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2009 DIGILAW 2230 (PNJ)

Bhupinder Singh v. State of Punjab

2009-12-22

SHAM SUNDER

body2009
JUDGMENT Sham Sunder, J. - This appeal is directed against the judgment of conviction, and the order of sentence, dated 01.03.01, rendered by the Court of Special Judge, Hoshiarpur, vide which, it convicted the accused, for the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be called as the Act only) and sentenced him to undergo rigorous imprisonment for a period of 10 years, and to pay a fine of Rs. 1,00,000/-, and, in default thereof, to further undergo rigorous imprisonment for a period of six months, for having been found in possession of 27 bags each containing 35 Kgs 250 grams of poppy husk, without any permit or licence. 2. The facts, in brief, are that, Ajaib Singh, Deputy Superintendent of Police, along with Nirmaljit Singh, Sub Inspector, Sita Ram, Sub Inspector, Head Constable Balbir Singh, and other Police officials, was present, at Adda Tuto-Mazra, in connection with the search of thieves, when a secret information was received, that Bhupinder Singh @ Kala son of Rikhi Ram, resident of Garhshankar, was present alongwith truck No. HIU-2451, containing poppy husk, in order to dispose of the same, to the customers. Thereafter, Ajaib Singh, Deputy Superintendent of Police, constituted a raiding party, wherein, Jagir Singh, retired Subedar, and Harbhajan Singh, Member Panchayat, were joined as independent witnesses. Thereafter, a raid was conducted, by the raiding party, headed by Ajaib Singh, Deputy Superintendent of Police. The accused, was found present under the Kikkar tree alongwith truck No. HIU-2451. He was apprehended by Ajaib Singh, Deputy Superintendent of Police. Thereafter, Ajaib Singh Deputy Superintendent of Police, disclosed his identity, to the accused, and asked him whether, he wanted the search to be conducted in the presence of a Magistrate or a Gazetted Officer. The accused, replied that he did not want the search to be conducted, from any other member of the Police party, nor did he want to be searched, in the presence of a Magistrate or any other Gazetted Officer. The accused further told Ajaib Singh, Deputy Superintendent of Police, that he could conduct his personal search as also the search of the truck. Memo PE, was thumb marked by the accused, and attested by Nirmaljit Singh, Sub Inspector, Subedar Jagir Singh, and Harbhajan Singh, independent witnesses. The accused further told Ajaib Singh, Deputy Superintendent of Police, that he could conduct his personal search as also the search of the truck. Memo PE, was thumb marked by the accused, and attested by Nirmaljit Singh, Sub Inspector, Subedar Jagir Singh, and Harbhajan Singh, independent witnesses. Thereafter, Ajaib Singh, Deputy Superintendent of Police, conducted the personal search of the accused and recovered a sum of Rs. 1,500/- which was taken into possession, vide memo PF, attested by Nirmaljit Singh, Sub Inspector and others. Thereafter, the truck, was searched by Ajaib Singh, Deputy Superintendent of Police, wherein, crazy chips, were found loaded, and underneath the same, there was a tirpal. When the tirpal was removed, 27 bags of poppy husk, were recovered 250 grams of poppy husk, was taken, as sample, from each bag, and the remaining poppy husk of each bag, after weighing, came to be 35 kgs. Thereafter, the bags containing the poppy husk, and the samples parcels, were sealed by Ajaib Singh, Deputy Superintendent of Police, with his seal, bearing impression AS. Ajaib Singh, Deputy Superintendent of Police; also filled in two CFSL forms and prepared the sample seal. Thereafter, the case property, including the samples, were taken into possession, vide memo PG, attested by the witnesses. Ruqa PA. was sent to the Police Station, on the basis whereof, FIR PA/l, was registered. Rough site plan PH of the place of recovery was prepared. Ajaib Singh, Deputy Superintendent of Police, handed over the case property, as well as the accused, to Ninnaljit Singh, Sub Inspector. Thereafter, Nirmaljit Singh, Sub Inspector, got deposited the case property, at the Police Station alongwith sample parcels thereof with seals intact Mohinder Singh, Station House Officer, put his seal over the case property, as also the samples, bearing impression MS. On 26.04.98, Bhupinder Singh, accused, vide his disclosure statement PC, got recovered the documents of the truck i.e. Registration Certificate P30, Permits P31 and P32, authority letter P33, and affidavit, P34 and P35, which were taken into possession, vide memo PD, attested by the witnesses. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty : and claimed judicial trial. 4. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 15 of the Act, was framed against him, to which he pleaded not guilty : and claimed judicial trial. 4. The prosecution, in support of its case, examined Surinder Kumar, Assistant Sub Inspector (PW 1), Mohinder Singh, Inspector (PW2), Raghbir Singh (PW3), Sucha Singh, Head Constable (PW4), Ajaib Singh, Deputy Superintendent of Police (PW5), Nirmaljit Singh, Sub, Inspector (PW6), Satpal, Constable (PW7), Jaswant Singh (PW8), and Kewal Singh, Moharrir Head Constable (PW9). Thereafter, the Additional Public Prosecutor, for the State, closed the prosecution evidence. 5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that he was innocent. It was further stated by him that, no recovery, was effected, from him. However, the accused, did not lead any defence evidence. 6. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated. 7. Feeling aggrieved, the instant appeal, was filed by the accused. 8. The appellant, during the pendency of the appeal died. Since the trial Court, had also imposed the sentence of fine, upon the appellant, the appeal, as a whole, in view of the provisions of Section 394(2) of the Code of Criminal Procedure, could not abate. As such, the Counsel for the appellant, submitted that he wanted to address arguments. 9. When the appeal was fixed for arguments, and due notice had been given, to the Counsel for the appellant, regarding the date fixed for final hearing, he did not put in appearance. The question, thus, arises, is, as to whether, in these circumstances, the Appellate Court, can decide the appeal, on merits, or not. In Dharampal v. State of U.P., 2008 (1) Law Herald (SC) 225, it was held, by the Apex Court, that when the appellant or his Counsel does not appear, despite due notice, it could be said that there was due compliance of the provisions of Sections 385 and 386 or the Code of Criminal Procedure. In Dharampal v. State of U.P., 2008 (1) Law Herald (SC) 225, it was held, by the Apex Court, that when the appellant or his Counsel does not appear, despite due notice, it could be said that there was due compliance of the provisions of Sections 385 and 386 or the Code of Criminal Procedure. It was further held that, in such a situation, the Appellate Court can decide the appeal, on merits, after going through the record, the evidence . and the judgement of the trial Court. 10. I have heard the Counsel for the respondent, and have gone through the memorandum of appeal, the evidence and record of the case, as also the judgment of the trial Court, carefully. 11. In the memorandum of appeal, the following grounds, were taken, by the appellant, for assailing the judgement of conviction, and the order of sentence, recorded by the trial Court: (i) That there was violation of the mandatory provisions of Section 42 of the Act, as secret information received, was neither reduced into writing, nor sent to the Officer superior. (ii) That the mandatory provisions of Section 50 of the Act, were not complied with, because the offer, given was partial, and, as such the trial, conviction, and sentence stood vitiated. (iii) That the contents of PE, the consent memo, were not read over and explained, to the appellant (now deceased), who was illiterate person, and. as such, it was no consent, in the eye of law. (iv) That the mandatory provisions of Section 57 of the Act, were not complied with, in as much as, two samples, were not taken, from each bag, and only one sample, was taken, from each bag. (v) That the seal after use, was not handed over to an independent witness, as a result whereof, the possibility of tampering with the sample parcels, could not be ruled out. 12. Coming to the first ground, taken upon the memorandum of appeal, that there was violation of the mandatory provisions of Section 42 of the Act, it may be stated here, that the same, is liable to be rejected, for the reasons, to be recorded, hereinafter. 12. Coming to the first ground, taken upon the memorandum of appeal, that there was violation of the mandatory provisions of Section 42 of the Act, it may be stated here, that the same, is liable to be rejected, for the reasons, to be recorded, hereinafter. No doubt, a secret information, was received, by Ajaib Singh, Deputy Superintendent of Police, that Bhupinder Singh alias Kala son of Rikhi Ram, appellant (now deceased), resident of Garhshankar, was present alongwith truck No. HIU-2451, containing poppy husk, in order to dispose of the same to the customers, and if, a raid was conducted, heavy quantity of poppy husk, could be recovered. The Deputy Superintendent of Police, constituted the party, keeping in view the emergency involved, for raiding the place, where the accused, was stated, to be present, as otherwise, the chances of his abscondance, in the meanwhile, on getting the scent of arrival of the Police, could not be ruled out. When the raid, was conducted, the accused, was found, under the Kikkar tree alongwith truck No. HIU-2451. It means that the recovery, in this case, was effected, from the truck, which was standing, at a public place. The truck, was neither standing, in an enclosed premises, nor was concealed, in a room, the raid whereof, led to the recovery of poppy husk. The provisions of Section 42 of the Act, therefore, were not applicable, to the facts of the instant case. The provisions of Sections 42 and 43 of the Act, read as under : "42. The truck, was neither standing, in an enclosed premises, nor was concealed, in a room, the raid whereof, led to the recovery of poppy husk. The provisions of Section 42 of the Act, therefore, were not applicable, to the facts of the instant case. The provisions of Sections 42 and 43 of the Act, read as under : "42. Power of entry, search, seizure and arrest without warrant or authorization - (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, olice 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 an search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any which 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 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 lie thinks proper, arrest any person whom he has (sic) 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 authorization cannot be obtained without affording opportunity for the concealment ofevidence or facility for he 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 tinder the proviso thereto he shall. forth with 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 Section 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 tinder Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance article liable to confiscation tinder 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 (sic) or psychotropic (sic) possession and .such possession appears to hint to be useful, arrest him and any other person in his company. 12-A. A conjoint reading of Sections 42 and 43 of the Act, shows chat these sections are independent of each other. Section 43 authorises any Officer of the departments, mentioned in Section 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 that an offence punishable under Chapter IV has been committed, whereas, Section 42 of the Act empowers the Officer for search, 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 the provisions of Section 43 of the Act are applicable. The word public place has been explained for the purpose of Section 43 of the Act, which includes any public conveyance, hotel, shop or other places intended for use or accessible to the public. 13. A Division Bench of this Court in Dharminder Kumar v. State of Punjab, 2002(4) RCR (Crl) 278, has held as under. The word public place has been explained for the purpose of Section 43 of the Act, which includes any public conveyance, hotel, shop or other places intended for use or accessible to the public. 13. A Division Bench of this Court in Dharminder Kumar v. State of Punjab, 2002(4) RCR (Crl) 278, 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 Section 43 of the Act would be applicable Section 43 and Section 42 of the Act operate in different sphere. 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 (sic) 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 a public place. This interpretation is the only harmonious interpretation of Sections 42 and 43 of the Act." 13-A. It is well settled principle of law, that the provisions of a Statute, are to be construed, in harmonious manner, so that none of the same is rendered nugatory. By harmonious construing the provisions of 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. 14. It was held in State of Haryana v. Jarnail Singh and others, 2004(2) RCR (Crl) 960 (SC), as under : "7. Section 43 of the NDPS Act provides that any officer of any of the departments mentioned in Section 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 authorized to detain and search any person, whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 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. (sic) Sections 42 and 43, therefore, contemplate two difference situations. Explanation to Section 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. (sic) Sections 42 and 43, therefore, contemplate two difference situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 4? contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 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 Section 42 of the NDPS Act for searching he vehicle between sunset and the sunrise. " In view of the principle of law, laid down, in the aforesaid cases, the trial Court was right in holding that since the provisions of Section 42 of the Act were not applicable to the facts of the instant case, the question, of compliance of the same, did not at all arise. This ground, thus, being devoid of merit, stands rejected. 15. The provisions of Section 50 of the Act, were not applicable, to the facts of the instant case, as the recovery, was not effected, from the person of the accused, but, only from the truck, which was standing, under the Kikkar tree. In these circumstances, whether any offer, was given, to the accused, or not, or whether it was partial hardly mattered. In State of Punjab v. Baldev Singh, 1999(6) S.C.C. 172 : [1999(3) All India Criminal LR (S.C.) 1], a Constitution Bench of the Apex Court, settled beyond doubt, that the language of Section 50, was implicitly clear that the search had to be, in relation to a person, and not in relation to the premises, vehicles, or articles. Similar view was taken in Smt. Krishna Kanwar Thakuraeen v. State of Rajasthan, JT 2004(1) S.C. 597. Since the provisions of Section 50 of the Act, were not applicable, the question of vitiation of trial, conviction and sentence did not at all arise. 16. No doubt, one sample from each of the bags, was taken. Similar view was taken in Smt. Krishna Kanwar Thakuraeen v. State of Rajasthan, JT 2004(1) S.C. 597. Since the provisions of Section 50 of the Act, were not applicable, the question of vitiation of trial, conviction and sentence did not at all arise. 16. No doubt, one sample from each of the bags, was taken. There is no requirement of law, that two samples should be taken, from each bag, for sending the same, to the Chemical Examiner. The samples, are taken, from the recovered contraband, with a view to send the same to the Chemical Examiner, for the purpose of analyzing the same, to find out, as to whether, the same contained a particular contraband, or not. When the samples, were sent, to the Chemical Examiner, he found, that the contents thereof, were sufficient, for the purpose of analysis. Ultimately, after analyzing the contents thereof, he came to the conclusion, that the same contained poppy husk. Under these circumstances, no prejudice. whatsoever, was caused, to the appellant, on account of non-taking of two samples, from each of the bags. This ground also does not carry any substance, and is liable to be rejected. 17. No doubt, Harbhajan Singh and Jagir Singh, independent witnesses, were joined, at the time of recovery, from the accused. Harbhajan Singh, was given up, as won over, vide statement dated 29.04.89, made by the Additional Public Prosecutor for the State, on the request of Sucha Singh, CII, and Jagir Singh, prosecution witness, was given up, as won over, by the Additional Public Prosecutor for the State, vide statement dated 25.03.2000, on the basis of application, moved by the local Police. It is to be seen, as to whether, non-entrustment of seal, to the independent witnesses, who were joined, at the time of recovery of the contraband, and were later on, given up as won ever, by the accused, on the basis of the information, supplied by the Police, caused any prejudice, to the accused, or not. It may be stated here that, in the first instance, there is no provision, in law, that seal after use, should he handed over, to an independent witness. In the instant case, sufficient evidence, was produced, that the samples, duly sealed, were sent, to the office of the Chemical Examiner, which were analyzed by it. It may be stated here that, in the first instance, there is no provision, in law, that seal after use, should he handed over, to an independent witness. In the instant case, sufficient evidence, was produced, that the samples, duly sealed, were sent, to the office of the Chemical Examiner, which were analyzed by it. When these samples, were received, in the office of the Chemical Examiner, the same bore the seals, with which the same, were sealed. The seals, were intact, and had not been tampered with. The samples, therefore, remained untampered with, until the same, were analyzed. In these circumstances, no prejudice, was caused, to the accused, on account of non-handing over the seals, to the independent witnesses. In Piara Singh v. The State of Punjab, 1982 C.L.R. (2) 447, a case decided by a Full Bench of this Court, the seal affixed on the sample of illicit liquor, recovered from the accused, was not entrusted to an independent person forthwith. Similarly, the independent person, though entrusted with the seal, by the Investigating Officer, later on, was not produced as a witness. In these circumstances, it was held that this fact alone, was not sufficient to affect the merits of the trial, and the prosecution case, could not be thrown out, on that score alone. It was further held, in this case, that it was not incumbent upon the Police Officer, to hand over the seal, to a third person forthwith, and even, in cases, where he had done so, it was not obligatory for him, to produce such person, as a witness, during trial, as there was no statutory requirement, whatsoever, to this effect. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the present case. Thus, this ground, being also devoid of merit, must fail and the same stands rejected. 18. No other ground, was taken, in the memorandum of appeal, for assailing the judgment of the trial Court. 19. For the reasons recorded above, the appeal, is partly accepted. The judgment of conviction is maintained. The appeal, qua the order of substantive sentence, and sentence awarded, in default of payment of fine, shall abate, as the appellant, has since demised. 20. The order imposing the sentence of tine, shall remain intact. 19. For the reasons recorded above, the appeal, is partly accepted. The judgment of conviction is maintained. The appeal, qua the order of substantive sentence, and sentence awarded, in default of payment of fine, shall abate, as the appellant, has since demised. 20. The order imposing the sentence of tine, shall remain intact. The amount of fine, shall be recovered, from the estate of the accused (deceased), if any, inherited by his legal heirs, on his death. 21. The Chief Judicial Magistrate, is directed, to comply with the judgment, in accordance with the provisions of law, and submit the compliance report within 02 months. Order accordingly.