Criminal Appeal No. 1437-SB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1437-SB of 2001 Date of Decision: 09.02.2010 Gursewak Singh alias Roda son of Jagar Singh son of Jiwa Singh, r/o village Rogla, Police Station Dadba, Tehsil Sunam, District Sangrur (Punjab). ... Appellant Versus State of Haryana. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Ms. Sangeeta Dubey, Advocate, Amicus-Curiae, for the appellant, and Mr. G.S. Gandhi, Advocate. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for the respondent - State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, dated 03.09.01, and the order of sentence, dated 04.09.01, rendered by the Judge, Special Court, Kaithal, vide which, he convicted the accused (now appellant), for the offence, punishable under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the 'Act' only), and sentenced him to undergo Rigorous Imprisonment, for a period of 10 years, and to pay a fine of Rs. 1 lac, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of 01 year, for having been found in Criminal Appeal No. 1437-SB of 2001 2 possession of 124 kgs of poppy husk, without any permit or licence, falling within the ambit of commercial quantity. 2. The facts, in brief, are that, on 17.04.2000, Paras Kumar, Sub Inspector/Station House Officer, Police Station Guhla, alongwith Dewa Singh, Assistant Sub Inspector, and other Police officials, was present, at bus-stand village Agondh, in connection with the detection of crime and patrolling. A secret information was received, against the accused, that he was in possession of four bags of poppy husk, near the tomb (dargah) of peer, at Tilla, and was waiting for some vehicle to carry the same, and if a raid was conducted, he could be apprehended. The Police party proceeded towards the disclosed place. On the way, Mohan Singh, Ex-Sarpanch and Balkar Singh, met the Police party, who were asked to join it, but they expressed their inability. Thereafter, the Police party, conducted a raid, at the place, where the accused, was found present. On seeing the Police party, the accused, tried to hide himself, in the ditches, but was apprehended on suspicion. Four bags were found lying, in possession of the accused, in the ditches. Search of the bags, in the presence of Om Parkash, Deputy Superintendent of Police, Guhla, who reached the spot, on receipt of a message, was conducted. Each bag was found containing 31 kgs poppy husk. A sample of 250 gms poppy husk, was taken out of each bag. The samples and the remaining poppy husk were converted into parcels, duly sealed, and taken into possession, vide separate recovery memo. Ruqa was sent, to the Police Station, on the basis whereof, the first information report, was registered. Site plan was prepared. The Criminal Appeal No. 1437-SB of 2001 3 accused, was arrested. After the completion of investigation, he was challaned. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. 4. Charge under Section 15 of the Act, was framed against the accused, which was read-over and explained to him, to which he pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Satish Kumar, Assistant Sub Inspector (PW1), Dr. Sucha Singh (PW2), Rajbir Singh, Constable (PW3), Rattan Singh, Head Constable (PW4), Khushi Ram, Constable (PW5), Om Parkash, Deputy Superintendent of Police (PW6), a witness to the recovery, Dewa Singh, Assistant Sub Inspector (PW7), Paras Kumar, Sub Inspector (PW8), the Investigating Officer, and, Sh. S.K. Nagpal, Senior Scientific Officer, Forensic Science Laboratory, Madhuban (PW9). Thereafter, the Additional Public Prosecutor, for the State, closed the prosecution evidence. 6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that, no recovery, was effected, from him. It was further stated by him that, on 15.04.2000, he was going, on a mare, to see one Bitoo son of Ajit Singh of village Daban Kheri. It was further stated by him that, he was apprehended by the Police and asked by the Investigating Officer, that he had kept the mare for the purpose of smuggling of poppy husk. It Criminal Appeal No. 1437-SB of 2001 4 was further stated by him that, he however, denied it. It was further stated by him that he was forcibly dragged, from the mare, causing injuries, on his right knee. It was further stated by him that, for two days, he was kept, in the Police Station, so that he might not make any complaint, against the concerned Police officials. It was further stated by him that, thereafter, he was challaned, in the instant case. He also examined Mohan Singh (DW1), and, Balkar Singh (DW2) , in his defence evidence, and closed the same. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 8. Feeling aggrieved, the instant appeal, has been filed by the appellant. 9. Ms. Sangeeta Dubey, Advocate, was appointed as an Amicus-Curiae, as none appeared on behalf of the appellant, vide order dated 13.01.2010. 10. I heard the arguments of the Amicus-Curiae, the Counsel for the respondent and went through the evidence and record of the case when Mr. G.S. Gandhi, Advocate, also put in appearance, on behalf of the appellant and cited the case law. 11. The Counsel for the appellant, at the very outset, submitted that, though the secret information, was received, against the accused, as per the prosecution story, yet the same was neither reduced into writing, nor sent, to the Officer superior, and, as such, the mandatory provisions of Section 42 of the Act, stood violated, resulting into the Criminal Appeal No. 1437-SB of 2001 5 vitiation of trial, conviction and sentence. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. No doubt, a secret information, was received, against the accused, yet, the recovery, was effected, when he was found in possession of four bags, containing poppy husk, near the tomb of a peer, located on the high altitude (Tilla). The recovery, in this case, was not effected, from a building or an enclosed place, or from a vehicle, parked in an enclosed place. On the other hand, the recovery, in this case, from the accused, was effected, from a public place. Under these circumstances, the provisions of Section 42 of the Act, were not applicable, to the instant case, but, on the other hand, the provisions of Section 43 of the Act, were applicable. The provisions of Sections 42 and 43 of the Act, 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, olice 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 offence punishable under Chapter IV Criminal Appeal No. 1437-SB of 2001 6 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 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.” Criminal Appeal No. 1437-SB of 2001 7 “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 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. 11-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, for search, seizure, arrest and detention, in any public place, or in transit, in respect of any narcotic drug or psychotropic 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 for search, seizure and arrest in a building, conveyance or enclosed place. When the information is with regard to Criminal Appeal No. 1437-SB of 2001 8 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. 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 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.” 12-A. 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. Criminal Appeal No. 1437-SB of 2001 9 13. 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 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.” In view of the principle of law, laid down, in the aforesaid cases, the trial Court was right, in holding that since the provisions of Section 42 Criminal Appeal No. 1437-SB of 2001 10 of the Act were not applicable to the facts of the instant case, the question of compliance of the same, did not at all arise. The submission of the Counsel for the appellant, thus, being devoid of merit, stands rejected. 14. The Counsel for the appellant, has however, placed reliance, on Sukhdev Singh Vs. State of Haryana, 2008(1), RCR (Criminal), 503, and, Directorate of Revenue & another Vs. Mohammed Nisar Holia, 2008(1), RCR (Criminal), 241 (SC), in support of his contention that, once a secret information, had been received, it was required to be reduced into writing and sent to the Officer superior. In Sukhdev Singh's case (supra), the recovery, was effected, from a room of the house of the accused, between sunset and sunrise. Similarly, in Directorate of Revenue & another's, case (supra), the recovery, was effected, from a room. It was, under these circumstances, held that, non-compliance with the mandatory provisions of Section 42 of the Act, clearly caused a great prejudice to the accused. Taking that violation alongwith other infirmities, found in the prosecution case, into consideration, the accused, was acquitted, in the aforesaid cases. In view of the principle of law, laid down, in Dharminder Kumar Vs. State of Punjab, and, State of Haryana Vs. Jarnail Singh and others, no help, can be drawn, by the Counsel for the appellant, from Sukhdev Singh's, and, Directorate of Revenue & another's, cases (supra). The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. Criminal Appeal No. 1437-SB of 2001 11 15. It was next submitted by the Counsel for the appellant, that no effort, was made to join an independent witness, despite secret information, as a result whereof, the case of the prosecution became doubtful. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Paras Kumar, Sub Inspector, PW8, the Investigating Officer, stated that, on the way, Mohan Singh, Ex-Sarpanch and Balkar Singh, met the Police party. They were asked to join the Police party, but, they refused to do so. It means that an effort, was made, to join the independent witnesses, but they refused to do so. Under these circumstances, it could not be said, that there was intentional and deliberate lapse, on the part of the Investigating Officer, in not joining an independent witness. The mere fact, that the case of the prosecution, did not stand corroborated, through an independent source, in itself, was not sufficient to throw away the same. In the face of the evidence of official witnesses only, the Court, is required to scrutinize the same carefully and cautiously. If, after careful and cautions scrutiny, the same is found to be reliable, the accused, can be convicted. After due scrutiny of the evidence of the official witnesses, this Court, has come to the conclusion, that the same is cogent, convincing and reliable. 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:- Criminal Appeal No. 1437-SB of 2001 12 “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 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.” 16. 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 case, 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 cases, is fully applicable to the facts of the present case. In these circumstances, mere non-joining of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part, to falsely implicate the accused, no doubt, is cast on the prosecution story. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. Criminal Appeal No. 1437-SB of 2001 13 17. It was next submitted by the Counsel for the appellant, that the mandatory provisions of Section 50 of the Act, were not complied with, as a result whereof, the trial, conviction and sentence stood vitiated. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. In the instant case, the recovery of poppy husk, was not effected, from the person of the accused, but, from the bags in his possession. As such, the provisions of Section 50 of the Act, were not applicable, to the instant case. In State of Punjab Vs. Baldev Singh, 1999(6) S.C.C. 172, a Constitution Bench of the Apex Court, settled beyond doubt, that the language of Section 50, was implicitly clear that the search had to be, in relation to a person, and not in relation to the premises, vehicles, or articles. Similar view was taken in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004 (1) S.C. 597. The submission of the Counsel for the appellant, thus, being without substance stands rejected. 18. The Counsel for the appellant, however, placed reliance on State of Punjab Vs. Surjit Singh, 2008(1), RCR (Criminal), 266, a case decided by a Division Bench of this Court, in support of their contention that the provisions of Section were applicable to this case. In view of the principle of law, laid down, in State of Punjab Vs. Baldev Singh's case (supra), by a Constitution bench of the Apex Court, the principle of law, laid down, to the contrary, in State of Punjab Vs. Surjit Singh's case (supra), decided by this Court shall not hold the field. In this view of the matter, the submission of the Counsel for the appellant, being devoid of merit, must fail, and the same stands Criminal Appeal No. 1437-SB of 2001 14 rejected. 19. It was next submitted by the Counsel for the appellant, that Paras Ram, Sub Inspector, sent the ruqa, and himself investigated the case. They further submitted that the Course, adopted by Paras Ram, Sub Inspector, was unknown, to the provisions of law. They further submitted that, on account of this reason, a great prejudice, was caused, to the accused. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. In S.Jeevanantham Vs. State through Inspector of Police, T.N. (2004) 5 Supreme Court Cases, 230, a case decided by the Apex Court, it was held that if the Police Officer, who is the complainant, also conducts the investigation of the case, and it is not proved, that any prejudice was caused to the accused, on account of the adoption of such a course, the accused cannot be acquitted. In this case, there is nothing, on record, to indicate, that a prejudice was caused to the accused, on account of adoption of the aforesaid course, by the Investigating Officer. The submission of the Counsel for the appellant, thus, being without merit, must fail, and the same stands rejected. 20. No other point, was urged, by the Counsel for the parties. 21. In view of the above discussion, it is held that the judgement of conviction and the order of sentence, rendered by the trial Court, are based on the correct reading and due appreciation of evidence, and, law on the point. The same do not suffer from any illegality and infirmity, warranting the interference of this Court, and, are liable to be upheld. Criminal Appeal No. 1437-SB of 2001 15 22. For the reasons recorded above, the appeal, is dismissed. The judgement of conviction and the order of sentence are upheld. If the appellant, is on bail, his bail bonds shall stand cancelled. 23. The concerned Chief Judicial Magistrate, is directed to comply with the judgement, in accordance with law, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and send the compliance report, within a period of two months, from the date of receipt of a copy thereof. 24. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court. 25. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action. 09.02.2010 (SHAM