Punjab-Haryana High Court
Mallu Ram vs State Of Punjab on 27 August, 2014
Author: S.S.Saron
Bench: S.S.Saron
CRA No.S-1045-SB of 2010 & [1]
CRA No.S-1936-SB of 2011
(101 + 421) IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. CRA No.S-1045-SB of 2010 (O&M)
Date of decision: 27.8.2014
Mallu Ram
.... Appellant
Versus
State of Punjab
....Respondent
AND
2. CRA No. S-1936-SB of 2011 (O&M)
Date of decision: 27.8.2014
Subhash @ Balram
....Appellant
Versus
State of Punjab
.... Respondent
Present: Ms. Sumanjit Kaur, Advocate for the appellant Mallu
Ram and Amicus Curiae for appellant Subhash @
Balram.
Mr. Jashanpreet Singh, AAG, Punjab.
***
S.S.Saron, J.
This order will dispose of CRA No.S-1045-SB of 2010 filed by Mallu Ram and CRA No.S-1936-SB of 2011 filed by Subhash @ Balram as these arise out of the same judgment and order dated 1.10.2009 passed by the learned Special Judge, Ferozepur whereby the respective appellants in the two appeals have been convicted for the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS' - for short) and sentenced to undergo imprisonment for 10 years, besides, pay a AMIT KHANCHI 2014.11.14 12:09 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRA No.S-1045-SB of 2010 & [2] CRA No.S-1936-SB of 2011 fine of Rs.1 lac each and in default of payment of fine, to undergo rigorous imprisonment for two years. The period of detention of the convicts has been ordered to be set off against the sentence awarded to them. The car bearing No.DL-2-CH0012 and the case property has been ordered to be confiscated to the State under rules after the expiry of the period allowed for appeal/revision.
No one has appeared for the appellant Subash @ Balram (appellant in CRA No.S-1936-SB of 2011). Therefore, Ms. Sumanjit Kaur, Advocate who is appearing in the appeal filed by Mallu Ram (appellant in CRA No. S-1045-SB of 2011) is appointed as Amicus Curiae for Subhash @ Balram as well. There is a note in the cause list that regular No.421 which is the present case shall be taken up for hearing today.
SI Major Singh (PW-1) was posted as In charge Narcotic Cell, Ferozepur on 9.5.2007. On the said date, he along with HC Tarlochan Singh (PW-2), HC Arpinder Singh and other police officials were in government vehicle No.PB 05K 1089 driven by Constable Jasbir Singh. A check-post ('naka') had been set up in the area of Basti Ahmewal, Police Station Sadar Ferozepur for checking suspected persons carrying contraband material. A white colour Maruti car came from the side of Ferozepur at about 5.00 p.m. The said car was signalled to stop. The driver of the car, however, tried to get away but he was chased and apprehended with the help of the police officials. On questioning, he disclosed his name as Mallu Ram (appellant in CRA No.S-1045-SB of 2010). He was driving the car with registration No. DL 1- CH 0012. Subash @ Balram (appellant in CRA No. S-1936-SB of 2011), was sitting by AMIT KHANCHI the side of Mallu Ram (appellant in CRA No.S-1045-SB of 2010). SI 2014.11.14 12:09 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRA No.S-1045-SB of 2010 & [3] CRA No.S-1936-SB of 2011 Major Singh asked both the occupants of the car whether they wanted to get the search of the car to be conducted in his presence or in the presence of some Gazetted Officer or Magistrate. The occupants of the car opted for the search to be conducted in the presence of some Gazetted Officer. The non-consent memo (Ex.P1) of both the car occupants was prepared which was signed by them. It was attested by HC Arpinder Singh, HC Tarlochan Singh (PW-2). Thereafter, DSP Rajinder Singh (PW-4) from the wireless fitted in the vehicle was asked to reach at the spot. After sometime at about 5.40 p.m., he came at the spot in his official vehicle along with the gunman. He was apprised of all the facts and circumstances. DSP Rajinder Singh (PW-4) disclosed his identity to both the occupants of the car and stated that it was suspected that some intoxicant material was being carried in the car and a search of the car was to be conducted. He asked both the occupants whether they wanted to get the search of the car conducted from him or in the presence of some other Gazetted Officer or Magistrate. Both the appellants reposed confidence in DSP Rajinder Singh (PW-4). Before conducting the search of the car, consent memo (Ex.P2) of both the occupants of the car was prepared which was signed by them and attested by aforesaid witnesses and the DSP. On the directions of DSP Rajinder Singh (PW-4), SI Major Singh (PW-1) conducted a search of the car. In consequence of the search, opium wrapped in a glazed paper was recovered from in between the front seats of the car which was contained in a gunny bag. The contraband was wrapped in a glazed paper envelope. Arrangement for weighing the contraband was made. Two samples AMIT KHANCHI of ten-ten grams of opium each were separated from the bulk 2014.11.14 12:09 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRA No.S-1045-SB of 2010 & [4] CRA No.S-1936-SB of 2011 opium and their separate parcels were prepared by putting them in glazed paper. The parcels were numbered as one and two respectively and the remaining opium on weighment was found to be 6 kgs 980 grams. Its separate parcel was prepared. Both the sample parcels and bulk parcel were sealed by SI Major Singh (PW-
1) with his seal 'MS'. DSP Rajinder Singh (PW-4) also put his seal bearing impression 'RS'. Sample seal (Ex.P3) was separately prepared. The seal after use was handed over by SI Major Singh (PW-1) to HC Tarlochan Singh (PW-2). DSP Rajinder Singh retained his seal with him. The entire case property was taken in possession vide recovery memo (Ex.P4) which was attested by HC Arpinder Singh, HC Tarlochan Singh (PW-2) and by DSP Rajinder Singh (PW-
4). The car was also taken in possession vide memo Ex.P4.
Personal search of Mallu Ram (appellant in CRA No.S-1045-SB of 2010) was conducted and a sum of Rs.2500/- was recovered. From the search of Subhash @ Balram (appellant in CRA No.S-1936-SB of 2011), a sum of Rs.2000/- was recovered. These were taken in possession vide recovery memos Ex.P5 and Ex.P6 respectively, which were signed by both the appellants and attested by HC Tarlochan Singh (PW-2), Arpinder Singh and DSP Rajinder Singh. Memos of grounds of arrest Ex.P7 and Ex.P8 respectively of both the appellants were prepared which were signed by each of them and attested by the said witnesses but not by the DSP Rajinder Singh. A writing (Ex.P9) was sent to the Police Station on the basis of which FIR (Ex.P10) was recorded by ASI Atma Singh. A rough site plan (Ex.P11) with correct marginal notes was prepared by SI Major Singh (PW-1). The statements of witnesses were AMIT KHANCHI recorded. Registration copy (Ex.P12) of the car was taken in 2014.11.14 12:09 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRA No.S-1045-SB of 2010 & [5] CRA No.S-1936-SB of 2011 possession vide memo (Ex.P13) which was attested by the aforesaid two Head Constables. On return to the Police Station Sadar Ferozepur, HC Major Singh (PW-1) produced the accused, the car and the case property before Inspector Sarabjit Singh (PW-3) who also verified the facts of the case and he also affixed his seal 'SS' on the entire case property and attested the sample seal. He took the entire case property in his possession vide memo Ex.P14, which was attested by him. Next day, he (PW-1) sent intimation to the relations of the accused vide memo Ex.P15. Report (Ex.P16) of the Chemical Examiner was received. The police report (challan) was prepared in terms of Section 173 of the Code of Criminal Procedure ('CrPC' - for short) by Inspector Sarabjit Singh (PW-3).
After the police report was filed, the learned Special Judge, Ferozepur on 30.8.2007 framed charges against the appellants on the allegations that on 9.5.2007 in the area of Bus Stand of Basti Ahmewal, the appellants were found in possession of 7 kgs of opium without any permit or licence which they were carrying in a car bearing registration No.DL 2 - CH 0012 and they both thereby committed an offence punishable under Section 18 of the NDPS Act. It was directed that they be tried of the said charge. Both the appellants stated that they had heard and understood the contents of the charge. They pleaded not guilty to the charge and claimed trial.
The prosecution in order to establish its case examined SI Major Singh (PW-1), HC Tarlochan Singh (PW-2), Inspector Sarabjit Singh (PW-3), DSP Rajinder Singh (PW-4) and ASI Kulwant Rai (PW-6) (sic. PW-5) and closed its evidence. The appellants in AMIT KHANCHI their statements in terms of Section 313 CrPC stated that they were 2014.11.14 12:09 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRA No.S-1045-SB of 2010 & [6] CRA No.S-1936-SB of 2011 innocent. No incriminating article was recovered from them and they had been falsely implicated. In defence, the appellants examined HC Balraj Mohan (DW-1). He had brought the summoned record pertaining to the log book of DSP Rajinder Singh (PW-4) which is dated 9.5.2007. Certified copy of the same was Ex.DW- 1/A, which was the copy of page No.37 of the register in two parts. There was an overwriting on Mark A on Ex.DW-1/A. There was also overwriting on Mark B, C and D. The above log book was being filled in by the Reader or Driver of the officer concerned before moving for official duty. The ink of Mark E was different from the other writing. There was no entry of 9.5.2007. In cross- examination by the Public Prosecutor it is stated that during the period, the vehicle remained with the officer, the log book of the vehicle also remained in the vehicle in the custody of the driver. He did not know in whose hand writing the entries were made in the record produced by them. He had no personal knowledge regarding the entries. He could not say about the cuttings in the log book as the same were not filled in his presence. It was possible that while writing, there might occur some clerical mistake and that had been rectified. He had brought the log book from the police line. Every entry contained the signatures of DSP (D) Rajinder Singh (PW-4) which he identified. The entries were correct which he had produced. The defence evidence was closed.
The learned Special Judge, Ferozepur by his impugned judgment and order dated 1.10.2009 convicted both the appellants for the offence under Section 18 of the NDPS Act and sentenced them to undergo rigorous imprisonment for 10 years each, besides, AMIT KHANCHI 2014.11.14 12:09 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRA No.S-1045-SB of 2010 & [7] CRA No.S-1936-SB of 2011 pay a fine of Rs.1 lac each and in default of payment of fine, to undergo rigorous imprisonment for two years.
Ms. Sumanjit Kaur, Advocate for the appellant Mallu Ram and Amicus Curiae for Subhash @ Balram has contended that there has been total non-compliance with the provisions of Section 42 of the NDPS Act. A reference has been made to the cross- examination of SI Major Singh (PW-1) who has inter alia stated that he had received secret information regarding the alleged recovery and they were present at the place for the last one hour before recovery. According to the learned counsel, SI Major Singh (PW-1) despite being aware of the fact that intimation is to be sent to the higher officials, he did not send the same. Therefore, for non- compliance with the provisions of Section 42 of the NDPS Act, the appellant is liable to be acquitted. It is also stated that in terms of the deposition of HC Balraj Mohan (DW-1), there is no entry of 9.5.2007 which is the date the alleged contraband was recovered. Therefore, it is submitted that DSP Rajinder Singh (PW-4) did not come at the spot.
In response, Sh. Jashanpreet Singh, Assistant Advocate General, learned counsel appearing for the State submits that the prosecution has established its case beyond shadow of reasonable doubt. It is submitted that in fact the provisions of Section 42 NDPS Act has been substantially complied with inasmuch as DSP Rajinder Singh (PW-1) had reached at the spot and he was apprised of all the facts and circumstances. It is submitted that DSP Rajinder Singh (PW-1) was at the spot and the deposition of HC Balraj Mohan (DW-1) cannot be wholly relied upon, besides, at AMIT KHANCHI times log book entries are not completed and non-filing log book 2014.11.14 12:09 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRA No.S-1045-SB of 2010 & [8] CRA No.S-1936-SB of 2011 entries would not warrant acquittal of the appellants specially when such heavy recovery has been effected which cannot be said to be planted.
I have given my thoughtful consideration to the matter. The prosecution case as has been noticed is that a check-post had been set up by the police party headed by SI Major Singh (PW-1) who was In charge of Narcotic Cell, Ferozepur on 9.5.2007 in the area of Basti Ahmewal. The police party was conducting checking of vehicles for recovery of any contraband. A white colour Maruti car came from the side of Ferozepur at about 5.00 p.m. The said car was signalled to stop. The driver of the car, however, tried to run away but he was chased and apprehended. Mallu Ram (appellant in CRA No.S-1045-SB of 2010) who was driving the car bearing registration No. DL 1 CH-0012, on questioning, disclosed his name as such. Subash @ Balram (appellant in CRA No. S-1936- SB of 2011) was sitting by the side of Mallu Ram (appellant in CRA No.S-1045-SB of 2010). SI Major Singh (PW-1) asked both the occupants of the car whether they wanted to get the search of the car to be conducted in his presence or in the presence of some Gazetted Officer or Magistrate. The occupants of the car opted for search of the car to be conducted in the presence of some Gazetted Officer. Therefore, DSP Rajinder Singh (PW-4) was called at the spot and search was conducted in his presence which led to the recovery of 7 kgs opium from the car. Two samples of ten grams of opium each were separated from the bulk opium and their parcels were prepared the remaining opium on weighment was found to be 6 kgs 980 grams. Its separate parcel was prepared. Both the AMIT KHANCHI sample parcels and bulk parcel were sealed by SI Major Singh (PW- 2014.11.14 12:09 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRA No.S-1045-SB of 2010 & [9] CRA No.S-1936-SB of 2011
1) with his seal 'MS'. DSP Ranjinder Singh (PW-4) also put his seal bearing impression 'RS'. Sample seal (Ex.P3) was separately prepared.
The contention of the learned counsel for the appellants is that the despite having secret information regarding the alleged recovery, SI Major Singh (PW-1) did not comply with the provisions of Section 42 of the NDPS Act. In this regard, it may be noticed that SI Major Singh (PW-1) in his cross-examination has stated as follows:-
"I had secret information regarding the alleged recovery and we were present at that place for the last one hour before recovery. It is correct that when an IO gets secret information regarding NDPS Act, he has to send information regarding this to his higher officers. But the present, I did not send any such information."
A perusal of the above shows that SI Major Singh (PW-1) indeed had secret information regarding the alleged recovery; besides, he was aware that when an IO gets secret information regarding NDPS Act, he has to send information in this regard to his higher officers. But, in the present case, he admitted that he did not send any such information.
In terms of Section 42 (1) of the NDPS Act, 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 AMIT KHANCHI by general or special order of the State Government, if he has 2014.11.14 12:09 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRA No.S-1045-SB of 2010 & [10] CRA No.S-1936-SB of 2011 reason to believe from personal 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 the Act had 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 the evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of the Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset carry out an offence as enumerated in Clause (a) to (d). In terms of sub Section (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. In the present case, the same has admittedly not been complied with.
The Supreme Court in Karnail Singh v. State of Haryana, 2009 (5) RCR (Crl.) 515 (Five Judges) held that total non- compliance of Section 42 (1) and (2) is impermissible i.e. where the officer does not record the information at all and does not inform the official superior, then it would be clear violation of Section 42 of the NDPS Act. However, delay in compliance with satisfactory explanation may be acceptable compliance of Section 42. In the present case, there is no compliance.
In Kishan Chand v. State of Haryana, 2013 (2) RCR (Crl.) 67, the Supreme Court reiterated that total non-compliance of Section 42 NDPS Act would make the case doubtful and compel the AMIT KHANCHI 2014.11.14 12:09 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRA No.S-1045-SB of 2010 & [11] CRA No.S-1936-SB of 2011 Court to hold that the prosecution had failed to prove its case beyond reasonable doubt.
In the present case, the admitted position in terms of the deposition of SI Major Singh (PW-1) is that he had secret information but he did not comply with Section 42 of the NDPS Act inasmuch as he did not record the information in writing nor informed his superiors.
Learned State counsel has contended that it is a case of chance recovery. A reference has been made to the deposition of HC Tarlochan Singh (PW-2) who in his cross-examination states that the recovery was a chance recovery. However, HC Tarlochan Singh (PW-2) is a police official, junior in rank to that of SI Major Singh (PW-1) and it could quite be possible that the secret information that SI Major Singh (PW-1) had, may not be in the knowledge.
The entries in the log book register of the government vehicle in which DSP Rajinder Singh (PW-4) came at the spot, do also create a doubt as regards his presence at the spot at the time of recovery. The appellants in their defence examined HC Balraj Mohan (DW-1). The said witness has made a mention of over- writing on various parts of the log book. He deposed that there was no entry in the log book register of 9.5.2007 which is the date of recovery of the alleged contraband. Besides, the memos of grounds of arrest (Ex.P7 and Ex.P8) in respect of the appellants even though signed by other police officials were not signed by DSP Rajinder Singh (PW-4) even though he was stated to be present at the spot. Therefore, there is indeed a doubt as to whether SI Major AMIT KHANCHI Singh (PW-1) had apprised DSP Rajinder Singh (PW-4) about the 2014.11.14 12:09 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRA No.S-1045-SB of 2010 & [12] CRA No.S-1936-SB of 2011 facts of the case when he is said to have come at the spot. The log book entries in the facts and circumstances of the present case when SI Major Singh (PW-1) accepts that he did not comply with the provisions of Section 42 (2) of the NDPS Act regarding recording the secret information in writing and sending it to his superiors. It is quite possible that DSP Rajinder Singh (PW-4) in fact may not be at the spot at the time of recovery of the contraband.
In the circumstances, both the appeals (i.e. CRA No. S- 1045-SB of 2010 and CRA No. S-1936-SB of 2011) are allowed and the impugned judgment and order dated 1.10.2009 passed by the learned Special Judge, Ferozepur are set aside and both the appellants i.e. Mallu Ram (appellant in CRA No. S-1045-SB of 2010) and Subhash @ Balram (appellant in CRA No. S-1936-SB of 2011) are acquitted of the offence attributed to them. The respective appellants are in custody and if not wanted in any other case, they be set at liberty.
(S.S. Saron)
Judge
27.8.2014
amit
Note : To be referred to reporter : Yes/No.
AMIT KHANCHI
2014.11.14 12:09
I attest to the accuracy and
authenticity of this document
High Court,Chandigarh