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Himachal Pradesh High Court · body

2002 DIGILAW 197 (HP)

AVTAR SINGH v. STATE OF H. P.

2002-07-12

M.R.VERMA, R.L.KHURANA

body2002
JUDGMENT R.L. Khurana, J.—The above noted two appeals arising out of the judgment dated 29.9.2000 of the learned Sessions Judge, Una, in Sessions Case No. 27 of 1999 are being disposed of by this common judgment. 2. The two appellants, Avtar Singh and Rajesh Kumar, hereinafter referred to as the accused, stand convicted for the offence under Section 18, Narcotic Drugs and Psychotropic Substance Act (for short : NDPS Act) and upon such conviction each one of them has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000. In default of payment of fine, each one of them has been sentenced to undergo simple imprisonment for a further period of two years. 3. Accused Avtar Singh alias Nikka is a resident of Santokhgarh, District Una, while accused Rajesh Kumar is a resident of village Ajauli, Tehsil and District Una. 4. Prosecution story, in brief, may be thus stated. On 3.4.1999 a secret information was received by PW-10 Shri D.R Sharma, the then Superintendent of Police, Una, on telephone that large scale trade in opium was being illegally carried out by a gang, of which the present two accused are members and operators, and that a big haul of opium was being carried by accused Avtar Singh in Car No. PB-12C-9527 from Majara towards his house and if a raid is conducted opium in very large quantity could be recovered. Finding the information reliable, PW-10 reduced such information into writing (Ex. PK) and forwarded the same to Police Station, Una for the registration of the case on the basis of which a case for the offence under Section 18, NDPS Act came to be registered vide FIR No. 179 of 1999 (Ex. PL) at about 4.40 p.m. 6. PW-10 deputed PW-12 Deputy Superintendent of Police Shri Madhusudan to conduct the raid. A raiding party was accordingly constituted by PW-12 consisting of PW-11 Assistant Sub Inspector Om Prakash, three Head Constables and thirteen Constables, PW-3 Smt. Nirmala Devi, Pradhan of Nagar Panchayat Santokhgarh and PW-4 Bhajan Singh, Member Nagar Panchayat, Santokhgarh, were also joined in the raiding party as the two independent witnesses. On the raid having been conducted, the two accused were found present in the house of accused Avtar Singh. During course of search of the house, two plastic bags were recovered. On the raid having been conducted, the two accused were found present in the house of accused Avtar Singh. During course of search of the house, two plastic bags were recovered. On further search of the bags, seven rexin bags were recovered therefrom which contained opium. On weighment such opium was found to be 35 kg. 950 grams. 7. A search of the Car PB-12C-9527 was also carried out and from beneath the rear seat one rexin bag containing 5 kg. 150 grams of opium was recovered. 8. The opium so recovered from the house and the car was seized and taken into possession after following the necessary procedure of sealing and sampling. 9. Further case of the prosecution is that a bag containing a sum of Rs. 2,16,683 was also recovered during the course of the search of the house. Such bag along with the currency notes was also seized, sealed and taken into possession. The car from which the opium is alleged to have been recovered was also seized and taken into possession. 10. The samples on having been sent for chemical examination, vide report Ex. PM were found to be that of opium. 11. After completion of investigation the two accused were sent up for trial. They were charged for the offence under Section 18, NDPS Act^ to which they pleaded not guilty and claimed trial. 12. The prosecution in support of the case examined fourteen witnesses in all. The defence of the accused is that of denial and false implication. They have denied the recovery from the house and the car. Accused Avtar Singh has even denied the ownership and exclusive possession of the house. Accused Rajesh Kumar though admitted the car No. PB-12C-9527 belongs to him, has denied any recovery of opium therefrom. In so far as recovery of Rs. 2,16,683 from the house is concerned, defence evidence has been led to show that such money belongs to the mother of accused Avtar Singh, which amount she had received from DW 2 Pawan Dev as advance/earnest money in respect of the property agreed to be sold by her vide agreement Ex. DA dated 27.3.1999 to DW 2. 13. 2,16,683 from the house is concerned, defence evidence has been led to show that such money belongs to the mother of accused Avtar Singh, which amount she had received from DW 2 Pawan Dev as advance/earnest money in respect of the property agreed to be sold by her vide agreement Ex. DA dated 27.3.1999 to DW 2. 13. The learned trial Court on consideration of the material placed before it, held the two accused guilty of the offence under Section 18, NDPS Act and it, accordingly, convicted and sentenced each of the two accused as aforesaid. Hence, the present two appeals by the accused assailing the conviction and sentence recorded against them by the learned trial Court. 14. Shri Anup Chitkara, Advocate, the learned Counsel for the two accused, at the very out set, has contended that the conviction and sentence recorded by the learned trial Court against each of the two accused are bad and liable to be set aside since the investigation agency has failed to comply with the mandatory provisions of Section 42(2) of the NDPS Act. 15. It is the story of prosecution that PW 10 Shri D.P Sharma, the then Superintendent of Police, Una on 3.4.1999 at about 4.25 p.m. had received a secret information about the illicit trade in opium at a large scale by an organised gang of which the two accused were the main operators and about a big haul of opium being transported in the car by accused Avtar Singh from Majara to his house in Santokhgarh. PW 10 recorded such information (Ex. PK), termed as "statement under Section 154 Cr.PC." and deputed PW 12 Dy. S.P. Madhusudan to conduct the raid. He simultaneously forwarded the information Ex. PK recorded by him to the police station for registration of the case and on the basis of Ex. PK a case came to be registered at about 4.40 p.m. vide FIR Ex. PL on the same day, that is, much before the raid was alleged to have been conducted and recovery effected. 16. Section 42 NDPS Act, as then in force, provides:— "42. PK a case came to be registered at about 4.40 p.m. vide FIR Ex. PL on the same day, that is, much before the raid was alleged to have been conducted and recovery effected. 16. Section 42 NDPS Act, as then in force, provides:— "42. Power of entry, search, seizure and arrest without warrant or authorisation.—(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 Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason 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 and search any such building, conveyance or place; (b) in case of resistance, break open and 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 Chapter IV relating to such drug or substance; 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 Chapter IV relating to such drug or substance: 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 scape 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 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." 17. A Constitution Bench of the Apex Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172, has held that while conducting search and seizure in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the NDPS Act are also required to be followed. The harsh provision of the Act cast a duty upon the prosecution to strictly follow the procedure and comply with the safeguards. It was observed:— "Prior to the passing of the NDPS Act, 1985 control over narcotic drugs was being generally exercised through certain Central enactments though some of the States also had enacted certain statutes with a view to deal with illicit traffic in drugs. The Opium Act, 1857 related mainly to preventing illicit cultivation of poppy, regulating cultivation of poppy and manufacture of opium. The Opium Act, 1878 supplemented the Opium Act, 1857 and made possession, transportation, import, export, sale, etc. of opium also an offence. The Dangerous Drugs Act, 1930, was enacted with a view to suppress traffic in contraband and abuse of dangerous drugs, particularly derived from opium, Indian hemp and coca leaf etc. The Act prescribed maximum punishment of imprisonment for three years with or without fine, insofar as the first offence is concerned and for the second or the subsequent offence the punishments could go up to four years RI. These Acts, however, failed to control illicit traffic and drug abuse on the other hand exhibited an upward trend. New drugs of addiction known as psychotropic substances also appeared on the scene posing serious problems. It was noticed that there was an absence of comprehensive law to enable effective control over psychotropic substances in the manner envisaged by the International Convention on Psychotropic Substances, 1971. The need for the enactment of some comprehensive legislation on narcotic drugs and psychotropic substances was, therefore, felt. Parliament with a view to meet a social challenge of great dimensions enacted the NDPS Act, 1985 to consolidate and amend existing provisions relating to control over drug abuse etc. and to provide for enhanced penalties particularly for trafficking and various other offences. The NDPS Act, 1985 provides stringent penalties for various offences. Parliament with a view to meet a social challenge of great dimensions enacted the NDPS Act, 1985 to consolidate and amend existing provisions relating to control over drug abuse etc. and to provide for enhanced penalties particularly for trafficking and various other offences. The NDPS Act, 1985 provides stringent penalties for various offences. Enhanced penalties are prescribed for the second and subsequent offences. The NDPS Act, 1985 was amended in 1988 w.e.f. 29.5.1989. Minimum punishment of 10 years imprisonment which may extend up to 20 years and a minimum fine of Rs. 1 lakh which may extend up to Rs. 2 lakh have been provided for most of the offences under the NDPS Act, 1985. For the second and subsequent offences, minimum punishment of imprisonment is 15 years which may extend to 30 years while minimum fine is Rs. 1.5 lakhs which may extend to Rs. 3 lakhs. Section 31 (a) of the Act, which was inserted by the Amendment Act of 1988, has even provided that for certain offences, after previous convictions, death penalty shall be imposed, without leaving any discretion in the court to award imprisonment for life in appropriate cases. Another amendment of considerable importance introduced by the Amendment Act, 1988 was that all the offences under the Act were made triable by a Special Court. Section 36 of the Act provides for constitution of Special Courts manned by a person who is a Sessions Judge or an Additional Sessions Judge. Appeals from the orders of the Special Courts lie to the High Court. Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail. However, despite the stringent provisions of the NDPS Act, 1985 as amended in 1988 drug business is booming; addicts are rapidly rising; crime with its role in narcotics is galloping and drug trafficking network is ever-growing. While interpreting various provisions of the statute, the object of the legislation has to be kept in view but at the same time the interpretation has to be reasonable and fair." 18. After referring to a number of judgments, it was further held by the Constitution Bench that provisions of Section 42, NDPS Act are mandatory and their non-compliance would render the investigation illegal. After referring to a number of judgments, it was further held by the Constitution Bench that provisions of Section 42, NDPS Act are mandatory and their non-compliance would render the investigation illegal. It was reiterated that severer the punishment, greater the care to be taken to see that all the safeguards provided in the Statute are scrupulously followed. The legitimacy of the judicial process may come under a cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and have the effect of unconscionably compromising the administration of justice. 19. In State of Punjab v. Balbir Singh, (1994) 3 SCC 299, it has been held by the Honble Apex Court that under Section 42(2), NDPS Act, the empowered Officer who takes down any information in writing or records the grounds under proviso to Section 42(1) of the Act, should forthwith send a copy thereof to his immediate superior. If there is total non-compliance with the provisions, the same affects the prosecution case. To that extent it is mandatory. To the same effect is the judgment in Saiyad Mohd. Saiyad Umar v. State of Gujarat, (1995) 3 SCC 610. (Emphasis supplied) 20. In the present case, we are satisfied that the provisions of subsection (2) of Section 42, NDPS Act have not been complied with by the prosecution and as such the case of the prosecution has been rendered as not established. In view of the non-compliance and violation of the mandatory provisions of the NDPS Act, the two accused are entitled to be acquitted. 21. PW-10 Shri D.P. Sharma, the then Superintendent of Police, Una, who is alleged to have received the secret information which was reduced into writing (Ex. PK) has admitted that his immediate superior Officer is the Deputy Inspector General of Police. There is nothing in his statement that any copy of Ex. PK was sent by him immediately to such superior Officer. Nor there is any other evidence on the record to show that a copy of Ex. PK was sent to such superior officer. 22. Shri J.K. Verma, the learned Assistant Advocate General, appearing for the State, by placing reliance on Ex. PK was sent by him immediately to such superior Officer. Nor there is any other evidence on the record to show that a copy of Ex. PK was sent to such superior officer. 22. Shri J.K. Verma, the learned Assistant Advocate General, appearing for the State, by placing reliance on Ex. PZ and PZ/1 has contended that mandatory provisions of Section 42(2), NDPS Act stood complied with in the present case and as such, the case of the prosecution is not liable to be thrown out only on this ground. 23. Ex. PZ is a copy of wireless message dated 1.4.1999 shown to have been sent by Superintendent of Police, Una. The same is addressed to Director General of Police, Himachal Pradesh, Additional Director General of Police, CID, Himachal Pradesh, Shimla and Deputy Inspector General, North Range, Dharamshala. Vide this message information with regard to three cases, namely, FIR No. 31/99 for the offences under Sections 363 and 366, Indian Penal Code, Police Station, Gagret, FIR No. 178/99 of Police Station, Una for the offence under Section 16(l)(a), Punjab Excise Act and FIR No. 179/ 99 dated 3.4.1999 of Police Station, Una, that is, pertaining to the present case was sent. The relevant portion of this message, as pertain to the present case, reads : "Case FIR No. 179/99 dated 3.4.1999 under Section 18-61-85 NDPS Act, registered on the statement of Shri D.P. Sharma, IPS, S.P. Una. He alleged that he has received credible information on telephone that opium trade on very large scale is being carried out illegally by a gang of which (i) Avtar Singh alias Nikka s/o Jeet Singh r/o Santokhgarh, Gowshala Bazar and (ii) Rajesh s/o Sita Ram r/ .o Ajouli, PS Una are the main operators. It is also informed that Avtar Singh Nikka is carrying lot of opium in car No. PB-12C-9527 from Bazar side towards his house and if raided immediately lot of opium can be seized. On receipt of this information case has been registered and 40 kg. of opium has been recovered from the possession of the above accused during raid Dy. S.R Madhusudan is investigating the case." 24. A bare perusal of Ex. PZ further shows that the above information in respect of he present case was sent in compliance of the directions/circulars of the Director General of Police, Hamirpur, Himachal Pradesh, referred to therein. 25. of opium has been recovered from the possession of the above accused during raid Dy. S.R Madhusudan is investigating the case." 24. A bare perusal of Ex. PZ further shows that the above information in respect of he present case was sent in compliance of the directions/circulars of the Director General of Police, Hamirpur, Himachal Pradesh, referred to therein. 25. RW-13 Head Constable Surjeet Singh who was examined to prove the sending of the message Ex. PZ has admitted to the following facts: (i) The massage was sent under the signatures of the then Additional Superintendent of Police Shri K.K. Indoria; (ii) The message was sent from the file concerning general information sent in criminal cases. 26. Admittedly, the message Ex. PZ was sent after the raid was conducted and the alleged recoveries having been effected. It was a general information to the superior officers. It was sent by Additional Superintendent of Police and not by PW-10. The same cannot, therefore, be said to be compliance of mandatory provisions of Section 42(2) of the NDPS Act. 27. Similarly, the message Ex. PZ/1 cannot be said to be compliance of Section 42(2) of the NDPS Act. Ex. PZ/1 reads: "To DGP/HP, ADGP/CID/HP, DIG/NR, From S.P. Una, No. 2173-75 Dt. 4/4. Reg: DSR (I) Case FIR No. 31/99 dated 3/4 under Section 363/366, IPC.PS Gagret and FIR No. 178/99 dated 3/4 under Section Ex. Act, PS. Una and Case FIR No. 179/99 dated 3/4 under Section 18-61-85 NDPS Act, PS Una, Regd. (2) 696 Pouches Una Nos. 1 and 40 Kgs Opium (3) to (7) Nil (8) Clear (9) All G.Os are present at Hd. Qtrs." This message also was admittedly sent after the raid and recovery. 28. In Lamin Bojang v. State of Maharashtra, 1996 (.4) Crimes 212, the information received by the authorised officer that some Negroes were dealing in drugs was orally conveyed by him to his immediate superior. Such superior officer on receiving the oral information recorded the same in the daily diary of the Police Station. A raid was thereafter conducted by the officer receiving the information and 6.710 kg. of heroin was seized. A case came to be registered under Sections 8(c) and 21 of the NDPS Act. The FIR which was recorded was countersigned by the immediate superior office to whom the oral information was earlier given. A raid was thereafter conducted by the officer receiving the information and 6.710 kg. of heroin was seized. A case came to be registered under Sections 8(c) and 21 of the NDPS Act. The FIR which was recorded was countersigned by the immediate superior office to whom the oral information was earlier given. A Division Bench of the Bombay High Court held that neither oral information given to immediate superior officer nor countersigning of FIR by the immediate superior officer was compliance of the mandatory provisions of Section 42, NDPS Act. For such non-compliance, the accused therein was acquitted. 29. In Shri Tawarsu alias Kancho Baba v. State of Himachal Pradesh, 1994 (2) Sim. L.C. 451, the secret information was received by the Inspector of Police of Police Station, Mandi, about the accused therein dealing in "Charas". The information received was reduced into writing and was sent to the police station for registration of the case. No copy thereof was sent by the Inspector to his immediate superior. Only a special report as to raid and recovery pursuant thereto was sent besides the copy of the FIR. It was held that neither the sending of special report nor copy of the FIR would constitute compliance of mandatory provisions of Section 42(2) of the NDPS Act. 30. Thus, in view of the non-compliance of the mandatory provisions of Section 42(2) NDPS Act, which is writ large in the present case, the conviction and sentence of the two accused cannot be sustained and they are entitled to be acquitted. 31. In Beckodan Abdul Rahiman v. State of Kerala, 2002 SCC (Cri) 791, the Honble Apex Court acquitted the accused of the offence under Section 18 of the NDPS Act for failure of the investigating agency to comply with the mandate of sub-section (2) of Section 42 of the NDPS Act. 32. Resultantly, both the appeals are allowed. The conviction and sentence imposed upon the two accused are set aside and they are acquitted of the offence under Section 18, NDPS Act. 33. The two accused who are in jail undergoing sentence shall be released forthwith, if not required in any other case. The amount of fine, if already realised, shall be refunded to them. 34. Car No. PB-12C-9527 shall stand released to accused Rajesh Kumar. Cash amounting to Rs. 33. The two accused who are in jail undergoing sentence shall be released forthwith, if not required in any other case. The amount of fine, if already realised, shall be refunded to them. 34. Car No. PB-12C-9527 shall stand released to accused Rajesh Kumar. Cash amounting to Rs. 2,16,683/alongwith the bag taken into possession by the police, shall be refunded/returned to Smt. Shakuntla Devi widow of Jeet Singh, the mother of accused Avtar Singh. Appeals allowed.