Punjab-Haryana High Court
Jarnail Singh S/O Jawara Ram vs State Of Haryana on 15 February, 2013
Author: S.S. Saron
Bench: S.S. Saron
CRA No. D-627-DB of 2007 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA No. D-627-DB of 2007
Decided on : 15th February, 2013
Jarnail Singh s/o Jawara Ram, aged 70 years, resident of village Ganda,
District Fatehabad.
.....Appellant
Versus
State of Haryana
..... Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MR. JUSTICE S.P. BANGARH
*****
Present: Mr. S.S. Brar, Advocate for the appellant.
Mr. H.S. Sran, Addl. AG, Haryana for the respondent.
***** S.P. BANGARH, J The case of the prosecution is that on 29.01.2000, Sandeep Singh ASI/SHO of Police Station Ratia along with other police officials was present at bus stand Madh in connection with patrolling and crime checking, where, he received a secret information that Mintu son of Rud Singh resident of Village Ganda and Jarnail Singh (appellant) indulge in smuggling and stocking of poppy husk in the house of the latter. If raided, they could be apprehended, pursuant to, this information, Sandeep Singh SHO sent a constable to call BDPO or Tehsildar to join the police party. Later, Sandeep Singh SHO along with other police officials went to village Ganda, joined Chowkidar namely Billu in the police party and raided the house of Jarnail Singh (appellant). Two persons were seen having gunny bags in their hands. One was young and the other was old man. On seeing the police party, young man whose name was later, learnt as Mintu CRA No. D-627-DB of 2007 - 2- succeeded fleeing from the spot and the old man Jarnail Singh (appellant) was apprehended while he was taking away a gunny bag.
Sandeep Singh SHO served notice Ex.P6 under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('Act' - for short) upon Jarnail Singh (appellant) to the effect that some contraband is lying in his house and he (Sandeep Singh SHO) intended to conduct a search of his house. If, he so, desired, the same could be conducted in the presence of a Magistrate or a Gazetted Officer. Appellant vide reply Ex.P7, that was thumb marked by him, desired that the search be conducted in the presence of an Executive Magistrate. After about half an hour, Rajbir Singh BDO reached at the spot and was apprised about the facts of the case. As per his direction, police party headed by Sandeep Singh SHO conducted the search of the room, wherein, 25 bags containing poppy husk were lying. On weighment, 40 kgs of poppy husk was found to be contained in each bag. A sample of 200 gm was taken from each bag. All the 25 sample parcels and the bags containing remaining poppy husk were separately sealed by Sandeep Singh SHO with his seal bearing impression 'SS', that was handed over to Rajbir Singh BDO, after use. Later, samples and the bags were seized by the police vide memo Ex.P8, that was attested by Rajbir Singh BDO and other witnesses.
Later, information Ex.P4 through Ishwar Singh Constable was sent to the police station and that formed the basis of formal FIR Ex.P1. Sandeep Singh SHO, prepared the site plan of place of recovery Ex.P9 with correct marginal notes and recorded the statements of witnesses. Appellant was arrested vide memo Ex.P10 after disclosing him the grounds of arrest. Later, Sandeep Singh SHO prepared his report under Section 57 of the Act, Ex.P2, and sent the same to DSP, Fatehabad for information. On return to Police Station, Sandeep Singh SHO handed over the case property to MHC. Sample parcels were sent to the Forensic Science CRA No. D-627-DB of 2007 - 3- Laboratory through Rohtash Constable and the latter, vide report Ex.PX opined that the samples (Ex.1 to Ex.25) were identified as poppy straw (choorapost).
After completion of investigation, Station House Officer of Police Station Kanina instituted police report under Section 173 Code of Criminal Procedure (Cr.P.C-for short) against the appellant, before the learned Illaqa Magistrate to the effect that it appeared that he has committed an offence punishable under Section 15 of the Act.
On presentation of police report, copies of documents, as required under Section 207 Cr.P.C. were furnished to the appellant by the learned Illaqa Magistrate, who later committed the case to the Court of Session, which was entrusted to the learned trial court, where charge under Section 15 of the Act was framed against the appellant, whereto, the latter, pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, the prosecution examined Dharam Pal Constable as PW-1, Om Parkash MHC as PW-2, Rohtash Kumar Constable as PW-3, Ramjeet Singh SI as PW-4, Ram Chander Patwari as PW-5, Ishwar Singh ASI as PW-6, Ram Kishan MHC as PW-7, Sandeep Singh SI as PW-8, Billu Ram Chowkidar as PW-9, Jaipal Singh Inspector/SHO as PW-10, Sandeep as PW-11 and Rajbir Singh Khumbia BDPO as PW-12 and closed the evidence, later.
After the closure of prosecution evidence, appellant was examined under Section 313 Cr.P.C, wherein, he denied the allegations of the prosecution, pleaded innocence and false implication in this case.
Appellant was called upon to enter in defence and he examined Neelam Rani as DW-I, who deposed that she is the Sarpanch of village Ganda. She knows the appellant personally; he is very gentleman, peace loving and a simple farmer of her village. She has never heard his CRA No. D-627-DB of 2007 - 4- involvement in any criminal activity till today; he is very hard worker and honest person. Later, the appellant closed his defence evidence.
After hearing both the sides, the learned trial Court vide impugned judgment of conviction and order of sentence dated 11.07.2007, convicted the appellant for commission of offence punishable under Section 15 (c) of the Act and sentenced him to undergo rigorous imprisonment for a period of 12 years and to pay fine of `1,20,000/- and in default, thereof, to further undergo simple imprisonment for one year and three months. Aggrieved, thereagainst, the appellant, has assailed the impugned judgment of conviction and order of sentence dated 11.07.2007 and sought his acquittal of offence, wherefor, he has been convicted and sentenced.
We have heard learned counsel for the appellant and learned Additional Advocate General for the respondent and perused the record of the learned trial Court with their assistance.
It may be mentioned here that the accomplice of the appellant namely Mintu was declared innocent during investigation and he was discharged. An application moved by the respondent before the learned trial Court for summoning him, as an accused under Section 319 Cr.P.C., was also dismissed.
PW-1 Dharam Pal Constable testified that on 29.01.2000, MHC of Police Station Ratia, handed over to him the special reports of this case and he delivered the copy, thereof, Ex.P1 to the Judicial Magistrate Ist Class, Fatehabad and other copies to the higher police officials of the police.
PW-2 Om Parkash MHC testified that on 29.01.2000, he was working as Reader to DSP, Sh. Charanjit Singh, on that day report under Section 57 of the Act, Ex.P2 was received in the office of the DSP, that was put before Sh. Charanjit Singh DSP for perusal. He further testified that he CRA No. D-627-DB of 2007 - 5- identifies the signatures of DSP at Point - A. PW-3 Rohtash Kumar Constable tendered in evidence his affidavit Ex.P3.
PW-4 Ramjeet Singh SI, testified that during investigation, he recorded the statement of Ram Chander Patwari under Section 161 Cr.P.C and handed over the case file to SHO for further investigation.
PW-4 Ram Chander Patwari, testified that in July, 2000 Ramjeet Singh, ASI Incharge Police Post Mud met him in connection with verification of the house of the appellant. He further testified that he knows the appellant present in Court, who is the resident of Village Ganda, as he was Patwari in that area. He was declared hostile to the prosecution and cross-examined and during cross-examination, he testified that he had handed over the copy of the voter list Ex.P1 to Ramjeet Singh, ASI and that, he knew the locations of the houses of all the residents of Village Ganda, including appellant.
PW-6 Ishwar Singh ASI testified that on 23.01.2000, he was posted, as Investigating Officer in Police Station Ratia and on that day, on receiving ruqa Ex.P4, he registered a formal FIR Ex.P1.
PW-7 Ram Kishan HC tendered in evidence his affidavit, Ex.P5. PW-8 Sandeep Singh SI, who is the Investigating Officer of this case, also deposed on the line of his investigation, that has been reproduced in the earlier parts of this judgment.
PW-9 Billu Ram Chowkidar testified that about 4-5 years ago, he was joined in the investigation of this case and on that day, he went to the house of the appellant, present in Court and when police raided his house, he was sleeping in the verandah of his house and police recovered 26 bags containing poppy husk in his presence. He further testified that the police had taken his thumb impression on notice, as well as, on the reply of notice. He also testified that the police took his thumb impressions on CRA No. D-627-DB of 2007 - 6- recovery memo Ex.P8 and the appellant was arrested in his presence. He further testified that his statement under Section 161Cr.P.C. was recorded by the police.
PW-10 Jaipal Singh Inspector/SHO, testified that on 08.11.2004, he prepared the final report under Section 173 Cr.P.C. against the appellant.
PW-11 Sandeep also testified that on 29.01.2000, police conducted the raid at the house of the appellant and heavy quantity of poppy husk was recovered from his house in his presence. He further testified that the appellant was apprehended at the spot by the police and Mintu was not present.
PW-12 Rajbir Singh BDPO also testified that on 29.01.2000, he was present in his office at Ratia and on that day, Prem Singh Constable came to him and disclosed about the secret information to the effect that Mintu had stored poppy husk in the house of the appellant at village Ganda and on this information, he raided at the house of the appellant. He, further testified that police apprehended the appellant and 25 bags of poppy husk were lying in his house, that were checked in his presence and poppy husk found in those bags. He further testified that the police took one sample of 200 gms from each bag and later, all the sample parcels, as also the bags containing remaining poppy husk were separately sealed by the Investigating Officer with his seal and those were seized vide memo Ex.P8, that was attested by him and the seal after use was handed over to him by the Investigating Officer. He further testified that his statement under Section 161 Cr.P.C. was recorded.
Learned counsel for the appellant contended that the ownership of the house from where bags of poppy husk were allegedly recovered does not vest in the appellant and, therefore, he could not be held to be in conscious possession of the contraband. He also contended that during CRA No. D-627-DB of 2007 - 7- the examination under Section 313 Cr.P.C. of the appellant, it was not put to the appellant that he was not in conscious possession of the bags containing poppy husk. He also contended that Section 42 of the Act was not complied with in this case. He also contended that there was delay of 9 days in sending the samples, which were sent on 07.02.2000. He also contended that these points were not considered by the learned trial Court, who wrongly convicted and sentenced the appellant vide impugned judgment of conviction and order of sentence, which may be set aside and the appellant be acquitted by according him benefit of doubt.
On the other hand, the learned Additional Advocate General, Haryana for the respondent contended that there is cogent evidence on the record that the house, wherein, contraband was lying, belongs to the appellant. He also contended that at the time of raid, two independent witnesses were present with the police at the time of recovery, one was Billu Ram Chowkidar (PW-9) of the village namely Ganda and the other was Rajbir Singh BDPO (PW-12). He also contended that at the time of framing charge, it was disclosed to the appellant that he was in conscious possession of the contraband at the time of recovery and whatever, was deposed against him, was put to him during his examination under Section 313 Cr.P.C.
It may be noticed that in the charge, it was categorically disclosed to the appellant that on 29.01.2000 in the area of Ganda, he had kept 25 bags of poppy husk in his conscious possession without any permit or licence and, thereby, he committed an offence punishable under Section 15 of the Act. The learned trial Court in this manner at the time of framing charge categorically disclosed to the appellant that he was in conscious possession of contraband, although, in view of Swaran Singh v. State of Punjab; 2011 (5) RCR (Criminal) 802 (P&H); It was not imperative for the learned trial Court to use words 'conscious possession' in the charge. CRA No. D-627-DB of 2007 - 8- Even, it has been held in this ruling that in the statement of the accused under Section 313 Cr.P.C., it is not imperative for the Presiding Officer to use word 'conscious possession'. It was held that, if the charge and statement under Section 313 Cr.P.C. state that accused was found in possession of poppy husk or a contraband article and recovery of the same was effected and samples were drawn, requirement of law is fulfilled.
Even, this Court in the Judgment (supra) held that delay in sending the sample is not suffice to throw the testimony of witnesses to wind. The delay in sending the samples to the Forensic Science Laboratory in such cases could be fatal only, if the testimony of the recovery witnesses does not inspire confidence.
As per the findings of the learned trial Court, the testimonies of the recovery witnesses inspired confidence. Such, thus being the situation, delay in sending the sample could not be held to be fatal to the case of the prosecution. Only it is to be seen, as to whether the link evidence in the case is complete or not. There is nothing in evidence of PW-8 (Sandeep Singh) that he tampered with the sample parcels and case property during investigation. It has come in his evidence that he handed over his seal after use to PW-12 (Rajbir Singh BDPO). So, when he was in possession of the sample parcels and other bags containing poppy husk, he (PW-8) was not in possession of his seal.
When the seal was not in his possession. When the case property was in possession, he could not tamper with the case property and re-seal the same. PW-12 (Rajbir Singh BDPO) also candidly testified that seal after use was handed over to him by Sandeep Singh SHO (PW-8).
PW-7 (Ram Kishan), who was working as MHC, in his affidavit Ex.P5 adjured that the case property of this case was deposited with him by Sandeep Singh SHO (PW-8) and he handed over the sample parcels of CRA No. D-627-DB of 2007 - 9- this case to Rohtash Kumar (PW-3) for deposit, thereof, in the office of Forensic Science Laboratory. PW-3 (Rohtash Kumar) in his affidavit Ex.P3 adjured that 25 sample parcels of this case each containing 200 gms of poppy husk were handed over to him by Ram Kishan MHC (PW-7), duly sealed with the seal SS, along with specimen impression of the seal, for deposit, thereof, in the DFSL, Madhuban and he deposited those in the Laboratory and handed over receipt to Ram Kishan MHC (PW-7). He further adjured that, so long as, the sample parcels remained in his custody, no one tampered, therewith.
Evidence of PW-3 (Rohtash Kumar Constable), PW-7 (Ram Kishan MHC), PW-8 (Sandeep Singh SHO), during cross-examination could not be shattered and it follows, therefrom, that during investigation, the sample parcels of this case were kept intact condition till deposit, thereof, in the Laboratory. So, the link evidence in this case is complete and in view of the report Ex.PX, it must be held that the contents of 25 bags recovered in this case were poppy husk (choorapost).
Now, it is to be seen, as to whether the house from where the recovery was made, belongs to the appellant or to some other person. There is nothing in the cross-examination of prosecution witnesses, who were present at the time of recovery, that the appellant does not reside in the place of recovery of the poppy husk and that he resides in some other house. If, the appellant was not residing in the house, where 25 bags of poppy husk were lying, then it was required of him to lead categoric evidence in defence that he owns some other house than the house from where the recovery of contraband was made.
It is not doubt true that DW-1 (Neelam Rani) testified that the appellant is a gentleman person, but this witness no where testified that the house from where contraband was recovered belongs to someone else than the appellant. When once the appellant has taken a plea, that the CRA No. D-627-DB of 2007 - 10- house from where the recovery of the poppy husk was made does not belong to him, it was required of him to take this plea to the logical conclusion by leading cogent, corroborating and reliable evidence of unimpeachable character that he resides in some other house than the house from where the recovery of poppy husk was made.
It may be mentioned here that PW-9 (Billu Ram Chowkidar) while appearing as PW-9 testified candidly that when police raided the house of the appellant, he was sleeping in verandah of his house and police recovered 26 bags containing poppy husk from his possession in his presence. It appears that due to inadvertence, he gave the number of the bags, as 26 while on the contrary, it has come in the testimony of other witneses that 25 bags containing poppy husk were recovered from the house of the appellant. So, this is inadvertent error about the number of bags in the testimony of PW-9 (Billu Ram Chowkidar) and due to this reason, this testimony cannot be discarded.
Even the evidence of this witness could not be shattered in the cross-examination. While on the contrary, he categorically testified that he was taken by the police from his house and they raided the house of the appellant at 8.00 PM. Other family member of the accused were present in the house and they were sleeping separately. So, during cross- examination, it was no where put to PW-9 (Billu Ram Chowkidar) that the house did not belong to the appellant.
Even, PW-5 (Ram Chander) village Patwari testified that he knows the appellant, who is a resident of Village Ganda. When once, it has come in evidence of this witness that the appellant belongs to village Ganda, and owns a house and then it must follow that the house from where the contraband was recovered belongs to the appellant. So, the contention of the learned counsel of the appellant that the house from where the recovery was made does not belong to the latter is repelled. CRA No. D-627-DB of 2007 - 11-
In the police party, PW-9 (Billu Ram Chowkidar) was associated. Even, PW-12 (Rajbir Singh BDPO) a Gazetted Officer was also associated and in their presence, search was conducted and bags numbering 25 containing poppy husk were recovered from the house of the appellant. Such huge recovery could not be planted upon the appellant.
Section 50 of the Act was complied with, as gazetted Officer of the Haryana Government was associated at the time of search of the house of appellant. He appeared as PW-12 and candidly testified that the recovery of 25 bags of poppy husk was made in his presence from the house of the appellant.
PW-8 (Sandeep Singh SHO) also testified likewise. He was subjected to searching cross-examination by the learned counsel for the appellant before the learned trial Court, but the long cross-examination, conducted on him, fail to elicit anything worth the name, which could possibly cause any dent in his testimony. No motive can be ascribed to him to testify falsely in this case. He is not alleged to have any animus or hostility against the appellant prior to the day of recovery. Evidence of the official witness is, as good, as evidence of any other citizen and has to be weighed in the same scale, like the testimony of any other independent witness.
Apart from the testimony of PW-8 (Sandeep Singh SHO) in this case, who is the Investigating Officer of this case has been corroborated by an independent witnesses, PW-9 (Billu Ram Chowkidar) and PW-12 (Rajbir Singh BDPO). So, the case is not based on the testimony of the police officials. PW-8 (Sandeep Singh SHO) being the police official was alone competent to raid the house of the appellant and his testimony could be discarded only, if he had some motive to implicate the appellant falsely. Simply on the basis of testimony of DW-1 (Neelam Rani), it could be held that the recovery is false.
CRA No. D-627-DB of 2007 - 12-
In view of the testimonies of PW-8 (Sandeep Singh SHO), PW-9 (Billu Ram Chowkidar) and PW-12 (Rajbir Singh BDPO), it stands established that the appellant was the owner of the house from where the recovery of contraband was made and he was present at the time of recovery and, therefore, he was in conscious possession, thereof. Even, once possession is established in the case, then it was for the appellant to establish that he was not in conscious possession, thereof.
The learned counsel for the appellant placed reliance upon Om Prakash @ Baba v. State of Rajasthan; 2009 (4) RCR (Criminal) 342; passed by the Hon'ble Apex Court, wherein, recovery of contraband was made from a house which belonged to the accused. It was held that the accused cannot be convicted, as there were other inmates of house (5 brothers of accused and their children). In such a situation, it cannot be said that accused was in exclusive possession of contraband. It was held that the prosecution was required to prove that accused was in exclusive possession of contraband. Conviction was set aside. It was held that for prosecution of accused, prosecution has to prove that accused was the owner of house and he was in possession of the same. This fact was not proved.
We have examined the judgment (supra) and we find that the principle laid down in the judgment (supra) does not apply in the case of the appellant, as he no where took the plea that there were other inmates of the house. It is not the case of the appellant that his brothers and their children were also living there. Indeed, the appellant has claimed that the house from where recovery was effected does not belong to him, but he failed to establish, as to in which house, he was living at the time of recovery.
So, in these circumstances the appellant was in exclusive possession of the house from where contraband was recovered and, CRA No. D-627-DB of 2007 - 13- therefore, he cannot be held entitled for benefit of the judgment (supra), for earning acquittal.
The learned counsel for the appellant also placed reliance upon State of Punjab v. Hari Singh and others; 2009 (2) RCR (Criminal) 144; wherein, 16 Kgs of poppy husk were recovered from the accused. This showed that the accused were in conscious possession of bags, however, no question with regard to possession or conscious possession was put to accused during examination under Section 313 Cr.P.C. and conviction was set aside.
We have also examined the judgment (supra) and found that the principle laid down, therein, does not apply in the case in hand for according benefit of doubt to the appellant, as it has been already observed that while framing charge, it was disclosed to the appellant that he was in conscious possession of contraband. During testimonies of PW-8 (Sandeep Singh SHO), PW-9 (Billu Ram Chowkidar) and PW-12 (Rajbir Singh BDPO), it emerged that the appellant was found in possession of poppy husk in his house and this circumstance appearing against him was put to him. If, the word 'conscious possession' had been used during examination of appellant under Section 313 Cr.P.C. then it would have been argued, that this was not evidence against him. Whatever was stated by PW-8 (Sandeep Singh SHO), PW-9 (Billu Ram Chowkidar) and PW-12 (Rajbir Singh BDPO), was put to the appellant during his examination under Section 313 Cr.P.C. and these witnesses, as already observed, categorically testified that the appellant was found in possession of 25 bags of poppy husk in his house.
So, it cannot be held that the appellant was not properly examined under Section 313 Cr.P.C. by not putting question with regard to possession or 'conscious possession'. Therefore, no benefit of the judgment (supra) can be accorded to the appellant.
CRA No. D-627-DB of 2007 - 14-
Hon'ble Supreme Court of India in Madan Lal and Anr. v. State of Himachal Pradesh; 2003 (4) RCR (Criminal) 100; held that once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. It was held that Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.
As per requirement of the judgment (supra), in the case in hand not only possession of the appellant over the contraband, but 'conscious possession' has been established. So, when the appellant has not been able to prove that the house from where recovery of contraband was made does not belong to him and belongs to someone else than him, then, only he could be presumed to be in possession of the contraband recovered from the house in his occupation.
The learned counsel for the appellant also contended that only one sample was drawn from each bag against the mandatory requirement of drawing two sample, as per standing order No. 1/89 dated 13.06.1989 issued by the Government of India. He also placed reliance upon Jaswinder Singh and another v. State of Punjab; 2013 (1) RCR (Criminal) 257; passed by this Court. This standing order No.1/89 (supra) is not mandatory, as the same was not passed by the Parliament under a statute. In the Act, there is no such mandate that two samples from each bag of contraband should be taken. No prejudice has been caused to the appellant with the drawal of one sample from each bag, as he has no right to get the second sample analyzed from the Forensic Science Laboratory. When that was, so, no prejudice can be said to have been caused to the appellant.
CRA No. D-627-DB of 2007 - 15-
The learned counsel for the appellant also placed reliance upon Kishan Chand v. State of Haryana; 2012 STPL (Web) 746 SC; passed by the Hon'ble Supreme Court of India, wherein, accused was acquitted of the offence under Sectin 18 of the Act by holding that once the statement of PW-5 is examination with the statement of PW-7, that he did not associate any private person, independent witness in the recovery or in the entire process of investigation and that he did not even record such a fact in this proceedings casts a shadow of doubt over the case of the prosecution. It was held that total non-compliance of Section 42, non- involvement of any independent witness at any stage of the investigation and the presence of PW-5 at the spot being so very doubtful, thus, compel this Court to hold that the prosecution has failed to prove its case beyond reasonable doubt.
We fail to understand as to how the judgment (supra) applies to the facts and circumstances of this case to accord benefit of doubt to the appellant, especially when there was no non-compliance of Section 42 of the Act. Even, independent witness, PW-9 (Billu Ram Chowkidar) was associated in the recovery proceedings. Even, PW-12, a gazetted Officer of Haryana Government was associated at the time of recovery. The information about the recovery was sent to the police station, where formal FIR Ex.P1 was lodged regarding the recovery in question and the copy of the FIR Ex.P1 was sent to the Illaqa Magistrate, as also, to the higher police officers, as can be seen from the testimony of PW-1 (Dharam Pal Constable), which could not be shattered during cross-examination.
Section 42 of the Act, reads as under:
"42. Power of entry, search, seizure and arrest without warrant or authorisation: (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 CRA No. D-627-DB of 2007 - 16- including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an 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 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 by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence 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 such 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 thereof 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 reason 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 authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such CRA No. D-627-DB of 2007 - 17- building, conveyance or enclosed place at any time between sunset and sunrise after recording the ground 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 send a copy, thereof, to his immediate official superior"] Section 42 of the Act can be divided into two parts, first if the power of entry, search, seizure and arrest without warrant or authorisation, as contemplated under sub-section (1) of the said Section. Second is reiterating any information in writing under sub-section (1) of the Act.
It may be mentioned here that sub-section 2 was amended by the Parliament vide Act No. 9 of 2001 w.e.f. 02.10.2001. In the case in hand the information was received by PW-8 (Sandeep Singh SHO) on 29.01.2000 and he immediately, reached the place of recovery. If, he had not reached the place of recovery immediately after the receipt of information, and if, he had consumed time in obtaining the search warrant, in that event, the appellant could escape from the place of recovery.
So, keeping in view the facts and circumstances of this case, PW-8 pondered it apt to enter and search the place of recovery without obtaining search warrant. The whole purpose of the secret information would have been disconcerted, if he had not acted upon this information immediately after receipt, thereof.
Section 42 (1) (d) of the Act empowered PW-8 (Sandeep Singh SHO) to search the place of recovery and arrest the appellant, as obtaining of search warrant would have afforded opportunity to the appellant for concealment of the contraband, as also, for his escape. The information, as already held about this recovery was sent by PW-8 (Sandeep Singh SHO) to the Illaqa Magistrate, as also to the higher police officers. So, no benefit of Kishan Chand's judgment (supra) can be accorded to the appellant.
CRA No. D-627-DB of 2007 - 18-
It has been held by the Hon'ble Supreme Court of India in Union of India v. Satrothan; (2008) 8 SCC 313; that there was no obligation on the officer to comply with the requirement of Section 42 (2) of the Act. It was also contended, in the alternative, that Section 42 (2) of the Act was complied with. The facts of the judgment (supra) and the case in hand are akin, therefore, in the light of the judgment (supra), it must follow that Section 42 (2) was complied with by Investigating Officer of this case by sending an information of seizure and arrest of the appellant in the case in hand to the Illaqa Magistrate and other higher officials.
In the case of Abdul Rashid Ibrahim Mansuri v. State of Gujrat, 2000 (1) RCR (Criminal) 611; (2000) 2 SCC 513, decided by a three-Judge Bench, it was held that compliance of Section 42 of the Act is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused.
In the case of Sajan Abraham v. State of Kerala, 2001 (3) RCR (Criminal) 808; (2001) 6 SCC 692, which was also decided by a three- Judge Bench, it was held that Section 42 was not mandatory and substantial compliance was sufficient. In view of the conflicting opinions regarding the scope and applicability of Section 42 of the Act in the matter of conducting search, seizure and arrest without warrant or authorization, these appeals were placed before the Constitution Bench to resolve the issue.
The above-said issue was resolved in the case of Karnail Singh v. State of Haryana, 2010 (88) AIC 28; wherein, it was concluded that 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 Sections 42 (1) and 42 (2) need not be fulfilled at all. It was held that the effect of the two decisions was as follows: CRA No. D-627-DB of 2007 - 19-
(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).
(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 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 CRA No. D-627-DB of 2007 - 20- with satisfactory 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 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.
In the case in hand, as already observed, compliance of Section 42 of the Act stood made by the Investigating Officer by sending ruqa Ex.P4 to the police station, where formal FIR Ex.P1 was recorded whose copies were sent to the Illaqa Magistrate, as also, to the higher police officers.
Indeed, PW-8 (Sandeep Singh SHO) during cross-examination testified that after receiving secret information, he did not send this information in writing to the police station, nor he sent it to higher police officials of police. Indeed, PW-8 (Sandeep Singh SHO) could not literally understand question put to him in the cross-examination and, if he had CRA No. D-627-DB of 2007 - 21- understood the question literally, then he would have said that compliance of Section 42 (1) (2) of the Act had been made, which indeed had been made in this case, as he sent ruqa Ex.P4 to police station, where formal FIR Ex.P1 was recorded and copies, thereof, were sent to the Illaqa Magistrate, as also to the higher police officials.
Even, PW-8 (Sandeep Singh SHO) testified that he prepared his report under Section 57 of the Act Ex.P2 and send the same to the DSP, Fatehabad for information. This evidence could not be shattered during cross-examination, so it follows that compliance of Section 57 of the Act has been made by the Investigating Officer of this case.
PW-8 (Sandeep Singh SHO) was himself the incharge of the police station. He seized the case property and kept in his possession till deposit, thereof, with the MHC of the police station. So, Section 55 of the Act shall be deemed to have been complied with in this case.
There is, thus, no illegality or impropriety in the impugned judgment of conviction and the same, is hereby, upheld and affirmed.
The learned counsel for the appellant then contended that the impugned order of sentence may be modified and the sentence of imprisonment of the appellant may be reduced to 10 years and fine reduced to the tune of `1,00,000/-.
Keeping in view the facts and circumstances of the case, as also the age of the appellant as also that he is not a previous convict, we find that the imposition of minimum sentence of imprisonment and fine prescribed under Section 15 (c) of the Act on the appellant shall meet the ends of justice, that shall be condigned punishment.
Consequently, impugned order of sentence is modified and the sentence of rigorous imprisonment of 12 years imposed upon the appellant by the learned trial Court is reduced to rigorous imprisonment for 10 years and sentence of fine imposed upon the appellant by the learned trial Court CRA No. D-627-DB of 2007 - 22- to the tune of `1,20,000/- is reduced to fine of `1,00,000/- and in default, thereof, the appellant shall undergo further rigorous imprisonment for three months.
Resultantly, except for this modification in the impugned order of sentence, appeal, fails and is, hereby, dismissed.
(S.P. BANGARH) (S.S. SARON)
JUDGE JUDGE
February 15, 2013
sham