Criminal Appeal No. 2249-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 2249-SB of 2003 Date of Decision: 19.04.2010 1. Mukhtiar Singh son of Shingara Singh, aged 32 years, driver r/o village Wareichan Patti, P.S. Samana. 2. Balbir Singh son of Jang Singh son of Pal Singh, aged 32 years, driver, r/o village Kheri Mallan. ... Appellants Versus State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Balwinder Singh, Advocate (Amicus-Curiae), for the appellants. Mr. Jaspreet Singh, AAG, Punjab, for the respondent – State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence dated 28.08.03, rendered by the Judge, Special Court, Patiala, vide which, he convicted the accused (now appellants), for the offence, punishable under Section 15 (c) of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the Act only), and sentenced them to undergo Rigorous Imprisonment for a period of ten years each, and to pay a fine of Rs. 1 lac each, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of six months Criminal Appeal No. 2249-SB of 2003 2 each, for having been found in possession of 20 bags, each containing 35 ½ kgs poppy husk, without any permit or licence, falling within the ambit of commercial quantity. 2. The facts, in brief, are that, on 17.05.2000, Gurbaj Singh, Sub Inspector, while posted, as Incharge, CIA Staff, Samana, alongwith Jagrup Singh, Assistant Sub Inspector, Kuldip Singh, Head Constable, Gurcharan Singh, Head Constable and some other Police officials, was holding a picket, at the bus stop of village Gheora, where, a secret information, was received, to the effect, that the accused, were bringing a big haul of poppy husk, in a truck, bearing registration No. PCK-1185, and, could be apprehended red handed. Consequently, ruqa was sent to the Police Station, on the basis whereof, the first information report, was registered. In the meantime, one Amarjit Singh, was also joined in the Police party, as an independent witness. After sometime, the truck, bearing registration No. PCK-1185, was seen coming from the side of Samana, which was intercepted by the Police party. The truck was being driven by Balbir Singh, accused, whereas, Mukhtiar Singh, accused, was sitting by his side. Thereafter, Gurbaj Singh, Sub Inspector, apprised the accused, that he suspected some contraband, in the truck, and, wanted to search the same. Consequently, on search of the truck, in the presence of Gurbachan Singh, Deputy Superintendent of Police, Nabha, who was called to the spot, 20 bags, each containing 35 ½ kgs poppy husk, concealed underneath 280 bags, containing cement powder were recovered. Two samples of 250 gms, Criminal Appeal No. 2249-SB of 2003 3 from each bag of poppy husk were separated, and the remaining poppy husk, was kept in the same bags. The samples and the bags, containing the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession alongwith the truck and its registration certificate, vide a separate recovery memo. Personal search of Mukhtiar Singh, accused, led to the recovery of Rs. 100/-, whereas, Rs. 250/-, were recovered, from Balbir Singh, accused, which were taken into possession, vide separate recovery memos. Site plan of the place of recovery was prepared. The accused, were arrested. After the completion of investigation, they were challaned. 3. On their appearance, in the Court, the accused, were supplied the copies of documents, relied upon by the prosecution. 4. Charge under Section 15 of the Act, was framed, against the accused, which was read-over and explained to them, to which, they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Rajbir Singh, Constable (PW1), Jagga Ram, Head Constable (PW2), Jagrup Singh, Sub Inspector (PW3), Karnail Singh, Assistant Sub Inspector (PW4), Gurbachan Singh, Deputy Superintendent of Police (PW5), witness to the recovery, Gurbaj Singh, Sub Inspector (PW6), Investigating Officer, and, Ms. Kalpana Nayak, Superintendent of Police (PW7). Amarjit Singh, prosecution witness, was given up, as having been won over by the accused. Thereafter, the prosecution evidence was closed. Criminal Appeal No. 2249-SB of 2003 4 6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Mukhtiar Singh, accused, stated that, he had been falsely implicated, in the instant case. It was further stated by him that he had boarded the truck, from Nawangaon, for reaching his village Waraichan Patti, Samana, and, as such, he was a bonafide passenger thereof. It was further stated by him that he had no knowledge regarding the material, lying in the truck. It was further stated by him that he had no concern either with the truck or its driver or the material, lying therein. 7. Balbir Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that, he had no concern with the case property, nor the same was recovered from him. It was further stated by him that he was working as a mason in village Kheri Mallan. It was further stated by him that the Investigating Officer, compelled him to do work, as Mason, at the kothi of the Deputy Superintendent of Police, Nabha. It was further stated by him that he did work for sometime and asked for wages, but the Investigating Officer, refused to pay the same and threatened him to continue work, but he refused. It was further stated by him that, on account of this reason, Gurbaj Singh, Sub Inspector, became inimical towards him, and, as such, the instant case was planted against him. It was further stated by him that the witnesses are interested. It was further stated by Criminal Appeal No. 2249-SB of 2003 5 him that the Deputy Superintendent of Police, Nabha, became a witness, being interested and inimical. He had no jurisdiction over the area, wherefrom the alleged recovery was effected. It was further stated by him, that he had no concern with the truck. It was further stated by him that the entire case was false. The accused, however, examined Dharam Pal, Head Constable (DW1), in their defence. Thereafter, they closed their defence evidence. 8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 9. Feeling aggrieved, the instant appeal, has been filed by the appellants. 10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. The Counsel for the appellants, submitted that the story of the prosecution, was highly improbable. He further submitted that, independent witness namely Amarjit Singh, who was joined, at the time of the alleged recovery, was not examined, but was given up, as having been won over by the Additional Public Prosecutor, for the State, as a result whereof, the case of the prosecution became doubtful. He further submitted that, the accused, were not found in conscious possession of the poppy husk, and, as such, they did not commit any offence, punishable under Section 15 of the Act. He further submitted that the CFSL Form, was not prepared, at the spot, and, as such, it could not be Criminal Appeal No. 2249-SB of 2003 6 said with certainty, that none tampered with the samples, until the same reached the office of the Chemical Examiner. He further submitted that both the accused, belonged to different villages. He further submitted that, secret information, which was received, was not sent, to the officer superior. He further submitted that, in fact, the Deputy Superintendent of Police, was constructing a kothi, at Nabha, and, there was a dispute, with regard to payment of wages with Balbir Singh, accused, who worked as a mason, as a result whereof, he was falsely implicated, in the instant case. He further submitted that the alleged recovery, was effected, in the area of Samana, whereas, the Deputy Superintendent of Police, was posted, at Nabha, at a distance of about 40 kms, and, as such, it was not known, as to why, he was allegedly called, to the spot, and, why the Deputy Superintendent of Police, posted at Samana, was not called to the spot. He further submitted that the bags, containing poppy husk, were allegedly concealed under the bags, containing cement powder, and, as such, it could not be said, that any of the accused, was aware of the same. He further submitted that, the accused, were falsely implicated, in the instant case. 12. On the other hand, the Counsel for the respondent, submitted that Balbir Singh, was the driver of the truck, whereas, Mukhtiar Singh, was sitting by his side. He further submitted that, no doubt, a plea, was taken by Mukhtiar Singh, that he was only a bonafide passenger, in the truck, but, he could not produce any proof with regard thereto. He further submitted that, no doubt, as per the Criminal Appeal No. 2249-SB of 2003 7 prosecution story, 20 bags, each containing 35 ½ kgs poppy husk, concealed underneath 280 bags, containing cement powder, were recovered from the truck, yet, it could not be said that, both the accused, were not aware of the contents of the same. He further submitted that, both the accused, were in conscious possession of the bags, containing poppy husk. He further submitted that, no doubt, independent witness namely Amarjit Singh, was joined, yet he was won over by the accused, and, as such, was given up, by the Additional Public Prosecutor, for the State. He further submitted that, there is no provision of law, for the preparation of CFSL Form, at the spot. He further submitted that the prosecution case was not improbable. He further submitted that the recovery, in this case, was effected, from a truck, in transit, and not from an enclosed place, and, as such, the provisions of Section 42 of the Act, were not applicable. He further submitted that the defence version, set up by the accused, was held to be afterthought by the Court below. He further submitted that the judgement of conviction and the order of sentence, being legal and valid, are liable to be upheld. 13. First coming to the non-examination of Amarjit Singh, independent witness, it may be stated here, that he was given up as won over by the Additional Public Prosecutor, for the State, vide his statement dated 26.09.2000, on the request of the Police. It means that, this witness, was given up, by the Public Prosecutor, for the State, after being satisfied, that he had actually been won over. The Public Criminal Appeal No. 2249-SB of 2003 8 Prosecutor, for the State, is the master of the case. It is for him, to decide, as to which witness, he wants to examine, and which witness, he does not want to examine. Since Amarjit Singh, independent witness, had been won over by the accused, there was no necessity of examining him, as the Additional Public Prosecutor, for the State, very well knew that, if he examined Amarjit Singh, independent witness, he would cause damage, to the case of the prosecution. The discretion, exercised by the Additional Public Prosecutor, for the State, in giving up Amarjit Singh, could not be said to be arbitrary or capricious. On the other hand, the decision, taken by the Additional Public Prosecutor, for the State, could be said to be bonafide. In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, it was held that it is, undoubtedly, the duty of the prosecution to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material, or even if, it is known that he/she has been won over or terrorized. In Roop Singh Vs. State of Punjab 1996 (1) RCR 146, a Division Bench of this Court, held that no adverse inference could be drawn, when the only independent witness, was given up by the prosecution, as won over by the accused. It was further held, in the said authority, that the panch witnesses, being human beings, are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements, and giving up of the public witnesses, as won Criminal Appeal No. 2249-SB of 2003 9 over, is fully justified, in the present day situation, prevailing in the society. In Karnail Singh Vs. State of Punjab 1983 Criminal Law Journal, 1218 (DB), it was held that where the independent witness, was won over by the accused, and only the officials were examined, as witnesses for the prosecution, who were considered to be not interested persons, their evidence cannot be doubted, on the ground of their official status. Similarly in Appa Bai and another Vs. State of Gujrat 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined by it. It was further held that civilized people, are generally insensitive, when a crime is committed, even in their presence, and they withdraw from the victim's side, and from the side of the vigilant. They keep themselves away from the Courts, unless it is inevitable. Moreover, they think the crime like a civil dispute, between two individuals, and do not involve themselves in it. The principle of law, laid down, in the said cases, is fully applicable to the facts of the present case. Even otherwise, the other evidence produced by the prosecution is reliable. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 14. Coming to the submission of the Counsel for the appellants, that no CFSL Form, was prepared, at the spot, but, was fabricated, later on, as a result whereof, the link evidence became incomplete, it may be stated here, that there is no provision of law, that CFSL Form, should be prepared, at the spot. The CFSL Form, is Criminal Appeal No. 2249-SB of 2003 10 prepared, while sending the sample parcels, to the office of the Chemical Examiner. In the instant case, the CFSL Form, was prepared, when the samples, were sent, to the office of the Chemical Examiner. This fact, is evident, from the report exhibit PM of the Chemical Examiner. Sufficient evidence, was led, by the prosecution, to the effect, that none tampered with the sample parcels, until the same reached the office of the Chemical Examiner. In this view of the matter, non-preparation of CFSL Form, at the spot, did not at all cast any doubt, on the prosecution story. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 15. Coming to the submission of the Counsel for the appellants, that secret information, as per the prosecution story, was received, but the same was neither reduced into writing, nor the question of sending the same, to the Officer superior arose, and, as such, there was complete violation of the mandatory provisions of Section 42 of the Act, as a result whereof, the trial, conviction and sentence stood vitiated, it may be stated here, that the recovery, in this case, was effected, from a truck, in transit, and not from an enclosed place. Under these circumstances, non-reduction into writing and non-sending of the secret information, to the officer superior, did not at all affect the merits of the case. Thus, the provisions of Section 42 of the Act, were not applicable, to the instant case, but, on the other hand, the provisions Criminal Appeal No. 2249-SB of 2003 11 of Section 43 of the Act, were applicable. The provisions of Sections 42 and 43 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, customs, revenue, intelligence or any other department of the Central Government or of the Border Security Force 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, olice or any other department of a State Government, if he has reasons to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, (a) enter into an search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any which 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 has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to Criminal Appeal No. 2249-SB of 2003 12 believe may furnish evidence of the commission of offence under Chapter IV relating to such drug or substance : 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 Chapter IV relating to such drug or substance: 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 offence takes down any information in writing under sub- Section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior.” “43. Power of seizure and arrest in public place. -- Any officer of any of the department mentioned in Section 42 may -- (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance article 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 an offence punishable under Chapter IV relating to such drug or substance; Criminal Appeal No. 2249-SB of 2003 13 (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be useful, arrest him and any other person in his company. 15-A. A conjoint reading of Sections 42 and 43 of the Act, shows that these sections are independent of each other. Section 43 authorises any Officer of the departments, mentioned in Section 42, for search, seizure, arrest and detention in any public place, or in transit, in respect of any narcotic drug or psychotropic substance, in respect of which, he has reason to believe that an offence punishable under Chapter IV has been committed, whereas, Section 42 of the Act empowers the Officer for search, seizure and arrest in a building, conveyance or enclosed place. When the information is with regard to concealment of some narcotic, in a truck, in transit, then the provisions of Section 43 of the Act are applicable. The word 'public place' has been explained for the purpose of Section 43 of the Act, which includes any public conveyance, hotel, shop or other places intended for use or accessible to the public. 16. A Division Bench of this Court in Dharminder Kumar Vs. State of Punjab, 2002(4) RCR (Crl.)278, has held as under :- “Thus it is evident that if seizure is made from any animal, conveyance or article in a public place or in transit then Section43 of the Act would be applicable. Section 43 and Section 42 Criminal Appeal No. 2249-SB of 2003 14 of the Act operate in different spheres. Since the conveyance has been specifically included in Section 43 of the Act also, therefore, the conveyance which is found in a public place or in transit would be covered under the provisions of Section 43 of the Act whereas conveyance used in Section 42 of the Act has to be read as conveyance which is other than a public place. This interpretation is the only harmonious interpretation of Sections 42 and 43 of the Act.” 16-A. It is well settled principle of law, that the provisions of a Statute, are to be construed, in harmonious manner, so that none of the same is rendered nugatory. By harmonious construing the provisions of Sections 42 and 43 of the Act, it can be safely concluded, that if a conveyance is intercepted or apprehended at a public place, or in transit, then the provisions of Section 42 of the Act, would not be applicable. 17. It was held in State of Haryana Vs. Jarnail Singh and others 2004(2) RCR (Crl.) 960 (SC), as under :- “7. Section 43 of the NDPS Act provides that any officer of any of the departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression “public place” includes any public Criminal Appeal No. 2249-SB of 2003 15 conveyance, hotel, shop, or other place intended for use by, or accessible to the public. 8. Sections 42 and 43, therefore, contemplate two difference situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the truck between sunset and the sunrise.” In view of the principle of law, laid down, in the aforesaid cases, the trial Court was right, in holding that since the provisions of Section 42 of the Act were not applicable, to the facts of the instant case, the question of compliance of the same did not at all arise. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 18. Coming to the conscious possession of the contraband, it may be stated here, that Balbir Singh, was the driver of the truck. No doubt, 20 bags, each containing