Criminal Appeal No. 344-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYHANA AT CHANDIGARH Criminal Appeal No. 344-SB of 2001 Date of decision: 8 th April, 2008 Darshan Singh ... Appellant Versus State of Haryana … Respondent ... Criminal Appeal No.1235-SB of 2001 State of Haryana ... Appellant Versus Darshan Singh ... Respondent ... Present: Mr.G. C. Dhuriwala, Advocate for the appellant in Cr.A.No.344-SB of 2001. and for the respondent in Cr.A.No.1235-SB of 2001. Mr.Tarunveer Vashisht, Additional Advocate General, Haryana, for the respondent-State in Cr.A.No.344-SB of 2001 and for the appellant in Cr.A.No.1235-SB of 2001. CORM: HON’BLE MR. JUSTICE HARBANS LAL JUDGMENT: HARBANS LAL, J This judgment shall dispose of Criminal Appeal No. 344-SB of 2001 preferred by Darshan Singh and Criminal Appeal No. 1235-SB of 2001 filed by the State of Haryana, directed against the judgment dated 5.2.2001/order of sentence dated 6.2.2001 passed by the Court of learned Additional Sessions Judge, Panipat, whereby he convicted and sentenced Darshan Singh, accused-appellant as under :- Criminal Appeal No. 344-SB of 2001 -2- Sr.No. Sentence Under Section 1. RI for 10 years and to pay a fine 18 of the Narcotic Drugs of Rs.1,00,000/- and in default of and Psychotropic payment of fine,to further undergo Substances Act, 1985 RI for 2 years. 2. -do- 20 -do- 3. -do- 21 -do- 4. -do- 25 -do- All the above mentioned sentences were directed to run concurrently. Shorn of all unnecessary details, the facts of the prosecution case are that on 18.6.1999, Inspector Karan Singh, the then S.H.O. Police Station, Panipat, among other police officials happened to be present in Sukhdev Nagar Chowk, Panipat. In the meanwhile, Bhim singh, Assistant Excise and taxation Officer came across and simultaneously, the secret information was received to the effect that the accused indulges in the sale of opium, charas, smack and had spoiled the children of the Mohalla and even at the moment, he was selling charas and opium at his house and if the raid is conducted, he can be caught red handed. On receipt of this information, the above mentioned Inspector along with other police officials including Bhim Singh, Assistant Excise and Taxation Officer, proceeded for raiding the house of the accused. When they reached in Insar Chowk, Som Nath Katyal and Rohtash Sharma, resident of Kishanpura met them. They were also co-opted in the raiding party. When the raid was conducted, the accused was found present in his house. He was suspected in possession of some intoxicants and, thus, he was served with notice under Section 50 of the Narcotic and Psychotropic Substances Act, 1985 ( for brevity, 'the Act'). Criminal Appeal No. 344-SB of 2001 -3- He was asked to tell whether he wanted to give his own search as well as search of his house in the presence of a Magistrate or a Gazetted Officer or Investigating Officer. He offered to be searched in the presence of a Gazetted Officer. The search of the house was carried out in his presence. On search, a polythene pouch containing further 18 pouches holding opium, 7 pouches holding charas, 23 small packets of smack were recovered. The recovered opium along with polythene bag, when weighed, was found 30 grams, charas when weighed came to 80 grams and smack when weighed came to 9 grams. Out of the recovered opium, 10 grams was separated to serve as sample and converted into parcel. 10 grams charas was separated to serve similar purpose and was made into a parcel. The remainder of opium as well as charas was also turned into parcels. The recovered smack was also made into parcel. Thereafter, all the parcels were sealed with seal KS and BS. The currency notes worth Rs.56,141/-were also recovered which were disclosed by the accused to be sale proceeds of charas, opium and smack. The same were also seized vide memo., Exh.PA. The seal KS after use was handed over to Rohtash Sharma, PW. Thereafter, all the parcels along with currency notes were taken into possession vide recovery memo. The accused was put under arrest. Ruqa, Exh. PB was sent to the Police Station. On its basis, formal FIR, Exh.PB/1 was registered. Rough site plan showing the place of recovery was prepared. On return to the Police Station, the case property was deposited with the MHC. On receipt of report from the F.S.L, Madhuban and after completion of investigation, the charge sheet was laid in the Court for trial of the accused. The accused was charged under Sections 18, 20, 21 and 25 of the Act to which he did not plead guilty and claimed trial. Criminal Appeal No. 344-SB of 2001 -4- To bring home guilt against the accused, the prosecution examined PW-1 MHC Naresh Kumar, PW-2 Inspector Rajinder Singh, PW- 3 Som Nath Katyal, PW-4 Bhim Singh, A.E.T.O., PW-5 Inspector Karan Singh (Investigator), PW-6 Constable Rakesh Kumar, PW-7 Rohtash Sharma and closed its evidence by tendering Exh. PF report of the F.S.L. When examined under Section 313 of the Code of Criminal procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence and false implication. He has come up with the plea that his daughter Anu was married with Bikram Singh, resident of Ludhiana. A dispute arose between his daughter and his son-in-law. His daughter got a case registered in the Police Station City, Panipat under Section 498-A/406 of IPC against his son-in-law and his family members, who approached the S.P Panipat and in retaliation thereto this case has been registered against him. In defence, he examined DW-1 Simranjit Kaur and DW-2 Gulashan Kumar. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal. I have heard Mr. G.C.Dhuriwala, Senior Advocate, appearing on behalf of the appellant as well as Mr. Tarunveer Vashisht, Additional Advocate General, Haryana, for the State, besides going through the record with due care and circumspection. Mr.G.C.Dhuriwala,appearing for the appellant, urged with great eloquence that as alleged by the prosecution, the raid was conducted in pursuance of the secret information but to the utter dismay of the Criminal Appeal No. 344-SB of 2001 -5- prosecution, the alleged information was not reduced into writing and, thus, the Investigator flagrantly violated the mandatory provisions of Section 42 of the Act. To buttress this stance, he has sought to place reliance on the observations made in re: State of Haryana v. Baljinder Singh, 2007 (3) Recent Criminal Reports (Criminal) 893. To tide over these submissions, Mr. Tarunveer Vashisht, Additional Advocate, Haryana, on behalf of the State of Haryana, contended that the secret information has to be forwarded to the immediate superior officials if the same is reduced into writing and if it is not done so, it does not vitiate the trial. I have well considered the rival contentions. Section 42 of the Act reads as under :- “ 42. Power of entry, search, seizure and arrest without warrant or authorisation.- (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 including para-military forces or armed forces 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, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or Criminal Appeal No. 344-SB of 2001 -6- information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset.- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; © seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he 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 any offence punishable under this Act or furnish evidence of the commission of any offence punishable under this Act or furnish Criminal Appeal No. 344-SB of 2001 -7- evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; 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 this Act : 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 officer takes down any information in writing under sub-section (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. ” From a bare reading of the provisions of Section 42 (2) ibid, it can be culled out that the secret information has to be sent to the immediate officials superior, if the same has been taken down in writing and not otherwise. In re: Sajan Abraham v. State of Kerala, 2001 Criminal Law Journal 4002 (SC), the Head Constable got information at about 7.00 P.M. Criminal Appeal No. 344-SB of 2001 -8- that the accused person is selling injectable narcotic drugs. He gave this information to the SI of the Police, who proceeded to the place where the accused was standing. It was held that had they not done it immediately, the opportunity of seizure and arrest of the accused would have been lost and the accused would have escaped and on these facts, no inference would be drawn that there has been any violation of Section 42 of the Act. Adverting to the facts of the instant case, if Karan Singh Inspector, PW-5 had indulged in reducing the secret information into writing and its despatch to the immediate superior official, meanwhile, the accused would have escaped from his house. There could be also a possibility that somehow or the other he would have got wind of the raid being conducted at his house. In re: Baljinder Singh (supra) sought to be relied upon by Mr. Dhuriwala, the secret information against the accused was that he is in the habit of selling opium at his farm house. In that case, there may have not been apprehension to the Investigator that if he indulged in taking down the secret information into writing and its despatch to the immediate superior official, the accused will escape for the reason that the farm house might be situated at a distant place where the accused could not have got wind of the raid whereas in the present one, the accused was indulging in the sale of opium, charas, smack etc. in his house situated in habitation. Thus, the facts of Baljinder Singh's case are distinguishable from the one in hand. In re: State of Punjab v. Balbir Singh,1994 (2) Criminal Court Judgments 226 relied upon by the trial Court, it has been held by the Apex Court as under:- “ Neither Section 41(2) nor Section 42(1) mandates such empowered officer to record the Criminal Appeal No. 344-SB of 2001 -9- grounds of his belief. It is only proviso to Section 42(1) read with Section 42 (2) which makes it mandatory to record the grounds of his belief. ” In the case in hand, as is borne out from the prosecution evidence, two independent witnesses and one Gazetted Officer of the rank of Assistant Excise and Taxation Officer were in the raiding party and that being so, there is nothing either at law or facts to presume that the trial is vitiated due to non compliance of the provisions of Section 42 ibid. The non-compliance of the provisions of Section 42 ibid, ipso-facto does not vitiate the trial. Sequelly, this contention is overruled. Annexures P-1 to P-6 were taken on record on being allowed Criminal Misc. No.11587 of 2008 moved by the appellant in this appeal. Mr. Dhuriwala canvassed at the bar that as is being evidenced by Annexure, P-1, request was made by the accused-appellant for registration of the case against Paras SHO, Shahbad and four others for abducting him and detaining him to extort Rs.86,000/-by threatening false implication in a case under the Act. As would be apparent from Annexure P-4, the aforesaid Paras had returned Rs.86,000/- to the appellant and had admitted that he had wrongly picked up the appellant and had detained him at PS Shahbad and had apologized and these documents leave no scope for doubt that the police was inimically disposed towards him. To overcome this submission, Mr. Vashisht, pressed into service that the recovery in the present case cannot be disbelieved in the face of these documents for the reason that stated Paras, SI/SHO is not a Criminal Appeal No. 344-SB of 2001 -10- witness in this case and the recovery was made in the presence of a Gazetted Officer Bhim Singh and two independent witnesses. This submission merits acceptance. There is nothing on the record to show that Annexure, P-4 has been solemnly affirmed by Paras. Furthermore, this document has not been put to any recovery witness in cross-examination. This has been placed on record during the pendency of the appeal. There is nothing to show that Paras at any stage has been confronted with Annexure P-4. To crown it all, the working of Karan Singh Inspector cannot be doubted merely because of the alleged affidavit, Annexure P-4 of Paras. If Annexure P-4 is assumed to be true and correct, nonetheless, this document proprio-vigore would not be enough to disbelieve the prosecution story. Thus, no mileage can be driven by the accused from this document. Mr. Dhuriwala further argued that as follows from Annexure, P-5, the accused was falsely involved in a case FIR No. 207 dated 12.2.1985 under Section 61 of the Excise Act, PS City, Panipat, and ultimately he was acquitted by this Court and this judgment (Annexure P-5) further strengthens the fact that the police is in the habit of implicating the accused in false cases. Per contra, Mr. Vashisht contended that the present recovery cannot be thrown into an ocean of doubts and improbabilities merely because of the fact that the accused was acquitted in case FIR No.207 dated 12.2.1985 (Annexure P-5). This contention holds water. It is a celebrated dictum of law that each case has to be determined on its own facts. That being so, the version in this case cannot be disbelieved merely because of the fact that the accused was acquitted in FIR No.207 dated 12.2.1985 vide Criminal Appeal No. 344-SB of 2001 -11- Annexure P-5. Mr. Dhuriwala further pointed out that the provisions of Section 50 of the Act have not been complied with in a desired manner for the reason that Bhim Singh, Assistant Excise and Taxation Officer being already with the police party, could not be treated as a Gazetted Officer. Mr. Vashisht submitted that the testimony of Bhim Singh, PW reveals that he was not inimically disposed towards the accused and the recovery was made within his view and, thus, in no manner the prosecution can blame that the mandatory provisions of Section 50 of the Act have been given a go-by. This contention is impregnable. On reading between the lines, it emanates from Exh.P.3, the notice served under Section 50 of the Act that the accused was told that he and his house were suspected to have some intoxicants, say, opium, charas, smack etc. and he should tell whether he wants to get his personal search and the search of his house, carried out in the presence of a Magistrate or a Gazetted Officer. In reply, Exh. P-4, he opted such search to be made in the presence of some Gazetted Officer. It is in the evidence of Bhim Singh that on 18.6.1999, he was posted as Assistant Excise and Taxation Officer, Excise Department, Panipat, and on that day, this recovery was effected in his presence. A close examination of his testimony would reveal that he was subjected to searching and incisive cross-examination. He could not fumble in any manner. Conspicuously speaking, no animus or motive has been attributed to him for deposing against the accused. That being so, his testimony is worthy of credence as the search of the accused's house has been taken in his presence. It is apt to be borne in mind that the recovery in this case has been effected from the house and not from the person of the Criminal Appeal No. 344-SB of 2001 -12- accused. The procedural safeguards as enshrined in Section 50 ibid, are to be observed in case of personal search of the accused. In re: Sarju Dass v. State of Gujarat, 1999 (4) Recent Criminal Reports 614, the accused was riding a motor-cycle. The recovery of Charas was made from the bag which was hanging from the Scooter and not from the person of the accused. It was held that the provisions of Section 50 ibid are not attracted. Further, as ruled by the Apex Court in re: State of Punjab v. Baldev Singh, 1999 (3) Recent Criminal Reports 533, “ on its plain reading, Section 50 of the Act would come into play only in the case of a search of a person as distinct from the search of a premises etc.” Thus, non-summoning of any other Gazetted Officer or a Magistrate in the instant case in no manner can be deemed to have caused prejudice to the accused. Mr. Dhuriwala has canvassed at the bar that there was no such house of the accused on the location shown in the site plan,Exh. PC as House No.906/3 alleged to be that of Pappu son of Hari Chand which is shown near the house of the accused, is not located there and the statement of Gulshan Kumar, DW-2 proves that in fact, he is resident of House No.906/3 and the house of the accused bears no. 896/3. Mr. Vashisht urged with full force that the accused has not produced any documentary evidence in proof of this contention. I fall in agreement with Mr. Vashisht for the reason that if the accused is putting up in House No. 896/3, he would have summoned the record from the Municipal Council to demonstrate this fact. To add further to it, the accused in his own affidavit, Annexure P-2 has shown his residence as House No.466, HUDA Phase-I, Part 11-12, Panipat, whereas in Annexure P-5, he has shown himself to be the resident of House No. 361/3, Panipat. It Criminal Appeal No. 344-SB of 2001 -13- indicates that he is having more than one house. Gulshan Kumar, DW-2 of course has testified that he is resident of House No.906/3, Panipat, and that his uncle Darshan Singh (referring to the accused) is resident of House No. 896/3 and that the house of Pappu son of Hari Chand abuts the house of Darshan Singh (accused) with House No. 911/3, but these ipse dixit are not enough to presume so. Under the stress of cross-examination, he has admitted that he is real nephew of Darshan Singh accused. So, it was not difficult for the accused to procure his services to depose in the above mentioned manner. If the accused is residing in House No. 896/3, he could prove the same by producing documentary evidence. In the absence of the same, the statement of Gulshan Kumar cannot be believed. Simranjit Kaur, DW-1 has merely stated that an amount of Rs.60,000/- as earnest money was paid by her to Darshan Singh (accused) on 16.6.1999 as she had entered into agreement to purchase a residential Plot No. 1314 in Ward No.3, Panipat. This too indicates that the accused is having other properties. Her evidence in no manner advances the cause of the accused. Mr. Dhuriwala eloquently urged that PW Rohtash Sharma, in fact, is a police tout and is on the pay roll of the S.H.O. and he has also been cited a prosecution witness in other cases and that being so, it would be undesirable to act upon his testimony. In response, Mr. Vashisht argued that the record is quite barren to prove this fact. The argument of Mr. Dhuriwala is hard to swallow. It is in the cross-examination of Rohtash Sharma, PW-7 that “ I do not know Karan Singh Inspector personally and that I came to know the Criminal Appeal No. 344-SB of 2001 -14- name of Karan Singh for the first time on that day. ” A meticulous perusal of his cross-examination would reveal that no suggestion has been put to him that he being on terms of enmity with the accused deposed against him. It is in his cross-examination that there was a kithcen on the left side and then there was a room. On the first floor, there is open space on the roofs of the shop. The room occupied by the accused was also on the shop in the backside. The writing work was done while sitting on a Plung (old fashioned bed ) in the room of the accused. There was no other family member of the accused in the room at that time. Many persons had collected there. This evidence indicates that this witness has given geographic details of the house of the accused as well as the place at which the writing work was done. He has supported the prosecution case in all ins and outs. There being no motive for this witness to depose against the accused, his evidence can be relied upon safely. A suggestion worth the name has not been put to this witness in his cross-examination that he is a tout or stooge or stock witness of the police or that he has been cited as a prosecution witness in certain cases investigated by PW-Karan Singh Inspector (Investigator). Had he been kept as a prosecution witness in some cases, such fact would have been proved by calling the record of those FIRs from the concerned Police Station. In the absence of such evidence, the contention of Mr. Dhuriwala pales into insignificance. Last of all, Mr. Dhuriwal contended that as follows from the prosecution evidence, no neighbour of the accused or any respectable resident of the locality was joined in the house search proceedings and that being so, the prosecution evidence ought to be brushed aside. Mr.Vashisht contended that it is a matter of common Criminal Appeal No. 344-SB of 2001 -15- knowledge that now-a-days neither any neighbour nor any respectable of the locality comes forward to become a witness for the reason that if they depose against the neighbour or the resident of the locality, they will invite wrath of the accused. I subscribe myself to this submission. In re: Karnail Singh v. State of Punjab, 1983