Crl. Appeal No.1100-SB of 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.1100-SB of 2005
Date of Decision : 22.10.2008
Mal Singh S/o Jagar Singh, ....Appellant
resident of Rozawali.
Versus
The State of Haryana ....Respondent
CORAM:HON'BLE MR. JUSTICE SHAM SUNDER
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Jitender Dhanda, Advocate,
for the appellant.
Mr. A.K.Jindal, AAG, Haryana,
for the respondent.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction dated
11.3.2005, and the order of sentence dated 12.3.2005, rendered by the
Court of Addl. Sessions Judge, Fatehabad, vide which it convicted the
accused/appellant, for the offence, punishable under Section 15 of the
Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called
as ‘the Act’ only) and sentenced him, to undergo rigorous imprisonment
for a period of ten years, and to pay a fine of Rs.1 lac, and in default of
payment of the same, to undergo simple imprisonment for another period
of two years, for having been found in possession of 210 kgs. poppy-
husk, without any permit or licence. However, Joginder Singh, accused,
Crl. Appeal No.1100-SB of 2005 2
was declared Proclaimed Offender, by the trial Court.
2. The facts, in brief, are that, on 29.5.1999, Raghubir Singh, ASI,
P.S. Ratia, alongwith other police officials, was present at Lali Mor,
Ratia, in connection with patrol duty, and crime checking. At that time, a
secret information was received by him, that accused Mal Singh and
Joginder Singh (already declared P.O.), were indulging in the smuggling
of poppy-husk, will bring poppy-husk, in the car of accused Mal Singh,
bearing No.MAE-1542, being driven by Mal Singh, from the side of
village Sardarewala, take the same to Punjab via Nangal bridge, and if a
picket was held, they could be apprehended, with a big haul of poppy-
husk. On receipt of this information, Raghubir Singh, ASI, informed
Rajesh Kumar, Naib Tehsildar, Ratia, and requested him, to reach the
spot. After sometime, Rajesh Kumar, Naib Tehsildar, reached Lali Mor,
Ratia, and a raiding party was constituted. Thereafter, the raiding party
reached the bridge of Pakhara Canal, in the area of Village Nangal, and a
picket was held. After sometime, the aforesaid car was seen coming from
the side of Village Sardarewala, along the canal. It was stopped. Mal
Singh, accused, was driving the car, whereas, Joginder Singh, accused,
was sitting by his side. On the directions of Naib Tehsildar, the
Investigating Officer, conducted the search of the car, and 6 bags,
containing poppy-husk, were found lying there. Each bag was found
containing 35 kgs. Poppy-husk. A sample of 100 grams, from each of the
bags, was separated, and the remaining poppy-husk, was kept in the same
bags. The samples, and the bags, containing the remaining poppy-husk,
were converted into parcels, duly sealed, with the seal, and taken into
possession, vide a separate recovery memo. Ruqa was sent to the Police
Crl. Appeal No.1100-SB of 2005 3
Station, on the basis whereof, formal FIR was registered. The accused
were arrested. Rough site plan of the place of the recovery, was prepared.
The statements of the witnesses, were recorded. The accused were
arrested. After the completion of investigation, the accused were
challaned.
3. On appearance, in the Court, the copies of documents, relied
upon by the prosecution, were supplied to the accused. Charge under
Section 15 of the Act, was framed against them, to which they pleaded
not guilty, and claimed judicial trial.
4. The prosecution, in support of its case, examined Ramesh
Kumar, SI, SI (PW-1), Hardish Kumar, Constable (PW-2), Tarsem
Singh, HC, (PW-3), Jai Chand, Constable (PW-4), Dharmbir, ASI (PW-
5), Raghubir Singh, ASI (PW-6), and Rajesh Kumar, Naib Tehsildar
(PW-7). Thereafter, the Public Prosecutor for the State, closed the
prosecution evidence.
5. The statements of the accused under Section 313 Cr.P.C., were
recorded, and they were put all the incriminating circumstances,
appearing against them, in the prosecution evidence. They pleaded false
implication.
5-A. When the case was fixed for defence evidence, and arguments,
Joginder Singh, accused, absented from the Court, and ultimately, he was
declared Proclaimed Offender.
6. After hearing the Public Prosecutor for the State, the Counsel
for the accused, and, on going through the evidence, on record, the trial
Court convicted and sentenced Mal Singh, accused, as stated
hereinbefore.
Crl. Appeal No.1100-SB of 2005 4
7. Feeling aggrieved, against the judgment of conviction, and the
order of sentence, rendered by the trial Court, the instant appeal, was filed
by Mal Singh, appellant.
8. I have heard the learned Counsel for the parties, and have gone
through the evidence and record, of the case, carefully.
9. The Counsel for the appellant, at the very outset, submitted that
though a secret information was received, by the Investigating Officer,
yet the same was neither reduced into writing, nor sent to the officer
superior, as a result whereof, there was complete violation of the
mandatory provisions of Section 42 of the Act, leading to the vitation of
conviction and sentence. The submission of the Counsel for the
appellant, in this regard, does not appear to be correct. The recovery, in
this case, was effected from a car, at a public place, and not from an
enclosed place. Under these circumstances, the provisions of Section 42
of the Act, were not at all applicable to the instant case. On the other
hand, the provisions of Section 43 of the Act, were applicable, to the
instant case. With a view to properly deal with this plea, taken up, by the
Counsel for the appellant, it would be appropriate to notice the provisions
of Sections 42 and 43 of the Act, which read as under :-
“42. Power of entry, search, seizure and arrest without
warrant or authorization – (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 or of the Border Security Force as is
empowered in this behalf by general or special order by the
Crl. Appeal No.1100-SB of 2005 5Central Government or any such officer (being an officer
superior in rank to a peon, sepoy or constable) of the
revenue, drugs control, excise, olice or any other
department of a State Government, if he has reasons to
believe from personal knowledge or information given by
any person and taken down in writing, that any narcotic
drug, or psychotropic substance, in respect of which an
offence punishable under Chapter IV has been committed
or any document or other article which may furnish
evidence of the commission of such offence is kept or
concealed in any building, conveyance or enclosed place,
may, between sunrise and sunset,
(a) enter into an search any such
building, conveyance or place;
(b) in case of resistance, break open any
door and remove any which 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 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 offence under Chapter IV
relating to such drug or substance : and
Crl. Appeal No.1100-SB of 2005 6
(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 Chapter IV relating to such
drug or substance:
Provided that if such officer has reason to believe
that a search warrant or authorization 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 between sunset and sunrise after
recording the grounds of his belief.
(2) Where an offence takes down any information in
writing under sub-Section (1) or records grounds for his
belief under the proviso thereto he shall forthwith send a
copy thereof to his immediate official superior.”
“43. Power of seizure and arrest in public place. —
Any officer of any of the department mentioned in Section
42 may —
(a) seize, in any public place or in
transit, any narcotic drug or psychotropic
substance in respect of which he has reason to
believe an offence punishable under Chapter
IV has been committed, and, along with such
drug or substance, any animal or conveyance
article liable to confiscation under this Act and
Crl. Appeal No.1100-SB of 2005 7any document or other article which he has
reason to believe may furnish evidence of the
commission of an offence punishable under
Chapter IV relating to such drug or substance;
(b) detain and search any person whom
he has reason to believe to have committed an
offence punishable under Chapter IV, and if
such person has any narcotic drug or
psychotropic substance in his possession and
such possession appears to him to be useful,
arrest him and any other person in his
company.
9-A. A conjoint reading of Sections 42 and 43 of the Act, shows that
these sections are independent of each other. Section 43 authorises any
Officer of the departments, mentioned in Section 42, to seize in any
public place, or in transit, any narcotic drug or psychotropic substance, or
controlled substance, in respect of which, he has reason to believe that an
offence punishable under Chapter IV has been committed, whereas,
Section 42 of the Act empowers the Officer to search any building, or
conveyance, in any building, and seize the contraband, lying therein.
When the information is with regard to concealment of some narcotic, in
a vehicle, in transit, then the provisions of Section 43 of the Act are
applicable. The word ‘public place’ has been explained for the purpose of
Section 43 of the Act, which includes any public conveyance, hotel, shop
or other places intended for use or accessible to the public.
9-B. A Division Bench of this Court in Dharminder Kumar Vs.
Crl. Appeal No.1100-SB of 2005 8
State of Punjab, 2002(4) RCR (Crl.)278 has held as under :-
“Thus it is evident that if seizure is made from any animal,
conveyance or article in a public place or in transit then
Section43 of the Act would be applicable. Section 43 and
Section 42 of the Act operate in different spheres. Since the
conveyance has been specifically included in Section 43 of
the Act also, therefore, the conveyance which is found in a
public place or in transit would be covered under the
provisions of Section 43 of the Act whereas conveyance used
in Section 42 of the Act has to be read as conveyance which
is other than a public place. This interpretation is the only
harmonious interpretation of Sections 42 and 43 of the Act.”
It is well settled principle of law, that the provisions of a
Statute, are to be construed, in harmonious manner, so that none of the
same is rendered nugatory. By harmonious construing the provisions of
Sections 42 and 43 of the Act, it can be safely concluded, that if a
conveyance is intercepted or apprehended at a public place, or in transit,
then the provisions of Section 42 of the Act, would not be applicable.
9-C. It was held in State of Haryana Vs. Jarnail Singh and others
2004(2) RCR (Crl.) 960 (SC) as under :-
“7. Section 43 of the NDPS Act provides that any officer of
any of the departments mentioned in Section 42 may seize in
any public place or in transit any narcotic drug or
psychotropic substance etc. in respect of which he has
reason to believe that an offence punishable under the Act
has been committed. He is also authorized to detain and
Crl. Appeal No.1100-SB of 2005 9search any person whom he has reason to believe to have
committed an offence punishable under the Act.
Explanation to Section 43 lays down that 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.
8. Sections 42 and 43, therefore, contemplate two difference
situations. Section 42 contemplates entry into and search of
any building, conveyance or enclosed place, while Section
43 contemplates a seizure made in any public place or in
transit. If seizure is made under Section 42 between sunset
and sunrise, the requirement of the proviso thereto has to be
complied with. There is no such proviso in Section 43 of the
Act and, therefore, it is obvious that if a public conveyance
is searched in a public place, the officer making the search
is not required to record his satisfaction as contemplated by
the proviso to Section 42 of the NDPS Act for searching the
vehicle between sunset and the sunrise.”
9-D. In the instant case, Raghubir Singh, ASI, was present at Lali
Mor, Ratia, in connection with patrol duty and crime checking, when he
received an information from a special informer, that Mal Singh and
Joginder Singh, accused, were indulging in the smuggling of poppy-husk,
and will bring poppy-husk, in the car of Mal Singh, accused, bearing
No.MAE/1542. It was also informed that, they could be apprehended, if
a raid was conducted. On receipt of this information, he informed Rajesh
Kumar, Naib Tehsildar, and requested him to reach the spot. Thereafter,
Crl. Appeal No.1100-SB of 2005 10
he (Rajesh Kumar, Naib Tehsildar), reached the said place. It was, at that
time, that the appellant was found driving the said car, in which 6 bags,
containing poppy-husk, were lying. The recovery was effected from a
vehicle, in transit, at a public place. Thus, the provisions of Section 43
were applicable, and not the provisions of Section 42. In this view of the
matter, the trial Court was right in holding that the question of
compliance of the provisions of Section 42, did not at all arise, as the
same were inapplicable. The trial Court was, thus, right in recording
conviction, and awarding sentence, to the accused.
10. It was next submitted by the Counsel for the appellant, that
only one sample was drawn, in stead of two samples, as per the
requirement of law. The submission of the Counsel for the appellant, in
this regard, does not appear to be correct. There is no requirement of law,
that two samples from each of the bags of contraband, should be drawn,
by the Investigating Officer, at the time of recovery. The object of
drawing a sample, is that the same should be sent to the Forensic Science
Laboratory, for the purpose of analysis. The samples were sent to the
Forensic Science Laboratory, and it found the contents thereof to be
sufficient, for the purpose of analysis. There was, therefore, no violation
of any provision of Act, or the Rules framed thereunder. No dent,
therefore, was caused, in the case of the prosecution, on account of
drawing of one sample, from each of the bags. In this view of the matter,
the submission of the Counsel for the appellant, being without merit,
must fail, and the same stands rejected.
11. It was next submitted by the Counsel for the appellant, that
some material contradictions, appeared in the statements of the witnesses,
Crl. Appeal No.1100-SB of 2005 11
which were not explained, and, as such, a serious doubt was cast on the
prosecution story. According to the Counsel for the appellant, Raghubir
Singh, SI (PW-6), the Investigating Officer, stated that the ruqa was sent
through a Constable, who went on foot, and came back on scooter,
whereas, Rajesh Kumar, Naib Tehsildar, (PW-7), stated that the ruqa was
sent through a Constable, who went in Jeep, and came back, in jeep.
Raghubir Singh, SI (PW-6), the Investigating Officer, stated that the
writing work was done, while sitting in the jeep, whereas, Rajesh Kumar,
(PW-7) stated that the writing work, was done, while sitting on the bridge
of canal. Raghubir Singh, SI (PW-6), the Investigating Officer, stated
that he tried to associate an independent witness, but none was ready,
whereas, Rajesh Kumar (PW-7), stated that no attempt was made to join
an independent witness. Raghubir Singh, SI (PW-6), the Investigating
Officer, stated that after the recovery, the car was taken to the Police
Station, by Mal Singh, accused, whereas, Rajesh Kumar (PW-7), stated
that the car was brought to the Police Station, after having been driven by
the police officials, after the recovery. These contradictions, in the
statements of the witnesses, cropped up, on account of lapse of time, and
memory. It is not possible for a witness to remember the minute details
of the case, even for a period of a few days. In the instant case, Raghubir
Singh, SI (PW-6), the Investigating Officer, and Rajesh Kumar, Naib
Tehsildar (PW-7), were examined on 23.10.2002, whereas, the recovery,
in this case, was effected on 29.5.1999. It means that they were examined
after more than 3 years of recovery. It was not at all possible for them, to
remember all the minute details, for a period of more than 3 years. Even,
these discrepancies cannot be said to be so serious, as to cast a cloud of
Crl. Appeal No.1100-SB of 2005 12
doubt, on the prosecution story. Occurrence of these discrepancies,
clearly goes to show that the witnesses are truthful and not tutored. They
could not be expected to make parrot like statements. In this view of the
matter, the evidence of the prosecution witnesses, when scrutinized, as a
whole, it becomes clear that the same is trustworthy, and reliable. These
discrepancies, did not at all, cause any dent, in the prosecution story. In
this view of the matter, the submission of the Counsel for the appellant,
being without merit, must fail, and the same stands rejected.
12. No other point, was urged, by the Counsel for the parties.
13. In view of the above discussion, it is held that the judgment of
conviction and the order of sentence, rendered by the trial Court, are
based on the correct appreciation of evidence, and law, on the point. The
same do not warrant any interference, and are liable to be upheld.
14. For the reasons recorded, hereinbefore, the appeal is dismissed.
The judgment of conviction dated 11.3.2005, and the order of sentence
dated 12.3.2005, are upheld. If the accused/appellant is on bail, his bail
bonds, shall stand cancelled. The Chief Judicial Magistrate, Fatehabad,
shall take necessary steps, to comply with the judgment, with due
promptitude, keeping in view the applicability of the provisions of
Section 428 of the Cr.P.C., and submit compliance report, to this Court,
within a period of three months, from the date of receipt of a copy
thereof.
22.10.2008 (SHAM SUNDER) Vimal JUDGE