Fateh Singh vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment dated 17.4.1997 and the order dated 21.4.1997 passed by the Court of Addl. Sessions Judge, Panipat, who convicted the appellants S/Shri Fateh Singh and Ram Singh and sentenced them to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs. 1 lac each and in default of payment of fine each of the appellants was directed to undergo rigorous imprisonment for a period of two years.

The brief facts of the case are that S/Shri Fateh Singh and Ram Singh appellants accused faced a criminal trial on the allegations that on 22.5.1994 in the area of Panipat they were found in possession of 80 Kgs. of poppy husk without any licence or permit when they were allegedly travelling in a car bearing registration No. DLF3719 and thereby allegedly committed an offence under Section 15 of the Narcotic Drugs and Psychotyopic Substances Act, 1985.

As per allegations of the prosecution on 22.5.1994 ASI Ranjit Kumar, PW3, of police station City Panipat along with HC Balwan Singh and others was present on the turning of Barsat road near Singla Hotel, G.T. Road, Panipat. At that time ASI Ranjit Kumar received a secret information that two persons would approach in car No. DLF3719 carrying poppy husk and if they are apprehended and detected, poppy husk can be found. The services of one Amar Singh were also taken by the incharge of the police party and thereafter Nakabandi was held. At about 10.45 A.M. a car bearing registration No. DLF 3719 came at the place of Naka from the side of bus stand Panipat and it was proceeding towards Karnal. Fateh Singh appellant was found driving the vehicle while Ram Singh appellant was found sitting in the vehicle. The car was intercepted and the Thanedar told the occupants of the car that he wanted to take the search of the vehicle and whether they are interested to give the search in the presence of a Magistrate or a gazetted officer. Notice Ex.PD was given to the appellants, who gave their reply Ex.PD/1 and reposed confidence that the car may be searched in the presence of a gazetted officer. Resultantly, Shri Gobind Ram Hooda, PW2 was called at the spot and in his presence the search of the vehicle was taken and poppy husk lying in the two bags was found in the diggy of the car. It was weighed and came to 80 Kgs. The Thanedar separated 200 grams of poppy husk from each of the bags by way of samples and sealed the same by using seal bearing inscription ''RG''. The remaining poppy husk was put in the bags Ex.P1 and Ex.P2 and it was also sealed with the same seal. The entire case property was taken into possession vide recovery memo Ex.PC. The accused could not produce any licence or permit for the possession of the poppy straw. Resultantly, ruqa Ex.PE was sent to the police station City Panipat for the registration of the case and formal F.I.R. Ex. PE./1 was recorded. By completing the other formalities at the spot, the case property was produced before Shri Azad Singh PW1, who resealed the case property with seal beaing inscription ''GD''. The sealed parcels of the samples of the poppy straw were sent to the office of the Director, Forensic Science Laboratory, Madhuban, who declared the contents of the samples as poppy straw. On completion of the investigation of the case, accused were challaned under Section 15 of the Act in the Court of Illaqa Magistrate, who committed the accused to the Court of Sessions.

Vide orders dated 3.1.1995 the Court of Additional Sessions Judge, Panipat framed a charge against the appellants under Section 15 of the N.D.P.S. Act. It was read over and explained to them to which they pleaded not guilty and claimed trial.

In order to prove the charge, the prosecution examined SI Azad Singh as PW1, DSP Ram Gobind Hooda as PW2, ASI Ranjit Kumar as PW3 and after tendering into evidence the affidavits of the formal witnesses besides the report of the Forensic Science Laboratory closed the case.

Statements of the accused were recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to them. Accused denied these circumstances and stated that they have been falsely implicated. When called upon to enter into defence, the accused did not lead any evidence and closed their case.

The learned trial Court relied the prosecution witnesses and convicted and sentenced the appellants in the manner stated above and aggrieved by the said judgment and order, the present appeal.

I have heard S/Shri Narottam Kaushal and A.P.S. Deol, Advocates, appearing on behalf of the appellants and Shri Sanjiv Sheoran, Advocate, appearing on behalf of the State of Haryana.

The judgment of the trial Court has been assailed before me on a legal aspect and it has been argued by the learned counsel for the appellants that the recovery of the poppy husk stands vitiated as the mandatory provisions of Section 42 of the N.D.P.S. Act have not been complied with. I fully endorse the submission raised by the learned counsel for the appellants because the case of the prosecution is that a secret information was received by the In charge of the police party that two persons were approaching in a vehicle bearing registration No. DLF3719 with poppy husk and if a Nakabandi is held, the poppy husk along with the culprits can be apprehended. Section 42 of the Act lays down as follows :

"42. Power of entry, search, seizue 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 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, 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 personal knowledge or information given by any person and taken down in writing, that any narotic 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 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 may furnish evidence of the commission of any offence under Chapter IV relating to such drug or substance; 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 Chapter IV relating to such drug or substance :

Provided 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 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 officer takes down any information in writing under subsection (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior."

The reading of the above provisions would show that if the seizing officer receives information from any person to the effect that he would likely to seize the incriminating articles like narcotic drug or psychotropic substance, a duty has been cast upon him to record that information in writing and to send that information to the superior official. In the present case Shri Ranjit Kumar, Investigating Officer, after receipt of the secret information does not send any information about the receipt of the secret information to the higher authorities and thus has violated the mandatory provisions of Section 42 of the Act rendering the entire recovery as illegal. There is a legislative intent behind the compliance of these mandatory provisions. The legislature wanted that on receipt of secret information by the Investigating Officer/seizing officer, he must divulge this secret information to his higher authorities so that the officer who ultimately may seize the narcotic drugs may not be in a position to fabricate any other evidence.

In State of Punjab v. Balbir Singh, 1994(1)Recent C.R. 736 the Hon''ble Supreme Court was pleased to lay down as follows :

"2C) Under Section 42(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 effect the prosecution case and vitiate the trial."

This view of the Hon''ble Supreme Court has again been followed by our Hon''ble High Court in Baljit Singh v. State of Punjab, 1995(3) R.C.R (Crl.) 251 : 1995(2) AIJ 543. No law to the contrary has been cited. The effect of the noncompliance of the provisions of Section 42 would be that it will have a far reaching effect and would vitiate the trial itself. The learned counsel appearing on behalf of the State has not been able to cite any law contrary to the one as held by the Hon''ble Supreme Court.

Resultantly, I accept this appeal, set aside the judgment and order for conviction passed by the learned trial Court and acquit both the appellants of the charge framed against them.

The Registry is directed to send information to the jail authorities for the release of the appellants forthwith, if not wanted in any other case.

Both the appellants are thereby discharged from their personal bonds and surety bonds. The vehicle in question may also be returned to the appellants.