IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.799-SB of 2002 Date of Decision : January 23, 2008 Beero W/o Dev Singh ....Appellant resident of Patti Charanpuri, Ward No.4, Langeri Road, Mahilpur, Distt.Hoshiarpur Versus The State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM S-/UNDER Present: Mr. H.S.Rakhra, Advocate for the appellant. Mr. O.P.Dabla, AAG, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence dated 26.4.2002, rendered by the Court of Special Judge, Hoshiarpur, vide which it convicted the accused/appellant Beero, for the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called as 'the Act' only) and sentenced her to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lac, and in default of payment of the same, to undergo rigorous imprisonment for another period of six months. 2. The facts, in brief, are that on 15.6.2001, Sital Singh, Sub Inspector alongwith Balbir Singh, ASI, Sohan Singh, ASI and other police officials, was present near Milan Palace, Hoshiarpur, in connection with patrol duty and checking the suspects, when a secret information was received by him, that Beero was sitting on two bags of poppy husk, on the katcha passage going to village Dohlron, and was waiting for conveyance for taking the bags to some other place, and if the raid was conducted, the bags of poppy husk could be recovered. Rakesh Kumari, Lady Constable, was summoned, at that place, through wireless message, and she was joined with the police party. Efforts were Crl. Appeal No.799-SB of 2002 (2) also made by Sital Singh, Sub Inspector, to join an independent person, but he showed his helplessness. Thereafter, the police party went to the said place, and found Beero accused sitting on two bags of poppy husk. The search of the bags was conducted in accordance with the provisions of law. Each bag was containing 35 Kgs. poppy husk. Two samples were taken out. The samples and the remaining poppy husk, were converted into parcels, duly sealed, and taken into possession. The personal search of the accused was also conducted, as a result whereof, a sum of Rs.105/- was recovered. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On her appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Section 15 of the Act, was framed against her, to which she pleaded not guilty and claimed trial. 4. The prosecution, in support of its case, examined Sohan Singh, ASI (PW-1), Kewal Singh, MHC (PW-2), Ranjit Singh, C-I (PW-3), Kuldip Singh, DSP (PW-4), Sital Singh, SI (PW-5), Balbir Singh, ASI (PW-6), and thereafter, the Addl. PP for the State, closed the prosecution evidence. 5. The statement of the accused under Section 313 Cr.P.C., was recorded, and she was put all the incriminating circumstances, appearing against her, in the prosecution evidence. She pleaded false implication. She, however, did not lead any defence evidence. 6. After hearing the Addl. PP for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 7. Feeling aggrieved against the judgment of conviction and the order of sentence, rendered by the lower Court, the instant appeal, was filed by the accused/appellant. Crl. Appeal No.799-SB of 2002 (3) 8. I have heard the learned counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant, at the very outset, contended that though there was a specific secret information against the accused, that she was in possession of poppy husk and the same could be recovered, if the raid was conducted, yet that information was not reduced into writing by the Investigating Officer nor was sent to the Officer superior, and, as such, there was violation of the provisions of Section 42, which are mandatory in nature, as a result whereof, the accused was entitled to acquittal. The submission of the counsel for the appellant, in this regard appears to be correct. In the ruqa Ex.PE, on the basis whereof, FIR Ex.PE/1 was recorded, there is nothing, that on receipt of the secret information, from a secret informer, against the accused, that she was in possession of poppy husk, the information was reduced into writing and sent to the superior Officer. Even Sital Singh, Sub Inspector, did not state even a single word, that after receipt of secret information, against the accused, the same was reduced into writing, and sent to the Officer superior. The Counsel for the respondent also did not dispute this factum, that the secret information was not reduced into writing nor was sent to the Officer superior. In State of Punjab Vs. Balbir Singh, 1994(1) RCR Criminal 737, the provisions of Section 42 were held to be mandatory in nature. It was further held that non-compliance thereof would entitle the accused to acquittal. Since, in the instant case, the provisions of Section 42 were not complied with, the accused was entitled to acquittal. The trial Court was wrong in holding otherwise. The submission of the Counsel for the appellant, is accordingly, accepted. 10. It was next submitted by the Counsel for the appellant, that the case of the prosecution was highly doubtful as Exs.DA and DC, which are the photocopies of the Exs. PA and PB, do not bear the photo impression of the thumb impression of Beero. It was admitted by Kuldip Singh, DSP, during the Crl. Appeal No.799-SB of 2002 (4) course of his cross-examination that Ex.DA is the photocopy of the consent memo Ex.PB. He further admitted that thumb impression of the accused, did not appear on photocopy Ex.DA. Exs.PA and PB of which Exs. DA and DC are the correct photocopies, however, bear the thumb impression of accused Beero. Non-appearance of the thumb impression of Beero accused on Exs. DA and DC photocopies, clearly proved that Exs. PA and PB were not prepared in the manner, deposed to by the prosecution witnesses. It can also be said that these documents were created later on, on which the thumb impressions of Beero accused were obtained subsequently. Even, both these documents do not bear the signatures of Rakesh Kumari, Lady Constable, who was summoned. Had any explanation been furnished as to why Exs. DA and DC, correct carbon copies of Exs. PA and PB, were not bearing the thumb impression of the accused, the matter would have been considered, in the light of the same. In the absence of any explanation, whatsoever, the Court cannot coin any of its own, to fit in with the prosecution case. Both these documents clearly prove the false implication of the accused. 11. The Counsel for the appellant also invited attention of the Court to Ex.DB, the statement of Balbir Singh, ASI, under Section 161, which was recorded by Sital Singh, Sub Inspector, the Investigating Officer on 10.8.2001, wherein it was stated by Balbir Singh, ASI that 3 bags containing 34 Kgs. and 500 grams poppy husk each, duly sealed with the seal bearing impression 'KS' and 6 samples, containing 250 grams poppy husk each, sealed with seal, bearing impression 'KS', were handed over to him, alongwith sample seal, after taking out the same, from the Malkhana, for production before the Illaqa Magistrate. According to the prosecution witnesses, only two bags containing 35 Kgs. poppy husk each, were recovered, from the accused. It was not the case of the prosecution that 3 bags containing 35 Kgs. poppy husk each, were recovered from the accused. This document also cast a plethora of doubt, on the Crl. Appeal No.799-SB of 2002 (5) prosecution case. This clearly proved that no recovery was effected from the accused, but she was falsely implicated in the present case. The trial Court was, thus, wrong in holding the accused guilty, on the basis of such unreliable evidence. 12. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are not based on the correct appreciation of evidence and law, on the point. The same are liable to be set aside. 13. For the reasons recorded, hereinbefore, the appeal is accepted. The judgment of conviction and the order of sentence dated 26.4.2002, are set aside. The appellant shall stand acquitted of the charge framed again her. She discharged of the bail bonds. January 23, 2008 (SHAM SUNDER) Vimal JUDGE