Crl. Appeal No.868-SB of 2001 1 Crl. Appeal No.1055-SB of 2001 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.868-SB of 2001 Date of Decision : 5.12.2008 Tejinder Singh S/o Jasmer Singh, ...Appellant R/o Baho Majara. Versus The State of Punjab ....Respondent Crl. Appeal No.1055-SB of 2001 1. Kuldip Singh S/o Avtar Singh ....Appellants R/o Village Dhahan, P.S. Balachaur, District Nawanshahr. 2. Dilbagh @ Darbara S/o Meet Ram R/o Village Lakhpur, District Nawanshahr. Versus The State of Punjab ....Respondent CORAM:HON'BLE MR. JUSTICE SHAM SUNDER 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Bipan Ghai, Sr. Advocate, with Mr. Deepak Garg, Advocate, for the appellant, in Crl. A. No.868-SB of 2001. Mr. R.S.Ghuman, Advocate, for the appellants, in Crl. A. No.1055-SB of 2001. Mr. S.S.Bhullar, DAG, Punjab, for the respondent-State, in both the appeals. Crl. Appeal No.868-SB of 2001 2 Crl. Appeal No.1055-SB of 2001 SHAM SUNDER, J. This judgment shall dispose of Criminal Appeal No.868-SB of 2001, filed by Tejinder Singh, and Criminal Appeal No.1055-SB of 2001, filed by Kuldip Singh and Dilbagh @ Darbara, accused/appellants, against the judgment of conviction, and the order of sentence dated 26.7.2001, rendered by the Judge, Special Court, Jalandhar, vide which he convicted the accused/appellants, for the offence, punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced them, to undergo rigorous imprisonment, for a period of ten years each, and to pay a fine of Rs.1 lac each, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years each, for having been found in possession of 40 bags, each containing 30 kgs. poppy-husk, (falling within the ambit of commercial quantity), without any permit or licence. 2. The facts, in brief, are that on 7.1.1998, Balwinder Singh, SI/SHO, P.S. Phillaur, alongwith other police officials, in Govt. Gypsy, bearing No.PB-08-E-2103, was present, on the Sutlej River Bridge, near G.T.road, Phillaur, in connection with special picket duty, when one truck, without number, came from the side of Ludhiana, which on suspicion, was stopped. As soon as the truck stopped, one person jumped from the back side, and ran away. The person, who was sitting on the driver seat, told his name as Kuldip Singh @ Deepa, and the person, who was sitting by his side told his name as Tejinder Singh, whereas, the person sitting on the cleaner side, told his name as Dilbagh. The person, who succeeded in running away, came to be know as Dara @ Teeta. On search of the truck, in accordance with the provisions of law, 40 bags, Crl. Appeal No.868-SB of 2001 3 Crl. Appeal No.1055-SB of 2001 each containing 30 kgs. poppy-husk, were recovered. A sample of 250 grams from each of the bags, was taken out, and the remaining poppy- husk, was put into the same bags. The samples, and the bags, containing the remaining poppy-husk, were converted into parcels, duly sealed, and taken into possession, vide a separate recovery memo, alongwith the truck. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. Rough site plan of the place of recovery, was prepared. The statements of the witnesses, were recorded. The accused were arrested. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against them, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Jagir Singh, HC (PW-1), Bhupinder Singh, C-II (PW-2), Balwinder Singh, SI (PW- 3), the Investigating Officer, and Harbhajan Singh, ASI (PW-4). Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence. 5. The statements of the accused, under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. 5-A. Kuldip Singh, accused, in his statement, under Section 313 Cr.P.C., stated that no recovery was effected from him. It was further stated by him, that the police picked him up, from near the Police Station, Crl. Appeal No.868-SB of 2001 4 Crl. Appeal No.1055-SB of 2001 and liquor vend, in a drunken condition, when he misbehaved with the Police. 5-B. Dilbagh Singh, accused, in his statement, under Section 313 Cr.P.C., stated that he was a resident of village Lakhpur, near Banga, District Nawanshahr, and had gone to Ladowal, to see his ailing cousin Shinder Pal. He further stated that he did not have money, on return, and stopped a truck, for going to Banga. He further stated that he was allowed to board the truck, but the truck driver, near the Sutlej Bridge, had a scuffle with the Police, and the truck was taken to the Police Station. He further stated that no recovery was effected from him, but he was falsely implicated, in this case. 5-C. Tejinder Singh, accused, in his statement, under Section 313 Cr.P.C., stated that no recovery was effected from him. He further stated that he had a dispute with his brother, who had relations with higher Police Officers. He further stated that he was falsely implicated, at the instance of his brothers, namely Surinder Singh and Dhanraj Singh. 5-D. The accused, however, produced Sukhdarshan Singh, Addl. Ahlmad to the Court of Mr. Gurmail Singh Dhillon, Civil Judge (Jr.Dn.), Khanna, (DW-1), Smt. Daljit Kaur, Jr. Assistant, office of the District Transport Officer, Jalandhar, (DW-2), and Deepak Kumar, Addl. Ahlmad, to the Court of Mr. G.K.Rai, Addl. District & Sessions Judge, Jalandhar, (DW-3), in their defence. Thereafter, they closed the defence evidence. 6. After hearing the Addl. Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated Crl. Appeal No.868-SB of 2001 5 Crl. Appeal No.1055-SB of 2001 hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, were filed by the appellants. 8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellants, at the very outset, submitted that there was a delay of 12 days, in sending the samples to the office of the Chemical Examiner, which remained unexplained, as a result whereof, it could not be said that the samples were not tampered with, until the same reached the office of the Chemical Examiner. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The mere fact that delay, in sending the samples, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcels were tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the prosecution, to complete the link evidence. The other evidence, produced by the prosecution, has been subjected to indepth scrutiny, and it has been found to be cogent, convincing, reliable, and trustworthy. From the other evidence, produced by the prosecution, it was proved that none tampered with the sample parcels, until the same reached the Laboratory. Above all, there is report of the Chemical Examiner, Ex.PJ, which clearly proves that the seals on the samples, were found to be intact, and agreed with the specimen seals sent. The report of the Chemical Examiner, is per-se admissible into evidence, in its entirety, as per the provisions of Section Crl. Appeal No.868-SB of 2001 6 Crl. Appeal No.1055-SB of 2001 293 Cr.P.C. The delay, in sending the samples, to the office of the Chemical Examiner, therefore, did not prove fatal to the case of the prosecution. Had no other evidence, been produced, by the prosecution, to prove that the sample parcels, remained untampered with, until the same reached the office of the Chemical Examiner, the matter would have been different. In State of Orissa Vs. Kanduri Sahoo 2004(1) RCR (Criminal) 196 (S.C.), it was held that mere delay in sending the sample to the Laboratory is not fatal, where there is evidence that the seized articles remained in safe custody. In Narinder Singh @ Nindi Vs. State of Punjab 2005(3) RCR (Criminal) 343, which was a case, relating to the recovery of 4 Kgs. of opium, the samples were sent to the office of the Chemical Examiner, after 23 days. All the samples were intact. In these circumstances, it was held that, in the face of the other cogent, convincing, reliable, and trustworthy evidence, produced by the prosecution, to prove the completion of link evidence, it could not be held that the possibility of tampering with the samples, could not be ruled out. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. Therefore, in the instant case, unexplained delay of 12 days, in sending the samples to the office of the Chemical Examiner, did not at all matter much. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 10. It was next submitted by the Counsel for the appellants, that the CFSL form was not prepared, at the spot, as a result whereof, a prejudice was caused to the accused. It may be stated here, that there is no requirement of law, that the CFSL form must be prepared, at the spot. Crl. Appeal No.868-SB of 2001 7 Crl. Appeal No.1055-SB of 2001 The evidence produced, by the prosecution, clearly proves that none tampered with the samples, until the same reached the office of the Chemical Examiner. Therefore, the link evidence was complete. Preparation or non-preparation of CFSL form, at the spot, therefore, did not, in any way, cast any doubt on the prosecution story. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 11. It was next submitted by the Counsel for the appellants, that the truck, in question, was taken on sapurdari, by Hazura Singh, but no action was taken against him. It is, no doubt, true, that no action was taken against Hazura Singh, the owner of the truck, but that does not mean that the liability of the accused/appellants, stood diluted, in any manner. At the most, it could be said, that the Investigating Officer, committed illegality or irregularity, in not taking any action, against the owner of the truck. If, on account of the said irregularity or illegality of the Investigating Officer, the accused are acquitted, then every dishonest or negligent Investigating Officer, shall leave a lacuna, in the prosecution story, to create an escape route, for the accused. At the most, after finding, as to whether, the owner of the truck, knowingly permitted the use of the truck, for transporting the poppy-husk, he could be challaned for the offence, punishable under Section 25 of the Act. However, that did not, in any way, dilute the liability of the appellants, for the commission of offence, punishable under Section 15 of the Act. On account of this irregularity or illegality, no doubt was cast, on the prosecution story, in any manner. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. Crl. Appeal No.868-SB of 2001 8 Crl. Appeal No.1055-SB of 2001 12. It was next submitted by the Counsel for the appellants, that though the alleged recovery was effected, in this case, after sunset, and before sunrise, the mandatory provisions of Section 42 of the Act, were not complied with, and, as such, the conviction and sentence, stood vitiated. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. In the instant case, the recovery was effected from the truck aforesaid, when in transit, at a public place. As such, the provisions of Section 42 of the Act, were not applicable. On the other hand, the provisions of Section 43 of the Act, were applicable, to the instant case. With a view to properly deal with this plea, taken up, by the Counsel for the appellants, it would be appropriate to notice the provisions of Sections 42 and 43 of the Act, which read 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 or of the Border Security Force 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, if he has reasons to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an Crl. Appeal No.868-SB of 2001 9 Crl. Appeal No.1055-SB of 2001 offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, (a) enter into an search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any which any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which 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 offence under Chapter IV relating to such drug or substance : 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 Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained Crl. Appeal No.868-SB of 2001 10 Crl. Appeal No.1055-SB of 2001 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 offence takes down any information in writing under sub-Section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior.” “43. Power of seizure and arrest in public place. -- Any officer of any of the department mentioned in Section 42 may -- (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance article 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 an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and if Crl. Appeal No.868-SB of 2001 11 Crl. Appeal No.1055-SB of 2001 such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be useful, arrest him and any other person in his company. 12-A. A conjoint reading of Sections 42 and 43 of the Act, shows that these sections are independent of each other. Section 43 authorises any Officer of the departments, mentioned in Section 42, to seize in any public place, or in transit, any narcotic drug or psychotropic substance, or controlled substance, in respect of which, he has reason to believe that an offence punishable under Chapter IV has been committed, whereas, Section 42 of the Act, empowers the Officer, to search any building, or conveyance, in any building, and seize the contraband, lying therein. When the information is with regard to concealment of some narcotic, in a vehicle, in transit, then the provisions of Section 43 of the Act are applicable. The word 'public place' has been explained for the purpose of Section 43 of the Act, which includes any public conveyance, hotel, shop or other places intended for use or accessible to the public. 12-B. A Division Bench of this Court in Dharminder Kumar Vs. State of Punjab, 2002(4) RCR (Crl.)278 has held as under :- “Thus it is evident that if seizure is made from any animal, conveyance or article in a public place or in transit then Section43 of the Act would be applicable. Section 43 and Section 42 of the Act operate in different spheres. Since the conveyance has been specifically included in Section 43 of the Act also, therefore, the conveyance which is found in a Crl. Appeal No.868-SB of 2001 12 Crl. Appeal No.1055-SB of 2001 public place or in transit would be covered under the provisions of Section 43 of the Act whereas conveyance used in Section 42 of the Act has to be read as conveyance which is other than a public place. This interpretation is the only harmonious interpretation of Sections 42 and 43 of the Act.” It is well settled principle of law, that the provisions of a Statute, are to be construed, in harmonious manner, so that none of the same is rendered nugatory. By harmonious construing the provisions of Sections 42 and 43 of the Act, it can be safely concluded, that if a conveyance is intercepted or apprehended at a public place, or in transit, then the provisions of Section 42 of the Act, would not be applicable. 12-C. It was held in State of Haryana Vs. Jarnail Singh and others 2004(2) RCR (Crl.) 960 (SC) as under :- “7. Section 43 of the NDPS Act provides that any officer of any of the departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public. 8. Sections 42 and 43, therefore, contemplate two difference Crl. Appeal No.868-SB of 2001 13 Crl. Appeal No.1055-SB of 2001 situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise.” 12-D. In the instant case, Balwinder Singh, SI/SHO, P.S. Phillaur, alongwith other police officials, was present on the Sutlej River Bridge, near G.T.Road, Phillaur, in connection with special picket duty. It was, at that time, that the appellants were found coming in the truck, without number, in which 40 bags, containing poppy-husk, were lying. The recovery was effected from a vehicle, in transit, at a public place. Thus, the provisions of Section 43 were applicable, and not the provisions of Section 42. In this view of the matter, the trial Court, was right in holding that the question of compliance of the provisions of Section 42, did not at all arise, as the same were inapplicable. The trial Court was, thus, right in recording conviction, and awarding sentence, to the accused. 13. It was next submitted by the Counsel for the appellants, that no independent witness was joined, though the alleged recovery was effected, at a thoroughfare. It may be stated here, that the recovery, in Crl. Appeal No.868-SB of 2001 14 Crl. Appeal No.1055-SB of 2001 this case, was effected, after sunset. Under these circumstances, the possibility of presence of the independent witnesses, could be ruled out. Even otherwise, no secret information had been received, against the accused, that they were coming in a truck, with a big haul of poppy-husk, and could be apprehended, if a picket was held. It was a chance recovery. Had a secret information been received, against the accused, non-joining of an independent witness, at the time of effecting the recovery, would have certainly cast a doubt, on the prosecution story. The mere fact that no independent witness was joined, in itself, was not sufficient to disbelieve the case of the prosecution. In the face of the evidence of the official witnesses only, the Court is required to scrutinize the same, carefully and cautiously. After careful and cautious scrutiny, if the Court comes to the conclusion, that the same does not suffer from any serious infirmity, the same can be believed. The evidence of the official witnesses, in the instant case, has been subjected to indepth scrutiny, and nothing came to the fore, which may go to discredit the same. In Akmal Ahmed Vs. State of Delhi, 1999(2) RCC 297 (S.C.), it was held that, it is now well-settled, that the evidence of search or seizure, made by the police, will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi Vs. Sunil (2000)I S.C.C. 748, it was held as under:- “It is an archaic notion that actions of the Police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Court cannot start with the presumption that the police records Crl. Appeal No.868-SB of 2001 15 Crl. Appeal No.1055-SB of 2001 are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature.” 14. In Appa Bai and another Vs. State of Gujrat, AIR 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined, by the prosecution. It was further held, in the said authority, that the civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victims' side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals, and do not involve themselves, in it. The principle of law, laid down, in the aforesaid