Crl.Appeal No.1227-SB of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.1227-SB of 2005 Date of Decision: 5th May, 2008 Bhappi …Appellant Versus State of Punjab …Respondent CORAM: HON’BLE MR.JUSTICE HARBANS LAL Present: Mr.HNS Gill, Advocate for the appellant Ms.Manjari Nehru, Deputy Advocate General, Punjab ** HARBANS LAL, J. This appeal is directed against the judgment/ order of sentence dated 10.6.2005 rendered by the learned Judge, Special Court, Mansa, whereby he convicted and sentenced the accused/appellant Bhappi to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1 lac and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity ‘the Act’). Tersely put, the facts of the prosecution case are that on 6.5.2003 ASI Harbans Singh among other police officials happened to be present on Budhlada Tinkoni (tri-junction) within the revenue limits of village Bhikhi. HC Bhagat Singh received secret information that the accused Bhappi has stored poppy straw in huge quantity in her house and if a raid is conducted, the same could lead to recovery of the contraband. On Crl.Appeal No.1227-SB of 2005 -2- receipt of wireless message, DSP Hakam Singh came there. He was associated with the police party and was apprised of the secret information. Bhura Singh and Jarnail Singh came across the police party. They were also co-opted. Thereafter, the police party reached the house of the accused. The outer door of her house was found closed. The same was opened by giving a push. The accused was found covering two bags with wheat straw fodder in the Verandha of her house. The aforementioned DSP disclosed his identity to her and told her that she was suspected to be in possession of contraband and her premises was to be searched. She was asked to tell whether she wanted to have the search of the same in the presence of a Gazetted Officer or a Magistrate or by him (DSP). She opted to have the same in his presence. Her consent memo was prepared. On directions of the aforementioned DSP, search of two bags was carried out by the Investigating Officer. These were found containing poppy straw. 100 grams of poppy straw was drawn from each bag to serve as sample and the same were converted into parcels. The remainder of each bag when weighed came to 32.300 kgs., which were also made into parcels. All the parcels were sealed with seal ‘HS’ and seized vide recovery memo. The seal after use was handed over to Bhagat Singh PW. Ruqa was sent to the police station. On its basis, formal FIR was registered. Lady Constable Gurmeet Kaur a member of the police party made personal search of the accused. The accused was arrested. The grounds of her arrest were conveyed to her. ASI Harbans Singh prepared the rough site plan showing the place of recovery, recorded the statements of witnesses and on return to the police station, produced the accused alongwith the case property before the SHO Crl.Appeal No.1227-SB of 2005 -3- Arashdeep Singh, who after verification, affixed his own seal ‘AS’ on the parcels of the case property including the sample parcels. The said SHO kept the case property in his own custody. On receipt of the Chemical Examiner’s report Ex.PJ and after completion of investigation, the charge- sheet was laid in the Court for trial of the accused. The accused was charged under Section 15 of the Act, to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution has examined PW1 DSP Hakam Singh, PW2, Constable Iqbal Singh, PW3 ASI Harbans Singh, Investigating Officer, PW4 Inspector Arasheeep Singh, PW5 HC Sukhmander Singh, PW6 Lady Constable Gurmeet Kaur and closed its evidence. When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against her and pleaded innocence and false implication. She tendered in her defence evidence copy of FIR No. 11 Ex.D1, copy of FIR No.98 Ex.D2, copy of FIR No.5, Police Station Bhikhi Ex.D3, copy of FIR No. 112 PS Bhikhi, Ex.D4 and copy of FIR No.159 PS Bhikhi Ex.D5 and closed her defence evidence. After hearing the learned Additional Public Prosecutor for the State, learned defence counsel and examining the evidence on the record, the learned trial Court convicted and sentenced the accused Bhappi as noticed at the outset. Feeling aggrieved therewith, she has preferred this appeal. I have heard the learned counsel for the appellant as well as the Crl.Appeal No.1227-SB of 2005 -4- State and perused the record with due care and circumspection. Mr.HNS Gill, Advocate for the appellants canvassed at the bar that the alleged recovery is shown to have been effected in pursuance of secret information and if it was so, the Investigating Officer was obligated to reduce such information into writing in adherence to the provisions of Section 42(2) of the Act, though, as is borne out from the evidence on record, such information was not taken down in writing and thus, this provisions has been flagrantly violated. Ms.Manjari Nehru, Deputy Advocate General, Punjab on behalf of the State countered this argument by urging that non- reducing of such information into writing, ipso facto, is not fatal to the prosecution case. I have given a deep and thoughtful consideration to the rival contention. Section 42(2) of the Act reads in the following terms: “Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” From a bare reading of the above language, it cane be culled out that such information has to be sent to the immediate official superior within 72 hours, if the same was reduced into writing. As emanates from the evidence of PW3 ASI Harbans Singh Investigating Officer, he did not take down the secret information in writing. Thus, he was not expected to send the same to the immediate official superior. In re: Sajan Abraham vs. State of Kerala, 2001 Criminal Law Journal, 4002 (Supreme Court), the Crl.Appeal No.1227-SB of 2005 -5- Head Constable got information that the accused person is selling injectable Narcotic Drugs. He communicated the same to his immediate superior Sub Inspector of Police, who alongwith his police party and Head Constable immediately proceeded towards the place where the accused was standing. It was observed that had they not done so immediately, the opportunity of seizure and arrest of the accused would have been lost. How Sub Inspector of Police could have recorded the information given by Head Constable and communicated to his superior while he was on motion, on patrol duty, in the jeep before proceeding to apprehend him is not understandable? Had they not acted immediately, accused would have escaped. On these facts no inference could be drawn that there has been any violation of Section 42 of the Act. It was ruled that “In other words, if in a case, the following of mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out.” Adverting to the facts of the instant case, a glance through Ex.PG, the rough site plan would reveal that in fact the recovery has been effected from a Verandha meant for storing wheat chaff whereas the residential house of the accused is situated at a small distance. The secret information in this case was also received by HC Bhagat Singh, who passed over the same to the Investigating Officer. If the ASI Harbans Singh alongwith other police officials including HC Bhagat Sigh had not immediately proceeded to the place of recovery, the accused would have left the place of recovery and thus, she would have not been intercepted while in the act. Herein this case, non-reducing of the secret information into writing hardly vitiates the trial of the accused. Sequelly, this contention is Crl.Appeal No.1227-SB of 2005 -6- overruled. It has been further argued that as admitted by ASI Harbans Singh PW3 in his cross-examination, Jarnail Singh a private witness has been cited as a witness in FIR No. 98 dated 28.8.2002, Police Station Bhikhi under Section 15 of the Act and FIR No.5 dated 10.1.2003, PS Bhikhi under Section 15 of the Act, FIR No.149 dated 28.10.2003, PS Bhikhi, under Section 15 of the Act, FIR No.112 dated 31.12.1998, PS Bhikhi under Section 15 of the Act and to prove this fact, the accused has also tendered the above referred copies of the FIRs in her defence and thus, he is a stock witness. To overcome this submission, the learned State counsel pressed into service that the cogent, convincing and clear evidence trickled from the respective mouths of other recovery witnesses cannot be discredited merely because of the fact that Jarnail Singh has been cited as a prosecution witness in the alleged FIRs. This contention merits acceptance. Of course, the abovementioned person has been kept as a witness in the afore-referred FIRs, but this fact proprio viogre would not be enough to look upon the evidence of other witnesses with suspicion, for the reason that conspicuously speaking no motive or ill-will has been attributed to either of these for deposing against the accused. There is not even a scintilla of doubt that ASI Harbans Singh (sic) or DSP Hakam Singh (sic) was inimically disposed of towards her. Acquaintance with police by itself would not destroy a man's independent look. As long as, such witnesses are not dependent on the police for their living or liberty or for any other matter, it cannot be said that they are not independent witnesses. Crl.Appeal No.1227-SB of 2005 -7- Every citizen of India is presumed to be independent person until it is proved that he is dependent of police or other officials for any purpose whatsoever, as ruled by the Apex Court in re: State of U.P vs. Za Kaullah, 1998 Supreme Appeals Reporter (Crl.) 790. Herein this case, there is not even shred of evidence that Jarnail Singh in any manner was dependent on ASI Harbans Singh for his living or liberty or any other matter. That being so, it would be going too far to disbelieve the impeccable evidence of other prosecution witnesses, merely because of citing him as a witness. The Investigator ASI Harbans Singh, DSP Hakam Singh, HC Sukhmander Singh are in unison on the point that the accused was found covering bags containing poppy husk with wheat chaff when she was apprehended. This evidence speaks volumes of her exclusive possession qua the poppy husk. A glance through the entire prosecution evidence would reveal that no suggestion has been put to either recovery witness that she was not found concealing the poppy husk bags by putting or spreading or lying wheat chaff thereon. The absence of cross-examination on this aspect in itself is adequate to hold that this fact has been admitted by the defence. In her statutory statement, she has merely denied the recovery as well as ownership of the house. As noted supra, as per rough site plan, the Verandah i.e. the place of recovery is situated at understandable distance. She has not specifically denied the ownership of thereof. No other material point has been urged or agitated by either counsel. On analysing the entire prosecution evidence, it emerges out Crl.Appeal No.1227-SB of 2005 -8- that no fault can be found with the findings returned by the learned trial Court in arriving at the conclusion that the charged offence has been established against the accused. As a sequel of the above discussion, this appeal is dismissed being bereft of any merit. 5th May, 2008 (HARBANS LAL) gsv JUDGE Whether to be referred to the Reporter? Yes/No