Rajender Singh Vs. State
J U D G M E N T
HARJIT SINGH BEDI,J.
This appeal arises
out of the following facts.
about 4 p.m. on the 30th January 1997, PW-6 Inspector Kuldip Singh of the CIA Staff,
Hisar sent Ruqa Ex. 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 @ 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 farm house, and if raid was organized, 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. 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 farm house 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 kilograms of opium. 50 grams 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. 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 of the Cr.P.C. the appellant admitted
that he had already been convicted by the Additional Sessions Judge, Hisar on
the 15th March 1997 for having been found in possession of 14 Kilograms of Heroin,
though an appeal had been filed against the conviction. He also stated that he
was on bail in that appeal.
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 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.
Zafar Sadiqui, 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 vs. 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 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 was an additional
reason as to why the conviction could not be sustained.
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 Exhibit 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. Sadiqui.
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 authorization.
(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 authorization
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.
(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."
reading of the above said provision pre-supposes that if an authorized 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. In Karnail Singh's case,
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:
"In conclusion, what
is to be noticed is that Abdul Rashid did not require literal compliance with
the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham 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."
is therefore clear that the total non-compliance with the provisions sub-section
(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.
Dalal, the learned counsel for the respondent-State has, however, referred to
paragraph 34 of the judgment of the Constitution Bench in which general observations
have been made with regard to the provisions of Section 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 paragraph 35 and have already been re-produced by us hereinabove. Likewise,
the dispatch of a wireless message to PW-6 does not amount to compliance with Section
42(2) of the Act as held by this Court in State of Karnataka vs. Dondusa Namasa
the light of the fact what has been held above, we are not inclined to go to the
other issues raised by Mr. Sadiqui. We, accordingly allow the appeal, set aside
the judgments of the courts below and order the appellant's acquittal.
(HARJIT SINGH BEDI)
(GYAN SUDHA MISRA)
AUGUST 08, 2011