Rajinder Singh v. State Of Haryana .

H.S Bedi, J.— This appeal arises out of the following facts: at about 4 p.m on 30-1-1997, PW 6, Inspector Kuldip Singh of the CIA Staff, Hisar sent ruqa, Ext. PG to Police Station Bhuna that while he was present at the bus-adda of Village Bhuna in connection with the investigation of a case, he had received secret information that the appellant Rajinder Singh alias Chhinder, was an opium addict and also dealing in its sale, and that he had kept some opium in the shed used for storing fodder in his farmhouse, and if raid was organised, the opium could be recovered. On the basis of the aforesaid ruqa, a formal first information report was drawn up for an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called “the Act”). A wireless message was also sent to the DSP, Fatehabad, PW 5, Charanjit Singh to reach the spot.

2. The effort of the police party, however, to join some independent witnesses from the public was unsuccessful. In the meanwhile, PW 5 also reached that place and the police party made its way to the farmhouse of the appellant. The lock on the fodder room was opened after taking the key from the appellant and searched, which led to the recovery of 3.500 kg of opium. 50 gm was taken out for sampling and the remainder of the opium was sealed. The appellant was also arrested by the DSP and after completion of the investigation, was charged under Section 18 of the Act and was accordingly brought to trial.

3. The prosecution placed almost exclusive reliance on the statements of PW 5 Charanjit Singh, DSP and PW 6 Kuldip Singh, Inspector as also the recovery of the opium from the residence of the appellant. In his statement under Section 313 CrPC the appellant admitted that he had already been convicted by the Additional Sessions Judge, Hisar on 15-3-1997 for having been found in possession of 14 kg of heroin, though an appeal had been filed against the conviction. He also stated that he was on bail in that appeal.

4. The trial court relying on the aforesaid evidence and circumstances held that the case against the appellant had been proved beyond doubt and merely because no independent witness had been associated with the proceedings, could not be taken against the prosecution as an effort had been made to associate some witness, but no one agreed to the police request. The court also found that the provisions of Sections 52, 55 and 57 of the Act had been complied with and no prejudice could, therefore, be claimed by the appellant.

5. The trial court further observed that it was clear from the evidence of PWs 5 and 6 that the provisions of Section 42 of the Act had been complied with as the secret information received by PW 6 had been recorded by him in a ruqa which had been sent to the police station for registration of a FIR and that he had also informed PW 5 on wireless about the information received by him on which the latter had reached the place of search and seizure. The trial court further noted that as the appellant was a previous convict, a lenient view could not be taken in his case. He was accordingly sentenced to undergo 20 years' RI and to pay a fine of Rs 2,00,000 and in default of payment of fine to undergo RI for 2 years. The judgment of the trial court had been confirmed in appeal by the High Court leading to the present proceedings before us.

6. Mr Zafar Sadique, the learned counsel for the appellant, has made four submissions during the course of the hearing. He has first submitted that as the provisions of Section 42(2) of the Act had not been complied with, the conviction of the appellant could not be sustained in the light of the judgment of the Constitution Bench of this Court in Karnail Singh v. State of Haryana (2009) 8 SCC 539. He has further submitted that no serious effort had been made to associate an independent witness with the search and seizure and that the link evidence in the case was also missing as the malkhana register pertaining to the recovered opium that was deposited, had not been produced as evidence. He has finally submitted that as the provisions of Sections 52, 55 and 57 of the Act had not been complied with there was an additional reason as to why the conviction could not be sustained.

7. Mr Manjit Dalal, the learned counsel for the State of Haryana, has however supported the judgments of the courts below and has pointed out that the ruqa, Ext. PA had been sent to the police station for the registration of the FIR and the fact that information had been conveyed on the wireless to DSP Charanjit Singh was sufficient compliance with the provisions of Section 42(2) of the Act. He has also controverted the other submissions made by Mr Sadique.

8. We have heard the learned counsel for the parties and gone through the judgment impugned. To our mind, the entire controversy hinges on Section 42 which is reproduced below:

“42. 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 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 narcotic 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 punishable 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 sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.

42. (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.”

9. A reading of the abovesaid provision presupposes that if an authorised officer has reason to believe from personal knowledge or information received by him that some person is dealing in a narcotic drug or a psychotropic substance, he should ordinarily take down the information in writing except in cases of urgency which are set out in the section itself. Section 42(2), however, which calls for interpretation in the matter before us, is however categorical that the information if taken down in writing shall be sent to the superior officer forthwith.

10. In Karnail Singh case (2009) 8 SCC 539 this Court has held that the provisions of Section 42(2) are mandatory and the essence of the provisions has been set out in the following terms:

“35. In conclusion, what is to be noticed is that Abdul Rashid (2000) 2 SCC 513 did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham (2001) 6 SCC 692 hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was 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 register concerned 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 with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with 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 of 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.”

(emphasis supplied)

11. It is therefore clear that the total non-compliance with the provisions sub-sections (1) and (2) of Section 42 is impermissible but delayed compliance with a satisfactory explanation for the delay can, however, be countenanced. We have gone through the evidence of PW 6 Kuldip Singh. He clearly admitted in his cross-examination that he had not prepared any record about the secret information received by him in writing and had not sent any such information to the higher authorities. Likewise, PW 5 DSP Charanjit Singh did not utter a single word about the receipt of any written information from his junior officer, Inspector Kuldip Singh. It is, therefore, clear that there has been complete non-compliance with the provisions of Section 42(2) of the Act which vitiates the conviction.

12. Mr Dalal, the learned counsel for the respondent State has, however, referred to para 34 of the judgment of the Constitution Bench in Karnail Singh (2009) 8 SCC 539 in which general observations have been made with regard to the provisions of Sections 41(1) and 42(2) with respect to the latest electronic technology and the possibility that the said provisions may not be entirely applicable in such a situation. Concededly the present case does not fall in this category. In any case the principles settled by the Constitution Bench are in para 35 and have already been reproduced by us hereinabove. Likewise, the dispatch of a wireless message to PW 6 (sic PW 5) does not amount to compliance with Section 42(2) of the Act as held by this Court in State of Karnataka v. Dondusa Namasa Baddi (2010) 12 SCC 495.

13. In the light of the fact what has been held above, we are not inclined to go to the other issues raised by Mr Sadique. We, accordingly allow the appeal, set aside the judgments of the courts below and order the appellant's acquittal.