Crl.Appeal No.1840-SB of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.1840-SB of 2008 Date of decision: 16.9.2009 Hakam Rai ... Appellant versus State of Haryana ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Anmol Rattan Sidhu, Sr. Advocate, with Mr.V.D.Goyal, Advocate, for appellant Hakam Rai. Mr.Gobind Dhanda, Advocate, for appellant Ram Nath (in Crl.Appeal No.1538-SB of 2008) Mr.K.S.Godara, DAG, Haryana. ... JORA SINGH, J. By this common order, I propose to dispose of Crl.Appeal No.1840-SB of 2008 (Hakam Rai versus State of Haryana) and Crl.Appeal No.1538-SB of 2008 (Ram Nath versus State of Haryana), as both these appeals arise out of the same impugned judgment dated 29.7.2008 rendered by Additional Sessions, Panchkula. Vide judgment and order dated 29.7.2008, Hakam Rai was convicted for the offences punishable under Sections 15 and 18 of the NDPS Act (for short `the Act'), whereas Ram Nath was convicted for the offence punishable under Section 15 of the Act. Hakam Rai was sentenced to undergo RI for ten years and to pay fine of Rs.1,00,000/-, in default of payment of fine, to further undergo RI for two and half years, each under Sections 15 and 18 of the Act, whereas Ram Nath was sentenced to undergo RI for six months and to pay fine of Rs.10,000/-, in default of payment of fine, to further undergo RI for one and half months under Section 15 of the Crl.Appeal No.1840-SB of 2008 2 Act. Prosecution story, in brief, is that police party headed by Inspector Dhanna Ram while on patrol duty was present near Railly Chowk, Sector 12-A, Panchkula. Anil Kumar son of Charan Dass met the police party and Inspector Dhanna Ram was talking with Anil Kumar. In the meantime, Inspector Dhanna Ram received a secret information to the effect that Hakam Rai is owning a Santro car and a room in Sector 12 and he deals in the business of selling of opium and poppy husk and in case a raid is conducted, he could be apprehended red handed. Taking the information to be credible one, ruqa (Ex.PJ) was sent to DSP Prerna Puri through Constable Dharminder. As per secret information, raid was conducted at the specified place. Two persons were seen while coming out of the room and they were apprehended. One person was found sitting inside the room with a bag in his hand. On enquiry, that person had disclosed his name as Hakam Rai. Two persons, who were seen coming out of the room, disclosed their names as Ram Nath and Ashok Kumar. The police party suspected that they are carrying contraband. Notice under Section 50 of the Act was issued to Hakam Rai as to whether he wanted to be searched before a Magistrate or any higher police officer. The accused replied to be searched before higher police officer. The offer was signed by the accused and attested by the witnesses. Offer was also given to accused Ashok Kumar as to whether he wanted to be searched before a Magistrate or any higher police officer. The accused replied to be searched before higher police officer. Notice was also issued to accused Ram Nath as to whether he wanted to be searched before a Magistrate or any higher police officer. He also replied that he wanted to be searched before a higher police officer. Crl.Appeal No.1840-SB of 2008 3 On telephone, DSP Prerna Puri was requested to visit the spot. Then DSP came to the spot and facts of the case were verified from him, witnesses and the accused. Investigating Officer gave search to the DSP. Thereafter, the DSP directed the IO to search. On search of the bag carried by accused Hakam Rai, same was found to be containing opium. One bag was lying near Hakam Rai and on search of that bag, it was found to be containing poppy husk. One bag was lying in the car and on search of that bag, same was found to be containing poppy husk. One packet containing poppy husk was recovered from Ashok Kumar and one packet containing poppy husk was recovered from Ram Nath. Opium, which was recovered from the bag carried by Hakam Rai, on weighment was found to be 1 kg-160 grams, poppy husk, which was recovered from the bag lying near Hakam Rai, on weighment was found to be 12 kgs., poppy husk recovered from the bag lying in the car on weighment was found to be 11 kgs., poppy husk recovered from the packet carried by Ashok Kumar, on weighment was found to be 500 grams. Similarly, poppy husk recovered from the packet carried by Ram Nath, on weighment was found to be 500 grams. Currency notes of Rs.35,500/- were also recovered from the pocket of the bag carried by Hakam Rai. Two samples each weighing 25 grams were separated from the opium recovered from the bag of Hakam Rai. Two samples each weighing 250 grams were separated from the poppy husk, which was recovered from the bag lying near Hakam Rai. Two samples each weighing 250 grams were separated from the poppy husk recovered from the bag lying in the car. Two samples each weighing 100 grams were separated from poppy husk recovered from Ram Nath and two samples each weighing 100 grams were separated from poppy husk recovered from Ashok Kumar. Crl.Appeal No.1840-SB of 2008 4 Samples and remaining opium/poppy husk were sealed by the IO with his own seal bearing impression `DR' and the seal of the DSP bearing impression `PP'. Seal of the IO after its use was handed over to SI Om Parkash, whereas seal of the DSP after its use was retained by the DSP. Case property was taken into police possession. Ruqa was sent to the police station, on the basis of which, formal FIR was recorded. Rough site plan with correct marginal notes was prepared. The accused were arrested. Grounds of arrest were brought to the notice of the accused. Statements of witnesses were recorded. Sample parcels were deposited in the office of Chemical Examiner and as per report of the Chemical Examiner, sample parcels were found to be of poppy husk and opium. After completion of investigation, challan was presented against the accused. Charges were framed under Sections 15 and 18 of the Act. The accused did not plead guilty and claimed trial. During the pendency of trial, Ashok Kumar was declared as PO. Prosecution examined 13 witnesses. Constable Dharmender Singh (PW1) was with the police party headed by Inspector Dhanna Ram. Ruqa was handed over to Constable Dharmender Singh to hand over the same to DSP Prerna Puri. HC Tarsem Singh (PW2) was also with the Investigating Officer. Ruqa was handed over to him, on the basis of which, formal FIR was recorded. Constable Sohan Singh (PW3) was deputed to deliver the special report to the Magistrate. ASI Angrej Singh (PW4) was the MHC, with whom case property was deposited by the IO and on 31.3.2005, he had handed over the Crl.Appeal No.1840-SB of 2008 5 sample parcels to HC Joginder Singh for depositing the same in the office of Chemical Examiner, but due to some objections, sample parcels were not deposited in the laboratory and were returned back to MHC. On 4.4.2005, again sample parcels were handed over to HC Joginder Singh to deposit the same in FSL, but again due some objections, the same were not deposited in the laboratory and were returned to the MHC. On 5.4.2005, the samples were handed over to HC Joginder Singh for depositing the same in the FSL. HC Joginder Singh after depositing the samples in the laboratory, handed over the receipt to ASI Angrej Singh (PW4). HC Joginder Singh (PW5) had deposited the sample parcels in the office of Chemical Examiner on 5.4.2005. Balbir Singh (PW6) is the witness, in whose presence as per disclosure statement suffered by Hakam Rai, machine was recovered from the specified place. HC Jit Singh (PW7) stated that on receipt of ruqa on 23.4.2005, FIR (Ex.PB) was recorded. ASI Onkar Chand (PW8) stated that on receipt of ruqa (Ex.PD), he registered FIR (Ex.PD/1). Special report was handed over to Constable Sohan Singh to deliver the same to Illaqa Magistrate. Anil Kumar (PW9) is one of the recovery witnesses. Ms. Prerna Puri (PW10) as per the request of the IO came to the spot and in her presence, recovery was effected by the IO from the accused. DSP Ram Kala (PW11) had simply prepared the challan under Section 173 Cr.P.C. Inspector Dhanna Ram (PW12) is the Investigating Officer. Crl.Appeal No.1840-SB of 2008 6 SI Om Parkash (PW13) is one of the recovery witnesses. Anil Kumar (PW9), DSP Prerna Puri (PW10), Inspector Dhanna Ram (PW12) and SI Om Parkash (P13) have deposed that recovery was effected from the accused. After closing of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. The accused denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that they were falsely implicated. Opportunity was given to the accused to lead evidence in their defence, but no evidence was led. After hearing learned PP for the State, learned defence counsel for the accused and from the perusal of evidence on the file, the trial Court had convicted the accused-appellants under Sections 15 and 18 of the Act and sentenced them as aforesaid. Feeling dissatisfied with the judgment and order dated 29.7.2008, separate appeals were instituted by Hakam Rai and Ram Nath. Learned counsel for the appellants argued that as per story, police party headed by Inspector Dhanna Ram had received secret information but under Section 42 of the Act, secret information was not reduced into writing. Intimation was not sent to the concerned Police Station. As per secret information, raid was conducted at the house of appellant Hakam Rai. Two persons, namely, Ram Nath and Ashok Kumar, were seen while coming out of the room, but as per Section 50 of the Act, offer was not given to Ram Nath and Ashok Kumar. Ex.PF is the offer to Ashok Kumar. As per Ex.PF, Ashok Kumar was apprised of his valuable right as to whether he wanted to be searched before a Magistrate or higher police officer. No offer was given as to whether he wanted to be searched Crl.Appeal No.1840-SB of 2008 7 before any Gazetted Officer or a Magistrate. Similarly, offers were given to appellants Hakam Rai and Ram Nath, but the offers were defective. The offers were as to whether they wanted to be searched before a Magistrate or higher police officer. When there is non-compliance of Section 50 of the Act, the story is unnatural one. As per story, one bag was found from the possession of appellant Hakam Rai and from that bag, 1kg and160 grams of opium was recovered. One bag was lying near Hakam Rai and from that bag, 12 kgs of poppy husk was recovered. One bag containing 11 kgs of poppy husk was recovered from the car, but no evidence is on the file that the car belonged to Hakam Rai. According to the evidence, two samples each weighing 25 grams were separated from the opium recovered from the bag carried by Hakam Rai, two samples each weighing 250 grams were separated from the poppy husk recovered from the bags one lying near Hakam Rai and another lying in the car. Two samples each weighing 100 grams were separated from the poppy husk recovered from each packet carried by Ashok Kumar and Ram Nath. Sample parcels and remaining opium/poppy husk in different bags were sealed by the IO with his own seal bearing impression `DR’ and of the seal of DSP bearing impression `PP’. Seal after its use was not handed over to independent witness. Though independent witness was with the police party, but no explanation was given as to why the seal was not handed over to him. Independent witness when appeared as PW9, then stated that two samples each weighing 50 grams were separated from the bags alleged to have been recovered from Hakam Rai. Prosecution is not clear as to whether samples each weighing 250 grams were separated from the bags or samples each weighing 50 grams were separated from the bags recovered from Hakam Rai. Recovery was Crl.Appeal No.1840-SB of 2008 8 effected on 22.3.2005 and according to ASI Angrej Singh (PW4), samples were handed over to HC Joginder Singh on 31.3.2005 for depositing the same in the office of Chemical Examiner, but no explanation why on that date samples were not deposited in the office of Chemical Examiner. Again on 4.4.2005, samples were handed over to HC Joginder Singh for depositing the same in the office of Chemical Examiner, but on that date also, the samples were not deposited in the laboratory and again, no explanation was there what was the reason for not depositing the samples in the laboratory. Ultimately, samples were deposited in the office of Chemical Examiner on 5.4.2005. Report of Chemical Examiner is on the file, but the report nowhere says that firstly samples were brought in the office of Chemical Examiner on 31.3.2005 but due to some objections, the samples were returned. Again on 4.4.2005, samples were brought by HC Joginder Singh for depositing the same in the office of Chemical Examiner, but due to some objections, the samples were not accepted. According to the IO, the accused along with case property were produced before the SHO and on the next date, the accused were produced in the Court. No evidence is on the file that the SHO had affixed his own seal on the case property. No explanation why the case property was not produced in the Court on the next date. All this shows that the story is not natural one. In support of his contentions, learned counsel for the appellants cited the following judgments:- "i) 1998(4) RCR (Crl.) 513, Guljar Singh versus State of Haryana, ii) 1999(3) RCR (Crl.) 533, State of Punjab vs. Baldev Singh, iii) 2002(2) RCR (Crl.) 724, Ram Bharosi vs. State of Rajasthan, Crl.Appeal No.1840-SB of 2008 9 iv) 2004(4) RCR (Crl.) 260, Mohan Singh vs. State of Punjab, v) 2005(3) RCR (Crl.) 334, Des Raj vs. State of Punjab, vi) 2005(4) RCR (Crl.) 172, Dhagla Ram vs. State of Punjab, vii) 2005(4) RCR (Crl.) 404, Bantapalli Durga Rao and others vs. State of A.P., viii) 2006(1) RCR (Crl.) 4, Sukhdev Singh @ Sukha vs. State of Punjab, ix) 2006(1) RCR (Crl.) 835, Buta Singh vs. State of Punjab, x) 2007(2) RCR (Crl.) 596, Dayal Singh and another vs. State of Punjab, and xi) 2007(4) RCR (Crl.) 226, Gurjant Singh vs. State of Punjab." Learned State counsel argued that there was secret information and after receipt of secret information, an intimation was given to the higher police authorities. After joining independent witness, raid was conducted. The IO suspected that the accused are carrying some contraband. Then in view of Section 50 of the Act, offer was given to the accused. As per reply given by the accused, recovery was effected in the presence of Gazetted Officer. There are minor discrepancies in the statements of PWs. The discrepancies rather show that the story is natural one. First submission of learned counsel for the appellants was that there was non-compliance of Sections 42 and 50 of the Act. Both the Sections are mandatory. Submission of learned counsel seems to be reasonable one. On 22.3.2005, police party headed by Inspector Dhanna Ram while on patrol duty had received a secret information. But on receipt of secret information, same was not reduced into writing and was also not sent to the concerned Police Station. Ruqa was handed over to Constable Dharmender Singh to hand over the same to DSP Prerna Puri. In case ruqa was handed over to Constable Dharmender Singh to hand over the same to Crl.Appeal No.1840-SB of 2008 10 the DSP, then after offer to the accused, there was no idea to inform the DSP on telephone to visit the spot. According to the evidence, raid was conducted at the house of Hakam Rai. Two persons were seen coming out of the room. On enquiry, they had disclosed their names as Ram Nath and Ashok Kumar. One person was found sitting inside the room and on enquiry, he disclosed his name as Hakam Rai. The IO suspected that the accused were carrying some contraband. Offer (Ex.PE) was given to Hakam Rai as to whether he wanted to be searched before any Magistrate or higher police officer. Ex.PF is the notice under Section 50 of the Act given to Ashok Kumar. Ashok Kumar was appraised of his valuable right as to whether he wanted to be searched before a Magistrate or higher police officer. Similarly, offer was given to Ram Nath as to whether he wanted to be searched before a Magistrate or higher police officer. When recovery is from the personal search of the accused, then Section 50 of the Act is not applicable but when recovery is from bag, then offer should be given to the accused as to whether they wanted to be searched before a Magistrate or a Gazetted Officer. In the present case, offer under Section 50 of the Act is not valid. Offer can be oral but once offer is in writing, then the same should be as per Section 50 of the Act. In Guljar Singh's case (supra), recovery was of four bags of poppy husk. Investigating Officer gave offer to accused whether he wanted to give search in presence of Investigating Officer or Gazetted Officer of police. Offer was held to be partial. Search was held to be illegal for non- compliance of Section 50 of the NDPS Act. In Mohan Singh's case (supra), recovery was of contraband. It has been held that "when the empowered officer proposes to search the Crl.Appeal No.1840-SB of 2008 11 suspect, he has to give complete offer to suspect whether suspect would like to be searched in presence of Gazetted Officer or Magistrate-Offer should not be partial- Where the suspect exercises his option, the Investigating Officer is required to conduct the search in presence of the Gazetted Officer or the Magistrate, as the case may be-The offer must be complete, but essentially need not be in writing." Ms.Prerna Puri while serving as DSP Probationer appeared as PW10 and stated in chief that on receipt of telephonic message from Inspector Dhanna Ram, she had gone to the spot. Police with the accused was found present there. She had disclosed her identity to them. She directed Inspector Dhanna Ram to search the accused. Ms. Prerna Puri nowhere stated that Inspector Dhanna Ram offered his personal search or he had given offer to the accused as to whether they wanted to be searched before a Magistrate or any other Gazetted Officer. In Ram Bharosi's case (supra), search was by DSP. DSP gave option of search before himself or Magistrate. DSP did not inform the accused that he had right of search before Gazetted Officer or Magistrate. Held that provisions of Section 50 of NDPS Act not complied with. In Baldev Singh's case (supra), it has been held as under:- “Search and seizure on receipt of prior information- It is imperative on the officer to inform the accused that he has a right of search before Magistrate or Gazetted Officer- Information may not necessarily be in writing- Prosecution has to establish the fact that offer was made.” In the present case, offer in writing was given to the accused but the offer was defective. Recovery from Ram Nath and Ashok Kumar Crl.Appeal No.1840-SB of 2008 12 was from their person. Recovery from Hakam Rai was not from his person, but from the bag. When recovery is from the bag, then Section 50 of the Act is not applicable, but as per the story, three persons were in the room. When raid was conducted, then two persons were seen coming out of the room and the third person was found sitting in the room. One bag was lying in the room, second bag was in the car, but the question is whether the bag containing 12 kgs of poppy husk lying in the room was in conscious possession of Hakam Ram or Ram Nath or Ashok Kumar. One bag containing 11 kgs of poppy husk was recovered from the car, but the car was not owned by any of the accused. Question is whether recovery of poppy husk from the car is to be treated as recovery from Hakam Rai or Ram Nath was in conscious possession of the bag containing 11 kgs of poppy husk recovered from the car or Ashok Kumar was in conscious possession of the bag containing 11 kags of poppy husk recovered from the car. In Dayal Singh's case (supra), recovery of contraband was from Canter. Merely because the accused were physically present in the Canter, it cannot be said to be a ground to hold that they were actually in conscious possession of the contraband. The accused were the residents of different villages. Story was found to be not genuine one. Next submission of learned counsel for the appellants was that the case property was sealed by the IO with his own seal and with the seal of DSP, but the seals after its use were not handed over to independent witness, though Anil Kumar, independent witness, was with the police party, as per the story. Anil Kumar stated that when a raid was conducted, then three persons were found in the room, i.e., Hakam Rai and Ram Nath, Crl.Appeal No.1840-SB of 2008 13 present in the Court, and one Ashok Kumar. Ashok Kumar was not present in the Court when Anil Kumar appeared as witness, because he was declared as PO. Anil Kumar further stated that 1 kg and 60 grams of opium was recovered from the bag of Hakam Rai. One bag containing 12 kgs. of poppy husk was recovered lying near Hakam Rai and one bag containing 11 kgs of poppy husk was recovered from the car. From both these bags, two samples each weighing 50 grams of poppy husk were separated. According to the IO and other witnesses, two samples each weighing 250 grams were separated from two bags containing poppy husk, i.e., one bag lying near Hakam Rai and second in the car, whereas Anil Kumar stated that two samples each weighing 50 grams were separated from those two bags. According to other witnesses, opium recovered from the bag of Hakam Rai was found to be 1 kg 160 grams, whereas Anil Kumar stated that 1 kg and 60 grams opium was recovered from the bag carried by Hakam Rai. Inspector Dhanna Ram appeared as PW12, but he did not state even a word as to why seal was not handed over to independent witness. Rather, he stated that his own seal after its use was handed over to SI Om Parkash, whereas seal of DSP after its use was retained by the DSP. In Gurjant Singh's case (supra), recovery was of contraband. Samples and case property sealed, but seal was not handed over to independent witness who was joined, but remained official witness- Chances of tampering with property cannot be ruled out. Case property was not produced before Court when accused was produced for remand. In the present case, the IO stated that on return to the Police Station, case property along with accused was produced before the SHO but the SHO did not affix his own seal on the parcels for the reasons best known Crl.Appeal No.1840-SB of 2008 14 to him. No explanation why the SHO did not affix his own seal on the parcels. As to whether case property was retained by the SHO or was deposited by the SHO with any official is not clear. The IO further admitted that on the next day, accused were produced