Criminal Appeal No. 445-DBA of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 445-DBA of 1998 Date of decision : 13.5.2008 **** State of Punjab and others .....Appellants Versus Kharaiti Lal and another ...Respondents **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. D.S. Brar, Deputy Advocate General, Punjab for the appellant. Mr. R.S. Bajaj, Advocate. S. D. ANAND, J. This appeal had initially been filed against respondent-accused Kharaiti Lal and Gurmit Singh. As per a copy of death certificate placed on record today, respondent no.2 Gurmit Singh is dead. Appeal against him shall stand abated. It survives for consideration only qua respondent- accused-Kharaiti Lal . The exoneration of the respondent/accused (in complaint case under Section 21/29/25 of the Narcotic Drugs & Psychotropic Substances Act, 1985 launched by the Customs department was essentially based Criminal Appeal No. 445-DBA of 1998 -2- **** upon the premise that there was non compliance with the provisions of Section 50 and 42 (1) of the Act. As apparent from the record the provisions of Section 42(1) of the Act were not complied with. Those provisions are reproduced as under in toto for the facility of reference:- “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 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 to empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons 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 Criminal Appeal No. 445-DBA of 1998 -3- **** which is liable for seizure or freezing or 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 property7 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 affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search Criminal Appeal No. 445-DBA of 1998 -4- **** 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.” As per the facts available on the file, the Customs Officer who headed the raiding party did not record indicated reasons for authorisation and he also did not forward a copy of the authorisation to his immediate official superior within 72 hours of the conducting of raid. Further, the case property and the samples were deposited with Resham Singh, Inspector Malkhana, Customs House on 15.6.1996. The impugned recovery had been effected on 12.6.1996. There is no explanation on the file why Satish Mehta retained the case property and samples with him from 12.6.1996 to 15.6.1996. The relevant part of discussion recorded by the learned Trial Judge is reproduced as under:- “Resham Singh, Inspector PW3, stated that the case property bore the seal No. 108 of the Customs Department. Why Satish Mehta kept the case property and the samples with him from 12.6.96 to 15.6.96, is not known. Whether the property remained intact or tampered with by him from 12.6.96 to 15.6.96 until the same was allegedly deposited with Resham Singh, Inspector Cutoms House Malkhana, Amritsar, is also not known. Resham singh stated that it was on 17.6.96 that the Criminal Appeal No. 445-DBA of 1998 -5- **** samples of this case, were handed over to B.D. Tyagi, Inspector Customs by him for the purpose of analysis. Satish Mehta PW1, stated that on 18.6.96, he obtained samples from Resham Singh Incharge Malkhana, vide from Ex.PJ and after obtaining the samples, he handed over the same to B.D. Tyagi Inspector Customs, for taking the same to the Central Revenue Laboratory, New Delhi. On the other hand, the affidavit Ex.PQ of B.D. Tyagi is somewhat different. He stated that he alongwith SAtish Mehta obtained two samples of 5 grams each on 17.6.96, from the Customs Malkhana, Amritsar, on 18.6.96, he obtained test memo from Satish Mehta for analysis of the samples, in the Laboratory and on 19.6.96, he went to Delhi along with the samples for deposit thereof. The evidence of Resham Singh, inspector, PW3, Satish Mehta, PW1 and B.D. Tyagi, PW5, is contradictory on this point. In case on 18.6.96, the samples, were handed over to Satish Mehta, by the Malkhana Incharge, Customs House, Amritrsar, the question of handing over the same on 17.6.96 to B.D. Tyagi, by the said Incharge of Customs House, Malkhana, did not at all arise. This discrepancy remained un-explained, on the record. B.D. Tyagi, vide his affidavit Ext. PQ, further testified that on 19.6.96, he went to Delhi for the purpose of deposit of the samples. On 20.6.96, when he went to the Central Revenue Laboratory, for deposit, they raised an objection that the authority letter had not been attested by the Assistant Criminal Appeal No. 445-DBA of 1998 -6- **** Commissioner. The officials of the said Laboratory, refused to obtain the samples. He further testified that on 21.6.96, he came back from Delhi. On 22.6.96, and 23.6.96, the offices were closed on account of Saturday and Sunday. On 24.6.96, he told the Assistant Commissioner, regarding the objection raised by the Laboratory. On 25.6.96, the Assistant Commissioner, Customs, gave an authority letter in the name of Inspector Hansa Singh, and on 26.6.96, both the samples, were handed over by him, to Hansa Singh, Inspector. From the affidavit and evidence of this witness, it is evident that right from 17.6.96 to 26.6.96 i.e. for a period of 9 days, he kept the samples with him. Why did not he deposit the same, in the Malkhana from 21.6.96 to 26.6.96 is not known. There is also, no cogent and convincing evidence, on the record, that the samples remained intact or were tampered with by B.D. Tyagi, till the same remained with him. Hansa Singh, PW, vide affidavit Ex.PO, stated that on 26.6.96, he want handed over two samples of 5 grams each and he went to C.R.C.L. Laboratory, Delhi, on 27.6.96 and deposited the same there and none tampered the same till the same remained in his custody. From 12.6.96 until 26.6.96, the samples were dealt with at different levels. For many days, the same were not deposited, in the Malkhana. There was certainly a delay of about 14 days, in depositing the samples in C.R.C.L. Laboratory, Delhi. Seal No. 108, remained with Satish Mehta, as there is no evidence, Criminal Appeal No. 445-DBA of 1998 -7- **** that he ever deposited the same, in the Malkhana.” We find ourselves in agreement with the finding, and also the reasoning recorded in support thereof, by the learned Trial Judge. There being nothing at all perverse in the manner of appreciation of evidence and legal exposition of the law at the hands of learned Trial Judge, we do not feel called upon to interfere. In the light of the foregoing discussion, we have no hesitation in holding that the present plea must be invalidated and we so order accordingly. ( S. D. ANAND ) JUDGE May 13, 2008 (ADARSH KUMAR GOEL) Pka JUDGE