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2008 DIGILAW 47 (PNJ)

Prithvi Raj v. State of Haryana

2008-01-10

A.N.JINDAL

body2008
JUDGMNET A.N. Jindal, J- This appeal is directed against the judgment dated 10.11.1994 passed by the learned Additional Sessions Judge, Ambala convicting the accused-appellant Prithvi Raj (hereinafter referred to as ‘the accused’) under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’), for retaining in his possession 900 grams of charas and sentencing him to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1.00 lac and in default of payment of fine to further undergo rigorous imprisonment for two years. 2. The factual matrix of the case as unfolded by the prosecution is that on 13.12.1992, when SI Kulwant Singh, CIA staff, Ambala Cantt. along with other police official was on general checking on government vehicle No.HR-03-9273 and was present near Sahidi chowk, Ambala Cantt., he received secret information that the accused is carrying charas in his bag and could be apprehended red handed. He along with other police persons went to the disclosed place, apprehended the accused and after giving option of search, searched the bag of the accused from where 900 grams of charas was recovered. The contraband so recovered from the accused was taken into possession vide memo Ex.PC sealed with the seal bearing impression “KS”. When the Investigating Officer was on his way to the police station, he came across DSP Karan Singh, before whom the accused along with the case property was produced. He broke open the seal and took two samples of 50 grams each, which were sealed with his seal bearing impression “KS” and case property ws taken into possession vide memo Ex.PA. On receipt of report of the Forensic Science Laboratory Ex.PZ and on completion of the investigation, he was challaned. 3. Consequently, the accused was charged under Section 20 of the Act to which he pleaded not guilty and opted for trial. 4. During trial, the prosecution examined DSP Karan Singh (PW1), ASI Madan Singh (PW2), SI Kulwant Singh (PW3) and after tendering into evidence affidavits of MHC Balwant Singh Ex.PX, Constable Sunil Kumar Ex.PY and report of FSL Ex.PZ, the prosecution closed its evidence. 5. When examined under Section 313 Cr.P.C. the accused claimed himself to be innocent and pleaded his false implication in the case. However, no evidence was led in defence. 6. Ultimately the trial ended in conviction. Hence this appeal. 7. I have heard Mr. 5. When examined under Section 313 Cr.P.C. the accused claimed himself to be innocent and pleaded his false implication in the case. However, no evidence was led in defence. 6. Ultimately the trial ended in conviction. Hence this appeal. 7. I have heard Mr. Kapil Aggarwal, learned counsel for the appellant, Mr. Amit Kaushik, learned Assistant Advocate General, Haryana and perused the records of the case. 8. The prime contention raised by the learned counsel for the appellant, in order to seek the acquittal of the accused and to falsify the prosecution version is that though the prosecution has tendered into evidence the affidavits of MHC Balwant Singh Ex.PX and Constable Sunil Kumar Ex.PY, but no opportunity was provided to the accused to cross examine them which has caused serious prejudice to the accused and has resulted into miscarriage of justice. He has further urged that though prosecution has relied upon this evidence to complete the chain, yet the same being material evidence has not been put to the accused in his statement under Section 313 Cr.P.C. The argument has substance and bare perusal of the record shows that the the accused was not allowed to cross examine the witnesses whose affidavits were tendered into evidence. Further statement of the accused under Section 313 Cr.P.C., transpires that though the prosecution has relied upon the aforesaid affidavits Ex.PX and Ex.PY, yet, these affidavits were not put to the accused in his statement under Section 313 Cr.P.C. Had the accused been permitted to cross examine these witnesses, then he would have the opportunity to test their credibility and give stroke to the prosecution case. 9. My this view finds strength from the judgment Bhoolan vs. State of Punjab 1995 (3) RCR (Crl. 505 and Padam Singh vs. State of Haryana, 1997 (4) RCR (Crl.) 172. There is also no denying a fact that the accused was not apprised of the grounds of arrest vide a separate specific memo in this regard, therefore, non compliance of Section 57 of the Act also creates doubt over the prosecution case. Similar view was taken by the Apex Court in case Gurbax Singh vs. State of Haryana, AIR 2001 SC 1002. 10. Similar view was taken by the Apex Court in case Gurbax Singh vs. State of Haryana, AIR 2001 SC 1002. 10. Another point urged forward by the learned counsel for the appellant is that since the case was registered on the basis of the secret information, therefore, it was obligatory on the part of the Investigating Officer to reduce the said information into writing and send the same to the officers immediately superior to him. Thus, the recovery of the contraband is in violation of the provisions of Section 42 (1) of the Act. 11. Having deliberated over the matter, it would be appropriate to reproduce Section 42 (1) of the Act, which reads as under :- “42. Thus, the recovery of the contraband is in violation of the provisions of Section 42 (1) of the Act. 11. Having deliberated over the matter, it would be appropriate to reproduce Section 42 (1) of the Act, which reads 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 intellegence or any other department of the Central Government including para-military forces or armed forces 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, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act 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 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 VA 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.” 12. From the bare perusal of the section 42 (1) of the Act, it transpires that when the case is registered on the basis of the secret information and if the Investigating Officer has reason to believe from the personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence, he shall within 72 hours send the said information and also the factum of his belief to his immediate officers superior. In the instant case, despite the fact that the case was registered on the basis of the secret information and the Investigating Officer proceeded after considering the information to be reliable, he did not reduce the said information into writing and send the same to his immediate officers superior. Nothing has been brought on record which prohibited the Investigating Officer to skip over the aforesaid mandatory provisions of law. He did not record any reason whatsoever that may be for not complying with the provisions of Section 42 (1) & (2) of the Act. Thus, under these circumstances, non compliance of Section 42 (1) & (2) of the Act renders the recovery of the contraband as illegal. 13. No doubt the recovery was effected at the spot and the case property was sealed but it is not transpired from the record as to what prohibited the Investigating Officer to draw samples of the case property in the presence of the accused at the spot. But, the record reveals that the Investigating Officer did not take out the samples in the presence of the accused at the spot at the time of effecting recovery from him but he went to DSP Karan Singh (PW1) with the case property who took out the samples. It is not disclosed by the Investigating Officer as to why he did not prepare the sample seal chit. The record is silent if the seal affixed by him was preserved by the DSP Karan Singh (PW1), rather from the statement of DSP Karan Singh (PW1) as well as Investigating Officer that DSP Karan Singh (PW1) broke open the seal affixed by the Investigating Officer and affixed his own seal. The record is silent if the seal affixed by him was preserved by the DSP Karan Singh (PW1), rather from the statement of DSP Karan Singh (PW1) as well as Investigating Officer that DSP Karan Singh (PW1) broke open the seal affixed by the Investigating Officer and affixed his own seal. Thus non preservation of the seal and non preparation of the sample seal chit also creates a doubt over the prosecution version. That apart, no independent witness was associated to attest the recovery memo despite sufficient opportunity available with the Investigating Officer much less no attempt was made by him to call independent witness. 14. Thus, on conspectus of the entire evidence, it transpires that the prosecution has failed to bring home the guilt of the accused. Consequently, while extending benefit of doubt to the accused, appeal is accepted and he is acquitted of the charge framed against him. His bail bond and surety bond stand discharged. ——————————