JUDGMENT Mr. Kanwaljit Singh Ahluwalia, J. (Oral):- By this common order, (1) CRA No.1990-SB of 2002 preferred by Bhag Singh and (2) CRA No.22-SB of 2003 filed by Lakhvinder Singh shall be decided together. 2. Both the appellants were nominated as accused in a case FIR No.68 dated 07.10.2000 registered at Police Station Amloh under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, ‘the Act’). They were tried by the Court of Special Judge, Fatehgarh Sahib, which vide impugned judgment dated 15th November, 2002 held them guilty of the above said offence and vide a separate order of even date, sentenced them to undergo rigorous imprisonment for a period of ten years and to pay a fine of rupees one lakh each, in default of payment of fine to further undergo rigorous imprisonment for six months. 3. Briefly stated, prosecution case emerges in ruqa Ex.PH sent by Inspector Gurmail Singh PW-8, on the basis of which formal FIR Ex.PH/1 was registered. In ruqa Ex.PH, Inspector Gurmail Singh PW-8 stated that he along with the companion police officials including SI Gurdeep Singh PW-2 was going on patrol duty in a Government vehicle Tata-407 towards village Salana along the bank of minor canal. The police party associated one Sukhwinder Singh son of Ujagar Singh, resident of Naraingarh as an independent witness. When the police party was short of one kilometer from village Salana, one tractor-trolley was spotted coming from the opposite side. The tractor was being driven by a person and another one was sitting over the bags loaded in the trolley. On the basis of suspicion, a signal was given to stop it. At that time, the person who was sitting over the bags jumped and ran away from the spot. Inspector Gurmail Singh PW-8, with the help of companion police officials, apprehended driver of the tractor, who disclosed his name as Bhag Singh son of Lehna Singh, Jatt, resident of Kotla Dhak. SI Gurdeep Singh PW-2 disclosed the name of the person who ran away from the spot as Lakhvinder Singh @ Ghuk son of Pala Singh, resident of Dabban Kheri, Police Station Guhla, District Kaithal. SI Gurdeep Singh PW-2 disclosed the name of the person who ran away from the spot as Lakhvinder Singh @ Ghuk son of Pala Singh, resident of Dabban Kheri, Police Station Guhla, District Kaithal. An option was given to Bhag Singh to get the bags loaded in the trolley searched in the presence of a Gazetted Officer or a Magistrate, upon which he reposed trust in the Gazetted Officer and a consent memo to this effect was prepared. After the consent memo was attested by the witnesses, a wireless message was sent to DSP Bhupinderjit Singh Virk, Circle Amloh PW-3 to arrive at the spot. On arrival, DSP Bhupinderjit Singh Virk disclosed his identity to accused-Bhag Singh who reposed trust in him, whereupon a consent memo was separately prepared which was signed by Bhag Singh after the same was read-over to him. Thereafter, a search of the tractor-trolley was carried and 32 bags were found. Out of them, 22 bags contained poppy husk and rest of the ten bags contained paddy weighing 60 kgs each. Each bag of poppy husk contained 35 kgs. Two samples weighing 250 grams each were drawn from the bags of poppy husk and the same were sealed. The seal after use was entrusted to the independent witness Sukhwinder Singh. Later-on, the case property, along with the accused and the tractor-trolley, was produced before the concerned SHO. 4. The above said FIR was investigated and a report under Section 173 Cr.P.C. was submitted against the appellants. 5. The Court of Additional Sessions Judge, Fatehgarh Sahib charged the appellants for an offence punishable under Section 15 of the Act. The charge stated that on 7th October, 2000 at about 6.45 p.m. in the area of village Salana, appellants were found carrying 22 bags each containing 35 kg of poppy husk in a tractor-trolley bearing registration No.PNL-9470 without any permit or licence and thus, they committed an offence punishable under Section 15 of the Act. The appellants pleaded not guilty and claimed trial. 6. The entire prosecution case has been unfolded by Inspector Gurmail Singh PW-8, who was then posted as In-charge, CIA Staff, Sirhind. He reiterated as to what was stated in the ruqa Ex.PH. However, in his evidence various documents were exhibited. The appellants pleaded not guilty and claimed trial. 6. The entire prosecution case has been unfolded by Inspector Gurmail Singh PW-8, who was then posted as In-charge, CIA Staff, Sirhind. He reiterated as to what was stated in the ruqa Ex.PH. However, in his evidence various documents were exhibited. He proved consent memo Ex.PB, taking of case property into possession vide memo Ex.PD, carrying personal search of the accused vide Ex.PE, arrest memo Ex.PF and taking into possession of the tractor-trolley vide memo Ex.PG. The bags containing poppy husk were proved as Ex.MO-1 to Ex.MO-22. Second samples of each bag were proved as Ex.MO-23 to Ex.MO-44. Ten bags of paddy recovered from the tractor-trolley were exhibited as Ex.MO-45 to Ex.MO-54. This witness further stated that he had prepared the rough site plan of the spot Ex.PK and had recorded the statements of the witnesses. In cross-examination, he stated that investigation of this case remained with him upto 13th November, 2000. He further stated that Police Station CIA Staff was at a distance of 18 kilometers from Kahanpur and 20 kilometers from the place of recovery. He stated that they reached at the spot at 1.15 p.m. He further stated that there were about 14 persons in all, including the independent witness. The signal to stop the tractor-trolley was given from a distance of 10/15 yards and the tractortrolley stopped at a distance of 4/5 yards from the police party. Patri of the minor canal, on which the tractor-trolley was coming, was having a width of 9/10 feet and two vehicles could cross the Patri at a time. He further stated that the tractor-trolley was parked in between the Patri and their vehicle could not cross it. He stated that Lakhvinder Singh had jumped towards the back side of the trolley but he was identified by SI Gurdeep Singh PW-2. He further stated that when the accused Lakhvinder Singh ran away from the spot, at that moment SI Gurdeep Singh PW-2 had disclosed the name of Lakhvinder Singh. He further stated that the DSP remained at the spot upto 7.45 p.m. 7. SI Gurdeep Singh PW-2 corroborated the testimony of Inspector Gurmail Singh PW-8. In his examination in-chief, he stated that he identified the person who ran away from the spot as Sukhwinder Singh, as he was known to him earlier. He further stated that the DSP remained at the spot upto 7.45 p.m. 7. SI Gurdeep Singh PW-2 corroborated the testimony of Inspector Gurmail Singh PW-8. In his examination in-chief, he stated that he identified the person who ran away from the spot as Sukhwinder Singh, as he was known to him earlier. Regarding description of the name of accused, I have seen vernacular evidence recorded, wherein it is stated that Sukhwinder Singh accused present in the Court was identified by him. This witness further stated that on 4th November, 2000, accused Lakhvinder Singh was arrested by ASI Jagdev Singh in his presence. In cross-examination, this witness stated that the tractor-trolley was seen coming from a distance of about 60 yards. The signal to stop the tractor-trolley was given to its driver by the police party from a distance of about 15-20 yards. When the police party alighted from its vehicle, the tractor-trolley was at a distance of about 19 yards. He further stated that the police officials were 12 in number. He was not able to disclose to the Court as to how long SI Bachittar Singh chased accused Lakhvinder Singh. He stated that Lakhvinder Singh ran 15 yards on the Patri and then he entered the fields but the police personnel could not chase him as the tractor-trolley was standing on the Patri. 8. Bhupinderjit Singh Virk, DSP (Rural), Patiala appeared as PW-3. He deposed regarding search, seizure and recovery of the contraband article. 9. SI Paramjit Singh (also numbered as PW-3) stated that he was posted in CIA Staff, Sirhind. On the directions of Inspector Gurmail Singh PW-8, he had taken the case property along with the accused to MHC Jagdish Singh, Police Station Amloh for producing the same before the Illaqua Magistrate. The case property was produced before the Illaqua Magistrate on the next day, i.e. 8th October, 2011. In cross- examination, he admitted that the independent witness Sukhwinder Singh was his brother. 10. SI Rajinder Kumar PW-4 had recorded the formal FIR Ex.PH/1 on the basis of ruqa Ex.PH. 11. Inspector Sukhdev Singh PW-5 stated that on 7th October, 2000 he was posted as SHO, Police Station Amloh. On that day, Inspector Gurmail Singh, CIA Staff, Sirhind had produced the case property, i.e. 22 bags of poppy husk and 44 samples, along with the accused before him. 11. Inspector Sukhdev Singh PW-5 stated that on 7th October, 2000 he was posted as SHO, Police Station Amloh. On that day, Inspector Gurmail Singh, CIA Staff, Sirhind had produced the case property, i.e. 22 bags of poppy husk and 44 samples, along with the accused before him. In cross-examination, he stated that the case property was produced before him on 7th October, 2000 at about 11.00 p.m. and he had deposited the entire case property with the MHC Jagdish Singh. 12. MHC Jagdish Singh PW-6 tendered his affidavit Ex.PH to prove link evidence. ASI Jagdev Singh PW-7 proved arrest of Lakhvinder Singh accused on 4th November, 2000. 13. PW Sukhwinder Singh independent witness was given up as won-over, whereas HC Ved Parkash as unnecessary. 14. Thereafter, prosecution closed its evidence and statements of the accused appellants were recorded under Section 313 Cr.P.C. All the incriminating circumstances were put to them. 15. Bhag Singh accused, in his statement recorded under Section 313 Cr.P.C., stated that on 4th October, 2000, he had given beatings to Sukhwinder Singh, who is brother of SI Paramjit Singh PW-3, and therefore, he has been falsely implicated. 16. No witness was examined in defence. 17. Mr. H.P.S. Ghuman, Advocate appearing on behalf of appellant-Lakhvinder Singh, has raised following arguments for consideration of this Court: (a) That there is non-compliance of Section 42 of the Act. The recovery was effected after 6.45 p.m. and hence, no prior report was sent to the higher officials; (c) That when the case property was produced in the Court, the bags were torn, seals were broken and the gunny bags containing poppy husk were not having numbers. (d) That SI Bachittar Singh, who chased accused Lakhvinder Singh, has not been examined by the prosecution. (e) That no question was put to accused Lakhvinder Singh in his statement recorded under Section 313 Cr.P.C. regarding conscious possession of the contraband article. 18. Ms. Gursharan Kaur Mann, Advocate appearing on behalf of appellant-Bhag Singh has stated as under: (i) That the prosecution has miserably failed to prove the link evidence as the name of Inspector Sukhdev Singh SHO does not find mention in register No.19 Ex.DA. Counsel has stated that in register No.19 Ex.DA in the entry made regarding deposit of the case property, only name of SI Gurmail Singh PW-8 has been mentioned. Furthermore, there is overwriting in the register. Counsel has stated that in register No.19 Ex.DA in the entry made regarding deposit of the case property, only name of SI Gurmail Singh PW-8 has been mentioned. Furthermore, there is overwriting in the register. (ii) That Sukhwinder Singh, who was associated as an independent witness, has not been examined by the prosecution. It is contended that Sukhwinder Singh is the brother of SI Paramjit Singh PW-3 (twice numbered), thus, he too cannot be termed as an independent witness. 19. Mr. K.S. Aulakh, Assistant Advocate General, Punjab, has submitted that the testimony of Inspector Gurmail Singh PW-8 has been duly corroborated by SI Gurdeep Singh PW-2. Furthermore, DSP Bhupinderjit Singh Virk has proved search, seizure and recovery of the contraband article. 20. I have given a thoughtful consideration to the rival submissions made by counsel for the parties. 21. So far as the first argument advanced by Mr.Ghuman is concerned, a Division Bench of this Court (to which I was a party) in Criminal Appeal No.145-DB of 2007 titled as ‘Davinder Kumar v. State of Punjab’ decided on November 21, 2011, had held as under: “There is a marked difference between Sections 42 and 43 of the Act. A five-Judge Bench of Hon’ble the Supreme Court in ‘Karnail Singh v. State of Haryana’ (2009) 8 SCC 539 has reconciled the ratio of law propounded in two different judgments rendered by three- Judge Bench in ‘Abdul Rashid Ibrahim Mansuri v. State of Gujarat’ (2000) 2 SCC 513 and ‘Sajan Abraham v. State of Kerala’ (2001) 6 SCC 692, and has held as under: ’34. ... ... ... As a result, if the statutory provision under Sections 41(2) and 42(2) of the Act of writing down the information is interpreted as a mandatory provision, it will disable the haste of an emergency situation and may turn out to be in vain with regard to the criminal search and seizure. These provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal. Consequently, these provisions should be taken as a discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug peddlers.’ Thus, it is evident that mere non-compliance of Section 42 of the Act will not vitiate the trial till the accused is able to bring on record the prejudice caused to him. Consequently, these provisions should be taken as a discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug peddlers.’ Thus, it is evident that mere non-compliance of Section 42 of the Act will not vitiate the trial till the accused is able to bring on record the prejudice caused to him. That apart, in the facts and circumstances of each case, it is for the Court to decipher as to whether in a given case, which of the two Sections, i.e. Section 42 or Section 43, of the Act is attracted. In ‘State of Haryana v. Jarnail Singh’ (2004) 5 SCC 188, Hon’ble the Supreme Court has dilated upon the distinction between two Sections, i.e. Section 42 or Section 43, of the Act and has to say as under: ‘7. The next question is whether Section 42 of the NDPS Act applies to the facts of this case. In our view Section 42 of the NDPS Act has no application to the facts of this case. Section 42 authorises an officer of the Departments enumerated therein, who are duly empowered in this behalf, to enter into and search any such building, conveyance or place, 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, etc. is kept or concealed in any building, conveyance or enclosed place. This power can be exercised freely between sunrise and sunset but between sunset and sunrise if such an officer proposes to enter and search such building, conveyance or enclosed place, he must record the grounds for his belief 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. 8. 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 authorised to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. 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 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. 9. Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 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 the vehicle between sunset and sunrise.’ (emphasis supplied) The reasoning propounded in Jarnail Singh’s case (supra) was further relied upon in ‘State, NCT of Delhi v. Malvinder Singh’ (2007) 11 SCC 314. In the present case, the accused were traveling in a Cielo car coming from the side of Phillaur when the same was apprehended at Adda Lasara. Therefore, the recovery was effected when the vehicle was in transit, and hence, Section 43 of the Act is attracted. Thus, we have no hesitation to hold that noncompliance of Section 42 of the Act is not fatal to the prosecution. Furthermore, in Karnail Singh’s case (supra) a further distinction between both the Sections, i.e. Section 42 or Section 43, of the Act has been noticed as under: ’26. The material difference between the provisions of Sections 42 and 43 of the NDPS Act is that Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article, etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.’ 22. Since in the present case, recovery was effected from a running vehicle, this Court is of the view that Section 42 of the Act is not attracted, but Section 43 of the Act. Therefore, it cannot be said that there is a breach of Section 42 of the Act. Furthermore, police officials were also moving in a Government vehicle Tata-407, when on a suspicion they had stopped the tractor-trolley in which the contraband article was being carried. The police party had to deal with an emergent situation. Urgency and expediency to unearth the crime and effect the recovery demanded that recording of the information in writing and sending a copy thereof to the superior officials be postponed for a reasonable period. The Government officials have been able to demonstrate that it was a situation, which demanded that they should first effect the recovery and send the information later-on, which indeed was sent in the form of ruqa Ex.PH on the basis whereof formal FIR Ex.PH/1 was registered. 23. Regarding the second argument raised by Mr.Ghuman, there is a serious fallacy in the same. A perusal of the ruqa Ex.PH reveals that while concluding it, SI Gurmail Singh PW-8 had written the date of occurrence as 7th October, 2000 and time as 6.45 p.m. Therefore, it shows that the writing work was concluded at that time and ruqa was sent at 6.45 p.m. If in the form of formal FIR, a lower official has wrongly recorded the timing of conclusion of ruqa as the time of occurrence, no benefit can be granted to the accused. 24. So far as the third argument is concerned, it has come in the evidence that on the very next day, i.e. 8th October, 2000, the case property was produced before the Court of Illaqua Magistrate and till that time, the same was intact. In the present case, evidence of SI Gurmail Singh PW-8 was recorded on 4th July, 2002. 24. So far as the third argument is concerned, it has come in the evidence that on the very next day, i.e. 8th October, 2000, the case property was produced before the Court of Illaqua Magistrate and till that time, the same was intact. In the present case, evidence of SI Gurmail Singh PW-8 was recorded on 4th July, 2002. It is a common knowledge that the malkhanas maintained by the police are not free from vagaries of humidity and various atmospheric change of conditions and thus, by lapse of time and by rough handling, the possibility that the case property will not be immune from wear and tear, cannot be ruled out. 25. When SI Paramjit Singh PW-3 was examined, he specifically stated that the case property was intact when same was produced before the Illaqua Magistrate. No cross-examination was carried out to say that the case property, when produced before the Court of Illaqua Magistrate, was not having chits, slips and the gunny bags were torn. 26. Before the argument raised qua Lakhvinder Singh regarding non examination of SI Bachittar Singh is examined, this Court shall revert to the arguments raised by Ms.Mann, counsel for appellant-Bhag Singh. 27. Bhag Singh was apprehended at the spot along with the tractor-trolley. In the trolley, there were 22 bags of poppy husk and 10 bags containing paddy. Ms.Mann has stated that in the register No.19 Ex.DA it is nowhere mentioned that the case property was deposited by Inspector Sukhdev Singh. It is to be kept in mind that the recovery at the spot, in the present case, was effected by SI Gurmail Singh PW-8, who belongs to Police Station CIA Staff. After having effected the recovery, he produced the case property before SHO concerned, i.e. Inspector Sukhdev Singh, who in turn had produced it before the Moharrir Head Constable. This has happened simultaneously, therefore, in the record it has to be depicted that the case property was produced by SI Gurmail Singh PW-8, who had effected the recovery. Thus, mere omission of the name of Inspector Sukhdev Singh will not give any advantage to the accused. 28. Sukhwinder Singh, who was joined as an independent witness, has been given up by the prosecution as won-over, therefore, the argument that he is the brother of PW-3 SI Paramjit Singh, will be of no relevance. Thus, mere omission of the name of Inspector Sukhdev Singh will not give any advantage to the accused. 28. Sukhwinder Singh, who was joined as an independent witness, has been given up by the prosecution as won-over, therefore, the argument that he is the brother of PW-3 SI Paramjit Singh, will be of no relevance. Had he been the brother of a police official, then under the influence of police official he would have been stepped into the witness box to depose against the accused. Be that as it may, non-examination of the independent witness will put the Court on guard to assess the evidence of the official witnesses carefully. Having perused the testimonies of Inspector Gurmail Singh PW-8 and SI Gurdeep Singh PW-2, this Court is of the opinion that their depositions aspire confidence and implicit reliance can be placed upon the same. Thus, mere nonexamination of the independent witness will not be fatal to the prosecution. 29. No other point has been urged by Ms. Mann. 30. It is now time to deal with the case of Lakhvinder Singh. 31. Appellant-Lakhvinder Singh was not arrested at the spot. Inspector Gurmail Singh PW-8 stated that the police party consisted of 14 persons including the independent witness, whereas SI Gurdeep Singh PW-2 stated that there were 12 persons in the police party. Police officials were going on a patrol duty. It can be well comprehended that they were duly armed with the weapons. It has also come in evidence that when the tractor-trolley was stopped, the police party was at a distance of 15 yards. No effort was made to apprehend Lakhvinder Singh by the police at the spot. Merely an excuse has been offered that SI Bachittar Singh chased Lakhvinder Singh. As rightly stated by Mr.Ghuman, SI Bachittar Singh has not been examined. As to why nobody from the police team ran after Lakhvinder Singh, SI Gurdeep Singh PW-2 stated that the tractor trolley of the accused was parked in such a way that Lakhvinder Singh could not be chased. On this score, this witness is belied by Inspector Gurmail Singh PW-8, who stated that width of the Patri was more than 10 feet and two vehicles could pass simultaneously. Thus, the police officials who had necessary expertise and skill, ought to have nabbed the accused. Furthermore, no shot was fired in the air or towards the accused. On this score, this witness is belied by Inspector Gurmail Singh PW-8, who stated that width of the Patri was more than 10 feet and two vehicles could pass simultaneously. Thus, the police officials who had necessary expertise and skill, ought to have nabbed the accused. Furthermore, no shot was fired in the air or towards the accused. Secondly, whether the person who ran away from the spot was Lakhvinder Singh, this Court has to solely rely upon the testimony of SI Gurdeep Singh PW-2. It is a consistent case of the prosecution that SI Gurdeep Singh PW-2 alone knew Lakhvinder Singh and he had disclosed his name to the companion police officials. As to how and why SI Gurdeep Singh PW-2 knew Lakhvinder Singh, no answer is coming forth. Lakhvinder Singh is neither a previous convict nor has he been cited in any previous case. There was no special knowledge with SI Gurdeep Singh PW-2 to know about the particulars and identity of Lakhvinder Singh. Thus, in view of the circumstances divulged above, it will not be safe to rely upon the testimonies of the police officials regarding identity of the person, who escaped from the spot. As a matter of abundant caution, benefit of doubt is extended to appellant-Lakhvinder Singh and CRA No.22-SB of 2003 preferred by him is accepted. The conviction and sentence awarded to Lakhvinder Singh is set aside and he is acquitted of the charges. 32. However, there is no merit in CRA No.1990-SB of 2002 preferred by Bhag Singh and the same is hereby dismissed. --------------------