IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. 360 of 1995 Decided on: 3.3.2010 State of H.P. ..…Appellant Versus Phool Kumar & another ..…Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting?1Yes For the appellant : Mr. Vivek Thakur, Additional A.G. with Mr. R.M. Bisht, Deputy A.G. For the respondents : Mr. N.D. Sharma, Advocate. Deepak Gupta,J. (Oral) This appeal by the State is directed against the judgment of the learned Additional Sessions Judge, Sirmour, Camp at Solan dated 26.11.1994 in Sessions Trial No. 9-NS/7 of 1994, whereby he acquitted the accused of having committed an offence punishable under Sections 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’). 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 The prosecution story in brief is that on 17.10.1993 PW-8 SI Niranjan Singh, SHO Police Station, Dharampur was on patrolling duty. According to the prosecution while the patrolling was going on, secret information was received by PW-8 at about 2.00 A.M. that the accused persons were coming from Solan side towards Dharampur on Scooter No. DEJ-8809 alongwith some contraband substance. On receiving this information, PW-8 also associated PW-1 Mehar Singh and another independent witness Charanjit Singh (since deceased) with the raiding party and then set up a Nakka near “Patta Mor”. At about 4.00 a.m. the accused persons came on the scooter in question. The scooter was got stopped. Accused Phool Kumar was driving the scooter and accused Dinesh Kumar was the pillion rider. The Investigating Officer told that he was suspicious that the accused were carrying some contraband substance and wanted to search them and also their scooter. He gave them an option of being searched by him or before a gazetted officer. The accused agreed to be searched by him. Nothing was recovered from the personal search. However, on search of the scooter below the petrol tank ‘Charas’ was recovered which on weighment was found weight of 2 Kgs. 650 grams. PW-8 separated a sample of 100 grams of Charas and sealed it with seal impression ‘H’. The seal was handed over to PW-1 Mehar Singh. The case property was then taken into possession vide memo Ext.PC. In the meantime, Additional SP also arrived at the spot and the accused persons alongwith the recovery memo were produced before this officer. The Additional 3 SP then attested the recovery memo and sealed parcel of the Charas. Ruka Ext. PF was sent for the registration of a case through Constable Ram Paul on the basis of which formal FIR was registered. Accused persons were arrested. Thereafter the case property was deposited by PW-8 with PW-4 Ram Gopal, MHC, Police Station, Dharampur, who made requisite entry in the Malkhana register. Sample of charas was sent through PW- 5 LHC Jagtar Singh for analysis to the Public Analyst, Kandaghat alongwith road certificate. On analysis the sample was found to be that of charas. On this basis challan was filed against the accused. Both were charged for committing an offence punishable under Section 20 of the Act. The accused were acquitted mainly on two grounds. Firstly that there was non-compliance of Section 42 of the Act and secondly that the provisions of Section 50 has not been complied with. As far as Section 50 is concerned, in our considered opinion, the same may not be applicable to the facts of the present case since admittedly the charas in question was not recovered from the person of the accused but from the scooter in question. This, therefore, does not appear to be a case of personal search and even if there was non-compliance of Section 50, it would not be fatal to the prosecution. Section 42 of the Act reads as follows:- “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 4 in this behalf by general or special order by the Central Government, or any such officer (being any 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 it 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 office 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 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 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 therefore 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 reasons to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property 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 any offender, he may enter and search such building, conveyance or enclosed place at any 5 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 sent a copy thereof to his immediate official superior.” Section 42 of the Act provides that any police official duly authorized on receiving any information of a contraband substance being kept or concealed in a building, conveyance or enclosed place should immediately take down the said information. Even according to PW-8 and other prosecution witness, they had received specific information that the contraband was being carried by the accused on scooter No. DEJ-8809. A scooter is a conveyance falling within the ambit of Section 42 of the Act. Therefore, the information had to be recorded in writing. The law at the relevant time was that this information was required to be immediately sent to the superior officer. Neither was information recorded nor sent to the superior officer. Another aspect of the case is that admittedly the search in this case took place after sunset and before sunrise. Therefore, in the light of provision of Section 42(1) the officer before searching the conveyance was required to record the grounds of his belief that he could not obtain a search warrant or authorization without affording opportunity for the concealment of evidence. The State relies upon the Judgment of the Apex Court in Karnail Singh vs State of Haryana, (2009) 8 Supreme Court Cases 539 in which the Apex Court has held that it is not always necessary for the police to record the information in 6 writing immediately. One of the examples given is of a case where secret information is received by a police official while on patrol and in such circumstances the Apex Court has held that if it is not possible or feasible to record the information, then mere non-recording of the same in writing is not fatal to the prosecution case. The following observation of the Apex Court are relevant to our case:- “In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [ of the nature referred to in sub-section (1) of Section 42] from any person had to record it in wiring in the register concerned and forthwith sent a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally 7 precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the 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. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 Act 9 of 2001.” In the present case the evidence led on record by the prosecution clearly shows that PW-8 SI Niranjan Singh had received prior information much earlier and the case set up that this information was received while on patrolling duty is totally 8 false. The independent witness PW-1 Mehar Singh has in his examination-in-chief itself clearly stated that on the evening prior to the search he was called by PW-8 Niranjan Singh and asked to join the raiding party. This witness was never declared hostile nor any attempt made by the prosecution to cross- examine him on this aspect. In cross-examination by the accused he clearly states that the police official had called him to the police station on the previous evening and disclosed to him that they had received secret information about some charas being smuggled and, therefore, he was required to be associated with the raiding party. PW-2 Ram Paul was a member of the raiding party. According to him the naka in question had been laid at 11.30 p.m. at night. This is contrary to the version of PW-8. Admittedly, no other vehicle except the scooter in question was asked to halt at the naka. It is, therefore apparent that prior information had been received. This witness also stated that when the naka was laid PW-1 Mehar Singh was also present. Why would Mehar Singh have been associated with the raiding party at 11.30 in case prior information was received thereafter. PW-6 ASI Baldev Singh stated that at 2.00 a.m. a secret information was received by PW-8 while they were on patrolling duty about two youths carrying contraband substance on scooter No. DEJ-8809. At this stage PW-8 Niranjan Singh included Mehar Singh and Charanjit Singh in the raiding party. Thereafter, the scooter was stopped at 4.00 a.m. and search conducted. In cross-examination this witness stated that he had met PW-8 Niranjan Singh at 12.00 midnight while he was 9 on patrol duty on foot and they went walking to the Shiv temple on foot. He admits that no vehicle was checked while they were on patrolling. PW-8 states that he received the secret information at 3.30 a.m. This part of his testimony is contrary to the testimony of PW-6 and PW-1. According to this witness he had sent a police driver to call PW Mehar Singh from his house and same driver called Charanjit Singh. The name of the police driver has not been disclosed. It is doubtful whether any driver was on the spot because according to PW-6 they had walked from Dharampur to Patta Mor on foot. True it is that PW-8 states that they had gone in a tempo truck but no record of such truck has been produced. He also admits that except the two wheeler in question no other vehicle was searched. Another aspect of the matter which requires consideration is that admittedly Mehar Singh worked in the P.A. Pinion Factory which is near the Police Station, Dharampur He has also appeared as witness for the police in 4-5 other cases. The naka was set up near the Shiv Mandir at Patta Mor which is between Kumarhatti and Dharampur. The Police Station is on the other side of Dharampur towards Kalka. Assuming for the sake of arguments that no witnesses were available at the spot itself, there is no explanation why no witnesses were associated from Dharampur town itself which is about one K.M. short of the police station and why these two stock witnesses were got from near the police Station. This also lends credence to the defence version that in fact the entire raiding party had been constituted at 11.30 a.m. as deposed by PW-1 and not later as 10 deposed by the Investigating Officer. Therefore, violation of Section 42 is writ large. In view of the above discussion, we find no merit in the appeal, which is accordingly dismissed. Bail bonds, if any, furnished are discharged. (Deepak Gupta),Judge. (Sanjay Karol), Judge. March 3, 2010 (vs)