IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No.145-DB of 2007 Davinder Kumar … Appellant Versus State of Punjab … Respondent 2. Criminal Appeal No.218-DB of 2007 Bakhshish Singh @ Bittu and another … Appellants Versus State of Punjab … Respondent 3. Criminal Appeal No.481-DB of 2007 Sandeep Kumar @ Deepu … Appellant Versus State of Punjab … Respondent 4. Criminal Appeal No.880-DB of 2008 Darbara Singh @ Sonu @ Bahra … Appellant Versus State of Punjab … Respondent Date of decision: 21st November, 2011 CORAM: HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sanjay Gupta, Advocate for the appellant in CRA No.145-DB of 2007; Mr. Kushaldeep S. Sandhu, Advocate for the appellants in CRA No.218-DB of 2007; Mr. Amit Dhawan, Advocate for the appellant in CRA No.481-DB of 2007; Criminal Appeals No.145-DB, 218-DB & 481-DB of 2007; and 880-DB of 2008 Ms. Monika Jalota, Advocate for the appellant in CRA No.880-DB of 2008; Ms. Gurveen H. Singh, Additional Advocate General, Punjab for the State. 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? KANWALJIT SINGH AHLUWALIA, J. A secret information was received that Bakhshish Singh @ Bittu, Darbara Singh @ Sonu, Sandeep Kumar @ Deepu, Malkiat Singh @ Kaka and Davinder Kumar were transporting narcotic substance in a Cielo car bearing registration No.DL3CH-3737. Relying upon the secret information received, the police party apprehended the said vehicle on the early hours of morning on 29th December, 2004 and taken into custody three appellants, namely Bakhshish Singh @ Bittu, Darbara Singh @ Sonu, Sandeep Kumar @ Deepu, whereas the remaining two appellants, namely Malkiat Singh @ Kaka and Davinder Kumar, are stated to have escaped from the spot. From the above said Cielo car, four bags of poppy husk weighing 35 kg each and 4 kg opium were recovered, which led to registration of a case FIR No.228 dated 29.12.2004 at Police Station Phillaur, District Jalandhar under Sections 15 and 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, ‘the Act’). The above said FIR was investigated and a report under Section 173 Cr.P.C. was submitted. Special Court at Jalandhar charged all the five occupants of the vehicle for offences punishable under 2 Criminal Appeals No.145-DB, 218-DB & 481-DB of 2007; and 880-DB of 2008 Sections 15 and 18 of the Act. The accused pleaded not guilty and claimed trial. After conclusion of the trial, the Judge, Special Court, Jalandhar vide impugned judgment dated 15th December, 2006 convicted the appellants for offences punishable under Sections 15 and 18 of the Act, and vide a separate order of even date sentenced them to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs.1,00,000/- each, in default of payment of fine to further undergo rigorous imprisonment for two years on both the counts. The substantive sentences awarded on both counts, i.e. under Sections 15 and 18 of the Act, were ordered to run concurrently. Four appeals have been filed in this Court to assail the judgment of conviction and order of sentence. While the two accused, namely Bakhshish Singh @ Bittu and Malkiat Singh @ Kaka, being brothers, have filed one appeal jointly viz. CRA No.218-DB of 2007; the remaining three accused, namely Davinder Kumar, Sandeep Kumar @ Deepu and Darbara Singh @ Sonu @ Bahra, have preferred three separate appeals viz. CRA No.145-DB of 2007, CRA No.481-DB of 2007 and CRA No.880-DB of 2008 respectively. Vide this common judgment, we will decide all the above said four appeals together. Prosecution case briefly can be gathered from the testimony of SI Darshan Singh PW-4. He deposed that on 28th December, 2004 he was posted as SHO at Police Station Phillaur. On that day, he along with companion police officials was on general patrol duty. When the police party reached near the village Nagar, ASI Mohinder Singh, In-charge of Police Post Apra along with other police officials came in a private 3 Criminal Appeals No.145-DB, 218-DB & 481-DB of 2007; and 880-DB of 2008 vehicle and confided in him, of having received a secret information that in a Cielo car of white colour bearing registration No.DL3CH-3737 coming from Phillaur side, Malkiat Singh @ Kaka, Bakhshish Singh, Sandeep Kumar, Darbara Singh and Davinder Kumar are smuggling poppy husk from Rajasthan to Punjab and in case a Naka is held, a heavy recovery of contraband article can be effected from them. Believing the information to be reliable, the police party held a Nakabandi at Adda Lasara. Kulwinder Singh, who met the police party, was made to join as an independent witness. At about 3.45 a.m. (that will be 29th December, 2004), the car was spotted and was signaled to stop. When the car halted, two persons ran away and succeeded to escape, whereas the remaining three occupants of the car namely Sandeep Kumar @ Deepu who was driving the car, Bakhshish Singh who was sitting on the front seat along with the driver and Darbara Singh were apprehended. A notice was served upon the accused that they have a legal right to get themselves searched from a gazetted officer or a Magistrate. They reposed trust in the gazetted officer and accordingly, separate memos Ex.P5, Ex.P6 and Ex.P7 of Sandeep Kumar @ Deepu, Darbara Singh and Bakhshish Singh respectively to this effect were prepared. The same were attested by ASI Mohinder Singh (PW-7), HC Baljit Singh and Kulwinder Singh independent witness. A wireless message was sent to requisition presence of a gazetted officer and DSP Kamaljit Singh (PW-3) arrived at the spot. On arrival, the DSP disclosed his identity to the accused persons and told them turn by turn that he being a gazetted officer of the police on the consent given by the accused can search them. On agreement of the accused, consent memos Ex.P1 to Ex.P3 were prepared and search was carried under the 4 Criminal Appeals No.145-DB, 218-DB & 481-DB of 2007; and 880-DB of 2008 supervision of the DSP. Three bags of poppy husk were recovered from the dickey (boot of the car) and one bag of poppy husk from the rear seat of the aforesaid car. Opium wrapped in a glazed paper was also recovered from underneath the foot-mat of the car from the side seat of driver. Two samples of 250 gms each of poppy husk were separated after the recovery was made homogeneous, and, two samples of 10 gms each of opium were also taken separately. The samples were sealed with the seals bearing impression ‘DS’ and ‘KJS’. The seal sample and impression memo was also prepared at the spot. The recovered articles, samples prepared, car along with its registration certificate were taken into possession vide recovery memo Ex.P4, which was attested by ASI Mohinder Singh (PW-7), HC Baljit Singh and Kulwinder Singh. DSP Kamaljit Singh (PW-3) also attested the said memo. Ruqa Ex.P8 was sent to the Police Station on the basis whereof formal FIR Ex.P9 was registered. SI Darshan Singh PW-4, being the investigating officer, prepared a rough site plan Ex.P10, recorded the statements of the witnesses and also prepared form No.M-29 at the spot. The investigating officer handed over his seal to ASI Mohinder Singh after use, whereas DSP Kamaljit Singh retained his seal with him. Till the case property remained with the investigating officer SI Darshan Singh, it was not tampered with. On the next day, the case property along with the accused was produced before the Illaqua Magistrate/Duty Magistrate vide application Ex.P11, upon which after the orders were passed by the Magistrate they were handed over to the Mohharir Head Constable. SI/SHO Darshan Singh PW-4 was also subjected to a searching cross-examination. He admitted in cross-examination that he had not recorded the secret information received from ASI Mohinder 5 Criminal Appeals No.145-DB, 218-DB & 481-DB of 2007; and 880-DB of 2008 Singh and writing thereof was not sent to the seniors. He further admitted that it is the duty of a police officer to record the information and convey the same in writing to the senior officers. This witness further stated that he had prepared form No.M-29 at the spot but the same was neither signed by him nor by the DSP. He further stated that he had not sent the samples for analysis to the Chemical Examiner as he was transferred from Police Station Phillaur on 31st January, 2005. This witness further stated that the seal was offered to the independent person namely Kulwinder Singh but he had shown his inability to remain present as he had to go to Delhi. ASI Mohinder Singh PW-7, who was an attesting witness to all the memos, corroborated the testimony of SI Darshan Singh PW-4 on all material circumstances leading to apprehension of the accused, search, seizure and recovery. DSP Kamaljit Singh PW-3, who on receipt of a wireless message had reached at the spot, also proved various facets of the investigation including giving of an option to the accused as required under Section 50 of the Act, recording of their consent memos, search, seizure and recovery. HC Gian Chand PW-1 stated that he had carried the special report to the senior officers and Illaqua Magistrate. HC Jaswinder Singh PW-2 tendered his affidavit Ex.PA to prove link evidence. He stated that on 2nd February, 2005 he had carried the samples for deposit in the office of Assistant Chemical Examiner, Amritsar. 6 Criminal Appeals No.145-DB, 218-DB & 481-DB of 2007; and 880-DB of 2008 Kuldip Singh PW-5, Lower Division Clerk from the Transport Department, New Delhi proved ownership of the Cielo car. He stated that as per the record, one Sanjiv Malik was the real owner of the said car. ASI Rashpal Singh PW-6, who was then posted as Moharrir Head Constable, also tendered his affidavit Ex.PW6/A to say that the case property and samples remained intact during the period they were in his possession. Rattan Lal PW-8, Additional Ahlmad in the Court of Judicial Magistrate (1st Class), Jalandhar proved signatures Ex.P12 of the Judicial Magistrate (1st Class), Jalandhar on application Ex.P11. Sukhdev Singh PW-9, who was then posted as a Reader in the Court of Sub Divisional Judicial Magistrate, Phillaur, deposed regarding remand orders passed qua Malkiat Singh and Davinder Kumar, and the application filed by the police seeking their identification parade and refusal by the accused on the ground that they have been shown to the witnesses. Thereafter, on 28th November, 2006 Additional Public Prosecutor for the State had given up Kulwinder Singh as won-over by the accused and closed prosecution evidence. Thereafter, statements of the accused appellants were recorded under Section 313 Cr.P.C. All incriminating evidence was put to them. They denied the same. Accused Bakhshish Singh pleaded innocence and false implication. Accused Darbara Singh, while pleading innocence and false implication, stated that he had taken lift in the car. Whereas, accused Sandeep Kumar denied possession and ownership of the vehicle and stated that he had no connection with the co-accused. Remaining 7 Criminal Appeals No.145-DB, 218-DB & 481-DB of 2007; and 880-DB of 2008 accused, namely Davinder Kumar and Malkiat Singh also pleaded innocence and false implication. Dhir Singh DW-1 stated that accused Malkiat Singh was apprehended by the police on 1st January, 2005. Tara Chand DW-2 stated that accused Darbara Singh had come to meet his aunt in village Raipur Raian and he had taken a lift in the said car. Nachattar Pal DW-3 stated that on 27th December, 2004 at about 5.30 p.m. accused Sandeep Kumar @ Deepu was arrested by the police from the village. To similar effect is the statement of Mangal Singh Lamberdar DW-4. Having briefly recapitulated the entire prosecution and defence evidence, we shall also notice contentions raised by counsel for the appellants. Mr.Kushaldeep S. Sandhu, counsel for appellants Bakhshish Singh @ Bittu and Malkiat Singh; Mr.Sanjay Gupta, counsel for appellant Davinder Kumar; Mr.Amit Dhawan, counsel for appellant Sandeep Kumar @ Deepu; Ms.Monika Jalota, counsel for appellant Darbara Singh @ Sonu @ Bahra and for the respondent Ms.Gurveen H. Singh, Additional Advocate General, Punjab, have addressed arguments. Learned counsel appearing for the accused-appellants have urged for acquittal of the accused and assailed the prosecution case stating that Section 42 of the Act has not been complied with. The secret information received was not reduced into writing and the same was not sent to the senior officers. Thus, the necessary safeguard provided to the accused has not been followed. It is urged that Section 42 of the Act is mandatory and its non-compliance, ipso-fact, will entitle the accused to acquittal. Furthermore, Kulwinder Singh who was joined as an 8 Criminal Appeals No.145-DB, 218-DB & 481-DB of 2007; and 880-DB of 2008 independent witness has not been examined and he has been given up on the false pretext of won-over without putting the witness into the witness box. Thus, no implicit reliance can be placed upon the testimony of SI Darshan Singh PW-4, ASI Mohinder Singh PW-7 and DSP Kamaljit Singh PW-3. It is next urged that the sample seal after use was not handed over to the independent witness but to ASI Mohinder Singh PW-7 and hence, possibility of tampering with the samples later-on in the Police Station cannot be ruled out. There was a delay in reaching of samples to the Chemical Examiner. It is submitted that the samples were drawn on 29th December, 2004, whereas they reached the office of Assistant Chemical Examiner on 2nd January, 2005. Mr. Kushaldeep S. Sandhu, counsel appearing on behalf of appellant Malkiat Singh, and Mr.Sanjay Gupta, counsel for appellant Davinder Kumar, have canvassed that both these appellants were not arrested at the spot. Except that their names surfaced in the secret information and during interrogation by the co-accused, there is no incriminating evidence or circumstance available with the prosecution to connect these two appellants with the recovery effected. To controvert the above said arguments, Ms.Gurveen H. Singh, counsel appearing on behalf of the State, has submitted that in the present case the provisions of Section 42 of the Act cannot be invoked and it will be the provisions of Section 43 which will be attracted. Therefore, the very first argument raised by counsel for the appellants is required to be rejected. It is further submitted that examination of the independent witness is not necessary in cases where testimonies of official witnesses aspire confidence and are sufficient to place implicit reliance. Counsel for the State has further submitted that the facts of the 9 Criminal Appeals No.145-DB, 218-DB & 481-DB of 2007; and 880-DB of 2008 case justify non-handing over of the seal to the independent witness. It is contended that the delay in reaching the samples to the Chemical Examiner will be of no consequence, especially when the case property and samples were produced before the Illaqua Magistrate on the very next day of the occurrence. It is now time to deal with all the rival submissions advanced before us. There is a marked difference between Sections 42 and 43 of the Act. A five-Judge Bench of Hon’ble the Supreme Court in ‘Karnail Singh v. State of Haryana’ (2009) 8 SCC 539 has reconciled the ratio of law propounded in two different judgments rendered by three-Judge Bench in ‘Abdul Rashid Ibrahim Mansuri v. State of Gujarat’ (2000) 2 SCC 513 and ‘Sajan Abraham v. State of Kerala’ (2001) 6 SCC 692, and has held as under: 34. ... ... ... As a result, if the statutory provision under Sections 41(2) and 42(2) of the Act of writing down the information is interpreted as a mandatory provision, it will disable the haste of an emergency situation and may turn out to be in vain with regard to the criminal search and seizure. These provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal. Consequently, these provisions should be taken as a discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug peddlers. Thus, it is evident that mere non-compliance of Section 42 of the Act will not vitiate the trial till the accused is able to bring on record the prejudice caused to him. That apart, in the facts and circumstances of each case, it is for the Court to decipher as to whether in a given case, 10 Criminal Appeals No.145-DB, 218-DB & 481-DB of 2007; and 880-DB of 2008 which of the two Sections, i.e. Section 42 or Section 43, of the Act is attracted. In ‘State of Haryana v. Jarnail Singh’ (2004) 5 SCC 188, Hon’ble the Supreme Court has dilated upon the distinction between two Sections, i.e. Section 42 or Section 43, of the Act and has to say as under: “7. The next question is whether Section 42 of the NDPS Act applies to the facts of this case. In our view Section 42 of the NDPS Act has no application to the facts of this case. Section 42 authorises an officer of the Departments enumerated therein, who are duly empowered in this behalf, to enter into and search any such building, conveyance or place, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance, etc. is kept or concealed in any building, conveyance or enclosed place. This power can be exercised freely between sunrise and sunset but between sunset and sunrise if such an officer proposes to enter and search such building, conveyance or enclosed place, he must record the grounds for his belief that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender. 8. 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 authorised 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 11 Criminal Appeals No.145-DB, 218-DB & 481-DB of 2007; and 880-DB of 2008 public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. 9. Sections 42 and 43, therefore, contemplate two different 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 sunrise.”(emphasis supplied) The reasoning propounded in Jarnail Singh’s case (supra) was further relied upon in ‘State, NCT of Delhi v. Malvinder Singh’ (2007) 11 SCC 314. In the present case, the accused were traveling in a Cielo car coming from the side of Phillaur when the same was apprehended at Adda Lasara. Therefore, the recovery was effected when the vehicle was in transit, and hence, Section 43 of the Act is attracted. Thus, we have no hesitation to hold that non-compliance of Section 42 of the Act is not fatal to the prosecution. Furthermore, in Karnail Singh’s case (supra) a further distinction between both the Sections, i.e. Section 42 or Section 43, of the Act has been noticed as under: “26. The material difference between the provisions of Sections 42 and 43 of the NDPS Act is that Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the 12 Criminal Appeals No.145-DB, 218-DB & 481-DB of 2007; and 880-DB of 2008 commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article, etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.” From the facts and circumstances of the present case, it is evident that having received the secret information, it was imperative for SI Darshan Singh PW-4 to immediately apprehend the vehicle. The police party had to deal with an emergent situation. Urgency and expediency to unearth the crime and effect the recovery demanded that recording of the information in writing and sending a copy thereof to the superior officials be postponed for a reasonable period. In view of the above, considering the ratio of law laid down in Karnail Singh’s case (supra), we will go to the extent of saying that even non-compliance of Section 42 of the Act can also not be construed detrimental to the prosecution as the accused have failed to show cause any sufferance of prejudice. During the course of arguments, much emphasis has been laid on non-examination of Kulwinder Singh, who was joined as an independent witness. With the aid of counsel for the parties, we have read the testimonies of SI Darshan Singh PW-4, ASI Mohinder Singh PW-7 and DSP Kamaljit Singh PW-3. We are even unable to find any infirmity in their evidence. These aspire confidence. Examination of an independent witness is a rule of prudence and not of necessity. In a case where deposition of the official witnesses is found to be reliable and 13 Criminal Appeals No.145-DB, 218-DB & 481-DB of 2007; and 880-DB of 2008 credible by the Court, it will not discard the same merely on the ground that an independent witness has not been examined. It is only in cases where there is some doubt, the Court will insist for the testimony of independent witness. Examination of independent witness is not a rule of thumb. In the given facts and circumstances of each case, while applying rules of appreciation, the Court may ignore non-examination of the independent witness or may insist for its examination. As stated earlier, we tend to believe the official witnesses qua the recovery and apprehension of appellants, namely Bakhshish Singh @ Bittu, Darbara Singh @ Sonu and Sandeep Kumar @ Deepu. The argument that non-entrustment of the sample specimen seal to the independent witness should be sufficient for us to infer that the samples were tampered with, is rendered insignificant in view of the explanation furnished by the investigating officer SI Darshan Singh PW-4. He has stated in his cross-examination that ‘the independent person namely Kulwinder Singh was offered the seal and he showed his inability to remain present as he was to go to Delhi.’ Otherwise also, on the very next day the samples were produced in the Court of Area Judicial Magistrate, who had found seals intact, as is evident from the order Ex.P12. Much ado has been made for the delay in reaching of samples to the office of Assistant Chemical Examiner. It has come in the evidence of investigating officer that he was transferred from the place of posting. Even otherwise, as per order Ex.P12 passed by the Judicial Magistrate (1st Class), Jalandhar, the two sample parcels of 250 grams of poppy husk each and two sample parcels of 10 grams of