Criminal Appeal No.127-DB of 2000 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Lakha Singh and another APPELLANTS VERSUS State of Punjab RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE RAM CHAND GUPTA Present:- Shri A.P.S.Deol, Senior Advocate with Shri Devinder Bir Singh, Advocate for the appellants. Ms.Gurvin Kaur, Additional A.G. Punjab. MEHTAB S.GILL, J. This is an appeal against the judgment/order dated 29.1.2000 of the Special Judge, Mansa vide which he convicted Lakha Singh son of Teja Singh and Karamjit Singh son of Gurdev Singh under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced them to undergo RI for 12 years and to pay a fine of Rs.1 lac each, in default to further undergo RI for 2 years each. Criminal Appeal No.127-DB of 2000 -2- The case of the prosecution is that Gurdeep Singh Inspector along with SI Avtar Singh, ASI Paramjeet Singh, ASI Gurdev Singh, Constables Kanwaljit Singh, Avtar Singh, Chanan Singh and SPO Harjinder Singh, who were coming on a mini government vehicle No.PB-03-3170, driven by Naib Singh stopped at Bus Stand Ralla, for checking of suspected persons. A special informer gave information that Lakha Singh son of Teja Singh of Village Burj Hari Ka, presently staying at Mansa Mandi who was the owner of truck No.HNN 3027 and Karamjit Singh son of Gurdev Singh of Village Burj Rathi, both sold poppy husk in heavy quantity by bringing it in the said truck. If a raid is conducted, poppy husk in heavy quantity could be recovered. Ruqa Ex.PD was sent to the Police Station Boha for registration of a case. This ruqa Ex.PD dated 3.10.1996 was sent by Inspector Gurdeep Singh to Police Station Joga from Bus Stand Ralla at 6.30 p.m. for registration of case. On receipt of the Ruqa Ex.PD, F.I.R. Ex.PD/1 was registered against Lakha Singh and Karamjit Singh in Police Station Joga. Copy of the F.I.R. Ex.PD/1 was sent to Inspector Gurdeep Singh. The prosecution to prove its case, brought into the witness-box SI Hardevinder Singh PW-1, HC Ganga Ram PW-2, Siri Ram Registration Clerk PW-3, Inspector Gurdeep Singh PW-4 and SI Avtar Singh PW-5. Amarjit Singh DW-1 was examined in defence. Learned counsel for the appellants has argued that provisions of Sections 41 and 42 of the Act were not complied with. Secret information was received by Investigating Officer Inspector Gurdeep Singh PW-4 on 3.10.1996, on the basis of which Ruqa Ex.PD was prepared and F.I.R. Ex.PD/1 was recorded. From 3.10.1996 to 6.10.1996 search was conducted for finding of the truck. No warrants of arrest were got issued as required under Sections 41 and 42 of the Act for the search and seizure of the house of the appellants. As per the Investigating Criminal Appeal No.127-DB of 2000 -3- Officer, Inspector Gurdeep Singh PW-4, a raid was conducted at the houses of the appellants at 8.30 p.m. in the night. The Investigating Officer Inspector Gurdeep Singh PW-4 could not have entered the houses of the appellants without a warrant and thus violated the provisions of Sections 41 and 42 of the Act as he had ample time to procure search warrants from the competent Court. This was in clear violation of the law laid down in Criminal Appeal No.36 of 2003 Karnail Singh v. State of Haryana and Criminal Appeal No.606 of 2004 decided by the Hon'ble Supreme Court on 29.7.2009. In support of his contention, learned counsel for the appellants relied upon judgments of the Hon'ble Supreme Court in Koluttumottil Razak v. State of Kerala (2000) 4 S.C.C. 465 and State of West Bengal and others v. Babu Chakraborthy (2004) 12 S.C.C. 201, which cover the case in hand. Seizure of the truck was made on 7.10.1996 after a gap of 4 days and that also, on another secret information given to the Investigating Officer Inspector Gurdeep Singh PW-4 on 7.10.1996, that the truck could be apprehended which was coming from the side of Village Bhikhi. Since the second secret information was a fresh occurrence, a fresh D.D.R. should have been registered and the Investigating Officer could not have carried on his investigation as per the F.I.R. Ex.PD/1, on the basis of the previous secret information given on 3.10.1996. Though the truck number was known to the Investigating Officer Inspector Gurdeep Singh PW-4, but he did nothing from 3.10.1996 to 6.10.1996 to take the truck into custody. Learned counsel for the State has argued that the evidence of the Investigating Officer Inspector Gurdeep Singh PW-4 is truthful and convincing. D.S.P. Joginder Singh Kahlon could not be produced before the Court as he died. The case property was handed over to HC Ganga Ram PW-2 who sent it to the Criminal Appeal No.127-DB of 2000 -4- Chemical Examiner on 17.10.1996. Siri Ram Registration Clerk PW-3 proved that Karamjit Singh appellant was the owner of truck No.HNN-2037. We have heard the learned counsel for the parties and perused the record with their assistance. As per Ruqa Ex.PD, secret information was received by the raiding party headed by Investigating Officer Inspector Gurdeep Singh PW-4 on 3.10.1996 at 6.30 p.m. In his statement before the Court, he has stated that on 7.10.1996 he recorded D.D.R. Ex.PD, on the basis of which F.I.R. Ex.PD/1 was registered. He raided the house of appellant Lakha Singh at Village Burj Rathi on the same day at 8.30 p.m. and also the house of appellant Karamjit Singh on the same night. The Investigating Officer did not comply with the provisions of Sections 41 and 42 of the Act. Nothing was done by Investigating Officer Inspector Gurdeep Singh PW-4 from 3rd to 6th of October, 1996. It was incumbent upon Inspector Gurdeep Singh PW-4 to obtain a warrant of arrest against the appellants. Inspector Gurdeep Singh PW-4 has stated that on 7.10.1996 he received secret information that both the appellants/accused were present in truck No.HNN-3027 and could be apprehended. No D.D.R. has been registered on the second information which he got. Investigating Officer Inspector Gurdeep Singh PW-4 did not make any efforts to have warrants of arrest issued against the appellants by the competent Court. This itself is a violation of the provisions of Sections 41 and 42 of the Act. He had ample time to have the warrants issued so that provisions of Sections 41 and 42 of the Act, could be complied with. It seems to be a case of plantation of poppy husk on the appellants. A doubt is created in our mind the benefit of which is given to the appellants. Appeal is allowed. Appellants are acquitted of the charge framed against Criminal Appeal No.127-DB of 2000 -5- them. They be set free forthwith, if not required in any other case. ( MEHTAB S.GILL ) JUDGE ( RAM CHAND GUPTA ) October 20, 2009 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO