Crl.Appeal No.1983-SB of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.1983-SB of 2007 Date of decision: 14.3.2011 Avtar Singh @ Taru … Appellant Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.S.P.S.Sidhu, Advocate, for the appellant. Mr.Rajinder Mathur, AAG, Punjab. … JORA SINGH, J. Avtar Singh @ Taru directed this appeal against the judgment of conviction and order of sentence dated 13.8.2007 passed by Judge, Special Court, Jalandhar, in Sessions Case No.356/2006, arising out of FIR No.87 dated 12.7.2005 under Section 15 of Narcotic Drugs and Psychotropic Substances Act,1985 (for short `the Act’), PS, Goraya. By the said judgment, he was convicted under Section 15 of the Act and sentenced to undergo RI for ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to further undergo RI for two years. Prosecution story, in brief, is that police party headed by SI Som Nath, SHO, Police Station, Goraya, was holding nakabandi near canal bridge of Village Lehal Kalan. At about 1.00 AM during night time, one tractor was seen while coming from the side of Village Lehal Kalan and was signalled to stop. Trailer (rehra) was attached behind Mahindra Tractor No.DI-275 of red colour. On the trailer, some heavy substance was found Crl.Appeal No.1983-SB of 2007 2 loaded covered with tarpaulin. On suspicion, driver was apprehended and on enquiry, he disclosed his name as Avtar Singh @ Taru son of Gurdev Singh. IO suspected intoxicant being transported on the trailer. Offer was given to the accused as to whether he wanted search of the trailer before any Gazetted Officer or a Magistrate. Reply of the accused was that he wanted search of the trailer before a Gazetted Officer. Consent memo was prepared. Wireless message was sent to Manjit Singh, DSP, Phillaur, to reach at the spot. ASI Om Parkash was directed to bring witnesses from the public. Chuhar Singh and Gurcharan Singh, Members Panchayat of Village Lehal Kalan, were brought by ASI Om Parkash. They were joined in the party. In the meantime, DSP Manjit Singh came at the spot along with his gunman. He had disclosed his identity to the accused as Gazetted Officer and DSP, Phillaur. Then offer was given to the accused as to whether he wanted search of the trailer before him or any other Gazetted Officer or Magistrate. Accused agreed to be searched before him. Consent memo was prepared, which was signed by the accused and attested by the witnesses. As per direction of the Gazetted Officer, IO after removing tarpaulin found 20 bags loaded on the trailer. After making arrangement to weigh the bags, two samples, each weighing 250 grams, were separated to serve as sample and remaining poppy husk on weighment was found to be 36.500 kgs in each bag. 40 samples and 20 bags of remaining poppy husk were separately sealed by the IO with his own seal bearing impression `SN’ and with the seal of Gazetted Officer bearing impression `MS'. Seal impressions of both the seals used were prepared separately. Seal of the Gazetted Officer after its use was retained by him, whereas seal of the IO after its use was handed over to Chuhar Singh. Case property was taken into police possession vide Crl.Appeal No.1983-SB of 2007 3 separate memo attested by the witnesses. 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. Statements of the witnesses were recorded. 20 sealed sample parcels were sent to laboratory and as per report of laboratory, contents of sample parcels were found to be poppy husk. After completion of investigation, challan was presented in the Court. Accused was charged under Section 15 of the Act, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 DSP Manjit Singh stated that on receipt of wireless message from the IO, he had gone to the spot. Accused was found present with the police party. Chuhar Singh and Gurcharan Singh were also with the police party. He had disclosed his identity to the accused. One tractor with trailer was also standing there. Bags were found loaded on the trailer. Offer was given to the accused as to whether he wanted the search to be conducted before him any other Magistrate. Accused reposed faith in him. On his direction, IO after removing tarpaulin, found 20 bags loaded on the trailer. Two samples, each weighing 250 grams, were separated to serve as sample and remaining poppy husk on weighment was found to be 36.500 kgs in each bag. 40 samples and 20 bags of remaining poppy husk were separately sealed by the IO with his own seal bearing impression `SN’ and with his seal bearing impression `MS'. Seal impressions of both the seals used were prepared separately. Seal of the IO after its use was handed over to Chuhar Singh, whereas his seal after its use was retained by him. Case property was taken into police possession vide separate memo attested by Crl.Appeal No.1983-SB of 2007 4 him. PW2 MHC Harjinder Pal Singh was the Incharge of Malkhana and stated that on 12.7.2005, SI Som Nath had deposited case property with him along with one tractor, rehra, mobile phone, currency notes, rope, tarpaulin and seal impressions. Entry was made in Register No.19. Case property was handed over to SI Som Nath for producing the same in the Court. After production of case property in the Court, again case property was redeposited with him. On 13.7.2005, 20 sample parcels were handed over to Constable Santokh Singh for depositing in the laboratory. PW3 ASI Om Parkash is one of the recovery witnesses. PW4 SI Som Nath is the Investigating Officer. PW5 Surinder Mohan Sharma, Jr. Assistant, DTO Office, Nawanshahr, stated that as per record, tractor No.PCV-2941 was registered in the name of Avtar Singh son of Gurdev Singh. Ex.PW5/A is the copy of entry in the register. PW6 Constable Santokh Singh tendered his affidavit (Ex.PW6/A). PW7 Amit Sharma, Ahlmad, stated that he was Additional Ahlmad of Shri L.K.Singla, JMIC, Phillaur. He can identify the handwriting and signatures of Shri L.K.Singla. Signatures of Shri L.K.Singla were identified on Ex.PW7/A. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the appellant was that he was falsely implicated in this case. He was brought from his well along with his tractor Crl.Appeal No.1983-SB of 2007 5 and trailer in the presence of Paras Ram to PP Dosanj Kalan by the police. Paras Ram, Bant Singh and Sukhbir Singh appeared before the police but he was not let off. On 1.9.2005, police had raided his house as well as houses of Partapa and Bant Singh. Partapa and Bant Singh were brought from their houses. Crl. Writ Petition No.471 of 2005 was filed. Warrant Officer was appointed. Police station was raided by the Warrant Officer on 3.9.2005. Trailer of his tractor was recovered by the Warrant Officer. Nothing was recovered from him. In defence, DW1 Gurdeep Kaur, mother of the accused, appeared and stated that on 11.7.2005, police came to her house and Avtar Singh was taken away by the police along with tractor and trailer. Paras Ram gave information that Avtar Singh was taken away by the police. No incriminating material was recovered from Avtar Singh. Bant Singh and Paras Ram had gone to the police station, then came to know that case was registered against Avtar Singh. DW2 Paras Ram stated that on 11.7.2005, police officials came and Avtar Singh was brought from his fields. Bant Singh was also present at that time. Information was given to the mother of Avtar Singh that he was taken away by the police of PS Goraya. They had gone to PS Goraya. Then reply of the police was that enquiry was to be conducted. Later on, Avtar Singh was falsely implicated in this case. Implements of tractor were also taken away by the police. On 1.9.2005, he along with Bant Singh was present in the fields. Police came and they were taken away by the police. Writ petition was filed by their relative. Ex.DX is the copy of the writ petition. Warrant Officer was appointed and Ex.DX/1 is the copy of report of the Warrant Officer. Later on, they were let off by the police. Crl.Appeal No.1983-SB of 2007 6 After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file. Learned defence counsel for the appellant argued that at about 1.00 AM during night time on the intervening night of 11/12.7.2005, police party headed by SI Som Nath, SHO, PS Goraya, was holding nakabandi near the bridge of canal minor of Village Lehal Kalan. Two independent witnesses were with the party but they were not produced for the reasons best known to the prosecution. Recovery was after sunset and before sunrise, i.e., during night time at about 1.00 AM but mandatory provisions of Section 42 of the Act were not complied with. As per Section 42 of the Act, for arrest or search between sunrise and sunset, warrant of arrest was required and if the IO was not in a position to obtain warrant of arrest, then he should have recorded reasons of his belief. In case, reasons of belief not recorded at the time of arrest or search without warrant between sunset and sunrise, then there was violation of mandatory provisions of Section 42 of the Act. On this short ground, appellant be acquitted of the charge levelled against him. Case property was sealed by the IO with his own seal and with the seal of the Gazetted Officer. Seal of the IO after its use was handed over to Chuhar Singh but he was not examined. When independent witnesses were with the party, then they should have been produced by the prosecution. Non-examination of independent witnesses shows that story was not genuine one. After recovery of intoxicant, ruqa is sent to the concerned police station and only after receipt of FIR number, then FIR Crl.Appeal No.1983-SB of 2007 7 number is written while preparing the documents later on. But in the present case, after recovery, recovery memo was prepared. Then, ruqa was sent but while preparing recovery memo, FIR number was written. When FIR number was not with the party, then there was no idea to write FIR number while preparing consent memos and recovery memo. All this shows that recovery was not effected as per prosecution story. In fact, appellant was brought from his house along with tractor and trailer. Documents were prepared in the police station simply to implicate the appellant. Appellant was brought in the presence of Bant Singh and Paras Ram. Paras Ram appeared as DW2. Bant Singh and Paras Ram were also brought from their houses. They had filed writ petition. Warrant Officer was appointed. Trailer of the appellant was found in the police station. Statement of DW2 Paras Ram shows that defence version is reasonable one. Learned State counsel argued that admittedly police party headed by SI/SHO Som Nath was holding nakabandi on the intervening night of 11/12.7.2005 and at about 1.00 AM during night time, tractor- trailer was seen while coming towards the side of naka party and was signalled to stop. Two independent witnesses were with the party. Recovery was also in the presence of Gazetted Officer but independent witnesses were not examined as won over by the appellant. If there was no recovery, then they could easily be produced in defence. Recovery was between sunset and sunrise but when recovery is per chance, then Section 42 of the Act is not applicable. Before recovery, consent memos were prepared. Space was left to write FIR number. After recovery, ruqa was sent to the police station. While preparing recovery memo, space was left to write FIR number. Only after receipt of FIR number, FIR number was Crl.Appeal No.1983-SB of 2007 8 written on all the documents, i.e., consent memos and recovery memo, where space was left to write FIR number. Something could be said if FIR number would have been written while preparing consent memos and recovery memo. DW1 Gurdeep Kaur is the mother of the appellant. She was very much interested in the acquittal of the appellant. Allegation of DW1 was that there was a raid by the police and appellant was brought to the police station. Then stated that Paras Ram informed her that appellant was brought to the police station. She did not state a word that in her presence, appellant was brought to police station and at that time, Bant Singh and Sukhbir Singh were present. Paras Ram is also interested witness because if appellant was brought from his house or well without recovery, then why he remained silent and why complaints were not sent to different authorities. Paras Ram and Bant Singh had filed writ petition and Warrant Officer was appointed but no reference of the present recovery. Earlier to the recovery, appellant had no enmity with the police party. So, without enmity, there was no idea to implicate the appellant. If police party had intention to implicate the appellant, then 5-10 kgs of poppy husk could easily be planted. There was no idea to plant 20 bags containing poppy husk. No allegation of the appellant that recovery was effected from third person but main accused was let off with ulterior motive and recovery was planted against him. According to story, 20 bags of poppy husk were recovered by the police party headed by SI Som Nath in the presence of independent witnesses and Gazetted Officer, whereas defence version of the appellant was that appellant was brought from his well on 11.7.2005 along with his Crl.Appeal No.1983-SB of 2007 9 tractor and trailer. False implication without recovery. Now the question is whether prosecution story inspires confidence or defence version seems to be more probable than prosecution story. First submission of learned defence counsel for the appellant was that on the intervening night of 11/12.7.2005 at about 1.00 AM between sunset and sunrise, recovery is without warrant of arrest. IO also failed to record his reasons of belief. When recovery is without warrant of arrest between sunset and sunrise without recording his reasons of belief, then there was violation of mandatory provisions of Section 42 of the Act. But after going through the evidence on the file, I am of the opinion that submission of learned defence counsel is not correct one. In 2007(1) RCR (Crl.) 586, Dilip and another vs. State of MP, police party headed by the SHO when came out of the gate for arresting one Shivraj Meena, then two persons had come on a scooter at a fast speed. They were stopped. On enquiry, they disclosed their names as Dilip Singh and Ramsharan. On their search, nothing was found, but on the search of the scooter, some black coloured liquid substance contained in six big plastic bags and one small plastic bag were seen, which were said to be containing opium. Ultimately, recovery was of 5 kgs. 890 grams opium. Hon'ble Supreme Court held that no contraband was found on personal search but contraband was found from the scooter. Section 50 of the Act is mandatory, even though compliance of Section 50 of the Act was not required so far search of scooter is concerned. In 1994 (1) RCR (Crl.) 736, State of Punjab vs. Balbir Singh, Hon'ble Supreme Court held that provisions of Section 50 of the Act are mandatory, but Section 50 of the Act is not attracted in case of chance Crl.Appeal No.1983-SB of 2007 10 recovery of narcotic drug-Where a Police Officer acting under Criminal Procedure Code comes across a person and on search recovered narcotic drug, then question of complying with Section 50 would not arise- Police officer who is not empowered should be allowed to search seizure under NDPS Act should inform the empowered officer who should thereafter proceed in accordance with provisions of NDPS Act- If the Police Officer happened to be empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with provisions of NDPS Act. Warrant for search and arrest in respect of offences punishable under Chapter IV should be issued by Magistrate who was empowered under the NDPS Act- Warrants issued by Magistrate not empowered to do so- Search and arrest illegal- Provisions of Section 41(1) are mandatory to this extent. Search between sunset and sunrise- Under Section 42(2) the empowered officer if has a prior information should necessarily take down in writing- If the officer has reason to believe from personal knowledge that offence under Chapter IV have to be committed, he may carry out arrest or search without warrant between sunrise and sunset- This provision does not mandate that he should record his reasons of belief, but under Section 42(1) if such officer has to carry out search between sunset and sunrise, he should record the ground of his belief. In 1999(3) RCR (Crl.) 533, State of Punjab vs. Baldev Singh, 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- Held- If search is not conducted as per option of accused, it would vitiate the conviction and Crl.Appeal No.1983-SB of 2007 11 sentence of the accused. In 2009(5) RCR (Crl.) 515, Karnail Singh vs. State of Haryana, On receipt of information, the police officer recording the information in writing, but not sending the same to immediate superior within 72 hours as required under Section 42 of the Act- There will be no violation of Section 42 if delay was satisfactorily explained. If the information was received when the police officer was in police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. But in the present case, police party headed by SI/SHO Som Nath was holding nakabandi near bridge of canal minor, then at about 1.00 AM during night time, tractor trailer was sighted while coming from the side of Village Lehal Kalan and was signalled to stop. Bags were found loaded on the trailer covered with tarpaulin. IO suspected some intoxicant being transported on the trailer. Then offer was given to the appellant as to whether he wanted search of the trailer before any Gazetted Officer or Magistrate. As per reply of the appellant, Gazetted Officer was summoned at the spot. In the meantime, ASI Om Parkash was sent to bring independent witnesses. Two witnesses, namely, Chuhar Singh and Gurcharan Singh were brought and were joined in the party. Gazetted Officer also came at the spot. Gazetted Officer after disclosing his identity to the appellant gave offer to him as to whether he wanted search to be conducted before him or any other Magistrate but the appellant had reposed faith in the Gazetted Officer. After that, as per direction of the Gazetted Officer, IO had searched the bags. Crl.Appeal No.1983-SB of 2007 12 Naka was laid by SI Som Nath, SHO, PS Goraya, near bridge of canal minor at Village Lehal Kalan, whereas village of the appellant was at a distance of about 15 kms. from PS Goraya, and about 4-5 kms. from the place of nakabandi. Admittedly, before raid, there was no secret information with the IO. While holding nakabandi, tractor-trailer driven by the appellant was sighed per chance. When recovery is from the vehicle, then Section 50 of the Act is not applicable, but even then, when IO suspected some intoxicant being transported on the trailer, then offer was given by him under Section 50 of the Act. No doubt, warrant was not obtained before search. Grounds of belief were also not recorded, but Section 42 of the Act is not applicable in case of chance recovery. In 2005(8) SCC 725, Babubhai Odhavij Patel and others vs. State of Gujrat, police party was on patrol duty in the night of 1.7.1989 and at about 5.30 AM, noticed a tanker lorry crossing Palanpur Railway Crossing line. Vehicle was signalled to stop. On search of the lorry, three cabins of tanker lorry were noticed. Police party wanted to conduct further search of the lorry. Two Panch witnesses were summoned and in their presence, search was conducted. Brown substance which smelled like opium was noticed. Recovery was of 5.5 kgs. of opium. In para No.5 of the judgment, Hon'ble Supreme Court observed as under:- “5. The counsel for the appellant further contended that the search was conducted at 5.30 AM that is, before sunrise and the PSI should have obtained a warrant or authorisation for conducting the search of the vehicle. This plea also is without any merit. The contraband substance, namely, the opium was recovered from the tanker when the Crl.Appeal No.1983-SB of 2007 13 usual search of suspected vehicle carrying such contraband was being conducted by the police officials. The police party had no previous information that any contraband substance was being concealed in any building, conveyance or enclosed space and they have to conduct a search pursuant to such information. Then only they would require a warrant or authorisation as contemplated under Section 42 of the NDPS Act. If it is a chance recovery, the procedure contemplated under Section 42 cannot be complied with and the evidence of PW2 would clearly show that it was a chance recovery.” Bladev Singh's case (supra) referred by learned defence counsel for the appellants was also taken into consideration. Ultimately, Hon'ble Supreme Court opined that Section 42 of the Act is not applicable in case of chance recovery. Contention of learned defence counsel for the appellants that police officer, who conducted the search before sunrise, should have obtained a warrant or authorisation for conducting the search of the vehicle in question, held not sustainable. In the present case also, while holding nakabandi, tractor- trailer was noticed while coming from the side of Village Lehal Kalan. IO suspected intoxicant in the bags loaded on the trailer covered with tarpaulin. Offer was given to the appellant as to whether he wanted the search to be conducted before a Gazetted Officer or a Magistrate. As per reply of the appellant, Gazetted Officer was summoned at the spot. Two independent witnesses were also joined. After arrival of the Gazetted Officer, he disclosed his identity as Gazetted Officer and DSP to the appellant. Then again offer was given to the appellant as to whether he wanted search to be Crl.Appeal No.1983-SB of 2007 14 conducted before him or any other Magistrate. After that, as per reply of the appellant, search was conducted. In Balbir Singh's case (supra), cited by learned defence counsel for the appellant, under Sections 41(1) and 42(1) of the Act, if empowered officer while effecting search or arrest in accordance with Sections 100 and 165 Cr.P.C., fails to record reasons, such a failure will not amount to an illegality vitiating the trial- Mere non-compliance with Sections 100 and 165 Cr.P.C. would not by itself vitiate the trial. In the present case, Section 50 of the Act was not applicable, but even then, offer was given under Section 50 of the Act. Section 42 of the Act was also not applicable because recovery was