Dharminder Kumar v. State Of Punjab

Hemant Gupta, J. — This order shall dispose of four Criminal Appeals bearing Nos. 165-DB of 2002 (Dharminder Kumar v. The State of Punjab), 168-DB of 2002 (Jasbir Singh v. The State of Punjab), 176-DB of 2002 (Sokhi v. The State of Punjab) and 198-DB of 2002 (Malkiat Ram v. The State of Punjab) respectively as they arise out of the same judgment of Judicial Special Court, Nawanshahar dated 15.2.2002 whereby all the appellants were sentenced to undergo rigorous imprisonment for 15 years and a fine of Rs. One lakh each and in default to undergo further rigorous imprisonment for one year each.

2. Briefly, the prosecution case is that on 1.9.1999 at about 1.45 p.m ASI Bhag Mal was present in connection with nakabandi at canal bridge of Swajpur towards south, when he received a secret information, to the effect that Daula son of Mehanga and Sokhi son of Lehmber in possession of huge quantity of poppy husks in a D.C.M Toyata bearing No. PB-10-D-9972 and coming from village Karimpur towards canal bridge. He requested SHO and DSP Nawanshahr through wireless to reach at spot and Constable Surender Singh was sent to call public witness and also to arrange for a scale. The said vehicle coming from the village Karimpur was stopped at a short distance ahead of canal bridge. However, Daula and Sokhi who were sitting on the bag of gunny with poppy husk whom ASI Bhag Mal knows very well ran away taking the benefit of darkness. However, the driver and cleaner of the vehicle were apprehended who disclosed their names Jasbir Singh and Dharaminder Kumar respectively. Both Jasbir Singh and Dharaminder Kumar were asked whether they wanted to be searched by a Gazetted Officer or by a Magistrate. However, both of them desired not to be searched by the Gazetted Officer or by the Magistrate. Their statements Exhibits PD and PE in this respect were recorded. It has been further mentioned in the ruqa that the D.S.P could not be contacted but on the directions and in the presence of Station House Officer, ASI Bhag Mal conducted a search and recovered 30 bags of poppy husk kept, concealed beneath 15 gunny bags of Cattle Feed. In the meantime, Constable Surender Singh came along with scales, but informed that no independent witness could be arranged. The samples were drawn from all the 30 gunny bags and made into parcels and sealed with seal of SHO. The gunny bags as well as DCM Toyota were taken into possession. The ruqa was received at Police Station at 4.30 a.m and the FIR was recorded at 5.15 a.m

3. In order to substantiate its case, prosecution examined eight witnesses and produced certain documents. After evidence of the prosecution was concluded, all the incriminating circumstances were put to accused in terms of Section 313 of the Code of Criminal Procedure. The accused earlier sought production of defence evidence but none was produced. Consequently, the trial Court passed an order convicting all the accused for offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’) on account of conscious possession of 1200 kilograms of poppy husk without any permit or licence.

4. The prosecution case primarily is based on testimony of PW6. ASI Bhag Mal who had led the raiding party on 1st on September, 1999. As per the witnesses, they had put up a naka along with other police officials including ASI Baldev Singh PW8. He had reiterated the version given in the ruqa on the basis of which FIR was recorded. His version was corroborated by Surender Mohan, PW-5 and Baldev Singh PW8.

5. PW1 Mukhtiar Singh has corroborated the version of PW6 Bhag Mal ASI regarding samples being kept in sealed intact position. The said witness was posted as Moharar Head Constable of Police Station Rahan. The contraband were deposited by PW6 Bhag Mal ASI with him on 8.9.1999 The sample packets were entrusted to PW2 Constable Jaswinder Singh for depositing the same to the Chemical Examiner who has furnished its report Ex.PM finding that the samples were received in sealed intact position. The learned trial Court after considering the various contents of the case, convicted all the accused.

6. We have heard counsel for the appellants and Sh. S.S Randhawa, Deputy Advocate General, Punjab and with their assistance have gone through the record of the case.

7. The first argument of the counsel for the appellants is that there is violation of provisions of Section 42 of the Act. ASI Bhag Mal has received secret information in writing but he did not record his reasons of belief of commission of an offence nor he disclosed the said information to superior officers as contemplated under Section 42(2) of the Act. It is argued that such requirement of Section 42 of the Act are mandatory in nature, the non-compliance of which will render the prosecution vitiated.

8. Counsel for the appellants have relied upon the judgment in Beckodan Abdul Rahiman v. State Of Kerala., 2002 (2) RCR 385 to contend that since samples have been taken from conveyance on the basis of secret information, therefore, the prosecution was required to record such information in writing before searching any such conveyance. Counsel for the appellant has also relied upon Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 (1) RCR (Criminal) 611 to contend that the violation of the provisions of Section 42 of the Act, if caused prejudice to the accused will vitiate the proceedings.

9. Powers of entry, search and seizure are contained in Chapter V of the Act. The scheme of the Act contemplates two categories of situation i.e where the contrabands are found in “any building, conveyance or enclosed place” and “any public place or in transit”. For the first contingency, Section 42 of the Act is applicable whereas if any seizure is required to be made from any public place then it is Section 43 of the Act which would be applicable. Section 42 of the Act requires writing down of information if empowered officials have reason to believe from personal knowledge or information that any illegal acquired property is kept or concealed in a building, conveyance or enclosed place. For ready reference, Sections 42 and 43 of the Act reads 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 intelligence 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, 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, 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 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 casee 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.

43. Power of seizure and arrest in public place. - Any officer of any of the department mentioned in Section 42 may -

(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act 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 V-A of this Act;

(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

Explanation. - For the purpose of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.”

10. While Section 42 empowers the officers of the specified departments to carry out search, seizure and arrest in any building, conveyance or enclosed place, Section 43 deals with the similar power of seizure and arrest in public places. Powers under both these sections can be exercised if the concerned officer has reason to believe that some offence relating to narcotic drugs or psychotropic substances has been committed. Section 49 is another section in the series which empowers officers to stop and search animals and conveyance used for illegal transport of narcotic drugs or psychotropic substances. The words building, conveyance and enclosed place as used in Section 42 have been used for the specific purpose of protecting the persons who are living in the buildings, conveyance and enclosed place. The Legislature in its wisdom considered proper to draw a demarcating line between building, conveyance and enclosed place on one side and public place or in transit on the other side. The words have been specifically mentioned to show the demarcating line between the two otherwise, the legislature could have used any place instead of narrating the words ‘building, conveyance or enclosed place’. Even a private open place does not fall within the purview of Section 42 unless it is enclosed. So, this demarcating line will have to be kept in mind. Under Section 43 of the Act, the words used are ‘any public place or in transit’. The requirement of recording of information in writing and communicating it to superiors is intended to protect the possible harassment to residents and to maintain personal liberty and human dignity. The term conveyance used in Section 42 is to be understood as ejusdum generis to the terms building or enclosed place. It is not every conveyance whether in public or private that would fall within the scope of Section 42 of the Act. A conveyance in a public place would fall within Section 43 of the Act and Section 49 gives power to the empowered officer to stop such conveyance for the purpose of search.

11. The Constitution Bench of the Hon'ble Supreme Court in State of Punjab v. Baldev Singh, 1999 (3) RCR (Crl.) 533 (SC) : 1999 Supreme Court 237 has held that the material difference between the provisions of Section 43 and Section 42 is that Section 42 requires recording of reasons of belief and of opinion in writing with regard to commission of offence before conducting search and seizure whereas Section 43 does not contain any provision and empowers the officer under Section 43 of the Act for seizure of the ariticle etc. and arrest of the person who is then in possession of narcotic drug and psychotropic substance in a public place where such possession appears to him to be unlawful. The Division Bench of the Gujarat High Court in Surajmal Kania Lal Soni v. State Of Gujarat., 1991 Cr.CJ 1483 has considered the scope and ambit of Sections 42 and 43 of the Act. Such Division Bench has relied upon the findings recorded by earlier Division Bench and held to the following effect :—

“Section 43 gives plenary power to the officers to seize in a public place or in transit any narcotic drug or psychotropic substance and to detain and search any person, whom he has reason to believe has committed the offence. The only restriction is that such powers can be exercised by the officer of any Department mentioned in Section 42. The Police Department is specifically mentioned in Section 42 and as stated above, even under Section 42 the Police Inspector in charge of the Police Station is empowered to exercise the powers under Section 42. Police Inspector Patil was, therefore, an authorised officer to exercise the power and take action for seizure, detention, search and arrest under Section 43, NDPS Act.

In our view, therefore, the provisions of Sections 41 and 42, NDPS Act, are not applicable, but the provisions of Section 43, NDPS Act are applicable for any search and seizure of the narcotic drug in a conveyance etc. and detaining and searching any person in a public place. We are fortified, in our view, by the judgment of this Court in Aslambhai Ibrahimbhai Memon v. The State of Gujarat, Criminal Appeal No. 844 of 1988, delivered by a Division Bench of this Court, consisting of M.B Shah and B.S Kapadia, JJ. on October 5, 1989, in which the learned Brother Judges, on considering the relevant provisions of Sections 41 and 43, NDPS Act, observed :—

“Thus, the intention of the Legislature in Sections 41 and 42 is different as revealed from the language of sections as stated above from the one in Section 43 which authorises any officer of the departments mentioned in Section 42 for search, seizure, arrest and detention in any public place or in transit in respect of any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed and, alongwith such drug or substance, any animal or conveyance or article is liable to be confiscated under the Act, or any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance.

Thus, Section 42 speaks about search and seizure from any building, conveyance or enclosed place, while Section 43 speaks about the search and seizure from public place or in transit. It is important to note that the wordings of Sections 41 and 42 with regard to information taken, in writing have been deliberately omitted by the Legislature in Section 43 and in our view, that has been done so advisedly inasmuch as the Police Officer empowered under Section 42 may get information with regard to the person in any public place or in transit at the last moment and if he has to undergo the procedure of taking that information in writing and recording the reasons for his belief, possibly such information may not be useful. When that is so, any search or seizure is to be made in any public place or in a vehicle in transit or any person is to be arrested or detained from a public place, it is not intended by the Legislature to take down the said information in writing.

In view of our observations that the provisions of Section 43 NDPS Act are applicable and the provisions of Sections 41 and 42 are not applicable to the facts of the instant case, and that the provisions of Section 43 NDPS Act, are not violated, it is not necessary for us to refer to certain judgments by the High Courts on the point. We shall, however, refer some of them as they are cited at Bar.”

12. It may be mentioned that the appeal against the said judgment was dismissed by Hon'ble the Supreme Court in judgment reported as Surajmal Kania Lal Soni v. State Of Gujarat., 1994 (3) RCR (Crl.) 138 (SC) : 1994 Supp. (2) Supreme Court Cases 276 where challenge in appeal regarding the compliance of Section 50 of the Act was made but found no favour with the Hon'ble Supreme Court.

13. The distinction between scope of Sections 42 and 43 of the Act has also been considered by the Rajasthan High Court in Deep Chand v. State of Rajasthan, 1996 Crl. L.J 54. In the said case the conveyance was searched in the street which is a public place and the provision of Section 42 of the Act was found not applicable to such a situation. Kerala High Court has examined this issue in Abdul Azeez v. State of Kerala, 2001 (3) RCR (Criminal) 740 and in Palayan v. State of Kerala, 2002 (2) RCR (Criminal) 857 that under Section 43 of the Act, the empowering Officer has power to seize the articles and arrest of the person who is found to be in possession of narcotic drugs and psychotropic substance in a public place where such possession appeared to be unlawful. The High Court concluded it in paras 10 and 16 of the judgment which reads as under :—

“10. The said decision, according to me, contains clear and categoric declaration of law that the provisions of Section 42(2) will apply only to the case of information relating to the availability of the contraband in a ‘building, conveyance or enclosed place’ and that the said provisions will not have any application in a case of information relating to possession of contraband by any person as available in a public place.

16. In the circumstances, I am not persuaded to extend the benefit of non-compliance with Section 42(2) of the NDPS Act and to acquit the accused merely based on the two decisions of the learned Single Judges of this Court. On the basis of the provision of Sections 42(1), 42(2) and 43 of the NDPS Act as also on the basis of the decisions in Baldev Singh, Balbir Singh and Abdul Rashid Ibrahim Mansuri, I am of the humble view that Section 42(2) of the NDPS Act will not apply to a case of information regarding the availability of the contraband in a public place as it happens in the present case. It follows that the accused is not entitled to get an acquittal based on alleged violation of Section 42(2) of the NDPS Act, albeit the prosecution has failed to establish that the information received by P.W.2 was recorded by him and a copy sent to the superior officer in writing before P.W.2 proceeded to the scene of occurrence.”

14. In Karnail Singh v. State Of Rajasthan., 2000 (4) RCR (Crl.) 171 (SC) : 2000 (7) SCC 632, the Hon'ble Supreme Court dismissed the appeal when a truck driver who was apprehended on the Kota Bundi round carrying opium in his truck. The trial Court in the said case held that the provisions of Section 42 of the Act were not applicable and under Section 43 of the Act it was not necessary for the empowered Officer to reduce in writing the reasons for suspicion before taking the actual search. The High Court also found that the provisions of Section 42 of the Act are not applicable. The Hon'ble Supreme Court considering the provisions of Sections 43 and 49 of the Act has held that the procedure prescribed under Section 49 read with Section 43 was attracted and have been found to be followed.

15. Keeping in view the said precedents, the reliance of the appellants on the two judgments of the Hon'ble Supreme Court i.e in Aslam Bhai Ibrahimbhai Menon and Abdulrasid Ibrahim Mansuri is misplaced as such judgments are clearly distinguishable and are in its own facts. In Aslam Bhai Ibrahimbhai (supra) the attention of the Court was not drawn to the provisions of Section 43 of the Act which was considered by the Hon'ble Supreme Court in earlier case i.e Karnail Singh's case (supra). Similarly in Ibrahim Mansuri case, the Court has primarily dealt with prejudice to accused on account of violation of Section 43 of the Act.

16. Thus, it is evident that if seizure is made from any animal, conveyance or article in a public place or in transit then Section 43 of the Act would be applicable. Section 43 and Section 42 of the Act operate in different spheres. Since the conveyance has been specifically included in Section 43 of the Act also, therefore, the conveyance which is found in a public place or in transit would be covered under the provisions of Section 43 of the Act whereas conveyance used in Section 42 of the Act has to be read as conveyance which is other than in a public place. This interpretation is the only harmonious interpretation of Sections 42 and 43 of the Act.

17. It is well settled principle of law that the provisions of a statute are to be construed in a harmonious manner so that each of the provisions are rendered not nugatory. By harmoniously construing Sections 42 and 43 of the Act it can be safely concluded that if a conveyance is intercepted or apprehended at a public place or in transit then the provisions of Section 42 of the Act would not be applicable.

18. In Sajjan Abraham v. State of Kerala, 2001 (3) RCR (Criminal) 808, the Hon’ ble Supreme Court has held that person involved in the field of illicit drug traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply, which the courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of law. The Court, however, while construing such provisions strictly should not interpret it so literally so as to render its compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out.

19. Even otherwise in the present case, the empowering officer has recorded his reasons of search in writing in terms of provision of Section 42(1) of the Act, when he sent ruqa for recording of FIR. Therefore, it would be an exercise of powers conferred under proviso to Section 42(1) of the Act. The matter can be looked at from another angle as well. The recovery has been made in pursuance to secret information received at 1.45 a.m i.e on the night of 1st of September, 1999. The prohibition contained in Section 42 that power of entry, search, seizure and arrest without warrant or authorisation, if made between sunrise and sunset, would result into anomalies in such situation. If as in the facts of the present case, a truck which was moving in a public road in the middle of night, search and seizure could not be made, it would imply that such vehicle be allowed to move even if it is carrying contraband. The Legislature has not contemplated such anomalies.

20. It may be mentioned that Hon'ble Supreme Court in Sajjan Abraham's case (supra) has held that provisions of Act is to be interpreted in pragmatic manner. Even if the provisions of Section 42 are held to be mandatory still unless the accused is able to show any prejudice caused on account of non-compliance of any provisions of the Act, the trial would not be vitiated. Therefore, we hold that although the provisions of Section 42 of the Act are not applicable in the present case as well as recording of ruqa itself satisfy the proviso to Section 42(1) of the Act yet keeping in view the pragmatic approach, the accused has suffered no prejudice and the trial is not vitiated in any manner, In the present case, no prejudice has been shown to have been caused to any of the accused. The plea is only for meticulous compliance of Section 42 of the Act which as submitted earlier is not applicable in the facts of the case. Since no prejudice is shown to have been caused, appellants-accused are not entitled to any benefit.

21. The other argument of the appellant that independent witness has not joined is wholly devoid of any merit. As mentioned in ruqa itself, the police has tried to associate independent witness but none has come forward. The recovery was made in the middle of night. Finding an independent witness at that time was impossible. Even otherwise the general apathy of public writ large and is well known. People do not want to come forward to join investigation for various reasons. Therefore, we do not find any illegality or irregularity in the case of prosecution simply because no independent witness has been joined.

22. The Counsel for the appellant has further argued that no notice of search in the presence of a Gazetted Officer was given to the appellant as contemplated under Section 50 of the Act. However, such argument is misconceived. The Hon'ble Supreme Court in Sarjudas and another v. State of Gujarat, 1999 (4) RCR (Crl.) 614 (SC) : 2000 SC 403 and Gurbax Singh v. State Of Haryana., 2001 (1) RCR (Crl.) 702 (SC) : 2001 SC 1002 has held that the right of accused of search in the presence of a Gazetted Officer is only when “person” of an accused is to be searched. In the present case, the contrabands have been recovered from a truck and thus search in the presence of a Gazetted Officer was not required.

23. Shri B.S Kathuria, Advocate for the appellants has argued that the appellants have been falsely implicated. The prosecution story that the appellants escaped in the cover of darkness is wholly unbelievable and is made up story. It was argued by the counsel for the appellant that the raiding party consisted of more than seven police officials and were possessed of wireless sets and vehicles apart from the fact that they were armed. Thus, it is impossible to imagine that the raiding party who possessed secret information regarding passing of vehicle, allowed the appellants-Sokhi and Malkiat Ram @ Daula to escape under the cover of darkness. It is argued that now all the appellants have bee falsely implicated by the prosecution.

24. We agree with Sh. B.S Kathuria, counsel for the appellants for Sokhi and Malkiat Ram that although it was night time yet the police was fully equipped inasmuch as they have torch, aims, wireless and vehicles apart from the fact that more than seven police officials were present at the time of naka. Therefore, we find it difficult to believe the prosecution story that the accused could escape in that situation under the cover of darkness. The said accused are entitled to benefit of doubt as there is nothing on record to link said appellants with the poppy husk being carried in truck. Consequently, the said appellants Malkiat Ram @ Daula and Sokhi are entitled to benefit of doubt.

25. For the reasons mentioned above, Criminal appeal Nos. 176-DB of 2002 and 198-DB of 2002 is accepted. Accused Malkiat Ram @ Daula and Sokhi are acquitted of charge giving them benefit of doubt. However, accused-Jasbir Singh and Dharminder Kumar were apprehended at the spot and were found in possession of 1200 kilograms of poppy husk. We find that the finding recorded by the trial Court holding appellants Jasbir Singh and Dharaminder Kumar of offences suffers from no material irregularity and illegality. Thus, we affirm the conviction of Jasbir Singh and Dharminder Kumar for offence under Section 15 of the Act. However, keeping in view the ages of the appellants, we deem it proper to reduce the sentence to 10 years rigorous imprisonment and fine of Rs. One lakh and in default of payment of fine the rigorous imprisonment for a period of one year. With this modification, Crl. Appeal Nos. 165-DB of 2002 and 168-DB of 2002 are dismissed. Let the information of this judgment be given to the Chief Judicial Magistrate and the Jail authorities.

Appeals dismissed.