State Of Himachal Pradesh vs Sanjay Kumar & Anr

Tarlok Singh Chauhan, J

Aggrieved by the acquittal of the respondents of the offences punishable under Sections 20 and 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the 'ND&PS Act'), the State has filed the instant appeal.

The story of the prosecution, in brief, is that on 20.03.2010 at about 6:15 p.m., a secret information was received in Police Station, Banjar that in Rana Dhaba/Guest House at Banjar owned by the respondents, some persons are in possession of narcotics. The said information was entered in daily diary Ext. PW.1/A and the copy of the same was sent to Supervisory Officer. Thereafter, PW-10 Inspector Prem Dass formed a police party consisting of ASI Yashwant Singh, HC Ses Ram, PW-6 HC Chaman Lal PW-9 HC Ramesh Chand, HHC Dev Raj, PW-4 HHC Bhadur Singh, C Vijay Kumar and C Om Parkash and they proceeded towards Rana Dhaba / Guest House. At Bus Stand, the Investigating Officer associated PW-7 Naval Kishor and Kuldeep Singh as witnesses.

PW-10 Investigating Officer Prem Dass knocked the door of room No.2 on the third floor of the said Dhaba and the door was opened by the respondent Sanjay Kumar, and respondent Shubh Karan was found sitting on double bed, upon which a rucksack was also lying. Names and addresses of the respondents persons were ascertained. PW-10 Investigating Officer apprised the respondents of their legal right to be searched either before Magistrate or Gazetted Officer and the respondents consented to be searched by the police present on the spot vide memo Ext. PW.8/A, which bears signatures of the witnesses and the respondents. PW-10 thereafter gave his personal search to the respondents in presence of the witnesses vide memo Ext. PW.9/A and thereafter PW 10 Prem Dass checked the rucksack having three apartments upon which words "Samsnite/1910' were printed and from the middle apartment a red and yellow coloured packet containing six packets wrapped with cello tape was recovered. Out of six packets wrapped with cello tape, five packets were bigger in size and contained charas in round shape and sixth packet was small in size in which opium in brown liquid form was found. The charas was weighed and found to be 5 kg. 500 grams and the opium was found to be 150 grams.

Thereafter, the Investigating Officer packed the recovered charas in the same manner in the rucksack, which was sealed in cloth parcel with 12 impressions of seal 'H' and the opium after putting in cello tape which was available in 1.0. kit, was also sealed in cloth parcel with six seals of 'H'. The Investigating Officer filled NCB forms in triplicate Ext. PW.5/B and facsimile of seal 'H' Ext. PW.9/B was taken on a piece of cloth and the seal after use was handed over to PW-9 HC Ramesh Chand. The case property was taken in possession vide memo Ext. PW.9/C and copy of recovery memo was supplied to the respondents free of costs and both the respondents put their signatures on the recovery memo in token of receipt thereof.

Thereafter, Investigating Officer prepared ruqa Ext. PW.8/B and sent the same to Police Station, Banjar through PW-8 HHC Hem Raj for registration of case. On receipt of the ruqa Ext. PW-8/B, PW-6 Officiating SHO registered FIR Ext. PW6/A and made endorsement Ext. PW6/B on the ruqa and handed over the case file to PW-8 HHC Hem Raj to take the same to the I.O. on the spot. PW-10 Prem Dass took photographs of the proceedings, the negatives of which are Ext. PW.10/B. The Investigating Officer prepared spot map Ext. PW.10/A and recorded the statements of the witnesses as per their versions including the statement of Naval Kishor Ext. PW.10/C. The respondents were apprised about the grounds of arrest and arrested vide memo Ext. PW.9/D. The personal search of the respondents was conducted vide/memo Ext. PW-9/E.

Thereafter, the police party came back to Police Station, Banjar alongwith the respondents and deposited the case property alongwith NCB forms, sample of seal 'H' and other documents with MHC. During investigation, the Investigating Officer took into possession copy of Jamabandi Ext. PW.3/A and Tatima Ext. PW.3/B from the Patwari alongwith residence certificates Ext PW.10/D and Ext. PW.10/E from Naggar Panchayat, Banjar.

Thereafter, the Investigating Officer prepared special report Ext. PW2/D and submitted the same before Addl. S.P, Kullu, through C. Neel Chand, who after making his endorsement Ext. PW.2/B, handed over the same to his Reader PW2 HC Nirat Singh, who entered the same in relevant register, the abstract of which is Ext. PW2/C. PW-6 MHC Chaman Lal entered the case property in Malkhana register at Sr. No. 137, the abstract of which is Ext. PW.6/D. PW-6 MHC Chaman Lal after filling column No.12 of NCB in triplicate Ext.PW. 5/B, handed over the case property duly sealed with seal 'H' alongwith NCB forms in triplicate, sample seal of 'H', copies of seizure memo and FIR to PW-4 HHC Bhadur Singh for depositing the same in FSL, Junga for chemical analysis vide RC Ext. PW.4/B and docket Ext. PW.6/C, who deposited the same with FSL, Junga vide receipt Ext.PW.4/A and handed over the receipt to MHC on his return. On receipt of FSL report Ext. PA, it was found that the exhibit was sample of charas and opium. Thereafter, the challan was prepared under Section 173 Cr.P.C. and presented in the Court for judicial verdict.

The Court on consideration of police report and documents accompanying therewith, found prima facie case and sufficient grounds to presume that the respondents committed the offence under Sections 20 and 18 of the ND&PS Act and they were charged accordingly. The respondents pleaded not guilty and claimed trial.

The prosecution in order to prove its case and to bring home the guilt of the respondents, examined as many as 10 witnesses besides relying upon the documentary evidence on record.

After closure of the prosecution evidence, incriminating circumstances and evidence against the respondents were put to them, which they termed to be incorrect and wrong. The respondents also took up the defence that no recovery of charas was effected from them, in fact, one Ashok Kumar alongwith Krishan Kant were staying in the second floor of the guest house in separate room and their entries were duly made in the visitor's register. On arrival of the police, Ashok Kumar ran away and Krishan Kant was apprehended later on. The entry register was taken into possession. The respondents claimed that they were innocent and had been falsely implicated due to enimity. The respondents in support of their defence examined DW-1 Narayan Singh and DW-2 Prem Dass.

The learned Special Judge after recording the statements of the witnesses and evaluating the same acquitted the respondents for the offences charged and aggrieved thereby the State has filed the instant appeal.

It is vehemently argued by Mr. I. N. Mehta, learned Senior Additional Advocate General that the findings recorded by the learned trial Court are totally preverse and, therefore, the respondents deserve to be convicted.

On the other hand, Mr. Navin K. Bhardwaj, learned Advocate, would argue that the case of the prosecution deserves to be thrown out on the basis of non-compliance of Section 42 of the ND&PS Act, apart from other infirmities as pointed out and relied upon by the learned Special Judge, while acquitting the respondents.

We have heard learned counsel for the parties and have gone through the record of the case.

The first and foremost question required to be determined in the instant case as to whether the prosecution has complied with the provisions of Section 42 of the ND&PS Act, which read as under:-

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 intellegence 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 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 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: 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.

In order to prove compliance of Section 42 of the ND&PS Act, the prosecution examined PW1 Sobha Ram, who testified that 'As per record brought by him vide Rapat No. 32 an information was got recorded by SHO Prem Dass under Section 42(2) of the ND&PS Act in Police Station, Banjar. This information was entered by him. The copy of the Rapat is Ext. PW1/A which is correct as per the record brought by him today'.

Now adverting to the testimony of SHO Prem Dass, who appeared as PW10, he has categorically stated in his cross -examination that the information was not taken down by him, meaning thereby, it was not reduced in writing. That apart, in his examination-in-chief, this witness has stated as follows:-

“On 20.03.2012 at 6:15 p.m., a secret information was received to the effect that in the third floor of Rana Guest House, Banjar, some persons were possessing illegal things with them. On this information Ext.PW1/A was reduced into writing and raiding party consisting of ASI Yashwant Singh, HC Ses Ram, HC Ramesh Chand, HHC Dev Raj, HHC Bhader Singh, C. Vijay Kumar and C. Om Parkash was formed and proceeded towards Rana Guest House vide old Bus Stand, Banjar”.

It would be noticed that apart from GD Entry that too which only makes a mere mention of secret information, the I.O. has nowhere recorded grounds of his belief under Section 42 of the ND&PS Act. No doubt, the entry has been forwarded to the Additional Superintendent of Police, but nontheless entry in the information in the Station Diary and communicating to the immediate officer in the given facts and circumstances is not strict compliance of the mandatory provisions of Section 42 of the ND&PS Act. The officer was not only required to reduce information received into writing but he was also required to record the reasons for belief that the information could not be doubted regarding the authenticity and veracity or the correctness of the information.

Failure to comply with these requirements would effect the prosecution case and vitiate the trial as has been held by the Constitution Bench of the Hon'ble Supreme Court in Karnail Singh vs. State of Haryana (2009) 8 SCC 539, wherein after discussing the law on the subject the Hon'ble Supreme Court has summarised the legal position as follows:-

(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 clauses (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 thereof, to the official superior, then 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. 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.

It would be evident form clause (a) above that the officer on receiving the information of the nature referred to in sub-section (1) of Section 42 from any person is required to be recorded in writing in the register concerned forthwith (emphasis supplied by us) and send a copy to his immediate superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1); and in terms of clause (d), 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 thereof to the officer superior, then it would be suspicious circumstance being a clear violation of Section 42 of the ND&PS Act.

It would also be noticed that the lone independent witness PW7 Naval Kishor has not supported the case of the prosecution, rather he has admitted the case of the defence in its entiriety. He admitted that the father of the respondents was having business at Banjar and the local people are envious of this fact. He also admitted that there was fight between local persons and the respondents. When on 29.12.2007, the local persons had damaged the window pane of the guest house and had destroyed the belongings of the respondents. He also admitted that the articles belonging to the respondents were burnt by the local people in the presence of the police and SDM. He also admitted that the father of the respondents lodged complaint against the local police and pursuant to which the police officials including the SHO were transferred. He further testified that his signatures were obtained by the police only on the pretext that some unclaimed bag was found from the room of Ashok Kumar.

Even PW8 Hem Raj and PW9 Ramesh Chand have supported the testimony of PW7 Naval Kishor qua rivalry between the father of the respondents and the local people and about the earlier occurrence. Both these witnesses have submitted that the father of the respondents had lodged complaint against the police and thereafter SHO was transferred from Banjar.

This being the background, obviously the evidence of the official witnesses has to be examined with far greater care and caution.

PW8 Hem Raj desposed that PW4 Bahadur Singh remained present on the spot when the police conducted proceedings, however, PW4 Bahadur Singh has not testified anything about the search, seizure and recovery of the contraband. PW8 Hem Raj admitted that Rana Guest House was constructed on a sloppy land and the ground floor of the Guest House was abutting the road side and there was a Dhaba on the ground floor. He also admitted that there was vacant land adjoining to second and third floors, which were accessible. He also admtited that the second floor is also accessible through vacant land and has window, doors and gallery towards the vacant land. He further admtited that there was altercation between the local people and the respondents, which was reported in the newspaper 'Punjab Kesari' Ext. DA. He admitted that he was present and his photrograph was visible in the newspaper. He also admitted that the fourth floor of the Guest House abuts the police station and the distance between the two is approximately 50 metres. He also admitted that there was official residence of Tehsildar adjoining to the police station, which is near to the Rana Guest House. He further testified that the witnesses were associated near old Bus Stand. He desposed that firstly Naval Kishor and thereafter Kuldeep Singh were associated. Howeer, he could not tell whether rooms had attached bathromms or toilets. He stated that the police party remained outside the room for five minutes. He further stated that SHO, after opening the door by the respondents, gave option to them and memo was prepared outside the room, while sitting on a wall in the gallery. He further deposed that signatures of witnesses were also obtained on the consent memo outside the door. He admitted that one Krishan Kant was also nabbed with contraband on that day and he had been staying in room No 103. He also admitted that the said Krishan Kant had been acquitted by the Court. He further stated that parcel was prepared on the spot with the help of cloth, scissors and needle brought by the investigating officer. He specifically denied that the parcel had been stitched with the sewing machine in the police station. However, when parcel Ext.P1 shown to him in the Court, he admitted that the same was stitched on two sides with sewing machine and on one side with needle.

PW9 HC Ramesh Chand is the official witness, who admitted that the local people had ransacked the Guest House of the respondents in presence of the police and SDM. He also admitted that he was present at the relevant time and the matter had been published in the Hindi Daily 'Punjab Kesari', in which there was a photograph where local people were seen setting on fire some articles of the respondents. He also admitted that the respondents were running a Dhaba in the ground floor. He denied that the rooms on the third floor were adjoining to the vacant land and easily accessible. He also admtited that Rana Guest House was near to the police station. He stated that both the independent witnesses were associated from the Bazar where they were standing together, which was contradicted by the testimony of PW8 HHC Hem Raj. His testimony is also at variance with that of the Investigating Officer PW 10 Prem Dass, who testified that they were associated from the shop of P W7 Naval Kishor. This witness admitted that by shortcut, the Rana Guest House is adjoining to the police station. He testified that the option to the respondent was given inside the room and memo Ext. PW8/A was prepared while sitting on the bed in the room. He further deposed that all the documents were prepared inside the room. The testimony of this witness is totally contrary to the testimony of PW8 HHC Hem Raj as according to him all these proceedings were carried outside the room in the gallery. This witness further testified that the proceedings were photographed, however, no photograph has been produced and proved on record.

PW 10 I.O. Prem Dass is the Investigating Officer of the case and stated that he had knocked door of the room of the respondents from outside and then the door was opened by the respondents. He firstly enquired the name from one person, who disclosed it to be Sanjay Kumar, while the other person, who was sitting, disclosed his name to be Shubh Karan. He testified that these persons were not earlier known to him, whereas he had appeared as a witness in case, titled as State vs. Krishan Kant, and his statement Ext. D7 was recorded by the Court of the learned Presiding Judge, Fast Track Court, Kullu.

The witness admitted that there was a Dhaba on the ground floor of the Rana Guest House and stated that he was not aware that the father of the respondents was residing in the first floor of the building. He stated that the respondents were not known to him earlier to this incident. He admitted that earlier SHO Lal Singh had been transferred on the basis of the complaint made by the father of the respondents. He denied that the respondents had earlier been summoned in the police station for interrogation in some other case. However, he admitted that the official residences of the SDM and Tehsildar are between the Rana Guest House and the Police Station. He stated that he had directly gone to the third floor, however, when he was confronted with the statement of Ext. D7, he admitted that initially he had gone to the initial floor, where they found all the rooms to be locked and thereafter they searched the room in the second floor and after that they want to third floor. This witness was also called by the defence as DW2 and in his testimony he admitted that he prepared challan in case FIR No. 179/2009, dated 30.12.2009. He also admitted that the case was investigated by him and ASI Bhupinder Singh and challan was put in the Court against the accused persons/respondents. He admitted that the accused persons/respondents remained in police remand from 30.09.2009 to 04.10.2009 and disclosure statement Ext.DW2/A was recorded by him and memo of recovery Ext. CW2/B was also prepared by him. He also admitted that Ext. DW2/C was the recovery memo qua the respondent Shubh Karan.

Now going by this testimony, it is evidently clear that what had earlier been deposed by PW10 Prem Dass is clearly belied for what he stated while appearing as DW2 to the effect that the respondents were not earlier known to him. The witness further deposed that he gave option to the respondents while he was on the door and thereafter memo was prepared inside the room while sitting on a cot. Now this part of testimony is contrary to what has been deposed by either PW8 HHC Hem Raj or for that matter PW9 HC Ramesh Chand. He further deposed that he did not remember how many photographs have been taken and whether the roll was given for developing or not, which is an indication that probably photoraphs were taken but have been deliberately withheld as has rightly been observed by the learned Special Judge.

From the above discussion of evidence, it clearly emerges that even though PW10 Prem Dass tried to give an impression that the respondents were not known to him but as a matter of fact, he very well knew them in view of the statement given by him while appearing as DW2, which does cast a serious doubt in the testimony of the witness given the fact that he has contradicted the testimonies of the two other witnesses PW8 HHC Hem Raj and PW9HC Ramesh Chand on material particulars as noticed above, which go to the root of the case.

It is more than settled that harsher the punishment, stricter the proof. In the instant case, the prosecution has failed to prove its case beyond all reasonable doubts. The view taken by the learned Special Judge is plausible one, hence, calls for no interference.

In Chandrappa and others vs. State of Karnataka (2007) 4 SCC 415, State of Rajasthan vs. Kistoora Ram, 2022 SCC Online SC 984 and Ravi Sharma vs. State (Government of NCT of Delhi) and another (2022) 8 SCC 536, the Hon’ble Supreme Court has provided a clear exposition as to scope of interference in an appeal against acquittal. The same has been held to be limited. As per the aforesaid exposition, unless it is found that the view taken by the trial Court is impossible or perverse, it is not permissible for the Appellate Court to interfere with the findings of acquittal. It has also been held that if two views are possible, it is not permissible to set-aside an order of acquittal merely because the Appellate Court finds the way of conviction to be more probable.

In view of the aforesaid discussion and for the reasons stated above, the appeal is dismissed, so also pending applications, if any.