal confinement. Rs.50000/- were once received by SI Niranjan Singh at the instance of Inspector Jagdish Chander and he further demanded Rs.20000/- which were unwillingly paid by Chhabeg Singh father in law of my son to SI Niranjan Singh and who was also got caught red handed and a corruption case is pending against SI Niranjan Singh qua that. Complaints about my false implication were made to higher authorities by my son and other relatives. There is no such kotha in my residential premises. Myself, my two major sons, my sister's husband, my brother and his family reside in the same Crl. Appeal No.545-SB of 2002 -9- premises." In defence, Krishan Lal Draftsman was examined as DW-1. He proved the scaled site plan at the spot as Ex.DC. Inder Singh, brother of the appellant, appeared as DW-2 and stated that site plan Ex.DC was prepared but police had never recovered any poppy husk and there was no kotha at their dera from which the alleged recovery was effected. This witness further stated that son of the appellant is married to the daughter of Chhabeg Singh. Constable Sajjan Singh, DW-3 brought a carbon copy of complaint Ex.DB. This complaint pertains to one Mukhtiar Singh who was alleged to be the informer. Virender Kaushik, DW-4 brought on record an enquiry report whereby Gurcharan Singh owner of the poppy husk was declared innocent. Mahavir, Criminal Ahlmad to the Court of Addl. Sessions Judge, Kurukshetra, DW-5 brought the case file of FIR No.19 dated 12.10.1998 registered at Police Station State Vigilance Bureau, Ambala under Sections 7, 8 and 12 of Prevention of Corruption Act. Kulwant Singh appeared as DW-6. This witness stated that Lakhwinder Singh was known to him. There was an enmity between the families of Lakhwinder Singh and Mukhtiar Singh. Mukhtiar Singh was related to SI Niranjan Singh and the false case was registered against the present appellant as no raid was conducted on 9.9.98. Chhabeg Singh whose daughter was married to the son of the present appellant appeared as DW-7 and stated that on coming to know that a case was registered against the appellant, he met Jagdish Chander, Inspector on 12.09.1998, who demanded Rs.50,000/-. He paid Rs.50,000/- to Naranjan Singh but present Crl. Appeal No.545-SB of 2002 -10- appellant was not let off. Jagdish Chander again demanded Rs.20,000/-. He contacted State Vigilance Bureau and Rs.20,000/- were paid to Niranjan Singh. This witness further stated that no kotha existed at the spot as shown in photographs Exs.P1 to P4. This witness further stated that Lakhwinder Singh was taken in custody on 7.9.98. Ranjit Singh son of the appellant appeared as DW-8. This witness stated that he learnt on 7.9.98 that his father had been arrested and on 10.9.98 he came to know that he had been involved in a case of poppy husk. This witness stated that he had made an application Ex.DD to higher authorities and proved postal receipts Exs.DD/1, DD/2, DD/3 and DD/4. Sh. Navkiran Singh, Advocate appearing for the appellant during the course of arguments had made following submissions:- Firstly, learned counsel for the appellant has submitted that the prosecution has miserably failed to prove conscious possession of the contraband from the appellant. No revenue official or Secretary of the Gram Panchayat, Sarpanch or even any resident of the village was examined to say that land over which the kotha was constructed belonged or was in possession of the appellant. In support of this argument, he has referred to the testimony of Jagdish Chander, Inspector, CIA, Staff, Kurukshetra, PW-6 and Sub Inspector, Gurdawaya Ram, Police Lines, Kurukshetra, PW-7. Counsel has also referred to the statement of the accused under Section 313 Cr.P.C. which states that place from where the recovery was effected belonged to the various members of the family. In the same breath, Crl. Appeal No.545-SB of 2002 -11- counsel has referred to the relevant portion of the statement under Section 313 Cr.P.C. wherein a stand has been taken that the place of recovery was jointly owned by the family members which consisted of two sons, brother, daughter and sister's husband. Prosecution has failed to prove the exclusive possession of the appellant over the said property. This argument is to be rejected at the outset. It has come in the evidence that room was locked. Key of the room had been concealed by the appellant. On the arrival of the police party, he took the key from underneath the brick and had opened the lock of the room from where the recovery was effected. This depicts not only special knowledge of the appellant regarding the storage of the poppy husk but also the fact that place of recovery was under his control. A specific question to this effect was asked to the appellant under Section 313 Cr.P.C. regarding room being locked and key of the room was recovered at the instance of the appellant. Thus, a presumption under Section 35 of the Act is invoked against the appellant and it was for him to rebut this presumption. Therefore, this argument that when the room of the house was owned by all the family members then exclusive possession cannot be construed suffers from inherent fallacy as it is the case of prosecution that room was locked and the key was in the knowledge of the appellant. Secondly, it is submitted that the recovery was effected on 9.9.98 but the samples reached FSL Madhuban on 22.9.98. It is stated that there was a delay of 13 days in sending the samples to the Forensic Science Laboratory. Roshan Lal PW-3 appeared and stated that he had made entry of the samples in Register No.19 maintained Crl. Appeal No.545-SB of 2002 -12- at the Police Station and till the samples remained in his possession, the same were not tampered with. No question was asked to the witness regarding delay in sending the samples. This witness has rightly explained that there was a shortage of staff, therefore, the samples could not be sent earlier. To maintain law and order is the primary duty of the police. Investigation of the cases and law and order, two functions to be discharged by the Police, till today have not been separated. Therefore, much credence cannot be attached to this argument. Delay in sending the samples, is one factor which the Court has to take into consideration along with various other factors, where prosecution case is doubtful. This argument in itself is not sufficient to pronounce acquittal of the accused. Thirdly, it is submitted that no independent witness was joined. PW-6, Jagdish Chander, Inspector, CIA, Staff, Kurukshetra has taken a categorical stand that an effort was made to associate independent witnesses but nobody came forward. It is an admitted case that the appellant was Ex-Sarpanch of the village. Therefore, where such a heavy recovery was effected, the explanation that nobody came forward to become independent witness, looks probable. Further, it was contended that prosecution has failed to comply with the mandatory provision of Section 42 of the Act. A reference has been made to Section 42 Sub-Section 2 which reads as under:- "42. Power of entry, search, seizure and arrest without warrant or authorisation.- Crl. Appeal No.545-SB of 2002 -13- (2) Where an officer takes down any information in writing under subsection (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior." Let the rationale of Sub-section (2) of Section 42 of the Act be examined. There can be three situations, where an argument can be raised that breach of Sub-section (2) of Section 42 of the Act is fatal to the prosecution. Firstly, the investigating officer receives a secret information and on receipt of the same, straightway proceeds to the spot for carrying search, effecting recovery and seizure of the contraband article. In such a situation, it is incumbent upon the officer to reduce the information into writing and send the same to the Police Station. But where such a course is not adopted and after conclusion of the entire proceedings, a writing is sent to the Police Station, it can be said that there is breach of Sub-section (2) of Section 42 of the Act. There can be second situation, where an officer receives secret information, reduces the same into writing and sends it to the Police Station within 72 hours for onward transmission to superior officers. In case this information is not sent to the superior officers, on the facts, it can be urged that Sub-section (2) of Section 42 of the Act has not been complied with. In such a situation, no water-tight jackets can be drawn. It will depend upon the facts and circumstances of each case. There is third situation, where the received secret information Crl. Appeal No.545-SB of 2002 -14- is reduced into writing, the same is sent to the Police Station within 72 hours and the Police Station, on the basis of ruqa received, prepares a special report and sends it to the superior officers. In such a situation, Sub-section (2) of Section 42 of the Act stands complied with. The law does not require that the investigating officer himself or through some constable from the spot itself should send the writing to the superior officers. If it is done through the aegis of the Police Station, no fault can be found with such a procedure. As in the present case, the secret information was reduced into ruqa Ex.PF and the same was sent to the Police Station. It has surfaced in the testimony of Constable Pawan Kumar PW-9 that on 10th September, 1998, while posted as Assistant Reader to the Superintendent of Police, Kurukshetra, he had received copy of the report under Section 57 of the Act through dak. This witness had proved carbon copy of such an entry as Ex.PN/1. This report bears the endorsement of SSP office also. Thus, in the present case, there is compliance of Sub- section (2) of Section 42 of the Act. Case, where on the basis of writing sent by the Investigating Officer, FIR is registered and special report thereof is sent to the higher officials and the same reaches within 72 hours to the superior officer, this Court has no doubt to hold that Section 42 Sub-Section 2 stands complied with. Two ancillary arguments in support of this argument have been raised. Firstly, it is submitted that PW-6 Inspector Jagdish Chander has stated that he had not sent the copy of ruqa to the Crl. Appeal No.545-SB of 2002 -15- Senior officers. As stated earlier, once the writing sent by PW-6 Inspector Jagdish Chander is received within 72 hours by the higher officials, there is compliance of Section 42 Sub-Section 2 of the Act. The law does not envisage that instead of proceeding to the spot and effecting recovery of contraband articles, the Investigating Officer at first instance should send the writing to Senior Officers and thereafter proceed to the spot. If the writing is sent to the Police Station, there is compliance of provisions of the Act. It is further stated that Constable, Pawan Kumar PW-9 has stated that there is overwriting and cutting in the register where Ex.PN/1 was entered. A perusal of Ex.PN/1 reveals that an endorsement was given thereupon that the same was received on 10.09.1998 at 10.15 a.m. Thereafter, on the back side of the page there are signatures of S.P. Kurukshetra to show that on 10.09.98