Crl. Appeal No. 416-SB of 1997 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 416-SB of 1997 Date of decision. 23.07.2008 1. Gurcharan Singh son of Pritam Singh, 2. Munshi Singh son of Man Singh both residents of village Faggu, tehsil and District Sirsa. ....... Appellants Versus The State of Haryana ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: None for the appellants. Mr. A.K. Jindal, Assistant Advocate General, Haryana for the respondent. **** Sham Sunder, J. This appeal is directed against the judgment of conviction and the order of sentence dated 15.05.1997, rendered by the Court of Additional Sessions Judge, Sirsa, vide which it convicted the accused (now appellants), for the offence, punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be as the 'Act' only) and sentenced them to undergo RI for a period of 10 years each and to pay a fine of Rs. 1 lac, each, in default of payment of fine to undergo further rigorous imprisonment, for a period of two years each. Crl. Appeal No. 416-SB of 1997 2 2. The facts, in brief, are that on 19.06.1992, ASI Maya Ram along with other police officials was going towards village Dabra, in connection with patrol duty and crime detection, and on the way, he received a secret information that in a tractor-trolley two persons were carrying poppy straw and in case a picket was held immediately, they could be apprehended. When the police party reached near the bridge of canal in the area of village Nathusari Chopta, ASI Maya Ram constituted a raiding party. He tried to join a public witness, but none was found available. The police party then started for raid and on the road leading from Najia Khera to Ali Mohammad, a tractor-trolley was seen coming. One person was sitting in the trolley, and the other person was driving the tractor. On seeing the police party, the driver of the tractor accelerated the speed of the tractor-trolley. The tractor trolley was followed and stopped. The driver of the tractor tried to jump from the running tractor but he got entangled in the steering, when he was apprehended. He told his name as Gurcharan Singh. On inquiry, the person, who was sitting in the trolley, told his name as Munshi. He was also apprehended. Search of the tractor-trolley, was conducted in the presence of Additional Superintendent of Police, Sirsa, as per his direction, who was called to the spot by sending a message. On search of the tractor trolley, 12 bags, each Crl. Appeal No. 416-SB of 1997 3 containing 46 Kgs poppy husk, were recovered. One sample from each of the bags, was taken out, and the remaining poppy husk was kept in the same bags. The samples and the bags containing remaining poppy husk, were converted into separate parcels, duly sealed, and taken into police possession, vide recovery memo Ex.PB. Tractor Marka Eicher, bearing Engine No. 53229913212 of red colour was also taken into possession. Ruqa was sent to the Police Station, on the basis whereof formal FIR Ex.PC/1 was registered. Rough site plan Ex.PD was prepared with correct marginal notes. The accused were arrested. The statements of the witnesses were recorded. After the completion of investigation, the accused were challaned. 3. On his appearance, in the Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was framed against the accused, to which they pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Maya Ram, ASI, (PW-1), the Investigating Officer, Chattar Singh, Sub Inspector/SHO (PW-2), Daya Nand, SI/SHO , (PW-3), Lilu Ram, HC, (PW-4), Inder Singh, Constable ( PW-5 ), Dr. R.P. Dahiya, (PW-6) and Manoj Yadav, ( PW7 ). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. Crl. Appeal No. 416-SB of 1997 4 5. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was stated by Gurcharan Singh, accused- appellant, in his statement that no recovery was effected from him. He further stated that on 19.06.1992, he along with Munshi Singh and Kabal Singh was going towards village Faggu, as they had sold their crops, and were carrying Rs.10,000/- with them. When they reached the 8th mile stone from Bhadra towards Sirsa, then Devi Lal son of Bhoop Singh and Pawan Kumar son of Laxmi Narain were found sitting in a gypsy. There were two other gypsies. They stopped their tractor and looted the amount as also caused injuries to them. After that, when they reached Police Station Nathusari Chopta, said Devi Lal and Pawan Kumar etc. were already there and they got them falsely implicated, in the instant case. 6. Munshi Singh, accused-appellant, in his statement also took up the same plea, as was taken up by Gurcharan Singh, accused. Crl. Appeal No. 416-SB of 1997 5 7. In defence, the accused examined Ved Parkash, Ahlmad to the Court of Additional CJM, Sirsa DW1, Tarsem Lal, Reader to DSP Dabawali DW2, Surjit Singh, MHC DW3, and Tej Pal, Record-keeper, DIG Office, Hisar DW4. Thereafter, the accused closed their defence evidence. 8. After hearing the 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 hereinbefore. 9. Feeling aggrieved, against the judgment of conviction and the order of sentence, rendered by the trial Court, the instant appeal was filed by the accused-appellants. 10. None appeared, on behalf of the appellants, despite due notice, to their Counsel that the appeal was fixed for final hearing. Under these circumstances, no alternative was left with this Court, than to go through the evidence, record, trial Court judgment, hear the arguments of the respondent, and decide the appeal, on merits, as that amounted to due compliance of the provisions of Sections 385 and 386 of the Code of Criminal Procedure, in view of the ratio of law laid down, in Dharampal v. State of UP, 2008(1) Law Herald (SC) 225. Crl. Appeal No. 416-SB of 1997 6 11. I have heard the Counsel for the respondent, and have gone through the evidence and record of the case, carefully. 12. The first ground, taken up by the appellants, in the memorandum of appeal, was to the effect, that the mandatory provisions of Section 50 of the Act were not complied with, and, as such, the investigation, trial and conviction stood vitiated. It may be stated here that the provisions of Section 50 of the Act, were not applicable to this case, as the recovery was not effected from the person of the accused, but from the tractor trolley. Had the recovery been effected from the person of the accused, then the provisions of Section 50 of the Act, would have been attracted 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. In these circumstances, it can be said that the consistent, and particularly the view of the larger Bench of the Supreme Court, appears to be that the search, must relate to the person, and not vehicles, other luggage and articles, and then alone Crl. Appeal No. 416-SB of 1997 7 the provisions of Section 50 would be attracted. Since, in view of the principle of law, laid down, in the aforesaid authorities, the provisions of Section 50 were not applicable, to the search, in the instant case, the trial Court was right in recording conviction and awarding sentence, to the accused. This ground, therefore, does not hold good. 13. The next ground, which was taken up in the memorandum of appeal, by the appellants, was to the effect that the mandatory provisions of Section 42 of the Act, were not complied with, in as much as, neither the secret information was reduced into writing, nor sent to the Superior Officer, by the Investigating Officer, and, as such, the investigation, trial and conviction, stood vitiated. It may be stated here, that the provisions of Sections 42 were not applicable to the facts of the instant case, as the recovery was not effected from building or any enclosed place or from a vehicle, in the enclosed place. On the other hand, the recovery of the contraband, in this case, was effected from the tractor trolley, when it was in transit at the public place. With a view to properly deal with this ground, 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 Crl. Appeal No. 416-SB of 1997 8 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 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 Crl. Appeal No. 416-SB of 1997 9 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.” “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 Crl. Appeal No. 416-SB of 1997 10 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. 14. 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 and seizure and arrest in a building, conveyance or enclosed place. When the information Crl. Appeal No. 416-SB of 1997 11 is with regard to concealment of some narcotic, in a vehicle, in transit, then 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. 15. 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.” 16. 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 Sections 42 and 43 of the Act, it can be safely concluded that if a conveyance is Crl. Appeal No. 416-SB of 1997 12 intercepted or apprehended at a public place, or in transit, then the provisions of Section 42 of the Act would not be applicable. 17. 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 Crl. Appeal No. 416-SB of 1997 13 proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise.” 18. In the instant case, ASI Maya Ram received a secret information, that a tractor-trolley was coming, in which contraband was loaded and if a picket was held immediately, heavy quantity of poppy husk, could be recovered therefrom. It was, in this view of the matter that a picket was held by ASI Maya Ram along with other police officials. It was, at that time, that tractor trolley came, which was being driven by Gurcharan Singh, accused-appellant and Munshi Singh was sitting in the trolley. On search of the tractor, and from the body of the trolley, 12 bags, each containing 46 Kgs of poppy-husk were recovered. Such information was general, in nature, and not specific. The recovery was effected from the tractor trolley 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 question of violation of provisions of the provisions of Section 42 (1), did not at all arise. This ground also does not hold good. Crl. Appeal No. 416-SB of 1997 14 19. The next ground, taken up by the appellant, in the memorandum of appeal was to the effect that the case of the prosecution was fully based on the evidence of the official witnesses, who could be said to be interested witnesses and, as such the trial Court was completely wrong in placing reliance, on the same, for the purpose of recording conviction and awarding sentence. It is evident from the record that a secret information was received by Maya Ram, ASI that the tractor trolley loaded with poppy husk was coming and if a picket was held immediately at a particular place, then a big haul of poppy husk, could be recovered. There is no evidence, on the record, that any public witness was present at the spot. Maya Ram, ASI ( PW 1 ) in his examination-in-chief, stated that an attempt was made to join an independent witness, but none was found available at the spot. Had Maya Ram, ASI sent a constable to the village to bring some independent witness, the possibility of leakage of secret information, would have not been ruled out, resulting into the escape of the accused and defeat of the very holding of a picket. The evidence of the official witnesses, in the instant case, has been subjected to in-depth scrutiny. The same has been found to be credit worthy. The trial Court was thus right in coming to the conclusion that the evidence of the official witnesses being reliable, was sufficient to record conviction of the accused and award Crl. Appeal No. 416-SB of 1997 15 sentence to him. 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 it. It was further held that civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victim’s 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. In State of NCT o f Delhi versus Sunil (2000) ISCC 748, it was held as under:- “It is an archaic notion that actions of the Police Officers 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 can not 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”. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. On account of non-joining of an independent witness, due to the aforesaid reasons, the case of the prosecution, did not become doubtful. Crl. Appeal No. 416-SB of 1997 16 This ground, therefore, does not hold good. 20. The next ground taken up, in the memorandum of appeal, by the appellants, was to the effect that the sample seal was not sent to the Forensic Science Laboratory, which rendered the report of the expert meaningless and not free from doubt. Ex.PF is the report of Forensic Science Laboratory, Madhuban ( Karnal ), which is admissible into the evidence in toto under Section 293 of the Code of Criminal Procedure. No evidence has been produced, on the record, to challenge this report. However, it is evident, from this report, that the seals on the parcels were found intact, and tallied with the specimen seals, as per the forwarding letter. It means that the specimen seals were sent to the FSL, Madhuban ( Karnal ) alongwith the parcels in this case. Under these circumstances, it could not be said that the sample impression of the seals, was not sent to the office of FSL Madhuban ( Karnal ) along with sample parcels. The report of the FSL Madhuban ( Karnal ), therefore, could not be said to be meaningless. This ground, therefore, does not hold good. 21. The next ground taken up, in the memorandum of the appeal, was to the effect that the affidavits of the official witnesses were not duly verified and as such the same could not be taken into consideration, but the trial Court, was completely wrong in relying upon the same. The perusal of the affidavits Ex.PG and Ex.PH of the official witnesses, clearly Crl. Appeal No. 416-SB of 1997 17 shows that the same were sworn by the deponents before the Judicial Magistrate Ist Class, Sirsa. The Judicial Magistrate Ist Class, Sirsa read over and explained the contents of the affidavits to the formal witnesses. The formal witnesses were duly identified by another constable. After admitting the contents of the affidavits, to be correct, the formal witnesses signed the same. Thereafter, the Judicial Magistrate Ist Class, Sirsa attested the same. No defect in the verification of the affidavits, is, thus found. Under these circumstances, the trial Court was right in relying upon the affidavits, along with other evidence, to come to the conclusion, that the link evidence was complete. This ground, therefore, does not hold good. 22. The next ground taken up in the memorandum of appeal, was to the effect that the charge framed against the accused-appellants, was defective, as also all the incriminating circumstances were not put to the accused in their statements under Section 313 of the Code of Criminal Procedure, as a result whereof, a prejudice was caused to them. The careful perusal of the charge dated 10.09.1993 framed by the Additional Sessions Judge, Sirsa, clearly goes to show that it is not at all defective. In the charge, the date, the place and the quantity of poppy husk, recovered from the tractor trolley, being driven by one of the accused, were duly mentioned. The charge was read over and explained to the accused-appellants, to which they pleaded not guilty. Similarly, all the Crl. Appeal No. 416-SB of 1997 18 incriminating circumstances, appearing against the appellants, were put to them, in their statements under Section 313 Cr.P.C. The statements under Section 313 Cr.P.C. , therefore, could not be said to be defective. It