Kalyan Singh vs State of Haryana

R.L. Anand, J.

This is a criminal appeal filed by Kalyan Singh, Satnam Singh and Gudda and has been directed against the judgment dated 8.11.1997 and order dated 11.11.1997 passed by the Court of Additional Sessions Judge, Hisar, who convicted each of the appellants under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (in short `the Act'') and sentenced each of the appellants to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lac each and in default of payment of fine to undergo further rigorous imprisonment for a period of one year.

The summary of the facts and investigation can be described in the following manner.

On 10.9.1991, a police party headed by Harcharan Singh, Inspector CIA Staff, Hisar reached in village Bahamanwala in Govt. Jeep in connection with checking of terrorist activities. He received a secret information against Kalyan Singh, Sher Singh, Satnam Singh, Gudda and Piara Singh that they were in possession of poppy husk in the house of Giani Mukhtiar Singh and if raid was conducted chura post in large quantity can be recovered. On receipt of secret information, Inspector joined Pritam Singh and Jaswant Singh in the raiding party and reached the house of Mukhtiar Singh r/o village Ladhuwas. There is a room all the appellants were found present. Sher Singh was having a scale in his hand and other accused were setting the bags in the western corner of the room. Upon this Inspector Harcharan Singh served a notice to all the four accused inquiring from them whether they wanted to be searched in the presence of a Magistrate or a Gazetted Officer. At this accused replied that it is upon the Investigating Officer. Thereafter, Harcharan Singh sent a message to D.S.P. Fatehabad by wireless. Mange Ram, D.S.P. reached the spot alongwith his personal staff and in his presence, search of the room was effected. 25 bags containing chura post, weighing 40 kgs. each were recovered and besides it, one half bag of chura post weighing about 13 kgs. was also recovered from the room. 100 grams of chura post was taken as sample from each bag and separate parcels of sample were prepared. The sample parcels and remaining bags of chura post were sealed with the stamp of `MR'' and were taken into custody. The seal after use, was handed over to Manage Ram, DSP, Fatehabad. Accused could not produce any licence or permit for possession of the poppy husk. Ruqa was sent to Police Station for the registration of the case on the basis of which formal F.I.R. Ex.PH/1 was recorded. After the completion of other formalities and on receipt of report by Dy. Director, FSL, Madhuban, accused were challaned in the court of Area Magistrate, who supplied copies of documents free of cost to the accused namely Kalyan Singh, Sher Singh, Satnam Singh and Gudda and vide commitment order dated 17.12.1991, committed the accused to the Court of Sessions in order to face trial.

Vide order dated 8.11.1997 Additional Sessions Judge chargesheeted the three appellants namely Kalyan Singh, Satnam Singh and Gudda under Section 15 of the Act on the allegation that on 10.9.1991 in the area of Ladhuwas they were in possession of 1019 kgs. of chura post without any permit of licence and thereby they committed the offence. Charges were read over and explained to the accused. The accused pleaded not guilty and claimed trial.

In order to prove the charge, the prosecution examined following witnesses. PW1, Mukhtiar Singh, who simply deposed that he was the owner of house in the village and he had rented the house to Kalyan Singh, Sher Singh, Satnam Singh and Gudda. He had rented this house on 2.9.1991 at a rent of Rs. 2,000/ per month. PW2 Jaswant Singh, is the witness to the recovery. He was associated by the police party before conducting the raid in the house of Mukhtiar Singh. When this witness was tested in the trial Court, he showed his back to the prosecution by stating that on the date of recovery at about 8.30 p.m., when he was in his house, police came to him that in his neighbourhood poppy husk has been recovered. He was taken to the spot, when Piara Singh and Mukhtiar Singh were present and same bags of poppy husk were also there. This witness categorically stated that none of the accused was present at the time and bags were being taken out of the house of Mukhtiar Singh, who was a Granthi in the Gurdwara. This witness was declared hostile by the Public Prosecutor and in spite of the fact that public prosecutor was allowed to crossexamine this witness, no favourable circumstances has come for the benefit of the prosecution. PW3, Surjit Kumar is the witness, who recorded the F.I.R. Ex.PH/1. PW4, Khairati Lal ASI, is the witness to the recovery, while PW5 Harcharan Singh is the Investigating Officer. The prosecution in this case did not examine any independent witness, so much as that the D.S.P. in whose presence the search was taken and who was called on the spot, has not been examined by the prosecution. Finally, prosecution tendered in evidence report of Director, FSL, Madhuban and closed the case.

Statements of accused were recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused, who denied these circumstances and stated that they have been falsely implicated in this case. In defence, accused did not examine any witness and closed the case.

The learned trial Court relied upon the story of prosecution and by rejecting the defence version, convicted and sentenced the appellants in the manner stated above.

Aggrieved by their conviction and sentence, the accused filed the present appeal.

I have heard Sh. G.S. Kaura, Advocate appearing for the appellants and Sh. J.S. Ahlawat, AAG, Haryana on behalf of the State and with their assistance have gone through the record of this case. This first contention which was raised by learned Counsel for the appellants of course did not find favour with me when he tried to make an endeavour for securing acquittal that Section 50 of the Act has not been complied with. Learned Counsel submitted that offer was joint. I do not subscribe the argument raised by learned Counsel for the appellants. There is no bar if joint offer is given. The bar under the law is that there should not be a joint statement. Referring the record in this case, the offer which was given by Harcharan Singh, Ex.PF/1 is on the record. ExhibitsPF/2, PF3, PF/4, are the separate statements of each of the appellants clearly indicating that each one of them has given his independent consent in favour of Investigating Officer authorising him to adopt any of the remedies either to call a gazetted officer or a Magistrate. In this view of the matter, I have no difficulty in rejecting the first arguments.

However there are two faults in the story of the prosecution, which have gone to the root of the case. One is legal and other is procedural. It is the case of the prosecution that secret information was received by Harcharan Singh upon the basis of which independent witnesses were associated and thereafter raid was conducted at the residence of Mukhtiar Singh. In these circumstances, Section 42 of the Act would come into play, which enjoin the duty upon the Investigating Officer to record the secret information in writing in the first instance which has not been done in the present case. Section 42 clearly states that if the 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 are lying concealed in any building, conveyance or enclosed place, he is supposed to take down that information in writing. Section 42(1) in this case has not been complied with, therefore, search which has been taken without compliance to the provisions of Section 42 will make the recovery illegal as violation of the law. The procedural difficulty in this case is that it is not certain who is the Investigating Officer in this case. As per the story of the prosecution, it was propounded by way of foundation that Harcharan Singh received the secret information. Harcharan Singh stated before the trial Court : "I received secret information that Kalyan Singh, Sher Singh, Satnam Singh and Gudda used to deal in the sale of poppy husk in the house of Giani Mukhtiar Singh in village Ladhuwas and in case raid is made, the same can be apprehended". Is it true ? When I read the statement of Khairati Lal, I have got the impression that either Harcharan Singh is telling a lie or the stand of Khairati Lal is incorrect. Khairati Lal also deposed that he received a secret information. His words can be quoted precisely : "I received secret information that Kalyan Singh, Satnam Singh, Gudda and Piara Singh used to deal in the sale and purchase of poppy husk in the house of Giani Mukhtiar Singh, r/o village Ladhuwas taken by them on rent and if a raid is conducted, they could be apprehended". This statement of Khairati Lal is in direct contradiction to the statement of Harcharan Singh. This is the material discrepancy in the mode of investigation itself. The things do not rest here. It is the admitted case of the prosecution that search was taken in the presence of D.S.P. Strange enough, D.S.P. has not been examined by the prosecution so as to lend confidence in the mind of the court about the genuineness of the recovery. Further, two witnesses who were associated by the Investigating Officer before conducting the search have not supported the case of the prosecution. I have already referred to the material statement of Jaswant Singh, who took a somersault and showed his back to the prosecution. The other independent witness has not been examined. In these circumstances, it will be too risky to bank upon the statements of Harcharan Singh and Khairati Lal, which inter se are not consistent with regard to the vital information, which was the basis of this raid. In such like cases, prosecution is to prove the charge beyond all reasonable doubts. There is no scope of concession to the prosecution, if its evidence is wanting. Since in such like cases a very stringent rule of penology is "Graver the offence, stricter is the proof". When Section 42, which is mandatory has not been complied with; when gazetted officer has not been examined and when the independent witness is not supporting the case of the prosecution then it can safely be inferred that prosecution has not been able to prove the charge against the appellants beyond reasonable doubt. Reliance can also be placed in the case of State of Punjab v. Balbir Singh, 1994(1) Recent C.R. 736 which lays down that compliance of Section 42 of the Act is mandatory and if these provisions are not complied with in its letter and spirit, the search becomes illegal.

In this view of the matter, I have taken a view that this appeal deserves to be accepted and I order accordingly. Appeal is hereby allowed, judgment and order of learned trial Court are set aside. Appellants are acquitted of the charges framed against them. Let intimation about the acceptance of this appeal be sent to Superintendent, Central Jail, Hisar, who shall set the appellants Kalyan Singh, Satnam Singh and Gudda at liberty forthwith, if not convicted or wanted in any other case. The case property, however, stands confiscated to the State and shall be destroyed as per rules.