Punjab-Haryana High Court
Balwinder Singh @ Lala vs State Of Punjab on 5 November, 2014
Author: Sabina
Bench: Sabina
Crl. Appeal No. S-3117-SB of 2012 (O&M) -1-
Crl. Appeal No. S-3181-SB of 2012 (O&M)
In the High Court of Punjab and Haryana at Chandigarh
1. Crl. Appeal No. S-3117-SB of 2012 (O&M)
Date of Decision: 05.11.2014
Balwinder Singh @ Lala ......Appellant
Versus
State of Punjab .......Respondent
2. Crl. Appeal No. S-3181-SB of 2012 (O&M)
Jasvir Singh ......Appellant
Versus
State of Punjab .......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Vivek Goel, Advocate
for the appellants.
Mr. Deep Singh, AAG, Punjab.
****
SABINA, J.
Vide this order, above mentioned two appeals would be disposed of as the appellants have challenged their conviction and sentence as ordered by the Judge, Special Court, Moga vide order judgment/order dated 16.10.2012 under Section 15(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 ('Act' for short) in FIR No. 148 dated 7.12.2009, registered at Police Station Sadar Moga.
Prosecution story, in brief, is that on 7.12.2009, Sub Inspector Jagtar Singh was present near railway crossing Dagru in GURPREET SINGH 2014.11.14 15:34 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No. S-3117-SB of 2012 (O&M) -2- Crl. Appeal No. S-3181-SB of 2012 (O&M) connection with Punjab Bandh along with other police officials. He received a secret information that appellant Balwinder Singh alias Lala was habitual of selling poppy straw and on that day the said appellant was sitting in the house of appellant Jasvir Singh. Appellants were waiting for customers and in case a raid was organized immediately, they could be apprehended. Ruqa was sent to the police station for registration of FIR through Constable Jagdev Singh and on the basis of the same, formal FIR was registered. Sub Inspector Jagtar Singh requested Deputy Superintendent of Police ('DSP' for short) Gurmeet Singh to reach the spot. Thereafter, the police party reached the house of appellant Jasvir Singh. Both the appellants were sitting on a cot. On seeing the police party, appellants tried to escape. Balwinder Singh appellant managed to escape whereas appellant Jasvir Singh was apprehended at the spot. In the meantime, Jasbir Singh son of Thana Singh reached the spot and was joined as an independent witness with the police party. Thereafter, DSP Gurmeet Singh introduced himself to appellant Jasvir Singh and apprised him of his right that he could get the search conducted in the presence of a Magistrate or another gazetted officer. Appellant Jasbir Singh reposed confidence in the DSP. In this regard, a consent memo was prepared. Thereafter six gunny bags lying in the front room of the house in a corner, were searched and poppy husk was recovered from the said bags. Sample weighing 250 grams was separated from each bag and the remaining poppy husk on weighment came to 34 kilograms and 750 grams in each bag. The samples were made into sealed parcels and were sealed with seal bearing impression 'JS' (of sub Inspector Jagtar Singh) and 'GS' (of DSP GURPREET SINGH 2014.11.14 15:34 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No. S-3117-SB of 2012 (O&M) -3- Crl. Appeal No. S-3181-SB of 2012 (O&M) Gurmeet Singh). The remaining poppy was also made into sealed parcels. The samples as well as parcels containing bulk poppy husk, were taken in possession. Seal after use was handed over by Sub Inspector Jagtar Singh to Assistant Sub Inspector ('ASI' for short) Raghubir Singh whereas the DSP retained his seal with him. Special report (Ex. P-13) was sent on 8.12.2009. On return to Police Station, Sub Inspector Jagtar Singh kept the case property in his safe custody. Accused Jasvir Singh was produced before the Area Magistrate on 8.12.2009.
On 2.4.2010, appellant Balwinder Singh was arrested by ASI Raghubir Singh. After completion of investigation and necessary formalities, challan was presented against the appellants.
Charge was framed against the appellants under Section 15(c) of the Act vide order dated 2.8.2010.
In order to prove its case, prosecution examined eight witnesses during trial.
Appellant Balwinder Singh when examined under Section 313 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short), after the close of prosecution evidence, pleaded that he was innocent and was not present at the spot. He had no concern with the recovered poppy husk in question and had been falsely involved in the case.
Appellant Jasvir Singh when examined under Section 313 Cr.P.C. prayed that he was innocent and was not present at the spot at the time of alleged recovery. He had no concern with the house from where the recovery had been effected. He was not the owner of the house and had been falsely involved in the case. GURPREET SINGH 2014.11.14 15:34 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No. S-3117-SB of 2012 (O&M) -4- Crl. Appeal No. S-3181-SB of 2012 (O&M) Appellants did not examine any witness in their defence. Learned counsel for the appellants has submitted that prosecution had miserably failed to prove its case. Appellants had been falsely involved in this case. Both the appellants were not related to each other. So far as appellant Balwinder Singh is concerned, he was not arrested at the spot and had been falsely involved in the case at a later stage and his identity had not been established during trial. Learned counsel has further submitted that there was non compliance of mandatory provision of Section 42 of the Act. The investigating officer had failed to send the information in writing forthwith to immediate superiors. In this regard, learned counsel for the appellants has placed reliance on 'Karnail Singh versus State of Haryana 2009(5) R.C.R. (Criminal) 515, wherein it was held as under:-
"17. In conclusion, what is to be noticed is 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 Section 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 writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).
GURPREET SINGH
(b) But if the information was received when the 2014.11.14 15:34 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No. S-3117-SB of 2012 (O&M) -5- Crl. Appeal No. S-3181-SB of 2012 (O&M) 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 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 of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory GURPREET SINGH 2014.11.14 15:34 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No. S-3117-SB of 2012 (O&M) -6- Crl. Appeal No. S-3181-SB of 2012 (O&M) explanation about the delay will be acceptable compliance of section 42. To illustrate, 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 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 by Act 9 of 2001."
Learned State counsel, on the other hand, has submitted that appellant Balwinder Singh was duly named in the FIR. In fact, as per the prosecution case, secret information had been received by the investigating officer that Balwinder Singh, who was habitual of selling poppy husk, was present in the house of appellant Jasvir Singh. Substantial compliance of Section 42 of the GURPREET SINGH 2014.11.14 15:34 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No. S-3117-SB of 2012 (O&M) -7- Crl. Appeal No. S-3181-SB of 2012 (O&M) Act had been made in this case as the information was sent to the superior officer on the next day of the alleged recovery. Moreover, on receipt of information, ruqa was immediately sent to the police station for registration of case. DSP as well as the independent witness were joined at the time of raid.
In order to prove its case, prosecution examined Sub Inspector Jagtar Singh as PW-5. The said witness has deposed as per the prosecution case. Statement of PW-5 Jagtar Singh is corroborated by PW-7 DSP Gurmeet Singh qua the raid which resulted in recovery of six bags of poppy husk from the house of appellant Jasvir Singh. PW-3 ASI Hakam Singh has also corroborated the statement of PW-5 Sub Inspector Jagtar Singh on material aspects. Thus, from the statements of the official witnesses, it stands duly established that the appellants were apprehended with the contraband. However, at the time of raid, appellant Balwinder Singh managed to escape whereas appellant Jasvir Singh was arrested at the spot with the contraband. The raid was conducted in the presence of gazetted officer DSP Gurmeet Singh and appellant Jasvir Singh had reposed faith in the said officer at the time of recovery.
So far as the argument raised by learned counsel for the appellants that there was non compliance of Section 42 of the Act is concerned, the same is liable to be rejected. In the present case, as per Sub Inspector Jagtar Singh, he had received the information that in case a raid was organized immediately, appellants could be apprehended with the contraband in the house of appellant Jasvir Singh. Ruqa was immediately sent to the police station for registration of FIR and DSP Gurmeet Singh was called to the spot. GURPREET SINGH 2014.11.14 15:34 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No. S-3117-SB of 2012 (O&M) -8- Crl. Appeal No. S-3181-SB of 2012 (O&M) Information was sent to the higher police officials on the next day qua the recovery of the contraband. In these circumstances, in the present case, it can be said that there was substantial compliance of Section 42 of the Act. Hence, the judgment relied upon by the learned counsel for the appellants fails to advance the case of the appellants in the facts of the present case.
There is also no force in the arguments raised by the learned counsel for the appellants that the identity of appellant Balwinder Singh was not established by the prosecution. PW-3 ASI Hakam Singh had deposed in his cross-examination that Sub Inspector Jagtar Singh could tell about the identity of the accused who had run away from the spot. PW-5 Sub Inspector Jagtar Singh had deposed in his cross-examination that appellant Balwinder Singh alias Lala had been identified by ASI Basant Singh and Head Constable Jaswinder Singh. PW-8 ASI Raghubir Singh, who had arrested appellant Balwinder Singh, deposed that the said appellant had been identified by Head Constable Jaswinder Singh. During trial, Head Constable Jaswinder Singh was given up as unnecessary. In view of the statement made by Sub Inspector Jagtar Singh and ASI Raghubir Singh, the fact that Head Constable Jaswinder Singh was not examined during trial, is not fatal to the prosecution case as the statements of PW-5 Sub Inspector Jagtar Singh and PW-8 ASI Raghubir Singh inspire confidence. The official witnesses were acting in discharge of their official duties and had no reason to falsely involve the appellants in this case.
In the present case, recovery was effected from the house of appellant Jasvir Singh. Although, appellant Jasvir Singh took up the plea, when examined under Section 313 Cr.P.C., that GURPREET SINGH 2014.11.14 15:34 I attest to the accuracy and authenticity of this document Chandigarh Crl. Appeal No. S-3117-SB of 2012 (O&M) -9- Crl. Appeal No. S-3181-SB of 2012 (O&M) the house from where the recovery had been effected did not belong to him but the said plea is not substantiated on record.
Jasbir Singh son of Thana Singh was joined by the police party at the time of raid. The fact that the said witness was not examined during trial, is not fatal to the prosecution case as the same stands duly established from the statements of the witnesses examined by the prosecution. Appellants were found in possession of six bags of poppy husk. Recovery was effected from the house of appellant Jasvir Singh. Therefore, it is evident that the appellants were in conscious possession of the contraband. Although, appellant Balwinder Singh managed to escape from the spot but he was duly identified by ASI Basant Singh and Head Constable Jaswinder Singh. The official witnesses had no ill will against the appellants to have falsely involved them in this case.
In these circumstances, the Trial Court had rightly ordered the conviction and sentence of the appellants under Section 15(c) of the Act.
No ground for interference is made out.
Both the appeals are dismissed.
(SABINA) JUDGE November 05, 2014 Gurpreet GURPREET SINGH 2014.11.14 15:34 I attest to the accuracy and authenticity of this document Chandigarh