-1- Criminal Appeal No.360-SB of 2005. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Appeal No.360-SB of 2005. Date of Decision: May 06, 2010. Ram Lubhaya ... Appellant VERSUS State of Punjab ... Respondent CORAM : HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers 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 ? Present: Mr. H.S. Rakhra, Advocate, with Ms. Veerpal Kaur, Advocate, for the appellant. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. Ram Lubhaya (appellant) has filed this appeal against the judgment of conviction and the sentence order dated 5.2.2005 passed by the Judge, Special Court, Hoshiarpur, whereby he was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and -2- Criminal Appeal No.360-SB of 2005. sentenced to undergo rigorous imprisonment for ten years and to pay Rs.1 lac as fine, in default whereof to undergo further rigorous imprisonment for one year. Smt. Usha Rani, Tarsem Lal alias Semi, Smt. Pamma and Joga Singh, co-accused of appellant Ram Lubhaya, were acquitted of the charge framed against them by the trial Court by giving them the benefit of doubt. The facts of the prosecution case, in brief, are that on 14.7.2001, Inspector Surjit Singh Kandhali along with Assistant Sub Inspector Paramjit Singh, Assistant Sub Inspector Bikram Singh, Head Constable Bhulla Singh, Head Constable Pardep Singh and other police officials was present in connection with `Nakabandi' at Pippal Maur, Chotala, on a Government vehicle. At that time, he (Inspector Surjit Singh Kandhali ) received a secret information that the appellant along with the acquitted accused was dealing in sale of poppy husk at a large scale and bags of poppy husk had been kept in the orchard of oranges near Pippal Maur, Chotala; that they were waiting for prospective buyers; and that if a raid was conducted, poppy husk could be recovered. Believing the information to be reliable, Inspector Surjit Singh Kandhali along with other police officials proceeded towards the disclosed place to conduct the raid. On the way, Behari Lal, Panch of Gram Panchayat, Chotala, incidentally met the police party and he was joined as an independent witness to witness the recovery. When the police party reached near the orchard, the persons present in the -3- Criminal Appeal No.360-SB of 2005. orchard started slipping away from there on hearing the commotion emanated from the halting of the Government vehicle, closing of doors of the vehicle etc. After hot chase, the police party was successful in apprehending appellant Ram Lubhaya. Seven bags were found in possession of the appellant. Suspecting that there was some contraband in the said bags and intending to search the same, Inspector Surjit Singh Kandhali served notice under Section 50 of the Act upon the appellant apprising him of his right to be searched in the presence of a Magistrate or a Gazetted officer. The appellant opted that search of his bags be made in the presence of a Gazetted Officer. Consent memo of the accused in this regard was prepared. Presence of Deputy Superintendent of Police Lakhwinder Pal Singh Khaira was secured at the spot. Thereafter, on the Direction of the Deputy Superintendent of Police, search of the bags was made. They were found to contain poppy husk. Two samples of 250 grams each were separated from each of the bag containing poppy husk. The remaining poppy husk, on weighment, was found to be 29.5 Kgs in each bag. The samples and the poppy husk contained in seven bags were separately sealed and taken into possession by the police. Ruqa was sent to the Police Station and on its basis the instant F.I.R was registered against the accused. Rough site plan of the place of recovery was prepared. The accused-appellant was arrested. After receipt of the report of the Chemical Examiner (Exhibit P.K) and on completion of the investigation, report -4- Criminal Appeal No.360-SB of 2005. under Section 173 of the Code of Criminal Procedure was submitted in Court against the accused. Charge was framed against the accused-appellant and the acquitted accused for the offence punishable under Section 15 of the Act. The accused did not plead guilty to the charge and claimed trial. At the trial, the prosecution examined Head Constable Gurmit Singh (P.W.1), Head Constable Davinder Kumar (P.W.2), Deputy Superintendent of Police Lakhwinder Pal Singh Khaira (P.W.3), Assistant Sub Inspector Paramjit Singh (P.W.4), and Inspector Surjit Singh Kandhali (P.W.5). Behari Lal, the independent witness, was given up as having been won over by the accused. In his statement recorded under Section 313 of the Code of Criminal Procedure, accused-appellant Ram Lubhaya denied the prosecution allegations and pleaded false implication. He further stated that no recovery had been effected from him. However, no evidence was led in defence by the accused. The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case against the accused-appellant beyond reasonable doubt and convicted and sentenced him, as mentioned above. I have heard the learned counsel for the parties 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 -5- Criminal Appeal No.360-SB of 2005. 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, Behari Lal 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, Behari Lal, has upset the balance of the prosecution 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. The accused-appellant has also not alleged any enmity with them (police officials). In this background, merely the fact that the independent witness Behari Lal 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 -6- Criminal Appeal No.360-SB of 2005. be discarded on the ground that independent witness has not been examined. To cap it all, the fact of recovery of seven bags of poppy husk, each containing 30 kilograms of poppy husk, including samples, 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 appellant being in possession of contraband poppy husk into writing. According to the learned counsel, the Investigating Officer 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 -7- Criminal Appeal No.360-SB of 2005. 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 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 -8- Criminal Appeal No.360-SB of 2005. 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 (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 -9- Criminal Appeal No.360-SB of 2005. 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.” 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, after joining Behari Lal, an independent witness, in the police party, rushed to the place where the accused-appellant Ram Lubhaya along with acquitted accused was stated to be present along with the contraband. In this case, had the Investigating Officer not acted immediately on receipt of the secret information, there was every chance of escaping the accused as they were present at a public place. Under the circumstances, I do not -10- Criminal Appeal No.360-SB of 2005. 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 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 -11- Criminal Appeal No.360-SB of 2005. 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. Besides, in this case, there was complete compliance of the mandatory provisions of Section 50 of the Act as Deputy Superintendent of Police Lakhwinder Pal Singh Khaira, a Gazetted Officer, was called to the spot and the recovery of poppy husk was effected from the accused in his presence. For the aforesaid reasons, I do not find any merit in this appeal and the same is hereby dismissed. May 06, 2010. ( MOHINDER PAL ) ak JUDGE