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TMI Blog2012 (12) TMI 1084X X X X Extracts X X X X X X X X Extracts X X X X ..... onviction and sentence of the accused. Aggrieved from the judgment of the Division Bench of the High Court, the accused filed the present appeal. 3. Before we dwell upon the merit or otherwise of the contentions raised before us, it will be appropriate for the Court to fully narrate the facts resulting in the conviction of the appellant. On 19th July, 2000, a secret information was received by Sub-Inspector Kaptan Singh, PW7 who at the relevant time was the Station House Officer of Police Station, Cheeka and was present near the bus stand Bhagal in relation to investigation of a crime. Assistant Sub-Inspector Mohinder Singh was also present there. According to the information received the accused/appellant Kishan Chand and Ramphal, the other accused, used to smuggle opium on their Scooter No. HR 31 B 1975. On that day, they were coming on Kakrala-Kakrali Road and were on their way to Bhagal. It was further informed that upon nakabandi, they could be caught red handed and a large quantity of opium could be recovered from the scooter. Kaptan Singh, PW7, then reached T-Point, turning Theh Banehra and made the nakabandi. After 20-25 minutes, both the accused came on scooter from the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d eight witnesses including Shri S.K. Nagpal, Senior Scientific Officer, FSL, Madhuban. The accused in his statement under Section 313 CrPC refuted all allegations of the prosecution levelled against them and pleaded innocence. Accused Kishan Chand stated that ASI Balwan Singh was resident of his village and there was a dispute regarding land between the two families. The possession of the land had been taken by the family of the accused from ASI Balwan Singh. Thereafter, he had gone to see Sarpanch Bansa Singh of Village Bhoosla in connection with some personal work and at about 4 p.m., he was going towards Village Kalar Majra and on the way, Joginder, son of Dewa Singh met him at the Buss Adda Bhagal and when they were taking tea in a shop, then two police officials came in a civil dress and asked them to go to police post Bhagal as he was required by ASI Mohinder Singh Incharge Police Post Bhagal and, thus, a false case was planted against him. 7. As already noticed, the Trial Court acquitted accused Ramphal, but convicted Kishan Chand and the conviction was upheld by the High Court giving rise to the filing of the present appeal. 8. At this stage itself, we would like to noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and again has made some of the provisions obligatory for the prosecution to comply, which the courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of law. The court however, while construing such provisions strictly should not interpret it so, literally so as to render its compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out." 9. The Division Bench of the High Court confirmed the finding recorded by the Trial Court. It also recorded that the accused was in motion at the time when the secret information was received. Since secret information was from a reliable source, PW7 acted swiftly and arrested the accused and under these circumstances, the secret information report was not recorded by the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scooter, the accused Ramphal was acquitted, the appellant could not have been convicted by the courts, thus, there is inbuilt contradiction in the judgments and they suffer from error in appreciation of evidence as well as in application of law. 3. The entire recovery is vitiated as PW5, Subhash Seoran, Tehsildar- cum-Executive Magistrate, was never present at the site and there was no compliance to the provisions of Section 50 of the Act as stated. No independent witness had been associated which itself will show that the prosecution had not been able to establish its case beyond reasonable doubt and that the appellant had been falsely implicated in the case. 12. To the contra, the submission on behalf of the State of Haryana is that the prosecution has been able to establish its case beyond reasonable doubt. There had been substantial compliance to the provisions of Section 42 of the Act. The compliance with the provisions of Section 57 and the Report which was sent vide Ext. PG on 20th July, 2002, fully establishes the substantial compliance to the provisions of Section 42 of the Act. The provisions of Section 50 had also been complied with and, therefore, the contentions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribe very harsh punishments for the offender. The question of substantial compliance of these provisions would amount to misconstruction of these relevant provisions. It is a settled canon of interpretation that the penal provisions, particularly with harsher punishments and with clear intendment of the legislature for definite compliance, ought to be construed strictly. The doctrine of substantial compliance cannot be called in aid to answer such interpretations. The principle of substantial compliance would be applicable in the cases where the language of the provision strictly or by necessary implication admits of such compliance. 17. In our considered view, this controversy is no more res integra and stands answered by a Constitution Bench judgment of this Court in the case of Karnail Singh (supra). In that judgment, the Court in the very opening paragraph noticed that in the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat [(2000) 2 SCC 513], a three Judge Bench of the Court had held that compliance of Section 42 of the Act is mandatory and failure to take down the information in writing and sending the report forthwith to the immediate officer superior may cause p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith requirements of sub- sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with 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 of 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 a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance therewith must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non-compliance with the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial. 21. When there is total and definite non-compliance of such statutory provisions, the question of prejudice loses its significance. It will per se amount to prejudice. These are indefeasible, protective rights vested in a suspect and are incapable of being shado ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act. These are separate rights and protections available to an accused and their compliance has to be done in accordance with the provisions of Sections 42, 50 and 57 of the Act. They are neither inter-linked nor inter-dependent so as to dispense compliance of one with the compliance of another. In fact, they operate in different fields and at different stages. That distinction has to be kept in mind by the courts while deciding such cases. 25. Now, we will deal with a serious doubt that has been pointed out on behalf of the appellant in the recovery and the very presence of PW5, Subhash Seoran, at the time of recovery. The prosecution has not been able to establish this aspect of the case beyond reasonable doubt. According to PW7 after stopping the scooter of the accused at T-Point, Theh Banehra, he had sent for PW5 who had reached there and recovery was effected in his presence after giving option to the accused as required under Section 50 of the Act. We do not consider it necessary to deal with the other contentions including the plea taken with regard to compliance of Section 50 of the Act. We would only confine ourselves in regard to the doubt that has been created in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vement of the vehicles is not entered in the log book and that the vehicle was used by PW7 on that day, which suggestion he categorically denied, no other question was put to this witness. One has no reason to disbelieve the statement of DW1 particularly when he produced the log book maintained in normal course of business. The log book showed a clear entry at serial no. 422 dated 19th July, 2000 where the vehicle in question was stated to be used by Mr. Bhatti, Naib Tehsildar, from 12.30 p.m. to 7.00 p.m. and was driven for 117 kms. PW5, Tehsildar-cum-Executive Magistrate, in fact, did not use the official vehicle on that day as per the log book. The witness even gave the exact reading of the meter of the vehicle which showed that it was driven for 117 kilometers on that date by the Naib Tehsildar, not even anywhere near to the area where the accused is alleged to have been apprehended It was also stated that except that journey, the vehicle had gone nowhere. He specifically stated that he had never taken PW5 to the place in question. Once, the statement of this witness is examined with the statement of PW7, that he did not associate any private person, independent witness in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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