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2015 DIGILAW 112 (RAJ)

Sukhpal v. State of Rajasthan

2015-01-13

PRAKASH GUPTA

body2015
Hon'ble PRAKASH GUPTA, J.—This Appeal has been filed by the accused-appellant Sukhpal, under Section 374(2) Cr.P.C., against the judgment dated 17.3.1990, passed by the learned Sessions Judge, Sriganganagar, in Session Case No. 896/1989, whereby he convicted the accused-appellant for offence under Section 8/15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `The Act') and sentenced him to undergo ten years rigorous imprisonment with Rs. one lac as fine and in default of payment of fine, to undergo rigorous imprisonment for a period of one year, which is the minimum sentence provided under the Act. 2. The brief facts of the case are that on 12.3.1989, Mani Ram the S.H.O., Police Station, Chunagarh alongwith police personnels namely; Harmeet Singh, Krishna Singh, Sugan Singh and Om Prakash were on search of accused and goods in another case bearing No.16/1989 for offence u/Sec. 379 I.P.C. At around 5.00 P.M. when they reached Chak 1-BB, during petrolling, the S.H.O. was informed by the informer that the accused is selling `Poppy Husk' in his grocery shop. Upon receiving the information, the police party along with independent witnesses namely; Hakam Singh and Teja Singh reached at the shop where the accused was found present. In the presence of aforesaid independent witnesses, a search was made in the shop and in the process, a small tin (pipi) containing poppy husk was found for which the accused was not having licence. The weight of the poppy husk was found to be 1 Kg. out of which, 250 grams of poppy husk was taken as a sample and the same was separately packed and sealed. The rest poppy husk weighing 750 grams was also packed and sealed. Thereafter, the accused-appellant was arrested on the spot and a First Information Report was registered after reaching Police Station. In compliance of Sec. 57 of the Act, an information was sent to the Superior Officer and necessary memos were drawn. The sealed sample was sent to F.S.L. for examination for obtaining its report. After all the necessary investigation, a charge-sheet was filed against the accused-appellant. 3. The learned Session Judge, Sriganganagar framed charge against the accused under the provision of Section 8/15 of the Act to which he pleaded not guilty and pleaded for trial. To prove the charge, the prosecution adduced both oral as well as documentary evidence. After all the necessary investigation, a charge-sheet was filed against the accused-appellant. 3. The learned Session Judge, Sriganganagar framed charge against the accused under the provision of Section 8/15 of the Act to which he pleaded not guilty and pleaded for trial. To prove the charge, the prosecution adduced both oral as well as documentary evidence. The appellant was examined under Section 313 of the Cr.P.C. 1973. The Court below, after having heard both the side, passed the judgment of conviction and sentence as aforesaid. 4. Feeling aggrieved by the aforesaid judgment, the accused-appellant has preferred this Appeal. 5. Learned Counsel for the appellant while challenging the aforesaid impugned judgment of conviction and sentence put forth following submissions:- 1. Both the independent witnesses did not support the prosecution story about the search and recovery of the said psychotropic substance. Harmeet Singh (PW-4) and Maniram (PW.5) were the interested witnesses, as such, their evidence cannot be relied upon to prove that the psychotropic substance was found in possession of the accused-appellant; 2. Psychotropic substance cannot be said to be in possession of the accused-appellant since the shop from where it was found is not owned by the accused but owned by his brother Madan; 3. All mandatory requirements of Section 42 of the Act, has not been complied with; 4. the prosecution has failed to prove the compliance of Section 50 and Section 57 of the Act; 5. Further, the prosecution has failed to prove that the sample so obtained was sealed and not tempered with before it was sent to F.S.L. for its examination; 6. PW.5, Mani Ram in his cross-examination stated that the weight of polythin and cloth bag was approximately 5-10 gms. Whereas, Ex. 11 mentioned that the weight of the psychotropic substance along with thee cloth bag and polythin was to be 250 grams. 6. Per contra, the learned Public Prosecutor while supporting the impugned judgment has submitted that the Court-below, has thoroughly recorded the reasons and has rightly appreciated the evidence on record and passed the impugned judgment and sentence which calls for no interference by this Court. 7. I have heard the learned Counsel for the parties, considered the rival submissions made by the learned Counsel for the parties and minutely and carefully perused the entire record of the case. 8. 7. I have heard the learned Counsel for the parties, considered the rival submissions made by the learned Counsel for the parties and minutely and carefully perused the entire record of the case. 8. So far as first submission of the learned Counsel for the appellant is concerned, I do not find any force in the submission. It is true, that the independent witnesses namely Hakam Singh and Teja Singh did not support the prosecution case and turned hostile but this does not mean that the poppy husk recovered from the accused is not proved beyond reasonable doubt, considering other evidence on record. PW-5 Mani Ram, the then S.H.O. of Police Station, Chunagarh, who has been examined by the prosecution as the Recovery Officer, has proved the entire proceedings conducted in his examination in chief. This witness has also duly proved all the documents prepared at the place of incident as also, those prepared at the Police Station. The credibility of the oral testimony of Mani Ram PW.5 stands unimpeached after he was thoroughly cross-examined. PW.4 Harmeet Singh has also proved by his evidence, the proceedings of recovery as well as, that of search, and Ex. P.2, the recovery memo. PW.4 Harmeet Singh, too, was cross-examination in detail but there was nothing therein which proves his evidence untrustworthy. It is a settled law that, evidence cannot be discarded merely because that the witness is either a Police Official/Officer or any other Officer/Official. In my view, hence, Mani Ram PW.5 and Harmeet Singh PW.4 are not interested witnesses only for the reason that they are Police Officials. Thus, the contention of the learned Counsel for the appellant to the effect that the above named witnesses are the interested witnesses has no bearing whatsoever. The Court can rely on the evidence of such witnesses and can convict the accused on their testimony itself, if it finds the evidence of such witnesses is to be creditworthy. It can be safely concluded on the basis of evidence of PW.5 Mani Ram and PW.4 Harmeet Singh, and the recovery memo and other documents duly proved by Mani Ram that the prosecution has successfully established that the accused was indeed, found in possession of psychotropic substance. It can be safely concluded on the basis of evidence of PW.5 Mani Ram and PW.4 Harmeet Singh, and the recovery memo and other documents duly proved by Mani Ram that the prosecution has successfully established that the accused was indeed, found in possession of psychotropic substance. It is also pertinent to note that the learned Counsel for the appellant during his arguments, has failed to satisfy this Court as to any material contradictions and infirmities in the testimonies of PW. 4 Harmeet Singh and PW.5 Mani Ram as also, the documents prepared by PW.5 Mani Ram making them un-reliable. 9. Further, I do not agree with the second submission raised by the learned counsel for the appellant because the appellant was found to be present at the shop when the recovery took place. Only it is suggested to PW.4 Harmeet Singh and PW.5 Mani Ram in their respective cross-examinations that the said shop is run by the brother of the accused, Madan. There is nothing to suggest that the shop was either owned by Madan or that he was present in the shop at the time of search and the appellant suddenly the shop at the time when the search took place. In this context, agree with the conclusion of the Court-below, drawn in Paras 16 and 17 of the impugned judgment. Under these circumstances, there was no need for the prosecution to produce any documentary evidence to prove the ownership of the shop. It is duly proved by the prosecution that the accused himself was found to be in exclusive possession of the shop when the recovery was made. 10. So far as the third submission of the learned Counsel for the appellant is concerned, Section 42 of the Act is reproduced as under:- "42. It is duly proved by the prosecution that the accused himself was found to be in exclusive possession of the shop when the recovery was made. 10. So far as the third submission of the learned Counsel for the appellant is concerned, Section 42 of the Act is reproduced 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 intelligence 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 persons 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 my 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: Proved 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 offencer, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his behalf. (2) Where an Officer takes down any information in writing under sub-section (1) or records grounds for his behalf under the proviso thereto he shall within seventy-two hours send a copy thereof to his immediate official superior." 11. In the case in hand, it is true, that no search warrant was obtained prior to the search was made. However, in the light of the facts, to obtain the same was not required. It is proved that PW.5 Mani Ram was informed that the accused was selling poppy husk in the shop while he was on petrolling concerning to another case. If the Recovery Officer has a reasonable behalf that the delay in obtaining search warrant will result in destruction of evidence or in giving time to the accused to flee, it is not required for him to obtain a search warrant. 12. Ex. 2, the recovery memo prepared by PW.5 Mani Ram and duly proved by PW.5 and PW.4 Harmeet Singh clearly mentions that had the search warrant been obtained the accused would have disposed of the poppy husk, so recovered from him. PW.5 Mani Ram was not cross-examined on this point. Under these circumstances, it is not legally required to obtain the search warrant. 13. However, the section further mandatorily provides that the copy of the grounds so recorded shall be forwarded to the Superior Officer within 72 hours, the compliance whereof has not been proved by the prosecution as per evidence on record. Thus, being a mandatory requirement non-compliance of the same is fatal for the prosecution. Whereas substantial compliance may not be considered as a violation depending on the facts of each case, a complete non-compliance is totally impermissible as held in the case of Karnail Singh vs. State of Haryana, (2009) 8 SCC 539 , in which, the Constitutional Bench of Hon'ble Supreme Court has observed as under:- (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 concerned Register 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 Clause (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 of 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 thereby, the official superior, when 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." 14. Also in Kishan Chand vs. State of Haryana, reported in AIR 2013 SC 357 , Hon'ble Apex Court has held as under:- "16. We are unable to contribute to this interpretation and approach of the Trial Court and the High Court in relation to the provisions of sub-sections (1) and (2) of Section 42 of the Act. The language of Section 42 does not admit any ambiguity. These are penal provisions and prescribe very harsh punishments for the offender. The question of substantial compliance of these provisions would amount to mis-construction of these relevant provisions. It is a settled canon of interpretation that the penal provisions, particularly with harsher punishments and with clear intendment of the legislature for definite compliance, ought to be construed strictly. The doctrine of substantial compliance cannot be called principle of substantial compliance would be applicable in the cases where the language of the provision strictly or by necessary implication admits of such compliance. 19. The provisions like Section 42 or 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. The Constitution Bench in the case of Karnail Singh, (2009) AIR SCW 5265 (supra), carved out an exception which is not founded on substantial compliance but is based upon delayed compliance duly explained by definite and reliable grounds. 22. The purpose of these provisions is to provide due protection to a suspect against false implication and ensure that these provisions are strictly complied with to further the legislative mandate of fair investigation and trial. It will be opposed to the very essence of criminal jurisprudence, if upon apparent and admitted non-compliance of these provisions in their entirety, the Court has to examine the element of prejudice. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. It will be opposed to the very essence of criminal jurisprudence, if upon apparent and admitted non-compliance of these provisions in their entirety, the Court has to examine the element of prejudice. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevancy. Absolute duty coupled with strict compliance would rule out the element of prejudice where there is total non-compliance of the provisions. 15. In the light of the above, I will deal with the question of non-compliance with Section 42(1) and (2) of the Act. It is necessary for me to examine whether factually there was a compliance or non-compliance of the said provisions and, if so, to what effect. For this, there can be no better evidence than the statement of I.O. PW.5 Mani Ram in his statement while referring to the story of the prosecution he did not state in his examination-in-chief that he had made the report immediately upon receiving the secret information and had informed his Senior Officer. 16. Therefore, it is proved that in the present case, in spite of secret information the information was not sent to Higher Officer as required under Section 42(2) of the Act. As such on this ground alone, accused is entitled to be acquitted. 17. So far as fourth submission raised by the learned Counsel for the appellant is concerned. I do not find any force in the said submission so far as compliance of Section 50 of the Act, is concerned. Admittedly, in this case, recovery was made from the shop and not from the person of the accused. Therefore, the compliance of Section 50 of the Act, is not required. This view is endorsed by the Hon'ble Supreme Court in the case of Ghasita Sahu vs. State of Madhya Pradesh, reported in AIR 2008(SC) 1425. 18. As for compliance of Section 57 of the Act, admittedly, the recovery was made by PW.5 Mani Ram who proved Ex. P.7. From the perusal of the same, it reveals that the substantial report relating to arrest and recovery was forwarded to the Superior Officer, i.e. C.O. Shri Ganganagar as is required under Section 57 of the Act. 18. As for compliance of Section 57 of the Act, admittedly, the recovery was made by PW.5 Mani Ram who proved Ex. P.7. From the perusal of the same, it reveals that the substantial report relating to arrest and recovery was forwarded to the Superior Officer, i.e. C.O. Shri Ganganagar as is required under Section 57 of the Act. Thus, as argued by the learned Counsel for the appellant, there has not been any non-compliance of either Section 50 or Section 57 of the Act. 19. I also, do not find any substance in the fifth contention raised by the learned Counsel for the appellant. PW.3 Jai Singh stated in his evidence that when he was incharge of the `Malkhana' on 12.3.1989, at around 7.00 P.M. S.H.O. Mani Ram PW.5 had deposited two sealed packets in the Malkhana. He has further stated that on 19.4.1989 he handed over one packet and relevant paper to PW.6 Kailash Chand hand it over to the F.S.L. for examination. He categorically stated that the packets remained intact, as long as they were in his possession and that he did not temper with them. PW.3 Jai Singh has not been cross-examined by the accused on any of the above statements by the accused. However, during his cross-examination, the fact of the packets being kept in an open place, but this does not prove that they were tempeted with. PW.6 Kailash Chand has corroborated Jai Singh's testimony to the effect that the sealed packet and papers were handed over to him on 19.4.1989 to be delivered to the F.S.L., Jaipur for examination, which he had deposited with the F.S.L. on 20.4.1989. PW.6 Kailash Chand too stated in his examination that as long as the sample remained with him, it was not tempered with. On this point he has not been cross-examined. Ex. P.11 also mentions that the seals of the samples were intact. In the light of the aforesaid, it is proved that the sample was intact and not tempered with until they reached to F.S.L. Jaipur. In fact, it is proved that the sample which was deposited with the F.S.L. was intact. 20. There is no substance in the last argument raised by the learned Counsel for the appellant Ex. P.11 does not suggest that the weight of the sample was inclusive of the weight of polythin and cloth bag. 21. In fact, it is proved that the sample which was deposited with the F.S.L. was intact. 20. There is no substance in the last argument raised by the learned Counsel for the appellant Ex. P.11 does not suggest that the weight of the sample was inclusive of the weight of polythin and cloth bag. 21. No other argument is raised before me by the learned Counsel for the appellant. 22. In view of the non-compliance of Section 42 of the Act, as discussed above, this appeal deserves to be accepted. 23. In the result, the Appeal is allowed. The accused is acquitted of the offence under Section 8/15 of the Act. He i on bail and need not surrender. His bail bonds stand cancelled. 24. Keeping in view, however, the provisions of Section 437A of the Cr.P.C., accused-appellant is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- (Rs. Twenty thousand only) and a surety bond in the like amount before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellant, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.