Criminal Appeal No. 1482-SB of 2001 v. State of Punjab

case FIR No. 134/1981, under Section 304 IPC, was registered, at Police Station Dakha. It was further stated by him that Gurmit Singh, Assistant Sub Inspector, was one the accused, in that incident, who was Criminal Appeal No. 1482-SB of 2001 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 8 promoted, as Deputy Superintendent of Police, in the year 1984. It was further stated by him that he (Gurmit Singh, Deputy Superintendent of Police) was the relative of Kanwarjit Singh, Deputy Superintendent of Police. It was further stated by him that he was innocent. It was further stated by him that the witnesses, were Police Officials, and they had deposed falsely, being subordinate to Kanwarjit Singh, Deputy Superintendent of Police.

Darshan Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that, the case was false. It was further stated by him that the witnesses were false. It was further stated by him that he alongwith Mandir Singh, was taken away, by the Police, from their houses, as his father committed suicide by drowning, in the river, when the Police conducted raid on him. It was further stated by him, that he filed applications, against the Police Officials. It was further stated by him, that the Investigating Officer, forced him, to withdraw the aforesaid applications, moved against the guilty Police Officials, to which, he disobeyed, as a result whereof, he had been falsely implicated, in the instant case.

The accused examined Sukhdarshan Singh, Head Constable (DW1), Beant Singh, Complaint Clerk (DW2) (wrongly numbered as DW1), Baldev Singh, Moharrir Head Constable (DW3) (wrongly numbered as DW2), Ujjagar Singh (DW4) (wrongly numbered as DW3), Hardev Singh, Moharrir Head Constable (DW5) (wrongly numbered as DW4), Devidender Singh, Moharrir Head Constable Criminal Appeal No. 1482-SB of 2001 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 9 (DW6) (wrongly numbered as DW5), and, Chaman Singh, Moharrir Head Constable (DW7) (wrongly numbered as DW6). Thereafter, they closed the defence evidence.

After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above.

Feeling aggrieved, the instant appeals, were filed by the appellants.

During the pendency of appeal, Jang singh, one of the appellants, died. Since the appeal, had also been filed by him, against the sentence of fine, the appeal, as a whole, could not abate, in view of the provisions of Section 394(2) of the Code of Criminal Procedure. Accordingly, his Counsel, submitted that, he would address the arguments, on merits.

I have heard the Counsel for the parties, and, have gone the evidence and record of the case, carefully.

The Counsel for the appellants, at the very outset, submitted that a secret information, as per the prosecution story, was received, but the same was neither reduced into writing, nor the question of sending the same, to the Officer superior arose. They further submitted that, thus, there was complete violation of the mandatory provisions of Section 42 of the Act, as a result whereof, the trial, conviction and sentence stood vitiated. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Criminal Appeal No. 1482-SB of 2001 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 10 The recovery, in this case, was not effected, from a building or an enclosed place, or from a vehicle, parked in an enclosed place. On the other hand, the recovery, in this case, was effected, from the aforesaid truck, in transit at the public place. Under these circumstances, the provisions of Section 42 of the Act, were not applicable, to the instant case, but, on the other hand, the provisions of Section 43 of the Act, were applicable.

A Division Bench of this Court in Dharminder Kumar Vs. 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.

15-A. 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.

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 any narcotic drug or transit Criminal Appeal No. 1482-SB of 2001 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 14 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 search 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.” In view of the principle of law, laid down, in the aforesaid cases, the trial Court was right, in holding that since the provisions of Section 42 of the Act were not applicable to the facts of the instant case, the question of compliance of the same did not at all arise. This argument, thus, being devoid of merit, stands rejected.

The Counsel for the appellants, however, placed reliance, Criminal Appeal No. 1482-SB of 2001 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 15 on Karnail Singh Vs. State of Haryana (2009) 3, SCC (Crl.), 887, a case, decided by a Constitution Bench of the Apex Court, in support of their contention, that violation of the provisions of Section 42 of the Act, must result into vitiation of trial, conviction and sentence. The perusal of the ratio of law, laid down, in the aforesaid case, clearly goes, to show, that it was held therein, that the provisions of Section 42 of the Act, being mandatory, in nature, non-compliance therewith, will be a suspicious circumstance. In Karnail Singh's case (supra), the Apex Court also held, that the provisions of Section 42 of the Act, would not be applicable, to the search, made from a vehicle, in transit, at a public place. On the other hand, in para 26 of the report, the difference between the provisions of Sections 42 and 43 of the Act, was highlighted. It was stated, in para 26 of the report that, under Section 43 of the Act, the empowered Officer, has the power of seizure of the articles etc. and arrest of a person, who is found to be in possession of any narcotic drug or psychotropic substance, in a public place, where such possession appears to him to be unlawful. Thus, even in Karnail Singh's case (supra), it was held, that the provisions of Section 43 of the Act, applicable to the search and seizure of a contraband, from a vehicle, in transit, at a public place. No help, therefore, can be drawn, by the Counsel for the appellants, from the ratio of law, laid down, in Karnail Singh's case (supra). The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. Criminal Appeal No. 1482-SB of 2001 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 16

It was next submitted by the Counsel for the appellants, that the prosecution, miserably failed, to prove, that the appellants, were in conscious possession of the contraband, lying in the truck. They further submitted that, as such, the appellants, did not commit any offence, punishable under Section 15 of the Act. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Jang Singh, appellant (since deceased), was the driver of the truck, whereas, Makhan Singh, was the owner thereof, and, Darshan Singh, was sitting therein. It was not that a small quantity of poppy husk, was lying, in the body of the truck, which could escape notice of the occupants thereof. 50 bags, each containing 40 kgs of poppy husk, were lying, in the body of the truck. Such a big haul of poppy husk, could not possibly escape the notice of the appellants, the occupants thereof. As such, the possession of the contraband, in relation to the appellants, stood proved.

The facts of Madan Lal’s case (supra) in brief, were that accused Manjit Singh was driving the Car and the remaining four accused, were sitting therein. One steel container (dolu) in a black coloured bag, was recovered from the said Car, which contained 820 gms. charas. All the accused were convicted and sentenced by the trial Court, holding that they were found in conscious possession of charas, despite the fact, that one of the accused admitted his conscious possession, of the contraband. The Apex Court held that the trial Court was right in coming to the conclusion, that the accused were found in conscious possession of charas, as they had failed to explain as to how they were travelling in a Car together, which was not a public vehicle. The Apex Court upheld the conviction and sentence awarded to the accused. In Megh Singh Vs. State of Punjab, 2003 (4) RCR Criminal Appeal No. 1482-SB of 2001 Criminal Appeal No.

The Counsel for the appellants, however, placed reliance, Criminal Appeal No. 1482-SB of 2001 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 21 on Parminder Singh Vs. State of Haryana, 2006(4), RCR (Criminal), 495, and, Dalbir Singh alias Beera Vs. The State of Punjab, 2004(1), RCR (Criminal), 1050 in support of their contention, that the appellants, were not found, in the conscious possession of the poppy husk. In Parminder Singh's case (supra), the accused, was found standing, near a car wherefrom, the contraband, was recovered. It was, under these circumstances, held that, no conscious possession of the contraband, could be attributed, to him. In Dalbir Singh alias Beera's case (supra),decided by a Single Bench of this Court, the bags, containing poppy husk, were being carried, in the truck. It was held, by this Court, that the conscious possession of the accused, was not proved. The principle of law, laid down, to the contrary, in the aforesaid cases, relied upon by the Counsel for the appellants, being contrary, to the principle of law, laid down, in Madan Lal's and Megh Singh's cases (supra), decided by the Apex Court, does not hold the field. No help, therefore, can be drawn, by the Counsel for the appellants, from these cases.

It was next submitted by the Counsel for the appellants, that no independent witness, was joined, despite availability, nor any effort was made to join him, and, as such, the case of the prosecution became doubtful. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Naginder Singh, Inspector, PW4, the Investigating Officer, stated during the course of his cross- examination, that 3-4 persons, met them, on the way. They were asked Criminal Appeal No. 1482-SB of 2001 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 22 to join, but they refused to join. It means that an attempt, was made, to join an independent witness, but none was ready. It was, under these circumstances, that none of them, could be joined. It could not be said, that the independent witness, was not intentionally and deliberately joined, by the Investigating Officer, at the time of search and seizure. The other evidence produced by the prosecution, on due scrutiny has been found to be cogent, convincing, reliable and trustworthy. In Akmal Ahmed Vs. State of Delhi, 1999(2) RCC 297 (S.C.), it was held that, it is now well-settled, that the evidence of search or seizure, made by the police, will not become vitiated, solely for the reason that the same was not supported by an independent witness. In State of NCT of Delhi Vs. Sunil (2000)I S.C.C. 748, it was held as under:-

It is an archaic notion that actions of the Police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the Police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature.

In Appa Bai and another Vs. State of Gujrat, AIR 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness, had not been examined, by the prosecution. It was further held, in the said case, that the civilized people, are generally insensitive, when a crime is committed, even in Criminal Appeal No. 1482-SB of 2001 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 23 their presence, and they withdraw from the victims' side, and from the side of the vigilant. They keep themselves, away from the Courts, unless it is inevitable. Moreover, they think the crime, like a civil dispute, between two individuals, and do not involve themselves, in it. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the present case. In these circumstances, on account of mere non-joining of an independent witness, when the evidence of the prosecution witnesses, has been held to be cogent, convincing, creditworthy, and reliable, and there was no reason, on their part, to falsely implicate the accused, no doubt, is cast on the prosecution story. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected.

It was next submitted by the Counsel for the appellants, that there was delay of 12 days, in sending the sample parcels, to the office of the Chemical Examiner, which remained unexplained, and, as such, the possibility of tampering with the same, could not be ruled out. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The mere fact that delay, in sending the samples, to the office of the Chemical Examiner, was not explained, in itself, was not sufficient, to come to the conclusion, that the sample parcels were tampered with, at any stage. In such circumstances, the Court is required to fall back upon the other evidence, produced by the prosecution, to complete the link evidence. The other evidence, Criminal Appeal No. 1482-SB of 2001 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 24 produced by the prosecution, has been subjected to indepth scrutiny, and, as stated above, it has been found to be cogent, convincing, reliable, and trustworthy.

It was next submitted by the Counsel for the appellants, that the mandatory provisions of Section 50 of the Act, were not complied with, as a result whereof, the trial, conviction and sentence stood vitiated. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. In the instant case, the recovery, was not effected, from the person of the accused, but, from the truck. As such, the provisions of Section 50 of the Act, were not applicable, to the instant case. In State of Punjab Vs. Baldev Singh, 1999(6) S.C.C. 172, a Constitution Bench of the Apex Court, settled beyond doubt, that the language of Section 50, was implicitly clear that the search had to be, in relation to a person, and not in relation to the premises, vehicles, or articles. Similar view was taken in Smt. Krishna Kanwar Thakuraeen Vs. State of Rajasthan, JT 2004(1) S.C. 597. The submission of the Counsel for the appellants, thus, being without substance stands rejected.

It was next submitted by the Counsel for the appellants, that Criminal Appeal No. 1482-SB of 2001 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 26 the defence version, set up, by the accused, and the defence evidence, produced by them, was not taken into consideration, by the trial Court, as a result whereof, a great prejudice, was caused, to the accused. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The perusal of paras 25, 26 and 27 of the judgement of the trial Court, clearly goes to show, that the defence version, set up by the accused, and the defence evidence, produced by them, was discussed and duly analyzed. The trial Court, found the defence evidence, produced by the accused, to be not reliable, vis-a-vis the prosecution evidence. The trial Court, was also right, in coming to the conclusion, that the defence version, was an after-thought, and the defence evidence was concocted. The trial Court, gave valid reasons, for discarding the defence version, and the defence evidence, produced by the accused. It, therefore, could not be said, that the defence version and the defence evidence, were not taken into consideration, by the trial Court in proper perspective. Since the defence version and the defence evidence, produced before the trial Court, were discarded, by it, for valid reasons, the submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected.

Criminal Appeal No. 312-SB of 2002, filed by Jang Singh, appellant (since deceased), is partly accepted. The judgement of conviction, recorded by the trial Court, qua him, is upheld. The order of substantive sentence, and the sentence, awarded in default of payment of fine, are set aside, as the appellant, died, during the pendency of appeal. The order of imposition of fine, is upheld, qua him.

The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment, qua Makhan Singh and Darshan Singh alias Neela, appellants, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure.

The Chief Judicial Magistrate shall also take steps to recover the amount of fine, if already not deposited, from the property, if any, inherited, by the legal representatives of Jang Singh, appellant (since deceased).

The trial Court shall submit a report, whether the truck, in question, has been confiscated, in accordance with law, and further proceedings, with regard to the disposal thereof, have been taken or not. If such proceedings regarding confiscation of the truck have not been taken then the same be initiated immediately.

The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with. Criminal Appeal No. 1482-SB of 2001 Criminal Appeal No. 77-SB of 2002 Criminal Appeal No. 312-SB of 2002 28

The compliance reports shall be submitted by the District & Sessions Judge, Chief Judicial Magistrate and trial Court, within 03 months from today.

The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the reports are received or not, for further action.

02.02.2010 Amodh (SHAM SUNDER) JUDGE