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2007 DIGILAW 293 (PNJ)

Harcharan Singh alias Balla v. State of Haryana

2007-02-21

MAHESH GROVER

body2007
JUDGMENT Mahesh Grover, J.- This is an appeal preferred against the judgment dated 28.5.2005 and order dated 30.5.2005 rendered by the Additional Sessions Judge, Sirsa (hereinafter described as ‘the trial Court’) vide which the .appellant was convicted under Section’ 15 of the Narcotic Drugs and Psychotropic, Substances Act,1985 (for short, ‘the Act’) and sentenced to undergo, rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo rigorous, imprisonment for a period of two years. The facts of the case are that on 13.6.2002, A.S.I. Rattan Singh of Police Station, City, Dabwali along with his companions was present at the Bus Stop, Village Jogewala in connection with official duties. There, he received a secret information that Harcharan Singh alias Balla son of Baghel Singh, resident of Village Desu Jodhan, District Sirsa (appellant herein) used to smuggle poppy straw and if an immediate raid was conducted, the contraband in heavy quantity can be recovered from his house. 2. Upon receiving the aforesaid information, A.S.I. Rattan Singh reduced it into writing as required under Section 42 of the Act and sent the same to the Deputy Superintendent of Police, Dabwali through constable Jai Singh. A.S.I.Rattan Singh thereafter formed a raiding party and associated Hakam Singh, Chowkidar of village Desu Jodhan therein and reached the house of the appellant. On reaching there, they saw one person having a gunny bag on his head and on plastic bag in his hand and he was entering the house of the appellant. A.S.I. Rattan Singh asked Hakam Singh, Chowkidar to join the investigation, but he showed his helplessness. The person, who was carrying the gunny bag on his head, was known to A.S.I. Rattan Singh, who identified him as Harcharan Singh-appellant. On seeing the police party, the appellant is alleged to have run away from the site and managed to escape leaving behind the alleged contraband. The gunny bag and the plastic bag were opened and the same were found containing poppy straw. Two samples of 100 Grams each were separated from both the bags. Thereafter, the bags were weighed and they were found having weight of 39 Kgs. 900 Grams and 11 Kgs. 900 Grams, respectively. The gunny bag and the plastic bag were opened and the same were found containing poppy straw. Two samples of 100 Grams each were separated from both the bags. Thereafter, the bags were weighed and they were found having weight of 39 Kgs. 900 Grams and 11 Kgs. 900 Grams, respectively. The samples and the bags were separately sealed with the seal of ‘R.S.’ After use and preserving the sample’ impression of the seal, it was handed over to H.C. Wazir Singh. The recovery memo was prepared by the Investigating Officer, who sent a ruqa through Constable Mangat Ram to the Police Station, City, Dabwali on the basis of which F.I.R.No.125 dated 13.6.2002 under Section 15 of the Act was registered. The Investigating Officer also prepared a rough site plan. He produced the case property and his report under Section 57 of the Act before Inspector Ram Rattan, S.H.O., Police Station, City, Dabwali, who verified the facts of the case from the witnesses and affixed his seal ‘RR’ on the parcels. Thereafter, he forwarded the report under Section 57 of the Act to the Deputy Superintendent of Police, Dabwali and returned the case property to A.S.I. Rattan Singh for depositing the same with the M.H.C. of the Police Station. After completing the necessary investigation, challan under Section 173 of the Cr.P.C. was prepared and presented before the Court and the appellant was sent to stand trial. 3. The appellant was accordingly charge sheeted under Section 15 of the Act to which he pleaded not guilty. 4. The prosecution examined as many as eight witnesses. They included the official witnesses who were associated with raid, sealing of samples, sending of ruqa, recording of formal F.I.R etc. The affidavit of the M.H.C., as also the report of the Forensic Science Laboratory (Exhibit PE) were also produced in evidence to establish the guilty of the appellant. 5. In his statement under Section 313 of the Cr.P.C., the entire incriminating evidence was put to the appellant, who pleaded false implication. It was also pleaded by the appellant that he has been falsely implicated at the instance of one Shri Sanjay Kumar, A.S.I. And Shri Surinder Kumar Malik, Inspector/S.H.O. of Police Station, City Dabwali against whom he had filed a complaint. It was also pleaded by the appellant that he has been falsely implicated at the instance of one Shri Sanjay Kumar, A.S.I. And Shri Surinder Kumar Malik, Inspector/S.H.O. of Police Station, City Dabwali against whom he had filed a complaint. He, however, did not substantiate this allegation by way of any evidence and only examined his wife Amarjeet Kaur as DW1, who deposed that her husband has been falsely implicated. The trial Court thereafter went to record the conviction of the appellant and sentenced him in the manner mentioned hereinabove. 6. Shri D.N.Ganeriwala, learned counsel for the appellant contended that there was non-compliance of Section 42 of the Act in the instant case and the appellant is entitled to acquittal only on this score. To substantiate his contention, he referred to the statement of A.S.l. Rattan Singh (PW6), as also the statement of Constable Jai Singh (PW4), who have stated that the report under Section 42 of the Act was never sent to the Deputy Superintendent of Police. The identity of the appellant was also in question as he was not apprehended at the spot. Even though, A.S.I Rattan Singh, who had conducted the raid, has testified that the appellant was known to him, yet, in his statement as PW6, he has not satisfactorily explained as to how he knew the appellant. 7. On the other hand, Shri A.K.Rathee, learned Assistant Advocate General, Haryana appearing for the State contended that the provisions of law stood substantially complied with and there was no violation on the basis of which the appellant could be acquitted. Besides, the quantity recovered from the appellant was 52 Kgs. of poppy straw which is a commercial quantity and the same cannot be planted fictitiously. I have heard learned counsel for the parties and perused the record with their assistance. 8. The whole case of the prosecution is that the raid had been committed on receipt of a secret information and that the raiding party had gone to raid the house of the appellant. In view of this, it was imperative upon the Investigating Officer to have complied with the provisions of Section 42 of the Act. The statements of PW4 and PW6 are unambiguous in terms when they stated that no report under Section 42 of the Act was given to the Deputy Superintendent of Police. In view of this, it was imperative upon the Investigating Officer to have complied with the provisions of Section 42 of the Act. The statements of PW4 and PW6 are unambiguous in terms when they stated that no report under Section 42 of the Act was given to the Deputy Superintendent of Police. In view of this testimony of these witnesses, there was very little left to the trial Court but to hold that there was non-compliance of Section 42 of the Act. The finding of the trial Court by over looking this testimony is clearly erroneous. In the judgment reported as 2004 S.C.C. (Crl.) 1871- State of Orissa Versus A. Raieswar Patra, their Lordships of the Supreme Court held as under:­ “It is evident that the contraband was recovered during the search of a composite building having house and shop. Hence, Section 42 comes to play and the mandatory requirement of reducing into writing is necessary. In the absence of such recording of the information by the investigating officer it is concluded that there has been a violation of Section 42.” In another judgment reported as 2002(2) R.C.C. 225 - Beckodan Abdul Rahiman Versus State of Kerala, the Apex Court held that where the search and seizure of a contraband has been conducted on a secret information the non-compliance of mandatory provisions of Section 42(2) of the Act renders the prosecution case as not established and the appellant was entitled to acquittal. A learned Single Judge of this Court in the judgment reported as 2006(3) R.C.R (Criminal) 205 - Gurnam Singh Versus State of Punjab, has held that where the recovery of contraband had been effected on the basis of secret information by a non-Gazetted Police Officer without reducing such information into writing and without sending the same to the superior officer as provided in Section 42 of the Act, which is mandatory, the conviction of the appellant was liable to be set aside. 9. Thus, the settled proposition of law is that the compliance of the provisions of Section 42 of the Act is mandatory and any violation thereof would result in the benefit going the way of the accused person. 9. Thus, the settled proposition of law is that the compliance of the provisions of Section 42 of the Act is mandatory and any violation thereof would result in the benefit going the way of the accused person. In the instant case, in view of the overwhelming evidence on record, there is little hesitation to hold that the provisions of Section 42 of the Act have not been complied with, and the appeal of the appellant deserves to succeed, on this score alone. 10. That apart the identity of the appellant has also been fully established. Even though, an attempt was made to associate Chowkidar of the village as an independent witness, yet, he was not joined. Although PW6- A.S.I. Rattan Singh, who was head of the raiding party, stated that he knew the appellant, but his statement is far from satisfactory as he does not explain as to how he knew the appellant. 11. Keeping in view the totality of the circumstances of the case and the fact that the mandatory provisions of the Act have not been complied with, the appeal is accepted, the impugned judgment and order of sentence are set aside and the appellant is acquitted of the charge levelled against him. ————————