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2003 DIGILAW 185 (PNJ)

Jaswant Kumar v. State of Punjab

2003-01-30

R.L.ANAND, VIRENDER SINGH

body2003
JUDGMENT R.L. Anand, J. - Shri Jaswant Kumar son of Shri Mehar Chand, son of Shri Radha Krishan, aged 30 years, culviator by profession, resident of village Gharinda, Tehsil and District Amritsar, has filed the present criminal appeal and it has been directed against the judgment and order dated 10.12.2001, passed by the Court of learned Special Judge, Amritsar, who convicted the appellant under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act") and sentenced him to undergo R.I. for a period of 14 years and to pay a fine of Rs. 2,00,000/-. In default of payment of fine he was directed to undergo R.I. for a period of two years for allegedly having (been) found in possession of 44 kgs of heroin. 2. The appellant was charge-sheeted under Section 21 of the NDPS Act on the allegations that on 7.6.1996 in the area of village Janian he was found in possession of 44 packets of heroin each weighing one kilogram without any permit or licence and thereby he committed an offence punishable under Section 21 of the NDPS Act. 3. The case was registered against the appellant on the basis of the rukka Ex.PF which was dispatched by SI/SHO Dharam Singh of Police-Station Jadiala, wherein he mentioned that on the date of recovery i.e. 7.6.1996, on receipt of secret information he along with SI Lakhwinder Singh, constable Baldev Singh, constable Kulwant Singh, constable Bhajan Singh, and constable Balbir Singh, was present in connection with Nakabandi at Jandiala Tarn Taran Road, turning point of village Janian where Shri Chander Kailash D.S.P. Baba Bakala was also present along with his gunman on a Government vehicle as the Officer had appeared there in connection with the checking of the Nakabandi and patrolling. In the meanwhile, a person came from the side of Janian on a bicycle who was carrying a gunny bag on both the sides of the carrier of his bicycle. That man was apprehended on suspicion with the help of other members of the police party. He gave his name as Jaswant Kumar alias Billa son of Mehar Chand Brahman resident of Gharinda, Police-Station Gharinda. He was apprehended on the basis of suspicion in the presence of D.S.P. He was told that his personal search was to be taken. The gentleman agreed. He gave his name as Jaswant Kumar alias Billa son of Mehar Chand Brahman resident of Gharinda, Police-Station Gharinda. He was apprehended on the basis of suspicion in the presence of D.S.P. He was told that his personal search was to be taken. The gentleman agreed. A consent memo regarding the personal search was also prepared in the presence of Ajit Singh, Municipal Commissioner of M.C. Jandiala who had also arrived at the place of detection. Therefore, the personal search of Shri Jaswant Kumar was taken according to rules in the presence of D.S.P. and other members of the Police Party from the carrier of the bicycle. The gunny bag lying on the carrier of the bicycle bearing registration No. 704155 Mark Hero green colour was taken and 44 packets were recovered i.e. 43 packets of heroin of brown sugar and one packet was of heroin of white sugar. On 21 packets the words Iftak Ltd. was written, on 7 packets the words 12 BF. were written, on 6 packets SSSS were written and further on six packets Iftak factory was printed, 3 packets bore U.S. mark and one packet was without any brand. Sample of 10 grams each was drawn from each one of the packet and a separate sealed parcel was prepared. The remaining bullock (bulk ?) was separately sealed. On weighment, entire property came to 44 kgs. The samples and the case property were taken into possession and separately sealed. It was so sealed with the seal of the Investigating Officer bearing inscription DS and that of the DSP bearing letters CKS and the seals after use was handed over to S.I. Lakhwinder Singh and entire case property was separately taken into possession. The accused could not produce any licence or permit for the possession of narcotic drugs. Resultantly a case under Section 21 of the NDPS Act (came) be registered. It was also stated in the rukka that the information may also be sent to the Customs Department. This rukka was dispatched at 9.10 A.M. Actual detention of the appellant was about 4.45 A.M. while rukka was sent to the Police Station Jandiala for the registration of the case at 9.10 A.M. It was received in the Police-Station at 9.20 A.M. and formal FIR No. 117/96 dated 7.6.1996 was registered under Section 21 of the NDPS Act by ASI Rajbinder Singh. The Investigating Officer also prepared rough site plan of the place of recovery. He recorded the statements of the witnesses. The accused was directly taken to Duty Magistrate along with the case property and on return to the police-station the case property was preserved in the double lock. The samples of the parcels of the heroin were sent to the office of the Director, Forensic Science Laboratory, Punjab, Chandigarh and finally on receipt of the report of the Chemical Examiner, the accused was challaned under Section 21 of the NDPS Act in the Court of Area Magistrate who supplied the copies of the documents of the accused intended to be relied upon by the prosecution and vide order dated 9.12.1996, the appellant was committed to the Court of Session to face the trial under Section 21 of the NDPS Act. 4. Vide order dated 17.1.1997, the appellant was charge-sheeted under the aforesaid Section for having been found in possession of 44 packets of heroin weighing one kg each without any permit or licence. The charge was read over and explained to the appellant who pleaded not guilty to the charge and claimed trial. 5. In order to prove the charge, the prosecution examined Shri Bhupinder Singh MHC of Police-Station Mehta as PW-1, who deposed that on 7.6.1996 he was posted at Police-Station, Jandiala. On that day, S.I. Dharam Singh deposited with him 44 samples containing ten grams each sealed with the seal of DS and CKS along with sample seal. Those seals were intact. On 12.6.1996, through road certificate No. 202/21 the samples were sent to the office of Chief Chemist Control Revenue Central Laboratory, Pussa Road, New Delhi. On 5.6.1996, ASI Harjinder Singh brought back those samples with the report that State wise Laboratory has been established and these samples were to be deposited at Chandigarh. Again on 17.6.1996 vide road certificates No. 206/21 he handed over these samples to ASI Harjinder Singh in order to deposit the same in the Laboratory at Chandigarh. Shri Harjinder Singh deposited the samples in the laboratory and on return he delivered the receipt. Shri Bhupinder Singh PW-1 further certified that nobody tampered with the same so long as those samples remained in his possession. Shri Harjinder Singh deposited the samples in the laboratory and on return he delivered the receipt. Shri Bhupinder Singh PW-1 further certified that nobody tampered with the same so long as those samples remained in his possession. PW-2 is Shri Harjinder Singh ASI who gave his statement on affidavit Ex.PA with regard to the delivery of samples in the office of the Director, Forensic Science Laboratory at Chandigarh. PW-3 is Shri Chander Kailash DSP who deposed that on the relevant day he was posted as D.S.P. Baba Bakala. On that day at 5.00 A.M. he reached near the turning point of Janian on G.T. Road Amritsar where a police party was organising a Naka. Ajit Singh Municipal Commissioner of M.C. Jandiala also came there and he was also associated in the police-party. The witness told before the Court that Mr. Dharam Singh told him that the former had some secret information regarding some narcotics as a result of that D.S.P. Gazetted Officer stayed with the Naka Party and at about 5.45 A.M. the appellant was noticed coming on a bicycle from the side of village Janian and he was carrying a Khurji on both the sides (it is a gunny bag which can be hung on both the sides of a carrier of bicycle like two big pockets). The appellant was apprehended. The search of the gunny bag was taken. The Investigating Officer disclosed his identity as well as the identity of the Gazetted Officer. An option was given to the appellant as to whether he would like to give the search in the presence of the Gazetted Officer or in the presence of a Magistrate. Upon which the appellant reposed confidence in the thanedar and the Gazetted Officer and consent memo Ex.PB was scribed which was read over and explained to the accused who signed the same in Panjabi and it was attested by Municipal Commissioner Ajit Singh. Thereafter, under his supervision, Shri Dharam Singh conducted the search of gunny bag and found heroin. 22 packets each were lying inside the gunny bags of both the sides of the box. A sample of 10 grams of heroin was drawn from each of the packets. On weighment each packet contained one kilogram of heroin. That case property was taken into possession through sealed parcel by using the seal bearing the inscription DS and CKS. 22 packets each were lying inside the gunny bags of both the sides of the box. A sample of 10 grams of heroin was drawn from each of the packets. On weighment each packet contained one kilogram of heroin. That case property was taken into possession through sealed parcel by using the seal bearing the inscription DS and CKS. Seal after use was handed over to Lakhwinder Singh. The case property was taken into possession vide memo Ex.PC attested by him and the witnesses, the witness also proved Khurji Ex.P.45 and bicycle Ex.P.46. He deposed that from the Jamatalasi of the accused a sum of Rs. 3420/- beside a wrist watch, was recovered. 6. PW-4 is Inspector Dharam Singh the Investigating Officer who has supported the case of the prosecution in terms of the rukka which was sent to the Police-Station, Jandiala for the registration of the case. In addition to that, he also deposed that after the arrest and after the investigation at the spot the appellant was directly taken to the Area Magistrate along with the case property and was produced before the Duty Magistrate Smt. Sunita Arora and after performing formalities, the case property was deposited in the double lock. He further deposed with regard to the despatch of the samples firstly to the office of Chemical Examiner, Delhi who directed that the samples be deposited for analysis in the office of Chemical Examiner at Chandigarh. Finally the Public Prosecutor gave up Smt. Sunita Arora Magistrate as unnecessary. The independent witness was given up on the plea that he has been won over by the accused and finally the reports of the Chemical Examiner were tendered in evidence. The statement of the accused was recorded under Section 313 Criminal Procedure Code and all the incriminating circumstances appearing in the prosecution evidence were put to the accused who denied those circumstances and stated that he has been falsely implicated in this case. He took the following plea :- "Yes, I am innocent. No recovery was effected from me. The police was inimical to me and my family. He took the following plea :- "Yes, I am innocent. No recovery was effected from me. The police was inimical to me and my family. Since much earlier to the registration of this case, my brother Jagdish Kumar was abducted by Inspector Paramjit Singh, police station Beas on 9.2.1995 and by detaining him for many days by the police of Police District Majitha he was involved in a false case by FIR No. 34/95, P.S. Lopoke, under Section 18 of NDPS Act. My brother Jagdish Kumar filed a writ petition in the Honourable High Court against offending police officials including DGP Punjab Police, Udham Singh Inspector SHO P.S. Lopoke and others. In that writ petition a notice to appear the respondents was issued for 5.9.1995. In this connection myself along with my brother were abducted by Sanjiv Kumar SHO P.S. Garinda to pressurise to withdraw the writ petition filed by Jagdish Kumar. After our abduction my brother Sukhdev Raj moved a writ of habeas corpus in the Honourable High Court and myself along with Jagdish Kumar were recovered from B.R. Modern School, Amritsar by the Warrant Officer on 11.8.1995. I again moved writ petition against the offending police officials in the Honourable High Court. After that the police was pressurising me to withdraw the petition but on my refusal SHO of P.S. Jandiala used against me one Ramesh Kumar alias Meshi who was posted as SPO at P.S. Jandiala and was a remote relation. Ramesh Kumar alias Meshi, in the month of June, 1996 brought me from my house on the pretext of taking me to Delhi and with mala fide intention he got me arrested at P.S. Jandiala. This case is falsely planted upon me due to grievances by the police". 7. When called upon to enter in to his defence the accused examined Shri Sukhdiari SIgh as DW1 who brought the service record of SPO Ramesh Kumar and he stated that the SPO was discharged from service with effect from 1.6.1997. DW-2 is constable Charan Singh who proved Ex.DW2/1 the copy of entry No. 120 dated 7.6.1996. In the cross-examination he stated that he had never maintained nor does he know how register No. 19 of which Ex.DW2/1 is the copy, is being maintained in the police-station. DW-2 is constable Charan Singh who proved Ex.DW2/1 the copy of entry No. 120 dated 7.6.1996. In the cross-examination he stated that he had never maintained nor does he know how register No. 19 of which Ex.DW2/1 is the copy, is being maintained in the police-station. DW-3 is Gurdip Singh Record Keeper of the office of Daily Ajit (Newspaper) Jalandhar who deposed that Ex.DA is the copy of the news item which appeared in the Newspaper on 10.6.1996 at page No. 3 and the source of this news was UNI. Gurdip Singh also stated in the cross-examination that he had no personal knowledge regarding this news item. DW-4 is Bhupinder Singh Clerk, Tribune Trust, Chandigarh who proved Ex.DB the copy of the news item of the Tribune dated 10.6.1996. He also deposed that source of news was UNI. He admitted in the cross-examination that he could not say regarding the correctness of this news item. DW-5 is Mr. Ravi Sharma, Correspondent UNI, Amritsar who deposed that he sent the news to his headquarter at Delhi reporting that three seizures of heroin in one month creates a doubt regarding its veracity. The report was sent by him in the month of June, 1996. This first seizure pertains to one Gopal Singh of Jandiala, second pertains to Jaswant Kumar alias Billa and third was from the Customs Department. He stated that in all the three seizures his team had recorded the facts after visiting the spot. In the present case he went to village Gharinda and saw a blind man sitting on the road side who was the father of Jaswant Kumar appellant. Smt. Pushpa mother of the appellant told him that her son has been implicated in the false case by the police after lifting him from the house and that the police party had come there accompanied by one Ashok Kumar the relation of Jaswant Kumar who was working as SPO in the Police Department. In the cross-examination he deposed that his team had visited village Gharinda in connection with the news after 4/5 days of the arrest of the appellant. He stated that his team did not make any inquiry or verification regarding this news from the Sarpanch, Nambardar or any other person. He also stated that the recovery was not effected in his presence. He stated that his team did not make any inquiry or verification regarding this news from the Sarpanch, Nambardar or any other person. He also stated that the recovery was not effected in his presence. He gave the news item whatsoever was told to him by them mother of Jaswant Kumar. He further stated that lower rank police officials had told the team that Ashok Kumar played the game to get himself enrolled in the police department. DW-6 is Head Constable Gurmail Singh who proved FIR No. 34 dated 12.3.1996 registered in Police-Station Lopoke regarding the recovery of 5 kgs of opium from one Jagdish Singh of village Gharinda. Finally the defence tendered in evidence the DDR mark C, the copy of the DDR Ex.DD, the copy of the writ petition No. 528 of 1995 DE, copy of the writ petition No. 805 and DH copy of the writ petition No. 824. 8. The learned Special Judge, Amritsar believed the witnesses of the prosecution and the story by rejecting the defence version and convicted the appellant Shri Jaswant Kumar in the manner as stated above and aggrieved by his conviction and sentence the present appeal. 9. We have heard Shri Ranjan Lakhanpal, learned counsel appearing on behalf of the appellant and Shri G.S. Gill, learned Sr. DAG, Punjab, appearing on behalf of the respondent and with their assistance have gone through the record of the case. 10. The learned counsel appearing on behalf of the appellant submitted that it was the case of the prosecution that there was a secret information with Dharam Singh SHO and in these circumstances it was obligatory on the report (part ?) of the Investigating Officer to comply with the mandatory provisions of Section 42 of the NDPS Act. Shri Lakhanpal submitted that the secret information was supposed to be reduced into writing and then it was supposed to be sent to the higher authorities as per the requirement of Section 42 of the NDPS Act and since there is no compliance of the mandatory provisions, therefore, the entire investigation and the recovery stand vitiated. 11. Shri Lakhanpal submitted that the secret information was supposed to be reduced into writing and then it was supposed to be sent to the higher authorities as per the requirement of Section 42 of the NDPS Act and since there is no compliance of the mandatory provisions, therefore, the entire investigation and the recovery stand vitiated. 11. On the contrary, learned counsel appearing on behalf of the respondent submitted that the recovery in this case is from a public place, therefore, the provisions of Section 42 are not applicable and secondly there was hardly any time for the Investigating Officer to send a special report to the higher authorities. At any rate no prejudice has been caused to the appellant and, therefore, the contention of the learned counsel for the appellant should be rejected. 12. In this light of the rival contentions raised by the counsel for the parties the point for determination would be whether the provisions of Section 42 of the NDPS Act are applicable that the heroin was recovered from the gunny bag which was kept on the carrier of bicycle which was being peddled by the appellant. The recovery has been effected by Dharam Singh from the appellant in the presence of Gazetted Officer and independent witness. The nakabandi was at a public place. THis aspect of the case was examined by us earlier in 2002(4) RCR (Criminal) 278 and we came to the conclusion that in similar circumstances Section 42 will not come into play. Rather the case would fall under Section 43 of the NDPS Act. In Paras 10, 16 and 17 of the aforesaid judgment it was held as follows :- "10. While Section 42 empowers the officers of the specified departments to carry out search, seizure and arrest in any building, conveyance or enclosed place, Section 43 deals with the similar power of seizure and arrest in public places. Powers under both these Sections can be exercised if the concerned officer has reason to believe that some offence relating to narcotic drugs or psychotropic substances has been committed. Section 49 is another Section in the series which empowers officers to stop and search animals and conveyance used for illegal transport of narcotic drugs or psychotropic substances. Powers under both these Sections can be exercised if the concerned officer has reason to believe that some offence relating to narcotic drugs or psychotropic substances has been committed. Section 49 is another Section in the series which empowers officers to stop and search animals and conveyance used for illegal transport of narcotic drugs or psychotropic substances. The words building, conveyance and enclosed place as used in Section 42 have been used for the specific purpose of protecting the persons who are living in the buildings, conveyance and enclosed place. The legislature in its wisdom considered proper to draw a demarcating line between building, conveyance and enclosed place on one side and public place or in transit on the other side. The words have been specifically mentioned to show the demarcating line between the two otherwise, the legislature could have used any place instead of narrating the words building, conveyance or enclosed place. Even a private open place does not fall within the purview of Section 42 unless it is enclosed. So, this demarcating line will have to be kept in mind. Under Section 43 of the Act, the words used are "any public place or in transit". The requirement of recording of information in writing and communicating it to superiors is intended to protect the possible harassment to residents and to maintain personal liberty and human dignity. The term conveyance used in Section 42 is to be understood as ejusdum generis to the terms building or enclosed place. It is not every conveyance whether in public or private that would fall within the scope of Section 42 of the Act. A conveyance in a public place would fall within Section 43 of the Act and Section 49 gives power to the empowered Officer to stop such conveyance for the purpose of search. 16. Thus, it is evident that if seizure is made from any animal, conveyance or article in a public place or in transit then Section 43 of the Act would be applicable. Section 43 and Section 42 of the Act operate in different spheres. 16. Thus, it is evident that if seizure is made from any animal, conveyance or article in a public place or in transit then Section 43 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 in a public place. This interpretation is the only harmonious interpretation of Sections 42 and 43 of the Act. 17. It is well settled principle of law that the provisions of a statute are to be construed in a harmonious manner so that each of the provisions are rendered not nugatory. By harmoniously construing 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." 13. With regard to the non-examination of the independent witness even this aspect of the case was examined by us and in para No. 21 of the aforesaid judgment, it was replied by the Division Bench as follows :- "21. The other arugment of the appellant that independent witness has not (been ?) joined is wholly devoid of any merit. As mentioned in ruqa itself, the police has tried to associate independent witness but none has come forward. The recovery was made in the middle of night. Finding an independent witness at that time was impossible. Even otherwise the general apathy of public writ large and is well known. People do not want to come forward to join investigation for various reasons. Therefore, we do not find any illegality or irregularity in the case of prosecution simply because no independent witness has been joined." 14. In the present case, the independent witness in the shape of Municipal Commissioner, Jandiala was with the police-party. He was associated. People do not want to come forward to join investigation for various reasons. Therefore, we do not find any illegality or irregularity in the case of prosecution simply because no independent witness has been joined." 14. In the present case, the independent witness in the shape of Municipal Commissioner, Jandiala was with the police-party. He was associated. This proves the bonafide on the part of Dharam Singh Investigating Officer and the D.S.P. If for any reason, the independent witness does not come forward to help the law we cannot shut down the case of the prosecution which is supported by the evidence of public officials including a Gazetted Officer. Repeatedly, it has been held by the Honble Supreme Court that the testimony of police official, who is a public official, is to be considered and appreciated in the same manner as of a private individual but with a rider that before acting upon the statement of such police officer/public official the law Courts should apply the rule of care and caution lest any individual may not be falsely implicated. We cannot lose sight of the fact that in the present case, there is a huge recovery of 44 kgs of the heroin the value of which, in the international market, is 44 crores, would be planted by the Investigating Officer form his personal resources, when the Investigating Officer has no axe to grind against the appellant. Assuming for the sake of argument though it is not correct in the facts of the present case that provisions of Section 42 are applicable, still the appellant has to show that some prejudice has been caused to him with the non-compliance of this provision because report was not sent to the higher authorities but in the present case, the higher authorities was already present in the Nakabandi and in the presence of the D.S.P. the appellant was arrested and in his presence his consent memo was obtained. The very fact that the recovery has been effected in the presence of D.S.P. and in the presence of Municipal Commissioner, would show that there was no bungling on the part of the Investigating Officer and that no prejudice has been caused to the appellant. 15. We also derive strength from the judgment of the Honble Supreme Court reported as Narayanaswamy Ravishankar v. Asstt. 15. We also derive strength from the judgment of the Honble Supreme Court reported as Narayanaswamy Ravishankar v. Asstt. Director, 2002(4) RCR(Criminal) 470 (SC), where the Honble Judges of the Supreme Court laid down after appreciating the provisions of Sections 42 and 43 of the NDPS Act that if seizure of a contraband has been effected from a public place like airport, the provisions of Section 43 will apply and not Section 42 and as per the provisions of Section 43 the mandatory requirement for reducing the information into writing is not necessary. This aspect of the case was also considered in another judgment by the Division Bench reported as 2003(1) RCR(Criminal) 47, Tarlochan Singh v. The Assistant Commissioner, Customs, in which it was observed that since seizure was not from any building, conveyance or enclosed place, therefore, the Investigating Officer is not required to reduce the information in writing and that provisions of Section 43 will apply and not that of Section 42. 16. In this view of the matter, we have no hesitation in rejecting the contention of Shri Lakhanpal who submitted that since the provisions of Section 42 have not been complied with in the present case, therefore, the appellant should be given the benefit. 17. It was also submitted on behalf of the counsel for the appellant that reliance should be placed upon the statements of DW5 Shri Ravi Sharma who deposed that in fact the appellant was picked up from his village on the behest of one Ashok Kumar, who wanted to be enrolled in the police department. This submission is totally devoid of any merit. The news was published in the newspaper and Shri Ravi Sharma was the person who dispatched the news items. His source of information was the mother of the appellant who has never appeared in the witness box. Otherwise also, the mother must be interested in the acquittal of the appellant. So much so, even Ravi Sharma had to admit in the cross-examination that his team visited village Gharinda after 4/5 days of the arrest of the appellant and it did not make any inquiry or verification regarding the news item got published by him from the Sarpanch, Lambardar or any other person. He also admitted that the recovery was not effected in his presence. He also admitted that the recovery was not effected in his presence. He categorically stated that he reported the news as was told to him by the mother of the appellant. In such a situation, no reliance can be placed on the news item. The information received by Shri Ravi Shankar will be more or less in the nature of a derived information regarding which the author of the information has never appeared in the witness box. 18. It was then submitted by the learned counsel for the appellant that if his two aforesaid contentions do not prevail upon the mind of the Court, the appellant may be visited with leniency in the matter of sentence. We are of the opinion that ends of justice will suffice if substantive sentence of the appellant is reduced to 12 years. It is ordered accordingly. The imposition of fine, however, is not disturbed. 19. With the above modification in the matter of sentence, the appeal is hereby dismissed. Let intimation about the dismissal of this appeal be sent to Chief Judicial Magistrate, Amritsar and to the jail authorities. Appeal dismissed.