Crl. Appeal No.635-DB of 2005 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.635-DB of 2005 ....... Date of decision:December 4, 2008 Gurdial Singh and another ….. Appellants Versus State of Punjab ….. Respondent ...... CORAM: HON’BLE MR. JUSTICE S.S. SARON. HON’BLE MRS. JUSTICE SABINA. ...... Present: Mr. S.S. Rana, Advocate for the appellants. Mr. S.S. Gill, Additional Advocate General, Punjab for the respondent-State. ...... S.S. SARON, J. This appeal has been filed by Gurdial Singh (appellant No.1) son of Bishan Singh and his son Nirbhai Singh (appellant No.2) against the judgment and order dated 6.8.2005 passed by the Judge, Special Court, Ludhiana whereby the appellants have been held guilty for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“Act” – for short) and sentenced to undergo imprisonment for a Crl. Appeal No.635-DB of 2005 [2] period of 12 years, besides, to pay a fine of Rs.1 Lac each and in default of payment of fine, to undergo further rigorous imprisonment for one year. SI Makhan Singh (PW-4) on 20.5.2002 was posted as In- charge, Police Post Hathur. On the said day, he along with Head Constable Swaran Singh, Constable Raghbir Singh, Constable Sukhwinder Singh, Constable Raminder Singh and Constable Beant Singh was present at Bus stand Hathur in a private vehicle in connection with patrolling and setting up of mobile barricade (nakabandi). There a secret information was received from a special informer that Gurdial Singh (appellant No.1) and his sons Chamkaur Singh alias Kaura (since acquitted) and Nirbhai Singh (appellant No.2) were doing business of selling poppy husk and they were having sufficient quantity of poppy husk in their residential house, which had been kept in a room for storing chaff. The information being correct and believable, Makhan Singh SI (PW-4) along with his co-employees reached the residential house of Gurdial Singh (appellant No.1) and others at Village Burj Klaran Police Station Jagraon and a raid was conducted. There were three persons at the residential house. One of them who was known to Makhan Singh SI (PW-4) ran away on seeing the Police party. The person who was running away was called by Makhan Singh SI (PW-4) by the name of Chamkaur Singh (since acquitted) and he was asked to stop but he did not stop. The remaining two persons (appellants) were apprehended with the help of his co-employees. Their names were inquired. One of them disclosed his name as Gurdial Singh (appellant No.1) and the other as Nirbhai Singh (appellant No.2). Makhan Singh SI (PW-4) informed them that he was posted at Police Post Hathur. He had a suspicion Crl. Appeal No.635-DB of 2005 [3] that poppy husk was lying in the room of the residential house for storing chaff. If the appellants desired then a Gazetted Officer or a Magistrate could be called at the spot. The appellants stated that the search of the room for storing chaff in their residential house be got conducted from a Gazetted Officer. On this Makhan Singh SI (PW-4) recorded the joint statement of the appellants and Deputy Superintendent of Police (Detective) Jagraon was requested on telephone to come at the spot who came there in a government Gypsy along with his gunman. The Police officials were in proper dresses with their nameplates. Darshan Singh, Dy. Superintendent of Police (Detective), (PW-2) informed the appellants that he was posted at Jagraon as a Gazetted Officer and that if they want then search of the bags suspected to be containing the contraband lying in the room for storing chaff in their residential house can be got conducted by some other Gazetted Officer or Magistrate by calling him at the spot. The appellants, however, reposed full faith and confidence in Darshan Singh, Deputy Superintendent of Police (Detective), Jagraon (PW-2). The consent statement of the appellants was recorded on which they appended their signatures. Thereafter Makhan Singh SI (PW-4) in the presence of Darshan Singh, Deputy Superintendent of Police (Detective) (PW-2) conducted a search and counted the bags lying in the room for storing chaff. The same were 20 in number which were marked serial wise from one to twenty. After opening each of the bags for search, poppy husk was recovered. Two samples of 250 gms. each of poppy husk was taken out from each of the bags. The twenty bags were then weighed on a floor-scale which was arranged. The first ten bags weighed 32 kgs. each and the remaining bags from serial No.11 to 20 weighed 34 Crl. Appeal No.635-DB of 2005 [4] Kgs. each. In all 40 samples of 250 gms. each of poppy husk and 20 bags of poppy husk numbering 1 to 10 weighing 32 kgs. each and the remaining bags from serial No.11 to 20 weighing 34 kgs. each were sealed by Makhan Singh SI (PW-4) with his seal 'MS'. Darshan Singh, DSP (D) also sealed the said 40 samples and 20 bags of poppy husk with his seal ‘DS’. Makhan Singh SI (PW-4) then took in possession all the forty samples of poppy husk and the bags numbering 1 to 10 weighing 32 kags. each and bags numbering 11 to 20 weighing 34 kgs. each, duly sealed with seal ‘MS’ and ‘DS’ in possession of the Police. Sample of the seals was prepared separately which was also attested by Darshan Singh DSP(D) (PW-2). The recovery memo of poppy husk was also attested by Darshan Singh, DSP (D) (PW-2). Seal after use was handed over to Head Constable Swaran Singh. The memo was attested by the witnesses. The appellants and Chamkaur Singh (since acquitted) had committed an offence punishable under Section 15 of the Act by keeping poppy husk in their possession, so ruqa (memo) was sent to Police Station Jagraon through Constable Sukhwinder Singh for registration of a case (FIR). After the registration of case the, number was asked to be intimated; besides higher officers were asked to be informed through wireless. Special reports were also asked to be issued. Makhan Singh (PW-4) along with other police officials was busy in the investigation. Information was recorded at 1.20 p.m. in the limits of village Burj Kalaran and sent to the Police Station. On the basis of the aforesaid writing which was sent to the Police Station, case FIR (Ex.PE/1) for the offence under Section 15 of the Act was registered on 20.5.2002 against the accused (appellants and Chamkaur Singh) by Gurnam Singh ASI Police Crl. Appeal No.635-DB of 2005 [5] Station Jagraon. Thereafter, the personal search of Gurdial Singh (appellant No.1) and Nirbhai Singh (appellant No.2) was carried out. Rough site plan (Ex.PJ) of the place of recovery was prepared. Besides, statements of the witnesses were recorded. Makhan Singh SI (PW-4) on reaching the Police Station Jagraon produced the case property, the accused and the the witnesses before Jaswinder Singh SI/SHO (PW-5). He verified the investigation and interrogated the accused. He also inspected the case property and after his satisfaction, he affixed his seal ‘JS’ on Ex P1 to Ex P41 on the samples and bags containing the contraband. The case property was asked to be deposited with MHC Jaspal Singh (PW-3) which was deposited with him intact. On 21.5.2002, the case property was taken from Jaspal Singh MHC and along with the accused was produced before the Duty Magistrate. The accused were remanded to Police Custody and the case property was directed to be produced on the following day i.e. 22.5.2002 before the Illaqa Magistrate. The case property was accordingly again deposited intact with MHC. It was produced before the Ilaqa Magistrate, Jagraon on 22.5.2002. The Ilaqa Magistrate inspected the case property and order (Ex.PL/1) was passed on the application (Ex.PL). On return to the Police Station, the case property was again deposited intact with the aforesaid MHC. Chamkaur Singh (since acquitted) surrendered before the Judicial Magistrate, Ist Class Jagraon on 30.5.2002 and he was arrested. After completion of investigation, Charge Report (Challan) in terms of Section 173 of the Code of Criminal Procedure (‘CrPC’ – for short) was prepared and filed in Court on 16.8.2002. The learned Judge Special Court Ludhiana on 5.9.2002 charged the appellants as also Chamkaur Singh Crl. Appeal No.635-DB of 2005 [6] on the allegation that they on 20.5.2002 in the area of Buraj Kalaran were found in possession of 6.70 quintals without any valid licence or permit and they committed an offence punishable under Section 15 of the Act. The accused pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case examined five witnesses, besides, tendered documents in evidence. The statement of the accused in terms of Section 313 CrPC was recorded. Gurdial Singh (appellant No.1) took the following stand :- “This is a false case. I have four sons namely Jang Singh, Nirbhai Singh, co- accused, Chamkaur Singh and Balaur Singh. Two are married and two are unmarried. We all are living in the same house, but in separate rooms. I alongwith Jang Singh, Nirbhai Singh and Balaur Singh do the agricultural work and dairy farming. Chamkaur Singh is little bit mental. He sometimes lives in the house and sometimes goes out without telling. My house is adjacent to the house of Pritam Singh son of Bachan Singh. There is my bitter enmity with them. Bhola Singh who is son of Bachan Singh and is uncle of Tirlok Singh brought a false case under Sections 326, 324 & 323/34 IPC against my two sons Nirbhai Crl. Appeal No.635-DB of 2005 [7] Singh and Chamkaur Singh. My sons were acquitted because the case was found to be false. The enmity is subsisting till now. The room wherefrom the alleged recovery is shown to be effected has no shutter in the door which is opening in the street and is adjacent to the house of my enemy. Makhan Singh Investigating Officer is the relation of Pritam Singh my enemy and he has been visiting their house through whom we have been falsely involved in this false case. The Police had picked up the bags from Dharamshala of Scheduled Castes which is near my house hardly at a distance of 50 yards. My village is big one having five Numberdars and Chowkidar. None was summoned by the Police. My son Chamkaur Singh was not in the village on the day of alleged recovery. He had gone to Delhi and he had gone to Panipat from Delhi and from Panipat to Barnala and was produced before the police. The case is false. We are innocent.” To similar effect is the statement of Nirbhai Singh (appellant No.2). Crl. Appeal No.635-DB of 2005 [8] In defence, the appellants produced Head Constable Sukhwant Singh (DW-1), Jarnail Singh (DW-2) and Surjit Singh (DW-3). Documents were also tendered in evidence and the defence evidence was closed. The learned Judge Special Court, Ludhiana after considering the evidence and material on record convicted the appellants for the offence under Section 15 of the Act and acquitted Chamkaur Singh accused. The appellants aggrieved against the order of the learned Judge Special Court, Ludhiana to the extent that they have been convicted and sentenced, have filed the present appeal. Sh. S.S. Rana, Advocate learned counsel appearing for the appellants has contended that the prosecution case is absolutely false and baseless. It is submitted that the secret information which was received by Makhan Singh SI (PW-4) at 5.00 a.m. on 20.5.2002 was not reduced into writing immediately on its receipt and thereby there has been violation of requirement of the provisions of Section 42 of the Act. It is also submitted that the raid was conducted at 1.20 p.m. on 20.5.2002 at the Village. However, no independent witness was joined as mandated by the provisions of Section 100 (4) CrPC. Besides, there has been non-compliance with the provisions of Section 165 CrPC. Therefore, it is submitted that the appeal is liable to be allowed and impugned order of the trial Court is set aside. In response Sh. S.S. Gill, Addl. Advocate General, Punjab appearing for the State has submitted that the prosecution has proved its case in all material aspects and the information received by Makhan Singh SI (PW-4) was reduced into writing after the raid and in any case, merely because the information that was received, was not reduced into writing, the Crl. Appeal No.635-DB of 2005 [9] appellants are not liable to be acquitted. It is also submitted that the independent witnesses are generally reluctant to join the investigation to avoid enmity and therefore, merely because independent witnesses were not joined, no prejudice has been caused, which would vitiate the prosecution case. Therefore, it is submitted that the judgment and order of the learned trial Court is liable to be maintained and upheld. We have given our thoughtful consideration to the contentions of the learned counsel appearing for the respective parties and with their assistance, gone through the records of the case. In order to appreciate the contention of the learned counsel for the appellants that the information received by the Investigating Officer Makhan Singh SI (PW-4) was not reduced into writing and its effect it may be noticed that Makhan Singh SI (PW-4) in his deposition in Court has stated that he received the secret information on 20.5.2002 at 5.00 a.m. in the morning. He also accepts the position that he did not inform the Deputy Superintendent of Police while he was at Bus stand at Hathur after receiving the information. It is also not in dispute that the raid at the house of the appellants at Village Buraj Kalaran was conducted at 1.20 p.m. on 20.5.2002 i.e. after about eight hours of receiving the secret information. The provision of Section 42 of the Act 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 departments of central excise, narcotics, Crl. Appeal No.635-DB of 2005 [10] 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 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 Crl. Appeal No.635-DB of 2005 [11] 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 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 Crl. Appeal No.635-DB of 2005 [12] (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. (emphasis added). A perusal of the above provision shows that it provides for power of entry, search, seizure and arrest without warrant or authorization to officers specified therein if such officer has reason to believe from personal knowledge or information given by any person and taken down in Crl. Appeal No.635-DB of 2005 [13] writing that any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under the 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 V-A of the Act is kept or concealed in any building, conveyance or enclosed place may between sunrise and sunset carry out any of the acts as specified in clauses (a) to (d) of Sub Section (1) of Section 42 of the Act. The said acts in terms of the Clauses (a) to (d) of Sub Section 42(1) may be done between sunrise and sunset. In terms of the proviso, if the officer concerned 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. Section 42 (2) requires that where an officer takes down any information in writing under Sub Section (1) or records grounds of his belief under the proviso thereto, he is to within 72 hours send a copy thereof to his immediate official superior. Therefore, taking down in writing of the information which is received by an authorized officer is a sine qua non for carrying out of the acts as provided in terms of Clauses (a) to (d) of Section 42(1) of the Act. The same may be done after sunset and before sunrise provided the authorized officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the Crl. Appeal No.635-DB of 2005 [14] concealment of evidence or facility for the escape of an offender then he may enter and search the building at any time between sunset and sunrise. This, however, is subject to the condition that the officer records the grounds of his belief. The Supreme Court in the case State of Oris sa v. A Rajeswar Patra, 2006 (2) RCR (Crl.) 129 has held as follows:- “From the above evidence of PW4, the Investigating Officer it is clear that the information in regard to the stock of contraband was in regard to a building which was a composite building consisting of a shop portion and a residential portion. It is clear that that was also the understanding of this witness when be stated that he raided the house of the accused, therefore, it is clear that the contraband being found in the search was from a composite building having house and shop, Section 42 comes to play and the mandatory requirement of reducing into writing is necessary. In the absence of such recording of the information by the investigating officer, we are constrained to come to the conclusion that there has been a violation of Section 42 as held by the High Crl. Appeal No.635-DB of 2005 [15] Court, hence, this appeal fails and the same is dismissed. (Emphasis added).” Therefore, it may be noticed that the requirement of recording of secret information received is mandatory. The learned trial Court while considering this aspect considered the case of Sajan Abraham v. State of Kerala, 2001 (3) RCR (Crl.) 808 (SC). It was observed on the strength of the same that the prosecution case cannot to be thrown out due to the non- compliance of the mandatory provisions of Section 42 of the Act. It was observed by the Supreme Court that the Court, while construing such provisions strictly should not interpret it so literally so as to render its compliance impossible and if in a case, the following of mandate strictly results in delay in trapping of an accused which may lead to his escape then the prosecution case should not be thrown out. Therefore, it is in a case where the following of the mandate strictly results in delay in trapping of an accused which may lead to his escape then in that eventuality the mandate of the provision may be dispensed with. In the present case as has already been noticed, the secret information was received by Makhan Singh, SI (PW-4) at 5.00 a.m. in the morning and the raid was conducted after eight hours at 1.20 p.m. on 20.5.2002. Therefore, it is not such a case where delay could have resulted in trapping the appellants so as to dispense with the mandate of Section 42 (1). It may, in any case, be noticed that the provisions of Section 42(1) are procedural provisions but are mandatory in character. In case, no prejudice is shown to be caused or their waiver was occasioned by the peculiar circumstances of the case their non-compliance may not in all circumstances Crl. Appeal No.635-DB of 2005 [16] vitiate the conviction. However, each case is to be ascertained and considered on its own facts and circumstances. In the present case, there is no explanation for not reducing the secret information received into writing by Makhan Singh, SI (PW-4). Besides, it may be noticed that the learned counsel for the appellants has contended that the provisions of Section 165 CrPC have not been complied with which fall under Chapter XII CrPC and relate to information to the Police and their powers to investigate. Section 165 CrPC provides for search by a Police Officer. It is inter alia provided therein that whenever a Police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorized to investigate may be found in any place within the limits of the Police Station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such Station. In Directorate of Revenue & Anr. V. Mohammed Nisar Holia, 2008 (1) RCR (Crl.) 241 (SC), it was held in the case of search and seizure of contraband on receipt of secret information that not only the provisions of Section 165 CrPC would be attracted in the matter of search and seizure but the same must comply with the right of the accused to be informed about the requirement to comply with the statutory provisions. A reference was made to a Five Judges Bench decision of the Supreme Court in State of Punjab v. Crl. Appeal No.635-DB of 2005 [17] Balbir Singh, 1994 (1) RCR (Crl.) 736. It was observed that the Supreme Court in Balbir