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2005 DIGILAW 141 (PNJ)

Jarnail Singh v. State Of Punjab

2005-01-25

NIRMAL SINGH, V.K.BALI

body2005
Judgment Nirmal Singh, J. 1. Criminal Appeal No.295-DB of 1999 has been filed by the appellants against the judgment and order dated 22/5/1999 passed by learned Additional Sessions Judge, Ferozepur, vide which they were convicted and sentenced to undergo RI for 14 years each and to pay a fine of Rs.1,00,000.00 under Sec.18 of the N. D. P. S. Act (for short, the Act ). In default of payment of fine, the defaulter was further sentenced to undergo RI for one year each. 2. Criminal Appeal No.348-DB of 1999 has been filed by appellant, Jarnail Singh against the order dated 22/5/1999 passed by learned Additional Sessions Judge, Ferozepur, vide which the truck bearing No. DL-IG-2720 was confiscated. Both these appeals are being disposed of by this common order. 3. The prosecution case, in brief, is that the police party headed by Inspector Avtar Singh, on receipt of secret information on 15/2/1994, joined Karnail Singh, Member Panchayat, and left the Police Station for holding special Nakabandi. Intimation in this regard was also sent to DSP Raghubir Singh to reach at the spot which he did. Under the supervision of DSP, separate parties were constituted and Nakabandi was held. 4. At about 10.00 A. M. , truck bearing No. DL-IG-2720 was seen coming from the side of Fazilka. At a distance of about 10 Karams, the truck stopped and the cleaner of the truck, namely, Bachittar Singh Kala, who was earlier known to SHO Avtar Singh, alighted from the truck and started checking the air of the tyres. However, on seeing the police party coming towards the truck, he ran away from the spot but the driver of the truck, who disclosed his identity as Jarnail Singh son of Banta, was apprehended on the spot. The police party disclosed to Jarnail Singh that truck was to be searched, to which he agreed. Under the supervision of DSP Raghubir Singh Chahal, the truck was searched and one gunny bag was recovered from the Tool Box of the driver while another bag was recovered from the second big seat towards conductor side. Both the bags were containing opium wrapped in glazed paper. Out of both the gunny bags, samples of 50 grams each were separated. Opium on weighment in each bag was found to be 19 kgs. Two sample parcels and the residue were separately sealed by the 1.0. Both the bags were containing opium wrapped in glazed paper. Out of both the gunny bags, samples of 50 grams each were separated. Opium on weighment in each bag was found to be 19 kgs. Two sample parcels and the residue were separately sealed by the 1.0. with his seal KS and the seal after use was handed over to ASI Mukhtiar Singh. The truck along with its papers was also taken into police possession vide separate recovery memo attested by PW5. Ruqa, Ex. PE, was sent to the police station, on the basis of which, FIR Ex. PE/1 was registered. 5. After completion of investigation, challan against the accused was presented. They were charged under Sec.18 of the Act, to which they pleaded not guilty and claimed trial. 6. To prove the case, the prosecution examined PW-1 ASI Mukhtiar Singh, PW-2 Avtar Singh, 1.0. , PW-3 Raghubir Singh, DSP and PW-4 Constable Gurmel Singh. 7. The accused was examined under Sec.313 Cr. P. C. to explain the incriminating circumstance appearing in the prosecution evidence. He pleaded innocence and alleged false implication. Accused Jarnail Singh took the following plea: I am innocent. My father had a truck. Inspector Avtar Singh asked for the truck to which my father refused and I have been involved in this false case due to that reason by the police of Police Station Sadar Ferozepur. In defence, they examined DW-1 Karnail Singh. 8. The learned trial Court, after hearing the defence counsel and learned PP for the State found the appellants guilty and convicted and sentenced them as stated in Para 1 of the judgment. 9. Mr. R. S. Cheema, Sr. Advocate, assisted by Ms. Tanu Bedi, learned counsel appearing for the appellants assailed the conviction and sentence of the appellants on the ground that prosecution has not complied with the mandatory provisions of Sec.42 (2) of the Act. He submitted that the Investigator has not reduced into writing the secret information received by him and sent the same to his superior officer and for the non-compliance of this mandatory provision, the proceedings against the appellants deserve to be vitiated. He submitted that the Investigator has not reduced into writing the secret information received by him and sent the same to his superior officer and for the non-compliance of this mandatory provision, the proceedings against the appellants deserve to be vitiated. In support of his submission, he placed reliance n Balbir Singh V/s. State of Punjab Narcotics Control Bureau i. Pradeep Nath Mathur and another; The State of West Bengal and others V/s. Babu hakraborty; Sajjan Ibrahim V/s. Stat of Kerala ; Abdul Rashid Ibrahim Mansuri V/s. State of Gujarat and State of Orissa V/s. Laxman Jena 10. We have considered the submissions made by learned counsel for the appellants and perused the record. It will be appropriate to notice the provisions of Sections 42 and 43 of the Act, which read as under :- 42. We have considered the submissions made by learned counsel for the appellants and perused the record. It will be appropriate to notice the provisions of Sections 42 and 43 of the Act, which read as under :- 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, if he has reasons 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 any 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 offence 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 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 offence 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. 43. Power of seizure and arrest in public place Any officer of any of the department mentioned in Sec.42 may (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance article 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 an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be useful, arrest him and any other person in his company. Explanation: For the purpose of this section, the expression public place includes a public conveyance, hotel, shop or other place intended for use by or accessible to the public. 11. A conjoint reading of Sections 42 and 43 of the Act shows that these sections are independent of each other. Sec.43 authorises any officer of the departments mentioned in Sec.42 for search, seizure, arrest and detention in any public place or in transit in respect of any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, whereas Sec.42 of the Act empowers the officer for search and seizure and arrest in a building, conveyance or enclosed place. When the information is with regard to concealment of some narcotic in a vehicle in transit, then provisions of Sec.43 of the Act are applicable. The word public place has been explained for the purpose of Sec.43 of the Act which include any public conveyance, hotel, shop or other places intended for use or accessible to the public. 12. When the information is with regard to concealment of some narcotic in a vehicle in transit, then provisions of Sec.43 of the Act are applicable. The word public place has been explained for the purpose of Sec.43 of the Act which include any public conveyance, hotel, shop or other places intended for use or accessible to the public. 12. A Division Bench of this Court in Dharminder Kumar V/s. State of Punjab, 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 Sec.43 of the Act would be applicable. Sec.43 and Sec.42 of the Act operate in different spheres. Since the conveyance has been specifically included in Sec.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 Sec.43 of the Act whereas conveyance used in Sec.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. It is well settled principle of law that the provisions of a statute are to be construed in harmonious manner so that each of the provisions are rendered not nugatory. By harmonious 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 Sec.42 of the Act would not be applicable. 13. In the latest pronouncement, the Honble Apex Court in State of Haryana V/s. Jarnail Singh and others8 has held as under: 7. Sec.43 of the NDPS Act provides that any officer of any of the departments mentioned in Sec.42 may seize in any public place or in transit any narcotic drug or 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 authorised to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Sec.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. He is also authorised to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Sec.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 different situations. Sec.42 contemplates entry into and search of any building, conveyance or enclosed place, while Sec.43 contemplates a seizure made in any public place or in transit. If seizure is made under Sec.42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Sec.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 Sec.42 of the NDPS Act for searching the vehicle between sunset and the sunrise. 14. In the instant case, PW-2 Inspector Avtar Singh, who is the investigator of this case, had received the secret information at about 8/8.30 A. M. He supplied the said information to the DSP Raghubir Singh Chahal telephonically, who also reached the spot at about 9/9.45 A. M. and separate parties were formed to hold the Naka. PW-1 ASI Mukhtiar Singh was the recovery witness. He also deposed that Inspector Avtar Singh told him to accompany him as he had received some secret information. Both PW-1 ASI Mukhtiar Singh and PW-2 Inspector Avtar Singh had deposed in their statements that they had the secret information. PW-2 Inspector Avtar Singh was not having any secret information that some narcotics were being carried in the truck with regard to which he had held Nakabandi and, therefore, the infor-mation was general in nature. 15. Under Sec.42 (1) of the Act, if the empowered officer has reason to believe from his personal knowledge or some information that any person has committed an offence, then he has to carry the search, seizure or arrest without warrant or authorisation but if the search, seizure or arrest has been carried out between sunrise and sunset, then he must record the grounds of his belief and send the same to his superior officer as envisaged in Clauses (a), (b) and (d) of Sec.42 (1 ). However, these clauses do not apply where a general secret information is received by the police that if a Nakabandi is held, then some narcotic can be recovered. 16. Learned counsel for the appellants next contended that the learned trial Court has not appreciated the evidence on record in right perspective. He submitted that it is the case of the prosecution that Bachittar Singh, appellant, escaped from the place of recovery after alighting from the truck. He contended that number of police employees duly armed with weapons were there and it is not believable that he would manage to escape in their presence. He also submitted that if appellant Bachittar Singh had run from the spot in the presence of police officials, then they could either fire in air to frighten him or even on his non-vital part to apprehend him. He also pointed out that identification of Bachittar Singh is highly doubtful. He was not known to any member of the police party and no identification parade was held. He further contended that the Investigating Officer, Avtar Singh, had deposed that he knew him prior to the recovery. However, he did not disclose that how he knew appellant Bachittar Singh as neither he was previous convict nor he was facing trial, nor a witness in any case, nor Lambardar or Sarpanch of any village. He also contended that prosecution has concocted a false story that Bachittar Singh was already known to Inspector Avtar Singh. He submitted that story of the prosecution is falsified on the ground that Karnail Singh DW-1 was witness of the recovery and in his presence Jarnail Singh appellant was apprehended at the spot while Bachittar Singh appellant escaped. However, the prosecution did not examine Karnail Singh but the defence had examined him as DW-1. Karnail Singh in his statement had deposed that no recovery of any incriminating article was effected in his presence and his signatures on the papers, Exs. PA to PD were obtained in the police station. He further submitted that DSP Raghubir Singh Chahal was not present at the time of recovery but he had been cited as a recovery witness. He also submitted that if DSP Raghubir Singh Chahal PW would have been present, then he must have put his seal on the case property. PA to PD were obtained in the police station. He further submitted that DSP Raghubir Singh Chahal was not present at the time of recovery but he had been cited as a recovery witness. He also submitted that if DSP Raghubir Singh Chahal PW would have been present, then he must have put his seal on the case property. This shows that he was not present at the spot and the entire evidence has been fabricated to falsely implicate the appellants in this heinous crime. 17. We have given our thoughtful consideration to the submissions made by learned counsel for the appellants and found the same to be without any merit. 18. The case of the prosecution hinges on the testimony of PW-1 ASI Mukhtiar Singh, PW-2 Inspector Avtar Singh and PW-3 DSP Raghubir Singh Chahal. From the evidence of PW-1 ASI Mukhtiar Singh and PW-2 Inspector Avtar Singh, it is clearly established that appellant Bachittar Singh was known to PW-2 Avtar Singh prior to recovery. 19. Pw-2 Inspector Avtar Singh had deposed in his statement that appellant Bachittar Singh, after seeing the police party, ran away towards the fields. He identified him as he knew him earlier. The police also apprehended the Truck bearing No. DL-IG-2720 at about 10 A. M. when it was holding a picket on the twin canal in the area of Village Naurang Ke Lelli. After effecting the search of the truck and weighing the opium, ruqa, Ex. PE, was written and completed at 1 P. M. by Inspector Avtar Singh. In the ruqa, name of the appellant, Bachittar Singh, was found mentioned. It has also been mentioned in that he alighted from the truck and managed to escape. If Bachittar Singh would not have escaped from the spot, then his name would not have been found mentioned in the ruqa, on the basis of which FIR was got recorded. There was no animus either alleged or proved for falsely implicating Bachittar Singh, appellant, by PW-2 Inspector Avtar Singh. Rather, from the cross-examination of PW-2 Inspector Avtar Singh, it is clear that Bachittar Singh was known to him. During cross-examination, he disclosed that Bachittar Singh had 2-3 brothers and his lathers name is Amrik Singh. No doubt, he failed to tell the names of his brothers but there is no evidence on the record to show that Bachittar Singh has no brother. 20. During cross-examination, he disclosed that Bachittar Singh had 2-3 brothers and his lathers name is Amrik Singh. No doubt, he failed to tell the names of his brothers but there is no evidence on the record to show that Bachittar Singh has no brother. 20. So far as the contention of learned counsel for the appellants that case property was not sealed with the seal of PW-3 DSP Raghubir Singh Chahal, on that account the case of the prosecution is not to be brushed aside. PW-3 was cross-examined by the defence counsel at length but he failed to make any dent in his sworn testimony. The testimony is consistent with the evidence given by PW-1 ASI Mukhtiar Singh and PW-2 Inspector Avtar Singh. No evidence has been brought on record to show that PW-3 DSP Raghubir Singh Chahal was inimical towards the appellants or at the instance of the Investigator, he had signed the documents. Even it is not the requirement of law that if the samples and the residue are recovered in the presence of higher officer by the SHO, then the higher officer must have put his seal on the same. 21. The case of appellant, Jarnail Singh, is that he was not having a driving licence and, therefore, he had employed one Surinder Kumar son of Parshotam Dass, resident of Basti Balochan, Ferozepur City as a driver. Therefore, he had admitted that he was the owner of the truck. However, when he was examined under Sec.313 Cr. P. C. , he had taken the specific stand that his father was the owner of the truck. Inspector Avtar Singh asked for the truck to his father, to which he refused. On that account, he was falsely implicated in this case. Firstly, if father of Jarnail Singh had refused to give the truck to PW-2 Inspector Avtar Singh, then he would implicate his father and not Jarnail Singh. The Registration Certificate of the truck also proves that Jarnail Singh did not examine his father to prove that Inspector Avtar Singh had demanded the truck for doing some BAGAR. Therefore, the stand taken by the appellant Jarnail Singh is belied. The Registration Certificate of the truck also proves that Jarnail Singh did not examine his father to prove that Inspector Avtar Singh had demanded the truck for doing some BAGAR. Therefore, the stand taken by the appellant Jarnail Singh is belied. Even if for the sake of arguments, it is taken to be true that appellant, Jarnail Singh, was asked to send his truck for BAGAR on the asking of Inspector Avtar Singh and on his not doing so, he had been implicated in this case. If Inspector Avtar Singh had to falsely implicate Jarnail Singh, then there was no need to plant such a huge quantity of opium whose value runs in lacs of rupees. 22. Dw-1 Karnail Singh was the recovery witness but the prosecution has given up him as having been won over. However, he was examined by the defence. This fact would rather manifest that he was won over by the appellants. Karnail Singh, while appearing as DW-1, has admitted his signatures on Ex. PA, recovery memo of opium, Ex. PB memo regarding possession of truck and its papers, Ex. PC memo regarding personal search of accused and Ex PD memo regarding grounds of arrest of accused. He gave an explanation that his signatures were obtained by the police on the blank paper in the Police Station being Member of the Panchayat. However, it is not expected from the Member Panchayat that he would sign any blank paper. Furthermore, he was middle pass and not an illiterate person. He knew English and Punjabi and pros and cons of signing a blank paper. Therefore, this shows that he was a recovery witness and his signatures were not obtained by the police in the Police Station on the blank paper. The evidence of PW-1 ASI Mukhtiar Singh, PW-2 Inspector Avtar Singh and PW-3 DSP Raghubir Singh Chahal is consistent on all material points regarding date, time, place and manner in which the recovery was effected. Therefore, the learned trial Court has not committed any legal error and has rightly convicted and sentenced the appellants. 23. In view of the above discussion, there is no merit in Crl. Appeal No.295-DB of 1999 and the same is hereby dismissed. 24. Cr1. Appeal No.348-DB of 1999, as filed by the appellant, Jarnail Singh, has also no merit as the said truck was used for transportation of huge quantity of opium. 23. In view of the above discussion, there is no merit in Crl. Appeal No.295-DB of 1999 and the same is hereby dismissed. 24. Cr1. Appeal No.348-DB of 1999, as filed by the appellant, Jarnail Singh, has also no merit as the said truck was used for transportation of huge quantity of opium. Before confiscation of the truck, Jarnail Singh, appellant, was given a notice as to why his truck be not confiscated. In reply to the notice, he admitted that he was owner of the truck and the only plea taken by him was that a lenient view be taken. It has been proved on record that opium weighing 38 kgs. was recovered from the truck in question. It is well known that such kind of activities are a source of great menace to the society at large and in particular the young generation. These means of transport are working as drug peddlers. The law dealing with such kind of activities is stringent and, therefore, any lenient, view taken in such matters would amount to giving premium to those who were indulging in such nefarious activities. In these circumstances, we are of the view that the order of learned trial Court calls for no interference. 25. In view of above, Criminal Appeal No.348-DB of 1999 is also dismissed. Appeal dismissed.