Gurmit Singh, Sandeep Singh and Sandeep Singh vs State of Punjab

Jitendra Chauhan, J.—By this common judgment. three appeals as above, are being disposed of, having arisen out of the same impugned judgment of conviction and order of sentence passed by the learned Judge, Special Court, Amritsar, dated 14.10.2011, thereby, convicting the appellants for commission of offences punishable under Sections 15 and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short, ''the NDPS Act'') and Sections 411, 472 of the Indian Penal Code (for short, ''the IPC), in case FIR No. 15 dated 16.05.2009, registered at Police Station State Special Narcotic Cell, Punjab (Amritsar), and sentencing them as under:--

However, all the sentences were ordered to run concurrently.

The brief facts of the present case as narrated in para 2 of the impugned judgment, are reproduced as under:

As per the case of the prosecution, on 16.5.2009. Sh. Makhan Singh, AIGCI, Amritsar, received a secret information, who telephonically informed SI Kuljinder Singh that international smugglers of poppy husk namely Sandeep Singh son of Gurdip Singh, Gurmit Singh alias Sonu son of Jorawar Singh and Sandeep Singh son of Iqbal Singh, are waiting for the customers on their Scorpio car No. HR-03-6313 at a distance of 200 yards from T-point Tarn Taran, bye-pass Jandiala Guru, near Godowns. SI Kuljinder Singh was further informed that they can be apprehended with large quantity of Poppy Husk, if raid is conducted. SI Kuljinder Singh brought this information to the notice of Sh. P.K. Rai, SP (Anti Smuggling), SI Kuljinder Singh, then alongwith the team sent by AIG Makhan Singh comprising of Inspector Kundan Singh and other police officials and alongwith police party headed by him (SI Kuljinder Singh) went to the disclosed place. When the police party reached near the Scorpio car, three persons standing outside the car swung into action immediately and occupied the car in order to run away but the way of the Scorpio car was blocked by parking Govt. Mini bus in front of the said car and they were apprehended by the police party. Their whereabouts were asked and the person, who was driving the Scorpio told his name as Gurmit Singh alias Sonu son of Jorawar Singh, the person who was sitting adjoining to driver on front seat told his name Sandeep Singh son of Gurdeep Singh and the person who was sitting on back seat of car told his name as Sandeep Singh son of Iqbal Singh. He gave his introduction to the accused persons that he is having suspicion that they (accused) are in possession of some narcotic substance in their person or in the Scorpio car. He further told them that he has to search their person and Scorpio and further apprised the accused that they are having legal right to be got searched from him or in the presence of a gazetted officer or a magistrate, he could arrange for them. They desired for the presence of some gazetted officer at the time of making their search as well as of the Scorpio car, their non consent memos were prepared. In the meantime, one Daljit Singh son of Phoola Singh, independent witness was joined in the police party. Then, he requested the DSP Rajpal Singh to reach at the spot. On arrival of DSP Rajpal Singh, he briefed him that he has apprehended the abovesaid persons and as per desire of the accused persons they had demanded for the presence of some gazetted officer at the time of making their search as well as of the Scorpio car. DSP Rajpal Singh gave his introduction to the accused persons they had their legal right to be searched in the presence of any gazetted officer or Magistrate. They reposed confidence in DSP by stating that they are ready for their search in his presence. Consent memos of all the accused were recorded by DSP. Then under the directions of DSP, he (S.I. Kuljinder Singh) conducted the search of all the accused and no incriminating article was recovered from them and then on the direction of the DSP he conducted the search of Scorpio Car which led to the recovery of 15 bags of poppy husk, on which Soda/Ash (Dense Sorashtra Chemicals Limited, Porbandar was written. AH the plastic bags unloaded from the Scorpio car and were weighed and found that 20/20 kgs. of Poppy Husk was lying in each of the gunny bags. Two samples of 250/250 grams each were separated from each of the plastic bags and put in plastic containers and were made into parcels. The parcels and residue gunny bags were sealed. Sample seal was also prepared separately. 30 samples and 15 parcels containing bulk quantity were taken into possession. The abovesaid car was also taken into possession. Ruqa was drafted and sent to the police station on the basis whereof formal FIR was recorded. Rough site plan of the place of recovery was prepared. The accused were arrested and the case was investigated. The statements of the witnesses were recorded. When the investigation was completed, challan was presented against the accused.

Upon presentation of challan, copies of the documents relied upon by the prosecution were supplied to the accused. The learned trial Court, after finding prima facie case against the accused, charged them for commission of offences punishable under Sections 15, 29 of the NDPS Act and Sections 472, 411 of the IPC, to which they pleaded not guilty and claimed trial.

In order to substantiate its case, the prosecution examined as many as six following witnesses:

PW-1-ASI Sukhwinder Singh, is a recovery witness.

PW-2 CII Kabal Singh, tendered his affidavit Ex.P16.

PW-3-DSP Raj Pal is also a recovery witness.

PW-4-Kartar Singh, the then Ex-Officiating Superintendent, Registration Authority Motor Vehicle-cum-SDO Civil, Panchkula, verified his report Ex. PW17, in regard to the vehicle (Scorpio). He deposed that no such vehicle was registered in the aforesaid number, which was in tact the registration number of a motorcycle.

PW5-SI Kuljinder Singh, the Investigating Officer of the case, deposed about the investigation earned out by him. He also proved non-consent memos, Ex. PI to Ex. P3; consent memos. Ex. P4 to Ex. P6: recovery memo. Ex. P7; personal search memos, Ex.P8 to P10; memo regarding taking into possession Scorpio vehicle, Ex. P11; arrest memos. Ex. P12 to Ex. P14; ruqa, Ex. P18; FIR. Ex. P18; site plan, Ex. P19; report of the Registering Authority. Panchkula. Ex. P17/A; and chemical examiner''s report, Ex.PX.

PW6-Inspector Harvinderpal Singh, the then SHO, State Special Operation Cell, Amritsar, deposed about registration of FIR. Ex. P18. He also deposed that on 17.5.2009, at about 2.30 a.m., SI Kuljinder Singh. I.O. of the present case, produced before him the accused persons, along with 15 bags of poppy husk, each containing 19 kgs. 500 gms. marked 1 to XV and 30 samples of 250 gms. each marked as SIA, SIB to SXVA. SXVB. duly sealed with the seals KS and RS. along with specimen seal impression on form M-29, in the intact form vide memo Ex.P 15.

When examined u/s 313 Cr.P.C. the accused denied the entire incriminating material appearing in prosecution evidence and pleaded their false implication. In defence, they examined DW1, C. Lakhwinder Singh.

After hearing learned counsel for both the parties and considering material/evidence on record, the learned trial Court convicted and sentenced the appellant, as detailed at the outset of this judgment.

Feeling aggrieved from the judgment of conviction and order of sentence, the present appeals have been directed by the appellants, which were admitted by this Court on 08.12.2011, 05.01.2012 and 19.01.2012, respectively.

The learned counsel for the appellants contend that the only independent witness, Daljit Singh son of Phoola Singh, was not examined and was given up having been won over, without any proof to substantiate this plea. Moreover, the seal after use was not handed over to this alleged eyewitness, which again casts serious doubts on the veracity of the entire prosecution case. The learned counsel further contend that there is non-compliance of the provisions of Section 42 of the NDPS Act as the secret information received was never reduced into writing. AIG Makhan Singh, from whom the secret information was allegedly received, has also not been examined. The learned counsel further contend that there is also non-compliance of Section 50 of the NDPS Act as the offer made to the accused regarding search is no offer in the eyes of law. The learned counsel further contend that the prosecution has failed to bring on record the real owner of the Scorpio car which was allegedly used in the crime, so as to relate the same with the accused.

On the other hand, the learned State counsel has vehemently argued that as the information was received from a superior officer, there was no need for reducing the same into writing. Moreover, due to the shortage of time, prompt action was required to nab the culprits; otherwise there was every possibility of the accused fleeing from the spot. Thus, there is no non-compliance of Section 42 of the NDPS Act. The independent witness was given up as he had been won over by the accused party and examining him would have proved fatal to the prosecution case. He lastly submits that the case against the appellant is proved beyond reasonable doubt and the impugned judgment passed by the learned trial court does not suffer from any infirmity.

I have heard learned counsel for the parties and perused the record with their able assistance.

Before proceeding further, reproduction of Sections 42 and 50 of the Act, would be necessary to adjudicate upon the matter in hand:--

Power of entry search, seizure and arrest without warrant or authorization

(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 aimed 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 for forfeiture under Chapter V A 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 may 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 V A 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:

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 sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

Conditions under which search of persons shall be conducted

(1) When any officer duly authorised u/s 42 is about to search any person under the provisions of section 41. section 42 or section 43, he shall if such person so requires take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall. if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

Insofar as the argument of the State is concerned that since the information, pursuant to which recovery has been made, was itself received from a superior officer, the same was not required to be reduced in writing (for complying with Section 42(2) of the Act), the same is misconceived. A careful perusal of the language of Section 42(2) of the Act brings out the true intention behind Section 42(2), which is to keep the immediate superior of the officer conducting ''search and seizure'' operation in the loop of information. It is immaterial if the information relied upon by the officer conducting search is supplied by an officer who is higher in hierarchy. The responsibility of officer conducting search is to his immediate superior. The Act being an extremely stringent Act, with huge implications for those who are convicted, various provisions have been incorporated for the purpose of providing protection against false implication. It is to this end that Section 42(2) has been framed so that lower level officers do not violate law and falsely implicate innocent persons. Accordingly, what is relevant is that relevant information has been reduced in writing and the same is sent to the superior officer of the officer conducting search. Section 42(2) would not be applicable only where the information itself is received from the immediate superior officer of the person conducting search and seizure. Otherwise, any officer conducting search can depose that a senior officer had informed him, he did not have to supply the same to his superior officer, without even examining him, as happened in this case. Thus, there is no protection for the accused. The whole purpose being that if at all any such information has been received, the same should be in the knowledge of superior officer which then can be produced at the time of trial to strengthen prosecution case.

As regards the point of association of independent witness, this Court feels that the independent witness is important in such recovery cases. A perusal of the case file suggests that neither any material/evidence, nor any circumstance has been indicated before reaching such a conclusion by the prosecution except the statement of the public prosecutor that he has been given up by the prosecution on the ground of his joining hands with the accused. Thus, the assertion that the independent witness was associated, appears to be only a formality, which does not satisfy the mandate of the law in this regard. In such circumstances, the recovery, as such, has become doubtful.

In view of the above, there is non-compliance of Section 42(2) of the Act and taking into account all the circumstances, the impugned judgement deserves to be set aside. Accordingly, the present appeals are allowed; the impugned judgment of conviction and order of sentence passed by the learned Judge, Special Court, Amritsar, dated 14.10.2011, is hereby set aside; and the appellants are ordered to be set at liberty, if not required in any other case.