-1- Criminal Appeal No.2201 -SB of 2003. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH -.- Criminal Appeal No.2201 -SB of 2003. Date of Decision: May 10, 2010. Balwinder Singh ...Appellant VERSUS State of Punjab ...Respondent 1. Whether the 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 ? CORAM :HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. A.P.S Deol, Senior Advocate with Mr. Vishal Rattan Lamba, Advocate for the appellant. Mr. Vishal Munjal, Additional Advocate General, Punjab for the State-respondent. -.- MOHINDER PAL, J. Appellant Balwinder Singh has filed this appeal against the judgment of conviction and the sentence order dated 13.9.2003 passed by the Judge, Special Court, Jalandhar, whereby he was convicted under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and sentenced to undergo rigorous imprisonment -2- Criminal Appeal No.2201 -SB of 2003. for ten years and to pay fine of Rs.1,00,000/-, in default whereof to undergo further rigorous imprisonment for nine months. The prayer made in this appeal is to set aside the impugned judgment and the sentence order by way of acceptance of this appeal and to acquit appellant Balwinder Singh of the charge framed against him under Section 15 of the Act. Gulshan Kumar (co-accused of appellant Balwinder Singh) was acquitted of the charge framed against him by the trial Court by giving him the benefit of doubt. Jaswinder Singh (another co-accused of appellant Balwinder Singh) absconded during trial and was declared a Proclaimed Offender by the trial Court. The facts of the prosecution case are that on 20.7.1999, Sub Inspector Varinder Kumar along with other police officials was present at T. Point, Adda Mahalon, in connection with special nakabandi and checking of vehicles. Prithvi Chand, an independent witness met the police party per chance and was joined in the police party. In the meanwhile, a secret information was received that a truck bearing registration No. RH-27-G-3349 was coming from the side of Banga which was loaded with poppy husk and that if a raid was conducted, a large quantity of poppy husk could be recovered. Believing the information to be reliable, Sub Inspector Varinder Kumar started checking every vehicle. When the police party was keeping vigil, truck bearing registration No. RH-27-G-3349 was seen coming from the side of Bang. Sub Inspector Varinder Kumar gave signal with torch to the driver of the truck to stop the same. -3- Criminal Appeal No.2201 -SB of 2003. The driver of the truck stopped it and succeeded in fleeing away from the spot. Appellant Balwinder Singh, who was sitting in the cabin of the truck was apprehended. Sub Inspector Varinder Kumar told the accused-appellant that he suspected some contraband in the truck and the same was to be searched. Accused-appellant was apprised of his right being searched in the presence of a Magistrate or a Gazetted officer. The accused-appellant reposed confidence in Sub Inspector Varinder Kumar and stated that he could conduct search of the truck. Consent memo of the accused-appellant in this regard was prepared. Sub Inspector Varinder Kumar tried to contact Deputy Superintendent of Police through wireless message but could not contact. Sub Inspector Varinder Kumar along with other officials thereafter conducted the search of truck. 100 bags containing poppy husk were recovered from the truck. Out of each bag, 250 grams of poppy husk was separated as sample and the remaining poppy husk contained in each bag, on weighment, was found to be 34 kgs 750 gms. The samples and the poppy husk contained in hundred bags were separately sealed and taken into possession by the police. The truck was also taken into possession by the police. Accused-appellant Balwinder Singh could not produce any licence for keeping poppy husk. Ruqa was sent to the Police Station through Constable Kashmira Singh and on its basis formal First Information Report was registered . Rough site plan of the place of recovery was prepared. The accused- appellant was arrested . On 20.07.1999, Deputy Superintendent of Police Satinder -4- Criminal Appeal No.2201 -SB of 2003. Singh interrogated accused-appellant Balwinder Singh, who suffered disclosure statement that he had kept concealed 40 bags of poppy husk in the bushes on the back side of Focal Point Ghtaron and could get the same recovered. Thereafter, in consequence of the said disclosure statement, accused-appellant Balwinder Singh got recovered 31 bags of poppy husk from the disclosed place. 250 grams of poppy husk was separated as sample from each bag and the remaining poppy husk in each bag, on weighment, was found to be 39 kgs 750 gms. The samples and the remaining poppy husk contained in the bags were separately sealed and taken into possession by the police party. It may be mentioned here that accused-appellant Balwinder Singh, during interrogation by the police, had allegedly told the police that the poppy husk loaded in the truck was his i.e the accused-appellant and that of the acquitted accused Gulshan Kumar and Jaswinder Singh (Proclaimed Offender). After completion of investigation and on receipt of the report of Chemical Examiner, challan was presented against accused-appellant Balwinder Singh in Court. Thereafter, after the arrest of accused Jaswinder Singh, supplementary challan was presented against him. Gulshan Kumar (acquitted accused), who was an Assistant Sub Inspector with the police, surrendered before the police and supplementary challan was presented against him. As mentioned above, Jaswinder Singh absconded during trial and was declared a Proclaimed Offender. Charge under Section 15 of the Act was framed -5- Criminal Appeal No.2201 -SB of 2003. against the accused-appellant, to which he did not plead guilty and claimed trial. In order to prove its case against the accused, the prosecution examined Deputy Superintendent of Police Satinder Singh (P.W.1), Head Constable Surinder Kumar (P.W.2), Constable Manohar Lal (P.W.3), Balbir Singh (P.W.4), Assistant Sub Inspector Sukhdev Singh (P.W.5), Moharrir Head Constable Subhash Chander (P.W.6), Station House Officer Jaswinder Singh (P.W.7), Inspector Parveen Kumar (P.W.8) and Sub Inspector Varinder Kumar (P.W.9). In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused-appellant denied the prosecution allegations and pleaded false implication. He further stated that Teja Singh of his village was inimically disposed towards him and he (Teja Singh) was hand in glove with Sub Inspector Varinder Kumar. He further stated that on 16.7.1999, in the presence of Sarpanch Chain Singh, Bhajan Singh and his family members, the appellant was brought from his house by Sub Inspector Varinder Kumar and falsely implicated in this case. His wife Sukhwinder Kaur gave telegrams to the higher authorities regarding the false implication of the appellant by Sub Inspector Varinder Kumar. It may also be mentioned here that acquitted accused Gulshan Kumar, in his statement recorded under Section 313 of the Code of Criminal Procedure, had, inter alia, stated that he had been implicated in this case at the instance of Deputy Superintendent -6- Criminal Appeal No.2201 -SB of 2003. of Police Satinder Singh as he was inimical towards him (Gulshan Kumar). Des Raj (D.W.1), Harbhajan Singh (D.W.2) and Sukhwinder Kaur (D.W.3) were examined in defence by the accused. As mentioned above, the trial Court, after holding the appellant guilty for recovery of such a huge quantity of poppy husk, convicted and sentenced him under Section 15 of the Act. I have heard Mr. A.P.S Deol, Senior Advocate assisted by Mr. Vishal Rattan Lamba, Advocate, appearing for the appellant and Mr. Vishal Munjal, Additional Advocate General,Punjab, appearing for the State-respondent and have gone through the records of the case. The facts of this case, as mentioned above, disclose that there is no doubt about the fact that the accused- appellant was in conscious possession of the quantity of poppy husk recovered from his possession. Learned counsel for the appellant argued that the case of the prosecution is based only on the statements of the official witnesses and the only independent person, namely, Prithvi Chand was not examined by the prosecution. According to the learned counsel, the police witnesses being interested in the success of the case, their statements should not be trusted without corroboration from an independent source. It has been submitted that non-examination of the independent witness, namely, Prithvi Chand, has upset the balance of the prosecution -7- Criminal Appeal No.2201 -SB of 2003. case, making the alleged recovery doubtful. After giving a careful thought to the argument raised by the learned counsel, I do not find any force therein in the presence of cogent and trustworthy evidence put forth by the prosecution. It is a matter of common knowledge that the independent witnesses, normally, do not support the prosecution case as they reside in the same area where the accused-persons reside and they fear to create ill-will and enmity with criminals. In this case, the official witnesses have fully supported the prosecution case and no material contradiction, worth the name, has been pointed out in their statements. In this background, merely the fact that the independent witness Prithvi Chand was not examined in this case, is not a good ground to discard the testimonies of the official witnesses. It is well-settled that the prosecution story cannot be discarded on the ground that independent witness has not been examined. To cap it all, the fact of recovery of huge quantity of poppy husk from the accused, which cannot be planted by the police, weighs with the argument raised by the learned counsel with regard to the non-examination of any independent witness. It was also argued by the learned counsel for the appellant that there was non-compliance of Section 42 of the Act as the Investigating Officer failed to reduce the secret information received by him regarding the poppy husk being transported in truck bearing registration No.RJ-27-G-3349 into writing. According to the learned counsel, the Investigating Officer -8- Criminal Appeal No.2201 -SB of 2003. ought to have reduced the secret information into writing and should have sent the same to the higher police officials before conducting raid. After giving a careful thought to the argument raised by the learned counsel for the appellant in respect of not reducing the secret information received by the Investigating Officer into writing, I do not find any force therein. Section 42 of the Act, for facility of reference, is reproduced hereunder:- “ 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 including para-military forces or armed forces 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 as is empowered in this behalf by general or special order of the -9- Criminal Appeal No.2201 -SB of 2003. State Government, 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, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove 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 he has reason to believe to be liable to confiscation under this Act -10- Criminal Appeal No.2201 -SB of 2003. and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; 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 this Act: 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 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.” -11- Criminal Appeal No.2201 -SB of 2003. A perusal of the above-quoted provisions of Section 42 of the Act reveals that this provisions are not mandatory. Besides, as has been mentioned above, the Investigating Officer in this case, on receipt of the secret information, Secondly, as has been mentioned above, the Investigating Officer in this case, on receipt of the secret information, had immediately, started checking every vehicle. In this case, had the Investigating Officer not acted immediately on receipt of the secret information, there was every chance of the vehicle carrying 100 bags of poppy husk escaping notice of the police. Under the circumstances, I do not see any non-compliance of the provisions of Section 42 of the Act by the Investigating Officer. In the case of Jaswant Singh alias Jassa v. State of Haryana, 2005 (1) RCR (Criminal) 802, this court held that the provisions of Section 42 of the Act are procedural in nature and it is to be ascertained in the facts and circumstances of the case whether these have been conceived in the interest of the accused or in public interest. If these are in the interest of the accused, then it is to be seen whether any prejudice has been caused to him or there has been a waiver on his part. The ultimate test to vitiate the trial is always of prejudice having been caused. In Pipal Singh v. Union of India, 2003 (1) RCR (Crl.) 815, a Division Bench of this Court considered the case of recovery of heroin on receipt of secret information in which the information was not reduced in writing and sent to superior officer as required under Section 42 of the Act. The -12- Criminal Appeal No.2201 -SB of 2003. recovery in the said case was from a conveyance i.e a truck. It was held that the accused has to prove prejudice to take the benefit of Section 42 (1) of the Act. Reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Abdul Rashid Ibrahim Mansuri v. State of Gujrat, 2000 (1) RCR (Crl.) 611 (SC) wherein it was held that if officer has reasons to believe from personal knowledge or prior information received from any person that any narcotic drug or psycotropic substances kept or concealed in a building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. However, the action of the officer, who claims to have exercised on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused. The facts and circumstances of the case, discussed above, clearly reveal that no prejudice is shown to have been caused to the appellant. Learned counsel for the accused-appellant also argued that mandatory provisions of Section 50 of the Act were not complied with in this case at the time of recovery of 100 bags of poppy husk from the truck in question as the same was not searched in the presence of a Magistrate or a Gazetted Officer. According to the learned counsel, it renders the prosecution version doubtful. As noticed above, recovery of 31 bags of poppy husk was made from appellant Balwinder Singh in -13- Criminal Appeal No.2201 -SB of 2003. consequence of the disclosure statement suffered by him before Deputy Superintendent of Police Satinder Singh, a Gazetted Officer. Regarding this recovery, there is no question of non- compliance of the provisions of Section 50 of the Act. However, in order to appreciate the argument of the learned counsel in respect of non-compliance of the provisions of Section 50 of the Act regarding recovery of 100 bags of poppy husk from the truck in question, a reference to the relevant provisions of Section 50 of the Act is necessary, which are as under:- “50. Conditions under which search of persons shall be conducted. - (1)When any officer duly authorized under Section 42 is about to search any person under the provisions of Section 41, Sector 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1) (3) The Gazetted Officer or the Magistrate before whom any such person is brought -14- Criminal Appeal No.2201 -SB of 2003. shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) xx xx xx (5) xx xx xx (6) xx xx xx (7) xx xx xx” A perusal of the above provisions of Section 50 (1) of the Act reveals that incorporation of the words “when any officer duly authorized under Section 42 is about to search any person” therein depicts that only when personal search of any person is required to be made, the Police Officer concerned is required to apprise him of his right existing under this Section i.e as to whether he wanted to be searched before a Gazetted Officer or before a Magistrate. Such a requirement is not there when the Police Officer concerned is going to search houses, building etc. Such a view was taken by a Full Bench of this Court in the case of State of Punjab v. Kulwant Singh, 1994 (1) Recent CR 303 wherein in para 46 at page 317, it was observed as under:- “ xx xx xx. The provisions of sub- sections (1), (2) and (3) of Section 50 were enacted by the Legislature in its wisdom only qua the personal search of a -15- Criminal Appeal No.2201 -SB of 2003. person and not regarding the search of houses, building etc. obviously to preserve the human dignity. There is logic behind enacting the special provisions regarding the personal search, because a person can carry only a small quantity of contraband narcotic drug or psychotropic substance. Thus, in order to rule out the possibility of planting small quantity of such drugs at the instance of unscrupulous officers of the enforcing agency and to eliminate the chances of exploitation, the above-referred substantive right has been conferred upon the suspected person. A conjunct reading of the provisions of Section 50 of the Act leaves no doubt that the Legislature did not intend to confer a distinct right upon the suspect to claim personal search before a Magistrate or Gazetted Officer and prove his innocence in recognition of the right to human dignity and free from exploitation flowing from Article 21 of the Constitution. “ The recovery of 100 bags of contraband poppy husk in this case, as noticed above, was made from the truck occupied by the appellant. There was, thus, no violation of the mandatory provisions of Section 50 of the Act, as argued by learned counsel for -16- Criminal Appeal No.2201 -SB of 2003. the accused-appellants. In this view of the matter, as the recovery of 100 bags of poppy husk in this case was, obviously, not to be effected as a result of personal search of the accused, it is of no consequence whether the same was made in the presence of a Gazetted Officer or a Magistrate or not. For the aforesaid reasons, the prosecution has been able to prove that 131 bags of poppy husk were recovered from the accused-appellant. Accordingly, this appeal is hereby dismissed being without any merit. The truck in which the poppy husk was being transported by the accused is ordered to be confiscated to the State. ( MOHINDER PAL ) May 10, 2010. JUDGE ak