1 S.B.Criminal Appeal No.158/89 (Tek Chand v. The State of Rajasthan) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T. TEK CHAND. V. THE STATE OF RAJASHAN. S. B. CRIMINAL APPEAL NO.158/89, against the judgment dated 29.04.1989, passed by Shri Chandra Singh, RHJS, Additional District & Sessions Judge, No.1, Hanumangarh Camp Sangaria, in Sessions Case No.40/87. DATE OF JUDGMENT ::: 12/08/2009 HON'BLE MR. JUSTICE C. M. TOTLA Mr. S.S.Dhillon, for Appellant (s). Mrs. Chandra Lekha, PP, for the State. BY THE COURT : Appellant aggrieved of his conviction and sentence ten years' rigorous imprisonment and the fine of Rs.1,00,000/-for offence punishable under Section 15 of the NDPS Act, recorded per judgment dated 29.4.89 in Sessions Case No.40/87 has preferred this appeal. Heard learned counsel appearing for the appellant and learned Public Prosecutor. Brief alleged facts leading to appellant's prosecution as per 2 S.B.Criminal Appeal No.158/89 (Tek Chand v. The State of Rajasthan) prosecution are that on February 10, 1987 at 4.10 P.M., Head Constable PW 5 of Police Station, Sangaria, making entry No.454 Ex.P10 in Rojnamcha, departed with four named constables for patrolling and as he in course of patrolling, received a information that a person, having crushed poppy straw, is on road near turn for Dhainba so he arrived at indicated place, and there observed a person standing near to a jute bag – on asking the person disclosed his name to be Tek Chand and when bag opened and material examined, found was crushed poppy straw - Tek Chand appellant having no license was arrested and this material about 40 Kg seized and sample of 250 gm and the remaining substance separately sealed preparing memo Ex.P2 with affixing on it impression of the seal used. Then Head Constable PW 5 returning police station, produced all with memos to SHO PW 2 who registered FIR No.37/87 Ex.P3 for the offence of Section 8 read with Section 15 NDPS Act. In course of investigation, PW 2, visiting place of occurrence, prepared memo and site plan Exs.P4 and P5. Packets of sample and substance safely kept in Malkhana, making entry Ex.P1 in the register. The sample packet deposited in laboratory along with forwarding letter Ex.P6 and g receipt Ex.P8 obtained. Report of analysis is Ex.P7. Recording statements of witnesses and after usual investigation, charge-sheet submitted. Appellant charged for the offence punishable under Section 15 of the Act that on 10.2.87 at about 7.05 P.M., on road Bhagatpur to Dhaba 3 S.B.Criminal Appeal No.158/89 (Tek Chand v. The State of Rajasthan) near turn of Dhaba in his possession and without license was about 40 kg. poppy straw – claimed trial. Of the five prosecution witnesses, examined Abdul Qayum PW 5 Head Constable, states of recovering the material from the possession of appellant – constable Subhash Chand PW 4 is one among who accompanied PW 5 for patrolling state of recovery and seizure as above. Jeewan Ram PW 2 the SHO on reporting and producing by PW 5 to him registering FIR Ex.P3, visited place of occurrence prepared memos Ex.P4 and P5. Constable Karnail Singh PW 1 deposes of being malkhana incharge and keeping the packets safe in Malkhana and of handing over sample packet to constable Suresh Kumar PW 3 who in turn deposes about depositing packet at FSL and obtaining receipt Ex.P8 . Explanation put-forth by appellant is that when he was standing at bus stand for going to village, this bag was brought and placed there by Darshan Singh who than when was away to get puncture of his bicycle repaired meanwhile did came police and seized the bag. Appellant explains that he spontaneously told of neither of bag being his, nor he knowing of contents. No defence witness preferred. Learned trial Judge inferred that complying and searching per procedure, this substance poppy straw recovered from possession of appellant – accordingly convicted and sentenced appellant. 4 S.B.Criminal Appeal No.158/89 (Tek Chand v. The State of Rajasthan) Learned counsel for the appellant argued that (1) the bag is said to have been recovered from a busy locality at about 7.00 P.M., but still is no independent witness, (2) contradictory to each other are statements of Head Constable PW 5 and Constable PW 4, (3) no evidence that the bag was in possession of appellant, (4) recovery made by Head Constable who not authorized to conduct search or seizure under Sec.42, (5) articles neither deposited with In-charge police station, nor sealed and all provisions of Sections 42, 52, 55 & 57 are violated. Learned counsel argued that forwarding letter Ex.P6 of S.P. Office to laboratory is of 16.2.87, whereas packet deposited in FSL on 5.3.87 – no evidence as to where with whom was this packet from 16.2.87 to 4.3.87. Also argued that no seal impressions were prepared, neither any so impression given and taken for depositing the same to Laboratory, so there is no question of tallying of seals. Also submitted that as per recovery officer himself, packet of substance recovered is (now) in open position allegedly so because of (destroyed by) mouses. Lastly submitted that sample allegedly taken of 250 gm, whereas in laboratory, after a month, weighed high at 370 gms. For the reasons above, submitted that substance neither proved in appellant's possession nor necessary safeguards taken and compliances of provisions made, in course of seizure and afterwards. Learned Public Prosecutor opposing submitted that Head Constable was on patrol duly and in course of patrolling, receiving information and 5 S.B.Criminal Appeal No.158/89 (Tek Chand v. The State of Rajasthan) finding it true made recovery from possession of appellant, so recovery a chance recovery. Submitted that learned Judge for cogent reasons and trustworthy evidence, arriving conclusions has rightly convicted the appellant. Considering the arguments, perused record, produced evidence and impugned judgment. Abdul Qayum PW 5 the Head Constable was on patrolling duty making entry Ex.P10 in Rojnamcha. Per entry Ex.P10 with him on patrol were constables Lal Singh 700, Subhash Chand 1291, Subhash 484 and Suresh Kumar 1291. PW 5 says that when on patrol, a informer told (informed) him at Bhagatpura that a person having poppy straw is standing on road going to Dhamba so he (PW 5) with accompanying staff reaching there found that a person was standing with a bag placed near him, on interrogating the person disclosed his name to be Tek Chand s/o. Jagannath. PW 5 deposes that when the bag (bori) opened and seen, in it was found poppy straw about 40 kg – as no license with Tek Chand – so arresting appellant, he seized poppy straw - 250 gm of sample and rest of the substance separately sealed. PW 5 further says that prepared memo of this proceeding Ex.P2 also bears impression of seal used and than he produced appellant and the sealed packets along with memo Ex.P2 before SHO. In cross-examination, PW 5 says that sample actually not weighed, but weight was estimated and the seal used, impression of which is on Ex.P2, do not remain with him but remains at PS. PW 5 says 6 S.B.Criminal Appeal No.158/89 (Tek Chand v. The State of Rajasthan) that bag was lying on road and Tek Chand standing closely, near to place is populated area of village and also quarters of water works. PW 5 also says that he produced accused and also the packets before SHO and SHO deposited packets in mlkhana. Constable Karnail Singh PW 1, the then malkhana In-charge, states that on 10.2.87, a sealed packet and a sealed sample were deposited in malkhana and he making entry Ex.P1 in register safely kept in Malkhana - in cross-examination, says that packets were deposited by IO and does not know who IO was. SHO PW 2 states that when head constable presented before him the accused, seizure memo Ex.P2 and sealed packets he registering FIR got articles deposited in malkhana and visiting place of seizure with PW 5, prepared site plan and memo Exs. P4 and 5 - in cross-examination says that both packets were deposited by Head Constable himself in malkhana. Thus, clearly appears that the packets were deposited by PW 5 in malkhana, meaning thereby the same in any way were not handled by SHO. For patrolling with Head Constable, were four constables, memo Ex.P2 bears in total six signatures and of the four accompanying constables, only one PW 4 appeared as witness. As above, PW 5 says that no weigh was available, nor procured and estimating total weight and separated sample also these sealed. According to Subhash Chand PW 4, weigh and weights were not with 7 S.B.Criminal Appeal No.158/89 (Tek Chand v. The State of Rajasthan) them, and he does not if same brought by and weighed by any, and that he did not weigh the substance because he went to call nearby persons. No independent witness of alleged recovery is, whereas PW 4 says that he was away to call someone from near locality. As above, PW 5 accepts that near is village residential locality. Similarly, PW 4 also says that near are residential quarters of water works personnel, but he could not find any independent witness. The recovery is of about 7.00 P.M. at a road turn and not at a place where no independent witnesses can be found. As per PW 5, the bag was on road and appellant standing near there. Per other witness constable PW 4, appellant was standing about a feet away of bag. As above, are contradictions about weigh, about efforts to calling other witness and also other discrepancies. Sections 42 and 43 are regarding authorization of officer and procedure of search, seizure etc. Section 42 reads like this. Section 42. Power of entry, search, seizure and arrest without warrant or authorization – (1) Any such officer of the department...................................empowered in this behalf by Central Government.........................department of a State Government as is 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 any person and taken down in writing ...........may between sunset and sunrise - (a) ............................................................... (b) .............................................................. 8 S.B.Criminal Appeal No.158/89 (Tek Chand v. The State of Rajasthan) (c) ............................................................. (d) ................................................................ Section 43. Power of seizure and arrest in public place – Any officer of any of the departments mentioned in Section 42 may - (a) seize in any person or in transit ................. of this Act. (b) ................................................................ Thus only any officers as is mentioned in Section 41-42 may conduct seizure etc. under Section 43. The effect of non-complying the provisions of Section 42 is well established and reiterated n various decisions of Hon'ble the Apex Court and as laid down in State of Punjab v. Balbir Singh (1994) 3 SCC 299. “(2-A ) .............. .................... ...................... (2-B) ................ .................... ....................... ( 2-C) Under Section 42 (1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or material which may furnish evidence of commission of such offences are concealed in any building, etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42 (1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) ........... .................... ...................... ......... 9 S.B.Criminal Appeal No.158/89 (Tek Chand v. The State of Rajasthan) (4-A) If a police officer, even if he happens to be an 'empowered' officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity. (4-B) If an empowered officer or an authorized officer under Section 41 (2) of the Act carries out a search, he would be doing so under the provisions of CrPC, namely, Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not be per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case. “ Sections 52A and 55 provides for production before and taking of charge of all seized articles by the officer in-charge of police station and also provides for subsequent procedure. Empowerment and authorization to officers under S.42 is according to State Government notification of 16.10.86 and SHO's of police stations are authorized to act and do needful per S.42. Head constables are not authorized. On behalf of the prosecution, attention is invited towards Section 74 of the Act which of transitionally provides that every employee or officer of the department exercising powers immediately before the commencement of the Act shall be deemed to have been so authorized under the Act (till such authorizations). Appellant is charged for possessing poppy straw. Section 14 of the then applicable Opium Act provide for seizure etc. by the authorized officers and Section 15 provides for resembles a little with provisions to that of Section 43 of the Act and Section 16 of Opium Act mandates the search to be made per provisions of Cr.P.C. The investigating officer can search recording grounds of his belief etc. Similar 10 S.B.Criminal Appeal No.158/89 (Tek Chand v. The State of Rajasthan) almost are the provisions in Rajasthan Excise Act. Thus, at all, if any is (deemed) to be authorized one than still other provisions and procedure regarding searches etc, including recording of reasons, are to be followed strictly and more particularly made tougher are sentencing provisions. In the instant case, search and seizure is made by Head Constable Abdul Kayum PW 5 and as described, no independent witness of the search is and of the four constables who accompanied Head Constable PW 5 one is Subhash Chand PW 4. As is observed, per P'W 5, no weighing apparatus was with them and neither brought by any one nor called from any whereas Subhash Chand PW 4 speaks that he does not know who brought the weighing apparatus. Per PW 5, he sealed on spot but also tell that seal does not remain in his custody, but remains available at police station. Subhash Chand PW 4 tells that he did go to call some persons, meaning thereby perhaps he was away at least for some minutes when proceedings undertaken by PW 5. Head Constable Abdul Kayum PW 5 deposes of producing packets and also accused with seizure memo before SHO Shri Jeewan Ram and that the SHO did deposit the packets in malkhana. In-charge malkhana constable PW 1 speaks that IO did deposit the articles in malkhana, and he do not know who I/O was and the entry does not bear name or designation of person so depositing. SHO Jeewan Ram PW 2 tells that packets were deposited by Head Constable Abdul Kayum in malkhana. As such, it certainly appears that SHO PW 2 did nothing to, for and in relation to the packets produced before him by PW 5 was not the officer in-charge of police station. As is observed, PW 5 the seizure officer admits that near the place seizure made, is populated area of the village. PW 2 and PW 5 both speak of residential area and also residential quarters of water works (water supply department) being near to that place. The place is near village and on turn of main road towards Dhamba. These elements disclose that it was a reasonable busy road. According to PW 5, the bag was lying on 11 S.B.Criminal Appeal No.158/89 (Tek Chand v. The State of Rajasthan) road and appellant standing nearby. Per SHO PW 2, vehicles of almost every type ply frequently and people continue to pass through that way. Constable Subhash Chand PW 4 who was with PW 2 says that this place where the appellant was standing is Dhamba road near Bhagwanpur and bag was at a little distance from appellant. Given the location and as it was evening around 7-7.30 the alleged fact that the appellant was there near the bag creates suspicion about only he being in possession. Thus, the person seizing was not a authorized person, even after alleged seizure, prescribed procedure is not followed. Evidence regarding recovery is not consistent, rather both witnesses on aspects above mentioned contradict to each other and officer conducting search was not one empowered under Section 42. All these circumstances, taken cumulatively, makes recovery from possession of appellant highly doubtful and he deserves to be acquitted. Accordingly, accepting the appeal, appellant Tekchand s/o. Jagannath is acquitted of the charge of Section 8/15 of the Act (for possessing 40 kg straw SC No.40/87 judgment dated 29.4.89) of NDPS Act. The bail bonds of appellant are discharged. (C.M. TOTLA),J. 12 S.B.Criminal Appeal No.158/89 (Tek Chand v. The State of Rajasthan)