Criminal Appeal No.285-DB of 2001 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Amrik Singh APPELLANT VERSUS State of Punjab RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE RAM CHAND GUPTA Present:- Shri A.P.S.SDeol, Senior Advocate with Ms.Manpreet Kaur, Advocate for the appellant. Ms.Gurvin Kaur, Additional A.G. Punjab. MEHTAB S.GILL, J. This is an appeal against the judgment/order dated 17.5.2001 of the learned Special Judge (Additional Sessions Judge), Mansa, whereby he convicted Amrik Singh son of Gurdial Singh under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced him to undergo RI for 12 years and to pay a fine of Rs.1 lac, in default Criminal Appeal No.285-DB of 2001 -2- of payment of fine, to further undergo RI for 2 years. The prosecution case is that on 9.12.1996 Inspector Joginder Pal Singh along with ASI Ujagar Singh, ASI Mohinder Singh, HC Gurnam Singh, Constable Parminder Singh, Constable Atma Singh and Constable Hardial Singh were present at Bus Stand Bajewala, on a government canter driven by PHG Harpal Singh, in connection with holding a Naka. A special informer, gave information to them that Amrik Singh son of Gurdial Singh Ahluwalia resident of Chhapianwali, now residing at Mansa is selling poppy husk on the link road, leading from Village Bajewala to Uddat Bhagat Ram, at the brick kiln situated in the area of Village Bajewala. Heavy quantity of poppy husk could be recovered from him. Ruqa Ex.PA was sent to the police station for registration of the F.I.R. Inspector Joginder Pal Singh along with his employees proceeded for the raid, on the government canter, driven by PHG Harpal Singh. Ruqa Ex.PA was sent on 9.12.1996 at 8.40 p.m. to ASI Lal Singh Police Station Jaurkian on the basis of which F.I.R. Ex.PA/1 was registered. A copy of the same was sent to Inspector Joginder Singh. The prosecution to prove its case, brought into the witness-box Inspector Joginder Pal Singh PW-1, ASI Ujagar Singh PW-2, Constable Surinder Singh PW-3 and Iqbal Singh D.S.P. PW-4. Joginder Singh DW-1, Constable Jasbir Singh, DW-2 and HC Darshan Singh DW-3 were examined in defence. Learned counsel for the appellant has argued, that the raid to be conducted was in the brick kiln at night time. It was incumbent upon the Investigating Officer Joginder Pal Singh PW-1 to comply with the provisions of Sections 41 and 42(2) of the Act, since it was night time and the place to be raided was a private place. Learned counsel has further argued that as per Sections 41 and 42(2) of the Act, as the search warrants could not be issued, it was incumbent upon the Investigating Officer to right the reasons as to why the warrant could be Criminal Appeal No.285-DB of 2001 -3- got issued from the competent Court. He has further argued that appellant did not have exclusive possession of the contraband. Allegedly the appellant was sitting on the contraband. Relying upon the judgment of the Hon'ble Supreme Court in State of Punjab v. Balkar Singh and another (2004) 3 S.C.C. 582, appellant could not have been held liable for conscious possession of the poppy husk. D.S.P. Iqbal Singh PW-4, strangely did not put his seal, when the recovery was made, though it has come in evidence that all the proceedings were being done in his supervision after the appellant had given his consent to be searched by a gazetted officer. Constable Jasbir Singh DW-2 who brought Register No.19 of the year 1996 Ex.D1 and Register No.5 regarding the sending of post to the higher authorities, it is clear that no entry exists in the register regarding sending special report to the D.S.P. Sardulgarh superior officer of S.H.O. Joginder Pal Singh PW-1. Darshan Singh DW-3 brought the Log Book pertaining to Jeep No.PB-31-6421. It shows the movement of the said Jeep on 9.12.1996. The Photostat copies of the same are Ex.DA. It has been stated by this witness that in the column for use of the Jeep and the destination to which it was taken is not written, as to whether the vehicle was taken to Village Bajewala, or not. The entries also do not bear the signatures of D.S.P. Iqbal Singh PW-4. Learned counsel for the State has argued that there was exclusive and conscious possession of the contraband, as the appellant was sitting on the bags of poppy husk. Appellant was in the knowhow on what he was sitting, possession has been clearly established. The seal after use by ASI Ujagar Singh PW-2 was handed over to the independent witness Joginder Singh DW-2. The D.S.P. on that day may not have taken the official vehicle, and Criminal Appeal No.285-DB of 2001 -4- that is the reason the Log Book was not filled in. There was no need to comply with the provisions of Section 41 and 42(2) of the Act. We have heard the learned counsel for the appellant and the State and perused the record with their assistance Section 42(1)(d) of the Act envisages 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 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 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) xxx xxx xxx (b) xxx xxx xxx (c) xxx xxx xxx (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 Criminal Appeal No.285-DB of 2001 -5- enclosed place at any time between sunset and sunrise after recording the grounds of his belief.” It is clear from Section 42(d) of the Act that if the officer has any reason to believe that search warrant or authorization cannot be obtained, he will have to put that in writing. In the case in hand, though there was no need for the officer to obtain a search warrant, but it was incumbent upon him to put this belief as to why he cannot obtain a warrant, in black and white. There is no document on record regarding compliance of Section 42(d) of the Act. Learned counsel for the appellant has rightly argued while placing reliance upon State of Punjab v. Balkar Singh and another (2004) 3 S.C.C.582, that merely sitting on the bags of poppy husk would not amount to conscious possession if the residence or place from where the recovery is made, is not in the ownership of the accused. The Hon'ble Supreme Court in para-3 of the Judgment in State of Punjab v. Balkar Singh and another (supra) has held as under :- “3. We heard the counsel for the appellant. The High Court by the impugned judgment stated that the prosecution failed to prove that these respondents were in conscious possession of the poppy husk recovered by the police. The evidence by the prosecution consisted of the testimony of PW-1 Balbir Singh and PW-2 ASI Jarnail Singh. Both these witnesses deposed that they found the respondents sitting on the bags of poppy husk. The recovery was effected from a field in Village Lohgarh. The respondents belonged to different villages. The respondent Balkar Singh is a resident of Village Bira Bedi in District Hissar while respondent Munish Chand is a resident of Farukhabad. The police did not make any investigation as to how these 100 bags of poppy husk were transported to the place of incident. They also did not adduce any evidence to show the ownership of the poppy husk. The presence of the respondents at the place from where the bags of poppy husk were recovered itself was taken as possession of these bags by the police. In fairness, the police should have conducted further investigation to prove that these accused were really in possession of these articles. The failure to give any satisfactory explanation by the Criminal Appeal No.285-DB of 2001 -6- accused for being present on that place itself does not prove that they were in possession of these articles. Though the respondents raised a plea before the Sessions Court, the same was not considered by the Sessions Judge in the manner in which it should have been considered. We do not think that the High Court erred in holding that there was no evidence to prove that the respondents were in conscious possession of the poppy husk recovered by the police. The prosecution failed to discharge its obligation to prove the possession of the poppy husk by the respondents. We do not find any infirmity in the judgment passed by the High Court.” The case of the appellant is squarely covered by judgment of the Hon'ble Supreme Court in State of Punjab v. Balkar Singh and another (supra). D.S.P. Iqbal Singh PW-4 who was supervising the search, did not put his seal on the alleged contraband seized. In fact, it seems he did not go to the place of occurrence which is clear from the statement of HC Darshan Singh DW-3, who brought the Log Book of his official Jeep No. PB-31-6421. The Log Book shows that the said Jeep was not taken towards the area of Village Bajewala on 9.12.1996. It seems that all the paper work was done in the office of the D.S.P. where his signatures were then obtained. The sole independent witness Joginder Singh DW-1 has not supported the prosecution case. He resiled from his statement and was declared hostile. Nothing worthwhile could be taken out from his statement by the prosecution in his cross-examination. The special report as per registers Exs.D1 and D2 was not sent to the superior officer i.e. D.S.P.Sardulgarh by Inspector/S.H.O. Joginder Pal Singh PW-1. With the above discussion and observations and relying upon the judgment of the Hon'ble Supreme Court in State of Punjab v. Balkar Singh and another (supra), a doubt is created in our mind, the benefit of which is given to the appellant. Criminal Appeal No.285-DB of 2001 -7- Appeal is allowed and appellant is acquitted of the charge framed against him. If in custody, he be set free forthwith, if not needed in any other case. ( MEHTAB S.GILL ) JUDGE ( RAM CHAND GUPTA ) October 22, 2009 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO