TaxTMI 
TaxTMI 
2019 (2) TMI 837
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....nd Psychotropic Substances Act, 1985 (in short 'the NDPS Act') and appellant Harbhajan Singh alias Bhajan Singh, who was charged with and tried for offence punishable under Section 25 of the NDPS Act, were convicted and sentenced as under:- Name of convict Offence Sentence Fine In default RI Kuldeep Singh 15(c) read with Section 8 (c) of the NDPS Act 12 years One lakh Two years Kashmir Singh alias Sheeru 15(c) read with Section 8 (c) of the NDPS Act 12 years One lakh Two years Jagir Singh alias Jagira 15(c) read with Section 8 (c) of the NDPS Act 12 years One lakh Two years Harbhajan Singh 25 NDPS Act 12 years One lakh Two years One of the accused Jaswinder Singh alias Kala died during the pendency of trial. 3. The case of the prosecution in a nutshell is that on 04.01.2008, Sub Inspector Harpal Singh Incharge CIA Headquarters, Ferozepur along with other police officials were on patrolling and checking of suspicious persons. When the police party reached near bus stand of village Machhi Bugra at Moga Ferozepur Road, SI Harpal Singh received a wireless message from Rajinder Singh DSP (D), ....
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.... to be confiscated to the State. The appeal bearing No.CRA-S-2344-SB-2010 has been filed for setting aside the order of confiscation of truck in question. 5. Learned counsel appearing on behalf of the appellants have vehemently argued that the prosecution has failed to prove the case against the appellants. 6. Learned counsel appearing on behalf of the State has supported the prosecution case. 7. We have heard learned counsel for the parties and have gone through the judgment and record very carefully. 8. PW-1 Constable Kewal Singh had tendered his evidence by filing his affidavit Ex.P1. According to the averments contained in the affidavit, on 04.01.2008 he was posted as Constable on general duty at Police Station Ghall Khurd at Ferozepur. On 10.01.2008 SHO Harinder Singh had handed over to him along with other parcels, 30 parcels of case property with the seals HS, RS, and HS specimen, containing powder of poppy husk weighing 250 grams each duly sealed to be deposited into the office of Chemical Examiner, Amritsar. 9. PW-2 Harinder Singh testified that on 04.01.2008 he was posted as SHO at Police Station Ghall Khurd. He received ruqa Ex.P2 from SI Harpal Singh. He ....
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....n its return. 10. PW-3 SI Harpal Singh deposed that on 04.01.2008 he was posted as Incharge CIA Staff, Headquarters Ferozepur. He was on patrolling duty along with other police officials. They were informed about the movement of truck carrying poppy husk. They laid naka. The truck was stopped at 1.00 P.M. The accused were taken out from the truck. They disclosed their identities. An effort was made to join independent witness but none met them. The truck was searched in the presence of the DSP. 30 bags containing poppy husk were found in the truck. These bags were marked 1 to 30. Two samples each of 250 grams were drawn from each bag and converted into parcels. The remaining poppy husk on weighment was found to be 39 kgs 500 grams in each bag. He affixed his seal on all the parcels bearing impression 'HS'. Sample seal impression chit was prepared separately vide Ex.P4. He filled up form Ex.P12. On return to the police station, he handed over the case property and accused to SI Harinder Singh. He affixed impression of his seal on Ex.P4. In his cross-examination, he admitted that he had seen the case property outside the Court. The seals on some of the bags were in broken ....
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....dated 01.12.2009 Ex.D3, copy of order dated 16.02.2010 Ex.D4 and copy of order dated 16.02.2010 Ex.D5. 14. PW-2 Harinder Singh has categorically admitted in his crossexamination that sample seal Ex.P4 was prepared on separate piece of plain paper and thereafter pasted on Ex.P12. PW-3 SI Harpal Singh also admitted that sample seal Ex.P4 was prepared on a separate piece of paper and impressions of his seal, and that of DSP and SHO were not directly put on CFSL form Ex.P12 at the spot. CFSL form EX.P12 bore his signatures but there is not date under his signatures. He also deposed that he prepared three copies of CFSL form like Ex.P12. He could not tell where the other two copies of Form 29 were used by SHO. Sample seal slips were also prepared on three chits. On the other two CFSL forms, impressions of their seals were not directly put. There was no record on judicial file indicating that three copies of CFSL form and three sample seal slips were prepared at the spot. It is a serious omission on the part of the police. They had not explained why separate chits were prepared. The seal impression should have been on the form itself. As noticed hereinabove, PW-3 SI Harpal Singh admit....
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....is taken out from Malkhana, DDR is made and also at the time when case property is re-deposited in the Malkhana. Thus, it casts doubt whether it is the same case property which was recovered from the accused and sent to FSL or it was case property of some other case. 17. Sub-rule (2) of Rule 22.18 of Punjab Police Rules, reads as under: "(2) All case property and unclaimed property, other than cattle, of which the police have taken possession shall, if capable of being so treated, be kept in the storeroom. Otherwise the officer in charge of the police station shall make other suitable arrangements for its safe custody until such time as it can be dealt with under sub-rule (1) above. Each article shall be entered in the store-room register and labelled. The label shall contain a reference to the entry in the store-room register and a description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles shall be given on the label and in the store-room register. The officer in charge of the police station shall examine Government and other p....
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.... shall similarly, after personal check, initial the entry of return of the property to the main store-room on the closing of the courts. (5) Every day, when the courts close, an officer of the prosecuting branch of rank not less that of sub-inspector shall personally see that the articles produced in court are returned to the store-room, restored to their proper places in the shelves, cup-boards or strong box and registered as required by sub-rule (4) above. The opening of the storeroom in the morning and its closing in the evening shall invariably be in the presence of the police officials named in this rule. Animals brought from the pound shall be repounded under the supervision of a head constable." 19. Thus, it is evident from rule 22.18 that the case property is required to be kept in store room and each article is to be entered in store room, registered and labelled and label shall contain a reference to the entry in the store-room register and a description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles is required to be given on the label....
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....uggest that these Rules were followed while producing case property in the Court and on returning the same. These Rules have been framed to ensure that case property from its initial stage of seizure till production in the Court remains safe/intact and is restored to store room in the presence of senior police officer. Property taken out of the main store-room for production in court is required to be signed by the court orderly concerned in Register No. 2 and the prosecuting officer authorizing the removal is required to initial this entry. Such officer shall similarly, after personal check, initial the entry of return of the property to the main store-room on the closing of the courts. 22. The case property was handed over to PW-2 SI Harinder Singh vide Ex.P5. He moved application Ex.P8 before the Illaqa Magistrate. The Illaqa Magistrate passed the order vide Ex.P11 on 05.01.2008. The order reads as under:- "Heard. The case property be deposited in Judicial Malkhana. Intimation be sent to the Ld.CJM, Ferozepur." However the fact of the matter is that despite the specific order dated 05.01.2008, the case property was not kept in judicial malkhana. PW- 2 SI Harinder ....
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....lice had not joined any independent witness though the truck was apprehended at 1.00 P.M. PW-5 SI Gurpiar Singh deposed that seal was handed over to him but he returned the same to SI Harpal Singh after 2/3 days. 23. As far as appellant Harbhajan Singh is concerned, it was for the prosecution to prove that the owner of the vehicle had consciously permitted the vehicle to be used for commission of offence under the NDPS Act. No evidence in the present case has been led by the prosecution that the owner had knowledge that his truck was used for improper purposes. The prosecution has not discharged its onus to establish that Harbhajan Singh knowingly allowed to use his truck to ferry contraband. There is also violation of mandatory provisions of Section 42 of the NDPS Act. Section 42 of the NDPS Act requires recording of reasons of belief and for taking down of information received in writing and the same is to be sent to the superior officers. There is no evidence that information was reduced into writing and superior officer was informed. 24. Their Lordships of the Hon'ble Supreme Court in State of Punjab vs. Balbir Singh, (1993) 3 Supreme Court Cases 299 have held as unde....
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....ements enjoined by Section 42(1) r/w. Section 42(2) of NDPS Act. We accordingly, repel this submission of Mr. Nalawade also." 26. Their Lordships of the Hon'ble Supreme Court in Sukhdev Singh vs. State of Haryana, (2013) 2 Supreme Court Cases 212 have underlined the objects and purpose of ensuring strict compliance of Section 42. Their Lordships have held that Section 42 is mandatory which ought to be construed and complied with strictly. The compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. Their Lordships have held as under:- "15. Section 42 can be divided into two different parts: first is the power of entry, search seizure and arrest without warrant or authorisation as contemplated under sub-section (1) of the said section; second is reporting of the information reduced to writing to a higher officer in consonance with sub-section (2) of that section. Subsection (2) of Section 42 had been a matter of judicial interpretation as well as of legislative concern in the past. Sub-section (2) was amended by the Parliament vide Act 9 of 2001 with effect from 2nd Octob....
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.... xxx xxx 21. In the present case, the occurrence was of 4th February, 1994. The Trial of the accused concluded by judgment of conviction dated 4th July, 1998. Thus, it will be the unamended Section 42(2) of the NDPS Act that would govern the present case. The provisions of Section 42 are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the Investigating Officer. He is obliged to furnish the information to his superior officer. That obviously means without any delay. But there could be cases where the Investigating Officer instantaneously, for special reasons to be explained in writing, is not able to reduce the information into writing and send the said information to his superior officers but could do it later and preferably prior to recovery. Compl....
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....ng in writing, the details pertaining to the receipt of secret information, as also, the communication of the same to the superior officer are separate and distinct from the procedure stipulated under the provisions of the Criminal Procedure Code. Sub-section 1 of section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of Second Class specially empowered by the State Government may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Sub-section (2) of Section 41 refers to issue of authorisation for similar purposes by the officers of the Departments of Central Excise, Narcotics, Customs, Revenue Intelligence, etc. Sub-section (1) of section 42 of the NDPS Act lays down, that the empowered officer, if he has a prior information given by any person, should necessarily take it down in writing, and where he has reason to believe from his personal knowledge, that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building, etc. he may carry out the arre....
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....ating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial." 11. To the similar effect are the observations of this Court in Saiyad Mohd. Saiyad Umar Saiyed & others vs. The State Of Gujarat. The following was stated in paragraph 6 of the said judgment: "6. It is to be noted that under the NDPS Act punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than IO years but which May extend to 20 years and also to fine which shall not be less than Rupees one lakh but which may extend to Rupees two lakhs, an....
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....nclosed 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 V A 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 building,conveyance or enclosed place at any time be....
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....ween sun set and sun rise, the warrant would be necessary unless officer has reasons to believe that a search warrant or authorisation cannot be obtained without affording the opportunity for escape of offender which grounds of his belief has to be recorded. In the present case, there is no case that any ground for belief as contemplated by proviso to sub-section (1) of Section 42or Sub-section (2) of Section 42 was ever recorded by Station House Officer who proceeded to carry on search. Station House Officer has appeared as PD-11 and in his statement also he has not come with any case that as required by the proviso to Sub-section (1), he recorded his grounds of belief anywhere. The High Court after considering the entire evidence has made following observations : "Shishupal Singh PD-11 by whom search has been conducted, on reaching at the place of occurrence by him no reasons to believe have been recorded before conducting the search of jeep bearing HR 24 4057 under Section 42(1), nor any reasons in regard to not obtaining the search warrant have been recorded. He has also not stated any such facts in his statements that he has conducted any proceedings in regard to comp....
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.... to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.- For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public" 18. Explanation to Section 43 defines expression "public place" which includes any public conveyance. The word "public conveyance" as used in the Act has to be understood as a conveyance which can be used by public in general. The Motor Vehicles Act, 1939 and thereafter the Motor Vehicles Act, 1988 were enacted to regulate the law relating to motor vehicles. The vehicles which can be used for public are public Motor Vehicles for which necessary permits have to be obtained. Without obtaining a permit in accordance with the Motor Vehicles Act, 1988, no vehicle can be used for transporting passengers. 19. In the present case, it is not the case of the prosecution that the jeep HR-24 4057 had any permit for transporting th....
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....y relative to run it for transporting passengers" Admittedly the jeep was intercepted and was seized by the police. In view of the above, the jeep cannot be said to be a public conveyance within the meaning of Explanation to Section 43. Hence, Section 43 was clearly not attracted and provisions of Section 42(1) proviso were required to be complied with and the aforesaid statutory mandatory provisions having not been complied with, the High Court did not commit any error in setting aside the conviction. 22. There is one more aspect which needs to be noted. The present is a case where prosecution himself has come with case that secret information was received from informer which information was recorded in Exh. P-14 and Exh. P-21 Roznamacha and thereafter the Station House Officer with police party proceeded towards the scene. The present is not a case where the Station House Officer suddenly carried out search at a public place. The Station House Officer in his statement has also come up with the facts and case to prove compliance of Section 42. When search is conducted after recording information under Section 42(1), the provisions of Section 42 has to be complied with. Th....
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.... 42. Under Section 42, the empowered officer even without a warrant issued as provided under Section 41 will have the power to enter, search, seize and arrest between sunrise and sunset if he has reason to believe from personal knowledge or information given by any other person and taken down in writing that an offence under Chapter IV has been committed or any document or other article which may furnish the evidence of the commission of such offence is kept or concealed in any building or in any place. Under the proviso if such officer has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for the concealment of the evidence or facility for the escape of the offender, he can carry out the arrest or search between sunset and sunrise also after recording the grounds of his belief. Subsection (2) of 8 1990 Cri LJ 414 (Del) Section 42 further lays down that when such officer takes down any information in writing or records grounds for this belief under the proviso, he shall forthwith send a copy thereof to his immediate official superior." 24. After referring large number of cases, this Court recorded conclusion in paragrap....
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....r materials 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) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non- compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. (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 off....
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.... and several earlier judgments of this Court. The Constitution Bench noticed that the earlier judgments in Balbir Singh's case has found approval by three Judges Bench in Saiyad Mohd. Saiyad Umar Saiyed & others vs. The State Of Gujarat (supra) and a discordant note was struck by two Judges Bench in State of Himachal Pradesh Vs. Pirthi Chand and another. The Constitution Bench approved the view of this Court in Balbir Singh's case that there is an obligation on authorised officer under section 50 to inform the suspect that he has right to be informed in the presence of the Gazetted Officer. It was held by Constitution Bench that if search is conducted in violation of Section 50 it may not vitiate the trial but that would render the recovery of illicit articles suspect and vitiates the conviction and sentence of the accused. What is said about non- compliance of Section 50 is also true with regard to non-compliance of Section 42 of the Act. 27. In Beckodan Abdul Rahiman vs State Of Kerala, this Court had occasion to consider both Section 42 and Section 50. In the above case there was non compliance of Section 42 (2) as well as Section 50. It was also noticed that a Constitut....