Crl. Appeal No.802-SB of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.802-SB of 1998 Date of Decision : March 27, 2008 Sukhdev Singh S/o Neta Singh, ....Appellant R/o village Panniwala Morika, Tehsil Dabwali, Distt. Sirsa. Versus The State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. D.N.Ganeriwala, Advocate for the appellant. Mr. A.K.Jindal, AAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, dated 4.7.1998, and the order of sentence dated 6.7.1998, rendered by the Court of Addl. Sessions Judge, Sirsa, vide which it convicted the accused/appellant Sukhdev Singh, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced him to undergo rigorous imprisonment for a period of ten years, and, to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of two years. 2. The facts, in brief, are that on 4.2.1994, Nand Lal, ASI, alongwith other police officials, was present within the revenue estate of village Jogewala, in connection with patrol duty, where he received a secret information against the accused, that he is in the habit of selling poppy-husk, in his house, and, in case, a raid was conducted, at once, the accused could be captured red-handed. Nachhatter Singh, public witness, was associated, with the raiding party. The raiding party, thereafter, raided the house of the accused. Sukhdev Singh, Crl. Appeal No.802-SB of 1998 2 accused, was found present, in his house, sitting on a cot. 5 bags were found lying concealed under a heap of the chaff, in the courtyard of the house, of the accused. Search of the bags, was conducted, in the presence of Jagdish Nagar, DSP, who was called to the spot, in accordance with the provisions of law. Each bag was found containing 40 kgs. poppy-husk. A sample of 100 grams from each of the bags, was taken out. The samples and the remaining poppy husk, were converted into parcels, duly sealed with the seal, and taken into possession, vide a separate recovery memo. Ruqa was sent to the Police Station, on the basis whereof, formal FIR was registered. The site plan of the place of recovery, with correct marginal notes, was prepared. The statements of the witnesses were recorded. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Nand Lal, ASI (PW-1) and Jagdish Nagar, DSP (PW-2). Nachhatter Singh, public witness, was given up by the Public Prosecutor for the State, as won over by the accused. The affidavits of Nihal Singh, HC, and Tejbir Singh, Constable, were tendered into evidence, but the Counsel for the accused made a statement, that the accused did not want to cross-examine these witnesses. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him, that he had been falsely implicated in this case, at the instance of Harnand Singh, Ex-Member of the Block Samiti. The accused, however, produced Crl. Appeal No.802-SB of 1998 3 Radhey Sham, HC (DW-1), Jagdish Singh, Constable (DW-2), Jagdish Singh, (DW-3), and Madho Parshad, Draftsman (DW-4), in his defence. He also tendered into evidence, copies of the voter list Ex.DC, Ex.DD, and copies of the jamabandis for the years 1990-91 and 1995-1996, Ex.DE and Ex.DF. Thereafter, he closed the defence evidence. 6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused/appellant, as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the accused/appellant. 8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, contended that though the secret information was received, against the accused, by the Investigating Officer, yet he neither reduced the same into writing, nor sent the same to the Officer Superior, as a result whereof, there was complete contravention of the mandatory provisions of Section 42 of the Act, which resulted into the vitiation of investigation and subsequent proceedings. It is, no doubt, true that the secret information was not reduced into writing immediately on receipt thereof, nor the same was sent to the Officer Superior forthwith. The compliance of the provisions of Section 42 could not be made by the Investigating Officer, immediately, as the secret information received by him, was to the effect that, if raid was conducted, at once, at the house of the accused, he could be apprehended with a big haul of contraband. In these circumstances, it is to be determined, as to whether, non-compliance of the provisions of Section 42 of the Act, would result into vitiation of the investigation and the subsequent trial or not. In Sajan Abraham Vs. State of Crl. Appeal No.802-SB of 1998 4 Kerala (2001) 6 Supreme Court Cases 692, a case decided by a three Judge Bench of the Apex Court, in somewhat similar circumstances, it was held by the Apex Court, that substantial compliance with the provisions of Section 42 would be sufficient, and the strict compliance should not be insisted upon. The facts of Sajjan Abraham's case (supra) were to the effect that HC (PW-3), got information at about 7 PM, that the appellant was selling injectable narcotic drugs, at a particular place. When he proceeded for the Police Station, to give this information, to his immediate superior, Sub Inspector of the police (PW- 5), he found him (PW-5) alongwith his police party, which was on patrol duty coming, and hence the said information was communicated there by PW-3 to PW-5. Thereafter, PW-5, alongwith his police party, and, PW-3, proceeded immediately towards the place, where the appellant was standing, and apprehended him. It was contended that PW-5 had not reduced into writing, the information, given by PW-3, with respect to the accused/appellant's involvement, before proceeding to arrest him, nor he had communicated it to his immediate superior, which constituted violation of Section 42. The said contention of the Counsel for the appellant, was repelled by the Apex Court, holding that, PW-5, could not have recorded the information given by, PW-3, and communicate the same, to his superior, while he was in motion, being on patrol duty, in a jeep, before proceeding to apprehend the accused. Had he not acted immediately, the appellant would have escaped. On these facts, it was held by the Apex Court, that no inference could be drawn, that there had been any violation of the provisions of Section 42 of the Act. In these circumstances, in the said authority, it was held as under:- “In construing any facts to find, whether the prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with a pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the Crl. Appeal No.802-SB of 1998 5 field of illicit drug traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply with, which the courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of the law. The court however while construing such provisions strictly should not interpret the same so literally as to render their compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of a mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out.” 9-A. In the instant case too, a secret information, was received by Nand Lal, ASI, on 4.2.1994, when he alongwith Hoshiar Singh, HC, Suraj Bhan and other police officials, was present in village Jogewala, in connection with patrol duty, and detection of crime. It means that Nand Lal, ASI, was in motion, at the time, when he received the secret information, against the accused. Since, the secret informer had informed Nand Lal, ASI, that if a raid was conducted immediately, then a big haul of contraband, could be recovered from the house of the accused, where he was present. It was his bounden duty, to immediately rush to the disclosed place, to detect the accused with contraband. It was, in this view of the matter, that he had no time to record the information, and send the same to the Officer Superior, as had he done so, there would have been every possibility of the accused absconding, and the purpose of the very raid would have been defeated. However, he substantially complied the provisions Crl. Appeal No.802-SB of 1998 6 of Section 42 of the Act, by recording the ruqa, embodying the secret information therein, as also by sending the message to the DSP, to come to the spot, as a result whereof, he came to the spot. Since, there was substantial compliance, with the provisions of Section 42 of the Act, it could not be said that there was intentional and deliberate non-compliance thereof strictly. On account of this reason, the case of the prosecution cannot be thrown out. The principle of law, laid down in Sajan Abraha's case (supra), a case decided by three Judge Bench of the Apex Court, is, thus, fully applicable to the facts of the present case. In this view of the matter, the submission of the Counsel for the appellant, in this regard, does not appear to be correct, and stands rejected. 10. The Counsel for the appellant, however, placed reliance on Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat AIR 2000 SC 821, State of Orissa Vs. A. Rajeshwar Patra 2004 SCC Criminal 1871, G. Srinivas Goud Vs. State of A.P. 2005(4 RCR (Crl. ) 353, and Directorate of Revenue and Anr. Vs. Mohammed Nisar Holia, criminal Appeal No.311 of 2002, decided by the Apex Court on 5.12.2007, to contend that the provisions of Section 42 of the Act, being mandatory, in nature, strict compliance thereof, was required to be made, and failure to do so, must result into vitiation of the investigation and trial. in Abdul Rashid,s case (supra), which was decided by a Bench of three Judges of the Apex Court, the secret information against one Iqbal Syed Husen was received on 12.1.1998, that he was trying to transport charas, much before 4.00 PM. It was, thereafter that the police party went in quest for the contraband. It was at about 4.00 PM, that they sighted the auto rickshaw, which was then driven by the appellant, and found gunny bags, containing 10 bags, therein, in which there was charas, estimated at 5.29 lacs. There was sufficient time, between the secret information, received by the Investigating Officer, and the apprehension of the accused. Despite that the secret information was not reduced into writing, nor it was sent to the Officer superior. In these Crl. Appeal No.802-SB of 1998 7 circumstances, the Apex Court held that mere non-compliance of the provisions of Section 42(1) and 42(2) of the Act, did not ipso-facto vitiate the investigation, and the trial, but only made the case of the prosecution suspect. In G. Srinivas Goud's case (supra), it was held that if the search and seizure is made by a Gazetted Officer, on receipt of an information, without warrant, then the compliance of the requirement of compliance of Section 42(2) is not necessary. State of Orissa's case (supra), and Directorate of Revenue and Anr's. cases (supra), were decided by smaller Benches of the Apex Court, and even the facts thereof, were clearly distinguishable, from the facts of the instant case. In this view of the matter, the principle of law, laid down to the contrary in State of Orissa's and Directorate of Revenue and Anr's. cases (supra), on the same point, would not hold the field, in the face of the principle of law, on the same point, laid down in Sajjan Abraham's case (supra) decided by a larger Bench of the Apex Court. In this view of the matter, no help can be drawn by the Counsel for the appellant, from these authorities. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 11. It was next contended by the Counsel for the appellant, that the mandatory provisions of Section 50 of the Act, were not complied with, as a result whereof, the investigation and the subsequent proceedings, stood vitiated. The submission of the Counsel for the appellant, in this regard, also does not appear to be correct. In the instant case, the recovery was not effected from the personal search of the accused, but on account of the search of the bags. Therefore, the mandatory provisions of Section 50 of the Act, were not applicable to the instant case. In State of Punjab Vs. Baldev Singh, 1999(6) S.C.C. 172, a Constitution Bench of the Apex Court, settled beyond doubt, that the language of Section 50, was implicitly clear, that the search had to be in relation to a person, and not in relation to the premises, vehicles, or articles. Crl. Appeal No.802-SB of 1998 8 Similar view was taken in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. In these circumstances, it can be said that the consistent, and particularly the view of the larger Bench of the Supreme Court, appears to be that the search, must relate to the person, and not vehicles, other luggage and articles, and then alone the provisions of Section 50 would be attracted. In view of the principle of law, laid down in the aforesaid authorities, the provisions of Section 50 were not applicable to the search, in the instant case. No doubt, the Counsel for the appellant, placed reliance on Dalip and another Vs. State of M.P. AIR 2007 SC 369, State of Rajasthan Vs. Ram Chander AIR 2005 SC 2221, and State of Haryana Vs. Suresh AIR 2007 SC 2245. The facts of these cases, are distinguishable from the facts of the instant case. The principle of law, laid down, in these cases, to the contrary, would not hold the field, in view of the principle of law, laid down, in Baldev Singh's case (supra), decided by a Constitution Bench of the Apex Court, on the same point. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellant, that the provisions of Section 100(4) of the Act, which are mandatory in nature, were not complied with. It is, no doubt, true that the provisions of Section 100(4) of the Act, were not complied with. It is to be determined, as to whether, the provisions of Section 100(4) of the Act, are mandatory or directory in nature, and whether the non-compliance thereof, resulted into vitiation of the investigation and trial. In Sunder Singh Vs. State of U.P., AIR 1956 Supreme Court 411, two persons not belonging to the locality had been joined, at the time of search. It was contended by the Counsel, for the appellant that since the provisions of (Section 103 Cr.P.C. Of 1898), now Section (100(4) Cr.P.C. 1973), were not complied with at the time of search, the search and the consequent recovery became illegal and could not be taken into consideration. Crl. Appeal No.802-SB of 1998 9 Repelling the contention, it was held that assuming that the persons, who actually witnessed the search were not respectable inhabitants of the locality, that circumstance would not invalidate the search. It would only affect the weight of the evidence, in support of the search and recovery. Hence, at the highest, the irregularity in search and the recovery, in so far as the terms of (Section 103 Cr.P.C. Of 1898) had not been fully complied with, would not affect the legality of the proceedings. In Puran Mal Vs. Director of Inspection (1974) 1 SCC 345, a Constitution Bench of the Apex Court, held that the material obtained by an illegal search is not inadmissible into evidence, and can be acted upon to record a conviction. In State Vs. Jasbir Singh (1996) 1 SCC 288, it was held that the evidence collected in breach of the mandatory requirements, does not become inadmissible. The principle of law, in nut shell, laid down, in the aforesaid authorities, was to the effect that the provisions of Section 100(4) are not mandatory, in nature, and non-compliance therewith will not vitiate the investigation and the trial. The search of the house of the accused was conducted, in the presence of a DSP, a Gazetted Officer. It is a matter of common experience, that the independent witnesses that too of the locality, hardly come forward, to join search and seizure proceedings, with a view to avoid wrath and displeasure of their neighbour as also to avert the harassment, which may be caused to them, by appearing, in the Court, from time to time, for their evidence. On account of non-compliance of the provisions of 100(4) of the Act, the case of the prosecution did not become doubtful. The Counsel for the appellant, however, placed reliance on Balbir Singh Vs. State of Punjab 1998(2) RCR (Crl.) 67, Sahab Singh @ Sabu Vs. State of Punjab 1999(1) RCR (Criminal) 443, Fateh Singh Vs. State of Haryana, 2006(2) RCR (Criminal) 762, decided by this Court, and Pradeep Narayan Madgaonkar Vs. State of Maharashtra, 1995 (3) Recent Criminal Reports 692 (S.C.), decided by a two Judge Bench. In Pradeep Narayan Crl. Appeal No.802-SB of 1998 10 Madgaonkar's case (supra), recovery of fire arms was effected under the Terrorists and Disruptive Activities (Prevention) Act, 1987, from the house of the accused. Two independent witnesses were joined, but not from the locality. The witnesses joined, were found to be stock witnesses, and their presence at the site of search could not be justified. Keeping in view this circumstance, and also considering the quality of evidence, being not upto the mark, the Apex Court acquitted the accused. It was not that only on account of non-compliance with the provisions of Section 100(4) Cr.P.C. that the accused was acquitted. The facts of the aforesaid authority, are distinguishable, from facts of the the instant case, and therefore, no help can be drawn by the Counsel for the appellant therefrom. Even otherwise, in view of the principle of law, laid down, in Puran Mal's case (supra), decided by a Constitution Bench of the Apex Court, any principle of law, laid down to the contrary, in the cases, cited by the Counsel for the appellant, would not hold the field. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. It was next contended by the Counsel for the appellant that there was violation of the provisions of Section 55 of the Act, as a result whereof, the case of the prosecution became doubtful. In the first instance, it may be stated here that Nand Lal, was the Incharge of CIA Staff, Dabwali. Since, he was himself Incharge of CIA Staff, Dabwali, there was no necessity of producing the case property before the SHO, Police Station Sadar, Dabwali, by him, on reaching the Police Station. Even otherwise, the provisions of Section 55 of the Act, are directory in nature. Non-compliance of the provisions of Section 55 of the Act, does not ipso-facto vitiate the investigation, and the subsequent proceedings. If the other evidence produced by the prosecution, on record, is found to be cogent, convincing, reliable, and trustworthy, then mere non- compliance of the provisions of Section 55 of the Act, does not, in any way, Crl. Appeal No.802-SB of 1998 11 affect the merits of the case. In the instant case, the other evidence produced by the prosecution has been found cogent, convincing, reliable, and trustworthy. In this view of the matter, non-compliance of the provisions of Section 55 of the Act, which are directory, in nature, does not affect the merits of the case. The Counsel for the appellant, however, placed reliance on Thandi Ram Vs. State of Haryana AIR 2000 SC 468, Gurbax Singh Vs. State JT 2001 (2) SC 330, Sawant Ram Vs. State 2004(2) RCR 207, and Baldev Singh Vs. State of Punjab 2004(3) RCC 570. In the first instance, it may be stated here that the facts of the aforesaid cases are distinguishable from the facts of the present case. Secondly, the accused were not acquitted, in the aforesaid cases, merely, on the ground, that there was non-compliance of the directory provisions of Section 55 of the Act. There were so many other infirmities, and lacunae, in the evidence of the prosecution, which were taken into consideration, alongwith the factum of non-compliance of the provisions of Section 55 of the Act, and, ultimately, the accused were acquitted. Under these circumstances, no help can be drawn, by the Counsel for the appellant, from these authorities. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 14. It was next contended by the Counsel for the appellant, that the appellant was not found in conscious possession of the bags, containing poppy- husk. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. When the police party reached the house of the accused, he was found sitting therein. There is nothing, on the record, that any other person was present in the house, at that time. The bags, containing poppy-husk had been found concealed under a heap of chaff. The accused was in exclusive possession of the house, at the relevant time, when the recovery of bags, containing poppy-husk was effected. During the course of cross-examination of the prosecution witnesses, he did not take up the plea, that he was not in Crl. Appeal No.802-SB of 1998 12 exclusive possession of the house, in question, wherefrom 5 bags, containing poppy-husk were recovered. Even, in his statement under Section 313 Cr.P.C., he did not take up the plea that he was not the owner in possession of the house, wherefrom, the bags, containing poppy-husk were recovered. Had the house been not in exclusive possession of the accused, he would have certainly set up a plea, in this regard, during the course of the cross-examination of the prosecution witnesses, and in his statement recorded under Section 313 Cr.P.C. The accused, no doubt, examined Jagdish Singh (DW-3), who did not state that the accused was in exclusive possession of the house, in question. He, however, stated that the accused was falsely implicated. Madho Parshad (DW-4), stated that, in the house, in question, of which he prepared the site plan Ex.DB, Mohan Singh, elder brother, of the accused, and other family members were also residing. He during the course of his cross-examination stated that he