Bookmark
PDF
Share
CaseIQ

Hakam Singh v. Union Territory

Punjab & Haryana High Court

May 22, 1987

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Factual and Procedural Background

Recovery of 1.5 kg of crushed poppy heads led to the conviction of the appellant. The appellant was sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1,00,000/-, with a default clause of further rigorous imprisonment for 5 years. This conviction was challenged in the present appeal.

On 29-4-1986 at about 7:30 p.m., ASI Manjit Singh, with constables Sukhchain Singh and Mohan Singh, was present near the back side of the Punjab University Campus, Chandigarh. ASI Manjit Singh received a secret information that the appellant would pass the bus stop of village Dhanas carrying crushed poppy heads. Mohan Singh (a clerk in the Electricity Department) joined the ASI, the police party proceeded to the bus stop and picketed the site. The appellant was observed coming from village Saranpur; upon seeing the police party, he turned back and was overpowered on suspicion. From his right hand a jhola (Ex. P-1) was recovered; after a personal search, crushed poppy heads weighing 1.5 Kg. were recovered from the jhola. The appellant could not produce any permit. The glazed paper in which the crushed poppy heads were carried was taken into possession. A ruqa was sent for registration of the case through Constable Sukhchain Singh and an FIR was recorded. A report under Section 173, Criminal P.C., was presented to the Illaqua Magistrate and the scaled bag was sent for chemical examination, which found morphine and meconic acid present.

The Magistrate committed the case to the Sessions Court where a charge under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act) was framed. The appellant pleaded not guilty. The prosecution examined several witnesses (including Constable Mohan Singh, a draftsman who prepared the site plan, ASI Manjit Singh and others). Affidavits of two witnesses were also tendered. In his Section 313 statement the appellant pleaded false implication, narrated an earlier raid on 28-4-1986 and alleged detention overnight until the next evening when this case was foisted; he produced a certified copy of an acquittal of Dalip Singh by the Additional Sessions Judge dated 5-11-1986.

Legal Issues Presented

Whether mandatory procedural provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (including requirements regarding secret information being taken in writing, search procedures and sealing/forwarding of seized articles) were complied with in the arrest, search and seizure of the appellant.
Whether the failure to reduce secret information to writing and related non-compliance with Sections 41, 43, 50, 52 and 55 of the Act vitiates the seizure, investigation and the conviction.
Whether the transitional provision (Section 74 of the Act) could be invoked to validate actions of officers not specifically authorised under the new Act, thereby permitting non-compliance with other mandatory provisions of the Act.

Arguments of the Parties

Appellant's Arguments

The provisions of the Act are mandatory and there is no evidence on the file showing compliance with those provisions (e.g., secret information in writing, informing of rights before search, proper sealing and forwarding procedure).
The presence of Mohan Singh (P.W. 5) is doubtful; no independent person from the public at the bus stop was joined as a witness.
Certain material discrepancies exist in the statements of the prosecution witnesses, supporting the plea of false implication.

Respondent's Arguments

Counsel for the respondent relied on Radha Kishan v. State of Uttar Pradesh and Khandu Sonu v. State of Maharashtra to argue that any search in contravention of the provisions of the Act and invalidity in investigation do not necessarily vitiate trial or conviction.
It was argued that decisions accepting seizure evidence despite procedural irregularities support the respondent's position.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Radha Kishan v. State of Uttar Pradesh	The Supreme Court's approach of accepting prosecution evidence regarding seizure and not re-examining correctness of High Court conclusions where seizure evidence was accepted.	The Court observed that Radha Kishan is of no help to the respondent's proposition in this case and did not rely on it to uphold the conviction where statutory mandatory provisions were not complied with.
Khandu Sonu v. State of Maharashtra	Held that invalidity of investigation under the Prevention of Corruption Act does not necessarily vitiate conviction resulting from trial, subject to absence of prejudice or miscarriage of justice.	The Court noted this precedent but distinguished it: Khandu Sonu relates to the Prevention of Corruption Act where penalties are not as stringent; thus deviations under the NDPS Act (which prescribes minimum sentences) require closer scrutiny and cannot be treated as analogous.

Court's Reasoning and Analysis

The Court undertook a statutory and factual analysis focused on the mandatory procedural safeguards in the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act):

The Court noted that the Act repealed earlier opium and dangerous drugs legislation and laid down specific procedures for arrests, searches, deposit and sampling of recovered articles, while saving application of the Code only to the extent not inconsistent with the Act.
On Section 41(2): The Act permits an officer to arrest or search on personal knowledge or information given by a person and taken in writing. In this case the prosecution's account involved "secret information" received by ASI Manjit Singh but this information was not reduced to writing nor produced in evidence. The Court emphasized that this requirement is not a mere formality; it prevents concoction of stories of secret information and allows for meaningful cross-examination.
On Section 43: Similar to Section 41, entry, search, seizure and arrest without warrant require information to be taken down in writing. The Court held that the absence of such writing prejudices the accused because the officer cannot be effectively cross-examined about the information's contents and origin.
On Section 50: Before making a search, the officer must ask the person if the person requires being taken to the nearest gazetted officer or a Magistrate. The Court found no evidence that the appellant was informed of this right; the words "if such person so requires" are mandatory and depend on the person being told about the right.
On Sections 52 and 55: Section 52 requires informing the arrested person of grounds for arrest and prompt forwarding of the person and seized articles to the Magistrate or officer-in-charge. Section 55 requires the officer-in-charge to take custody, allow affixing of a seal by the accompanying officer and permit sampling and sealing. The Court observed that the crushed poppy heads were sealed at the spot and the requirement of affixing the accompanying officer's seal at the police station was not complied with, contrary to the statutory scheme designed to ensure fair investigation by responsible officers.
On Section 74 (transitional provision): The Act came into force on 16-9-1985 and the recovery in question occurred on 29-4-1986. Section 74 deems officers exercising relevant powers immediately before commencement of the Act to be appointed under the Act, but the Court held this is a limited transitional provision intended only to permit early authorisations by the Central or State Government and cannot be used by officers to ignore mandatory procedural requirements for an indefinite period.
Overall conclusion of analysis: Multiple mandatory provisions of the Act were disregarded in the investigation and seizure. The Court found that these breaches caused material prejudice to the appellant and could not be treated as mere formal irregularities. The precedents relied on by the respondent were either inapplicable or not helpful on the facts: Radha Kishan did not assist, and Khandu Sonu was distinguishable because it dealt with a different statute with less severe mandatory penalties.

Holding and Implications

APPEAL ALLOWED; CONVICTION AND SENTENCE SET ASIDE; APPELLANT ACQUITTED.

Consequences of the decision:

The appellant's conviction and sentence imposed by the trial court were set aside and the appellant was acquitted of the charge.
If the fine had been paid, it was ordered to be refunded.
The Court found that material prejudice resulted from the non-compliance with mandatory provisions of the Act; therefore, the conviction could not stand on the record as produced.

The opinion did not set out any express declaration of creating a new legal precedent or announce broader doctrinal changes beyond applying the Act's mandatory procedural requirements to the facts; the decision's immediate effect is the acquittal of the appellant and refund of any fine paid.

Show all summary ...

JUDGMENT Ujagar Singh, J.

1. Recovery of 1.5kg of crushed poppy heads had led to the conviction of the appellant for which he has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- or in default of payment of fine, to undergo further rigorous imprisonment for 5 years and the same has been challenged in this appeal.

2. ASI Manjit Singh, along with constables Sukhchain Singh and Mohan Singh, was present at the back side of the Punjab University Campus., Chandigarh, at about 7.30 p.m., on 29-4-1986. He received secret information that the appellant would be passing by the bus stop of village Dhanas while carrying crushed poppy heads. Mohan Singh, a clerk in the Electricity Department, passed by that side and he was joined by the ASI. Thereafter the party proceeded towards the said bus stop and the site was picketed. After some time, the appellant was noticed coming from the side of village Saranpur. The appellant on reaching the bus stop and seeing the Police Party, turned back whereupon he was overpowered on suspicion. From his right hand, Jhola Ex.P-1 was recovered and after the ASI gave his personal search to the appellant, the person of the appellant was searched from the Jhola carried by him, crushed poppy heads, weighing 1.5 Kg. were recovered and the appellant could not produce any permit for possession thereof. The glazed paper in which it was carried was taken into possession. Ruqa was sent for the registration of the case through Constable Sukhchain Singh and First Information Report was recorded on its basis. After completing the various formalities of investigation, report under Section 173, Criminal P.C. (briefly the Code) was presented before the Illaqua Magistrate. Scaled bag of the crushed poppy heads was sent for chemical examination through constable Jagdish Singh and according to the report of the Chemical Examiner morphine and meconic acid were found present in the same.

3. After going through the documents, the Magistrate committed the case for trial before the Sessions Court. The Sessions Judge, after framing the charge for an offence under Section 18, Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) (shortly the Act), to which the appellant pleaded not guilty, examined Constable Mohan Singh (P.W.

1), Jaswant Singh Draftsman (P.W. 2) who prepared the site plan of the place of recovery; Mohan Singh, said clerk (P.W. 5) and ASI Manjit Singh (P.W. 6). The prosecution tendered the affidavits of Constable Jagbir Singh and MHC Thakur singh as P.W.3 and P.W. 4 respectively. The appellant in his statement under Section 313 of the Code took up the plea that he has been falsely implicated and the prosecution witnesses have deposed falsely against him. He has further stated that on 28.4.1986, at about 6 p.m., ASI Manjit Singh, in the company of Sub-Inspector K.I.P. Singh, S.I. Kartar Singh, ASI Baldev Singh and some constables, raided his house and also searched the houses of Dalip Singh, Sat Pal and Sanjogta, but nothing was recovered from any of those houses. In spite of this, he further stated that all the four of them were taken to Police Station Sector 11, Chandigarh and detained there for the night till the next evening i.e. up to 7.30 p.m. when this case was foisted upon him and three other cases were foisted on the said three persons. It has also been stated by him that the said Dalip Singh has since been acquitted by the learned Additional Sessions Judge, Chandigarh and he has tendered Ex. DA, certified copy of the judgment dated 5.11.1986.

4. The learned Counsel for the appellant has challenged the conviction and sentences passed by the trial Court mainly on the ground that the provisions of the Act are mandatory and there is no evidence on the file to show that any of the said provisions has been complied with. He has further vehemently urged that the presence of Mohan Singh (P.W. 5) is most doubtful and has pointed out that no person from public, present at the bus stop, was joined apart from the above argument, he has pointed out certain discrepancies on material particulars in the statements of the prosecution witnesses.

5. The Act has repealed the Opium Act (13 of 1857), the Opium Act, 1878 (1 of 1878) and the Dangerous Drugs Act, 1930 (2 of 1930) and a specific procedure has been laid down for arresting of the persons their search, deposit of the article recovered, taking samples therefrom etc. under different sections of the Act, but has saved the application of the provisions of the Code, in so far as the same arc not inconsistent with the provisions of the Act with respect to the warrants issued, arrests, searches and seizures thereunder. Under the Opium Act, 1878 there was no procedure prescribed except that the possession of opium without licence was made punishable and there was no minimum punishment prescribed, but the whole matter of punishment was led to the discretion of judicial Courts which used to be exercised according to the facts and circumstances of each case. The Act has prescribed minimum punishment of rigorous imprisonment of 1.0 years and fine of Rs. 1,00,000/- irrespective of the quantity recovered, with enhanced punishment for offenses after the previous conviction of the person concerned. Section 32 of the Act provides imprisonment for a term which may extend to six months, or with fine, or with both for a person who contravenes any provision of the Act or any rule or order made, or any condition of any licence, permit or authorisation issued thereunder for which no punishment is separately provided. Section 33 of the Act excludes the application of section 360 of the code in respect of a person convicted of an offence thereunder unless such person is under 18 years of age or the offence for which such person is convicted is punishable under Section 26 or Section 27 thereof Section 26 provides punishment for certain acts by a licensee or his servant. Section 27 provides punishment for illegal possession in small quantity of any narcotic drug or psychotropic substances for personal consumption and discretion has been given to the Courts for awarding sentence which may extend to one year or with fine or with both and six months or with fine or with both, as the case may be, but this section puts the burden of proving the ingredients thereof on the person concerned.

6. Chapter V of the Act provides the procedure in detail, Sub-section (2) of Section 41 thereof envisages that the officer arresting a person or searching a building, conveyance or a place whether by day or by night may do it himself when such officer is empowered in this behalf by general or special order by the Central Government or by the State Government, but he can do so only if he has reason to believe from personal knowledge or information given by a person and taken in writing that any person has committed an offence punishable under Chap. IV of the Act or that any narcotic drug or Psychotropic substance, in respect of which any offence punishable under Chap. IV of the Act has been committed, has been kept. In the present case, according to the prosecution, a secret information was received by A.S.I., Manjit Singh (P.W. 6) in the course of his patrolling in connection with checking of commission of offence. This secret information was not reduced in writing and no such writing, if at all, has been produced, as evidence in court. The case of prosecution, in brief, is that on receiving the above said secret information and after joining Mohan Singh (P.W. 5), the Police Parly proceeded to local bus stop of village Dhanas and when the appellant came towards that place, he was overpowered on suspicion. It is only thereafter when on search crushed poppy heads were recovered that the Ruqa in writing was sent for the registration of the case. Sequence of events narrated by the prosecution witnesses excludes even an attempt by the Police Party to have the alleged secret information reduced into writing. This provision cannot be said to be only a formality. The purpose behind the same is that the story of secret information may not be concocted to support any version put in court.

The learned Counsel for the respondent has referred to Radha Kishan v. State of Uttar Pradesh and Khandu Sonu v. State of Maharashtra, and has vehemently argued that any search in contravention of the provisions of the Act and invalidity of investigation do not vitiate the trial. The Radha Krishna's case (supra) the Supreme Court refused to reexamine the evidence of satisfying itself as to the correctioness or otherwise of the conclusions reached by the High court by which the evidence of the prosecution with regard to the factum of seizure was accepted. It is of no help to the proposition propounded. Khandu Sonu's case (supra) relates to investigation under the Prevention of Corruption Act where in it was held by the Supreme Court that invalidity of the proceeding investigation would not vitiate the conviction of the accused, as a result of trial, but, at the same lime, it was laid down that the illegality in the investigation should not cause prejudice to the accused or bring about miscarriage of justice. Under the provisions of the Prevention of Corruption Act, the penalty is not so stringent as in this case. This Act, as already stated, provides a minimum sentence of imprisonment and fine and, therefore, deviations from the provisions thereof have to be scrutinized.

7. Section 43 of the Act gives power of entry, search, seizure and arrest without warrant or authorisation of any such officer who is empowered in this behalf by general or special order of the Central Government or of the State Government, but he can do so only if he has reason to believe from personal knowledge or information given by any person and taken down in writing. As already discussed. ASI Manjit Singh got a secret information, but it was not taken down in writing. This prerequisite is not laid down without any purpose. Its contravention, would certainly cause prejudice to the accused, because, in the absence of any writing, there will be no chance to cross-examine the officer with regard to the factum and contents of the information received.

8. Before making a search, the provisions of Section 50 of the Act lay down that the officer who is duly authorised will not conduct any search, if the person to be searched so requires, before taking such person to the nearest gazetted officer of any of the Departments mentioned in Section 42 of the Act or to the nearest Magistrate. The words "if such person so requires", are mandatory and the officer has to ask the person if he wanted to be taken to the said nearest gazetted officer or to the nearest Magistrate. Unless the person to be searched is informed about his right, the said words would not come into operation. In the present case, there is no evidence that the appellant was informed of his right at any time before his person was searched.

9. Section 52 gives another mandatory provision, according to which, the officer arresting a person, shall as soon as may be, inform him of the grounds for such arrest and the person arrested and the article seized under warrant shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued or to the officer, in charge of the nearest Police Station or the officer empowered under Section 53 of the Act. It further lays down that the authority or officer to whom any person or article is forwarded shall with all convenient despatch take such measures as may be necessary as to the disposal according to law of such person or article. There is another mandatory provision under Section 55 of the Act. According to this section, the officer in charge of a Police Station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. The evidence in the present case shows that from the personal search of the appellant, crushed poppy heads, weighing 1.5. Kg. were recovered and taken into possession after sealing the same at the spot itself and the requirement of the officer accompanying the articles to the police station and then to affix his seal to such article, has not been complied with. As a matter of fact the intention of the Parliament was to ensure fair investigation by responsible officers and to do away with a common complaint that officials of lower ranks have started abusing their powers, especially when consistently it has been held that the testimony of a police officer is like the testimony of any other individual.

10. The Act received the assent of the President on the 16th September 1985, and was published in the Gazette of India, Extraordinary, Part II, Section 3(1), No. 75, dated September 16,1985 and this recovery took place on 29.4.1986. No doubt, according to Section 74 of the Act, every officer or other employee of the Government exercising or performing, immediately before the commencement of this Act, any powers or duties with respect to any matters, provided for in this Act, shall, on such commencement, be deemed to have been appointed under the relevant provisions of this Act to the same post and with the same designation as he was holding immediately before such commencement, but this provision is only a transitional provision and it cannot be taken advantage of for any period to the discretion of the officer, the Central Government or the State Government. The very word "transitional" used in the heading of this section leaves no doubt that this provision was meant only for a very limited period to enable the Central Government or the State Government to specially authorise officers by general or special orders at an early dale.

11. Even otherwise, Section 74 does not lay down that the mandatory provisions other than the provisions, of Section 41 and 44 of the Act can be ignored by officer with the help of Section 74. It is very clear that mandatory provisions of the Act have been ignored altogether and this has caused a material prejudice to the appellant.

12. In view of the above discussion, this appeal is accepted; conviction and sentence imposed by the trial Court are set aside and the appellant is acquitted of the charge. Fine if paid, be refunded.