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2013 DIGILAW 156 (UTT)

KHUSHAL SINGH v. STATE OF UTTARAKHAND

2013-03-19

Alok Singh, Barin Ghosh

body2013
JUDGMENT Per: Hon’ble Alok Singh, J. Appellant, by way of present appeal, is assailing the judgment and order dated 30th June, 2008/5th July, 2008 passed by Special Sessions Judge, Champawat in Sessions Trial No. 11 of 2006, whereby the learned trial Judge has found the appellant guilty for an offence punishable under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) and has sentenced him to undergo 12 years' rigorous imprisonment and a fine of `1 lac. In default of payment of fine, appellant was further directed to undergo for two years’ rigorous imprisonment. 2. Brief facts of the present case, inter alia, are that on 7th May, 2006, at about 01.05 A.M police informer has passed on a secret information on telephone to the effect that one boy with 7 Kilograms Charas has reached to Kolidhek by motorcycle and now he will be reaching Mayawati Tiraha via Khetikhan Chauraha and shall hand over the said Charas to someone. Having received the information in the Police Station by telephone, SHO Dinesh Lal Verma (PW1), having directed the staff of Police Station to enter the same in the General Diary, has left the Police Station at about 01.30 A.M. alongwith the other police personnel and by the Police Jeep reached to the Police Check Post. At about 02.20 A.M. appellant was found coming having a bag on his shoulder. Police personnel immediately apprehended the appellant and opened the blue colour rexine bag and found that there was a white colour plastic bag therein. On smell, police personnel could find that white bag was containing Charas. Thereafter, PW1 has asked the appellant that they have secret information that the appellant was carrying Charas; therefore, if the appellant wants he could be searched in the presence of S.D.M. or any other gazetted officer. On this, appellant has replied to call the S.D.M. The S.D.M. was called through Constable Mehandi Hasan and, therefore, again bag was opened and it was found containing about 7 Kilograms Charas. The Charas, so recovered, was seized then and there and thereafter, appellant was arrested. The Charas, so seized, and the appellant were taken to Police Station. Having perused the evidence tendered by the prosecution side, learned trial court has found the appellant guilty and has sentenced him as mentioned herein above. Feeling aggrieved, appellant has preferred present appeal. 3. The Charas, so recovered, was seized then and there and thereafter, appellant was arrested. The Charas, so seized, and the appellant were taken to Police Station. Having perused the evidence tendered by the prosecution side, learned trial court has found the appellant guilty and has sentenced him as mentioned herein above. Feeling aggrieved, appellant has preferred present appeal. 3. We have heard the learned counsel for the appellant as well as learned counsel for the State/respondent. 4. There is no dispute to the fact that having received the secret information telephonically at about 01.05 A.M in the intervening night of 7th/8th May, 2006, PW1 has not reduced the same into writing before leaving the Police Station to apprehend the appellant as per the secret information. The only evidence tendered by PW1 is that he has instructed the staff of Police Station to make entry in the General Diary to this effect. A Constitution Bench of Hon'ble Apex Court in the case of Karnail Singh versus State of Haryana, reported in (2009) 8 S.C.C., 539 has held as under :- “In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows : (a) The officer on receiving the information of the nature referred to in sub-section (1) of Section 42 from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior . (c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.” 5. The Hon'ble Apex Court, in the case of Kishan Chandra versus State of Haryana, reported in (2013) 2 SCC, 502 has held that total non-compliance with the provisions of sub-sections (1) and (2) of Section 42 of the Act is impermissible but delayed compliance with a satisfactory explanation for the delay can, however, be countenanced. 6. The Hon’ble Supreme Court in the case of Sukhdev Singh versus State of Haryana, reported in (2013) 2 SCC, 212 in para 15 has held as under:- “Section 42 can be divided into two different parts: first is the power of entry, search, seizure and arrest without warrant or authorisation as contemplated under sub-section (1) of the said section; second is reporting of the information reduced to writing to a higher officer in consonance with sub-section (2) of that section. Sub-section (2) of Section 42 had been a matter of judicial interpretation as well as of legislative concern in the past. Sub-section (2) was amended by Parliament vide Act 9 of 2001 with effect from 2-10-2001. After amendment of this sub-section, the word “forthwith” stood amended by the words “within seventy-two hours”. In other words, whatever ambiguity or leverage was provided for under the unamended provision, was clarified and resultantly, absolute certainty was brought in by binding the officer concerned to send the intimation to the superior officers within seventy-two hours from the time of receipt of information. The amendment is suggestive of the legislative intent that information must reach the superior officer not only expeditiously or forthwith but definitely within the time contemplated under the amended sub-section (2) of Section 42. This, in our opinion, provides a greater certainty to the time in which the action should be taken as well as renders the safeguards provided to an accused more meaningful.” 7. This, in our opinion, provides a greater certainty to the time in which the action should be taken as well as renders the safeguards provided to an accused more meaningful.” 7. In view of the ratio of the judgments of Hon’ble Supreme Court (supra), let us examine the facts and circumstances of this case to find out as to whether there was compliance of sub-sections (1) and (2) of Section 42 of the Act? 8. In view of the peculiar facts and circumstances of the present case that secret information was received at about 01.05 A.M. in the intervening night of 7th/8th May, 2006 and police personnel left the Police Station at 01.30 A.M. on the same day to apprehend the appellant; there was sufficient time for PW1 to make compliance of Section 42 of the Act by reducing the information in writing and to forward the same to the superior officers before leaving the Police Station. However neither information was reduced in writing, nor forwarded to the superior officers at the earliest. Oral direction to the staff of Police Station to enter the same in General Diary, in our view is no compliance of sub-section (1) of Section 42 of the Act Section. Therefore, we find there is total violation of the provisions of Section 42 of the Act. 9. Not only this, it has come on the record that the entry of the Charas, so recovered, was made in the Maalkhana of the Police Station at about 04.45 A.M. on the same day, but there is no entry in Maalkhana register to the effect that Charas, so recovered, was sent to the court alongwith the appellant while seeking remand. Girish Chandra Bhatt (PW2), in his cross-examination, has admitted that there is no entry in the record of the Maalkhana to the effect that Charas was taken out from the Maalkhana to send the same to the court alongwith the appellant, while seeking remand. 10. Girish Chandra Bhatt (PW2), in his cross-examination, has admitted that there is no entry in the record of the Maalkhana to the effect that Charas was taken out from the Maalkhana to send the same to the court alongwith the appellant, while seeking remand. 10. Although, we are conscious of the fact that provisions of Section 50 of the Act are not applicable when Narcotic Drugs and Psychotropic Substances are in the bag, or in the carrier, as held by Hon’ble Apex Court in the case of Ajmer Singh versus State of Haryana, reported in (2010) 3 SCC, 746, however, from the evidence available on record, we find that PW1 was conscious of the compliance of Section 50 of the Act, that is why, he has stated in the F.I.R. and in his statement on oath that after seeing the appellant coming with the bag on his shoulder and after apprehending him they have opened the blue colour rexine bag and found that there was a white plastic bag therein, which was containing Charas and thereafter, they have asked the appellant, if he wants his search before the S.D.M. or any other gazetted officer, the same can be made available and, on his request, S.D.M. was called. The conduct of PW1 goes to prove that everything is not above board. It makes the recovery highly doubtful. Therefore, we are of the considered view that in view of the total non-compliance of Section 42 of the Act and in view of the doubtful recovery from the appellant, conviction and sentence, so passed by the learned trial court, cannot be upheld. 11. The appeal is allowed. The judgment and order under appeal is set aside. Consequently, appellant stands acquitted. He shall be released forthwith, if he is not required in any other case. 12. Let a copy of this judgment be sent to the court below alongwith lower court records for compliance immediately.