Baljit Singh vs State of Punjab

T.H.B. Chalapathi, J.

This appeal is directed against the conviction and sentence recorded by learned Addl. Sessions Judge, Amritsar in Sessions Case No. 9 of 1990 dated 14.12.1994.

The accusedappellant was prosecuted for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for having been in possession of 45 kilograms of opium without any permit. According to the case of the prosecution, on 10.5.1989 when Sub Inspector of Police Shamsher Singh along with police party held picketing on the culvert of a drain of Bikhiwind public road, he received a secret information at about 4.15 p.m. that the accused was in possession of opium. Thereafter, the accused came from the side of Sandhpur. Then he apprehended the accused and arrested him. He asked the accused whether he wanted to be searched by a gazetted police officer or in the presence of a Magistrate but the accused agreed to be searched by the Sub Inspector. The accused was carrying a gunny bag containing 45 kg. of opium wrapped in a glazed paper. Then the Sub Inspector took 10 grams of opium as sample and the remaining opium was sealed. Thereafter, a ruqa was sent to the police station on which the formal FIR was registered. The sample of the opium was sent to the Public Analyst. Thereafter a chargesheet was filed against the accused. The learned Additional Sessions Judge, Amritsar framed a charge against the accused for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the accused pleaded not guilty to the said charge. In order to prove the guilt of the accused, the prosecution examined four witnesses and marked the documents. On a consideration of the evidence on record, the learned Additional Sessions Judge convicted the accused for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. One lac. Aggrieved by the same, the accused preferred the above appeal.

The learned counsel for the appellant contended that there is a clear violation of the Narcotic Drugs and Psychotropic Substances Act, particularly of Section 42 of the Act and, therefore, the conviction and sentence are liable to be set aside. It is on the other hand contended by the learned Assistant Advocate General, Punjab that the noncompliance of the provisions of Section 42 of the Act are not fatal to the case and, therefore, the conviction and sentence imposed by the learned Additional Sessions Judge, Amritsar on the accusedappellant are to be upheld.

It is the case of the prosecution that when the S.I. of the police was picketing on the culvert of a drain of Bhikhiwind public road, he received the secret information at about 4.15 p.m. against the accused and thereafter the accused came from the side of Sandhpur. He tried to give a slip to the police but was apprehended and when he was asked whether he wanted to be searched by a gazetted officer or in the presence of a Magistrate, the accused agreed to be searched for by the S.I. Thereafter, he was searched by the S.I. and a quantity of 45 kg. of opium was recovered from the possession of the accused. Public Analyst also found that the sample was opium. Therefore, according to the prosecution, the accused committed the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The learned counsel for the accused argued that the evidence on record clearly shows that noncompliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the provisions contained in section 42 of the Act are mandatory and noncompliance of the same had vitiated the trial and, therefore, the accused is entitled to be acquitted. Under Section 42 (1) of the Act, any officer has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug or psychotropic substances may detain or search the person concerned under Section 42 relating to such drug or substance. Under subsection (2) of Section 42, where an officer takes down any information in writing under subsection (1) or records ground for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. The Supreme Court in State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 737 : 1994(2) C.C. Cases 1 , held as follows :

"Under Section 43(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief."

To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. The Supreme Court further held as follows :

"Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total noncompliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case."

Thus, it is clear that the officer who receives any information of the commission of offence under the Act, should necessarily take down the information in writing and send the same forthwith to his immediate official superiors. Noncompliance of the same, would vitiate the trial, as the provisions contained in this regard in Sections 42(1) and 42(2) are mandatory, as held by the Supreme Court. It is, therefore, to be seen whether there is compliance of this provision by the S.I. of police who searched the accused. PW1 is the ASI. He deposed that he joined the police party headed by S.I. Shamsher Singh along with Constable Shiv Dev Singh and other constables. When the police party was going on patrol duty, SI Shamsher Singh received secret information that Baljit Singh son of Buta Singh resident of village Chuslewar deals in the sale of opium and is coming towards Bhikhiwind carrying opium in his possession. Then ASI Shamsher Singh along with police party held naka on the bridge of drain on the road leading from Bhikhiwind to Patti. The naka was held at 4.15 p.m. and at 4.45 p.m. Baljit Singh came from the side of Sandhpur via the bank of the drain and at that time he was carrying a bag on his cycle. On seeing them, the accused tried to slip away but, he was apprehended there on the spot and the accused was informed that he was in possession of the opium and, therefore, his search was to be conducted. He was asked that he can be produced before Gazetted Officer or a Magistrate but the accused declined by reposing confidence in them and told that they may conduct his search. Accordingly ASI Shamsher Singh conducted the personal search. On search of the gunny bag, 45 kg. opium was recovered from the said gunny bag, out of which 100 grams was separated as sample. The remaining was put into a mini drum. Ex. PA was the recovery memo. PW2 is Inspector Darshan Singh. He deposed that on 10.5.1989, ASI Shamsher Singh along with the police party had produced before him Baljit Singh accused and Ex.P1 gunny bag, Ex. P2 the mini drum and the sample. PW3 is the constable. He deposed that on 10.5.1989, he joined the police party and they had gone from the police station and were present at Bhikhiwind Chowk where ASI received secret information about accused Baljit Singh that he was in the habit of selling opium and he may come to Bhikhiwind. Thereafter, they held picketing at drain bridge on Patti road. The accused came from the drain side at about 4.45 p.m. on a cycle. On seeing the police party, he tried to give a slip towards his back on his cycle and he was carrying bag on the carrier of his cycle. He was apprehended by the police party. The accused was asked by the ASI that he is suspecting that the accused was in possession of the opium and the accused was asked that if he wants his search can be conducted by a Magistrate or a Gazetted Officer. However, the accused reposed confidence in them and asked them to search. Thereafter, he was searched by the ASI. PW4 is SI Shamsher Singh. According to him on 10.5.1989, he alongwith Mohan Lal PW1, HC Surjit Singh PW3 alongwith other police officials was present at Bhikhiwind Chowk where he received secret information that accused Baljit Singh resident of Chuslewar is in the habit of selling opium and is likely to come to Bhikhiwind. On receipt of the information, he held naka at the drain bridge on BhikhiwindPatti road at about 4.15 p.m. At about 4.45 p.m. the accused came from the side of Sandhpur on drainbank. On seeing the police party, he tried to give slip but he was apprehended by the police on suspicion. Thereafter, he asked the accused as to whether he wanted to be searched before the Gazetted Officer or a Magistrate, he could arrange, for the same but the accused reposed confidence in the police. From the carrier of the cycle, a gunny bag containing opium wrapped in polythene paper was recovered. First of all sample of 100 grams was separated and the remaining opium was weighed and it was found to be 44 kg. 900 grams. The sample was put into tin box and rest of the opium was put in a drumi. The sample and the drumi were sealed. The sample and the remaining opium were taken into possession under recovery memos Ex.PA. Ex.PA was attested by Shivdev Singh. Thereafter, he sent a ruqa Ex.PB to the police station on the basis of which formal FIR Ex.PB/1 was recorded by Rajwant Singh ASI.

Thus, it is clear from the statements of PWs1, 3 and 4 that SI Shamsher Singh received secret information, that the accused Baljit Singh was in the habit of selling opium and on the date of occurrence, he was coming from the side of Bhikhiwind carrying opium in his possession. There is nothing on the record to show that this information which PW4 Shamsher Singh received was reduced to writing and the same was sent to his immediate official superiors. In fact PW4 Shamsher Singh in his crossexamination admitted that this fact of secret information was not recorded. As held by the Supreme Court in Balbir Singh''s case (supra), if the officer received information about the commission of offence under the Act, such information should necessarily be taken down in writing as the provisions under Section 42(1) are mandatory. Further, such information which has been taken down in writing, a copy of such information should forthwith be sent to his immediate official superiors and noncompliance of the same affects the prosecution case. In the instant case, the evidence of PWs1, 3 and 4 clearly shows that the information which PW4 received was not reduced to writing and it was not sent to immediate official superiors by PW4. Therefore, there is noncompliance of the provisions contained in Section 42 of the Act which vitiates the trial. The accused is, therefore, entitled to be acquitted of the charges framed against him for noncompliance of the provisions of Section 42 of the Act. On this ground alone, the appeal is likely to be allowed.

The appeal is accordingly allowed. The conviction and sentence imposed by the learned Additional Sessions Judge, Amritsar on the accusedappellant is hereby set aside. The appellant is directed to be released forthwith, if he is not required in any other case.