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TMI Blog2019 (2) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;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), Ferozepur at 11.30 A.M. that one truck bearing registration No.RJ 13 GA 0378 was coming from Farid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 recorded FIR Ex.P3. He sent the special reports to higher officers including the Illaqa Magistrate. SI Harpal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arters 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 condition. He admitted that the place of recovery was at a distance of about 35 kms. from Ferozepur. They remain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 admitted that sample seal Ex.P4 was prepared on a separate piece of paper and impressions of his seal, and that of DSP and SH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 property in the storeroom at least twice a month and shall make an entry in the station diary on the Money following the examination to the effect that he has done so." 18. Rule 27.18 of Punjab Police Rules, reads as under: "27.18. Safe custody of proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les 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 and in the store-room register. Similarly, it is prescribed in Rule 27.18 that weapons, articles and property sent in connection with cases shall on receipt be entered in register No. 1 and shall (excluding livestock) be properly stored in the store-room of the head of the prosecuting agency, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nior 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 Singh admitted in his cross-examination that case property though was ordered to be deposited in judicial malkhana, this case property was still lying in police station and was brought to the Court from police station itself. He volunteered said that there was no space in the judicial malkhana. However he als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 under:- "(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir 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 October, 2001. After amendment of this sub-section, the words 'forthwith' stood amended by the words 'within seventy two hours'. In other words, whatever ambiguity or leverage was provided for under the unamended provision, was clarified and resultantly, absolute certainty was brought in by binding the officer concerned to send the intimation to the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xx 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. Compliance of Section 42 is mandatory and there cannot be an escape from its strict compliance. xxx xxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 arrest or search, without warrant between sunrise and sunset and he may do so without recording his reasons of belie. The two separate procedures noticed above are exclusive of one another. Compliance of one, would not infer the compliance of the other. In the circumstances contemplated under section 42 of the NDPS Act the mandate of the procedure contemplated therein will have to be followed s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, and the court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is Proved, that an accused has committed an offence under it in respect of the articles covered by it "for the possession of which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under subsection (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." 13. The High Court has come to the conclusion that there is breach of mandatory provisions of Section 42(1) and Section 42(2) and further Section 43 which was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 compliance of proviso of Section 42(1). Since reasons to believe have not been recorded, therefore, under Section 42(2) it is not found on record that copy thereof has been sent to the senior officials. Shishupal Singh could be the best witness in this regard, who has not stated any fact in his statement regarding compliance of proviso to Section 42(1) and Section 42(2), sending of copy of reasons to believe recorded by him to his senior officials." 16. In this context, it is relevant to note that b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 the passengers. The High Court has looked into the evidence and come to the conclusion that there was no material to indicate that there was any permit for running the jeep as public transport vehicle. The High Court has further held that even Kartara Ram who as per owner of the vehicle Veera Ram was using the vehicle, do not support that the jeep was used as public transport vehicle. The High Court held that personal jeep could not be treated as public transport vehicle. 20. The following observations were made by the High Court: "Kar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. This Court in Directorate Of Revenue & Another vs Mohammed Nisar Holia, (2008) 2 SCC 370, had occasion to consider Sections 41, 42 and 43 explanation. The following was stated in paragraph 14: "14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under sub-section (1) of Section 42, need not be complied with, only because the place whereat search is to be made is a public place. If Section 43 is to be treated as an exception to Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 paragraph 25 which is to the following effect: "25. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows : (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 offences purely under the provisions of CrPC fails to strictly comply with the provisions 'of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity. (4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Constitution Bench in State of Punjab Vs. Baldev Singh (supra) has already laid down that provisions of Section 42 and 50 are mandatory and their non-compliance would render the investigation illegal. Following was held in paragraphs 5 and 6: "5.In this case the violation of the mandatory provisions is writ large as is evident from the statement of K.R. Premchandran (PW1). After recording the information, the witnesses is not shown to have complied with the mandate of subsection (2) of Section 42 of the Act. Similarly the provisions of Section 50 have not been complied with as the accused has not been given any option as to whether he wanted to be searched in presence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusion that noncompliance of requirement of Sections 42 and 50 is impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance of Section 42. The Constitution Bench noted the effect of the aforesaid two decisions in paragraph 5. The present is not a case where insofar as compliance of Section 42 (1) proviso even an arguments based on substantial compliance is raised there is total non- compliance of Section 42(1) proviso. As observed above, Section 43 being not attracted search was to be conducted after complying the provisions of Section 42. We thus, conclude that the High Court has rightly held that non compliance of Section 42(1) and Section 42(2) were proved on the record and the High Court has not committed any error in setting aside the conviction order. 30. In view of what has been stated above, it is not necessary for us to enter into the other reasons given by the High Court for setting aside the conviction order. The High Court has given the sufficient reasons and grounds for setting aside the conviction order in which we do not find any infirmity so as to interfere in this appeal." 29. In view of the aforesaid observations, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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