Durgo Bai & Anr Vs. State
of Punjab [2004] Insc 437 (10 August 2004)
P. Venkatarama Reddi & B.P.
Singh. P. Venkatarama Reddi, J.
The appellants herein were convicted under Section 22 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act')
and sentenced to undergo imprisonment for ten years and to pay a fine of Rs.1
lakh. The appellant in Criminal Appeal No. 1144 of 2003, namely, Phuman Singh
was also convicted under Section 307 IPC for firing a shot from his pistol at
the police party and on that count, sentenced to undergo imprisonment for four
years and to pay a fine of Rs.2,000.
The sentences were ordered to run concurrently. The trial Court however
acquitted Phuman Singh for the charge under Sections 25 and 27 of the Arms Act
on the ground that the sanction of the District Magistrate has not been duly
proved by the prosecution. Aggrieved by the same, the appellants preferred
appeals in the High Court of Punjab & Haryana.
The appeals were dismissed by the impugned judgment which is somewhat
cryptic.
The prosecution case is as follows:
During the early hours of 2nd August, 1987, Inspector Sukhdev Singh (PW1)Station
House Officer, Jalalabad P.S.
received a telephonic message from the Commandant, BSF, Jalalabad that a
special nakabandi (patrolling) has to be organized. He, along with the other
police personnel went to the BSF Headquarters and after reaching there the
Commandant deputed two Inspectors including Inspector Shivpal Singh (PW2) and
three more BSF personnel to accompany PW1 for the patrolling. The Commandant
instructed them to hold the naka at the canal bridge in the vicinity of
Machhiwara village as he had some information about smuggling. At 3.30 a.m. the patrolling party noticed two persons coming from the direction of the
village Tahliwala. When they were challenged, there was a firing from the
opposite direction aimed at the patrolling party. In self-defence, the
Inspectors (PWs 1 & 2) fired one shot each. Another Inspector also fired a
light pistol. It was then noticed that a man with a pistol and a woman were the
persons coming towards them. The patrolling party confronted them and made the
man concerned dislodge his pistol. The naka party then apprehended both of
them. First they searched Phuman Singh and found five cartridges in the left
fold of his chadar. Then one empty and four live cartridges were also found in
the chamber of the revolver thrown on the ground. Ten packets of 'brown sugar'
/ heroin were found in the bag which was slung on the left arm of Phuman Singh.
On search of the jhola (hand baggage), the other appellant Durgo Bai was
carrying ten packets of 'brown sugar' were recovered. The packets weighed one
kilogram each. The ten packets recovered from each were made into separate parcels
and the seal of PW1 was affixed thereon. A recovery memo was prepared and a
rucca was also recorded. The revolver and the cartridges were also seized. FIR
was recorded on the basis of the rucca. The seized parcels and the revolver
were deposited by PW1 with the property room of which a Head Constable was
in-charge.
He sent information to the Customs Officers. Thereupon, Inspector-Customs
(PW3) came to the police station on 3.8.1987 and took possession of 20 kgs. of
heroin contained in two bags which were handed over to him by PW1. The seals
were found to be in-tact. After weighing the packets, he took out four samples
of five grams from each packet on which the seals of PW3, BSF and police were
affixed. After leaving some of the samples with the BSF and police, PW3 sent 20
samples to the Chemical Examiner for analysis and report. Necessary
documentation, such as inventory of the goods seized, was done. The remaining
heroin was kept in the packets and sealed and thereafter, the packets were put
in a trunk on which PW3's seal was affixed and it was deposited in the police
malkhana (property room). On 12.8.1987, PW3 recorded the statements of the
witnesses and the accused were interrogated and they gave statements confessing
to the commission of crime. The Chemical Examiner, by his report dated 18.81987
(Ex.PN) noted that the 'brown powder' sent in each sample contained 'di-acetyl
morphine'. It appears that the Chemical Examiner's report was actually received
much later i.e. on 6.10.1987 as stated by PW3. The complaint was filed by
Assistant Collector of Customs, Amritsar on 19.10.1987 in the Court of the
Chief Judicial Magistrate, Ferozepur together with various documents. After
committal by the Judicial Magistrate, Ferozepur, the Additional Sessions Judge,
Ferozepur framed charges and proceeded with the trial.
The trial Court held that the recovery of heroin from the two accused
persons was proved beyond reasonable doubt and the presumption under Section 54
of the Act would come into play. The learned trial Judge also held that there
was no violation of the mandatory provisions of Sections 41, 42 & 50 of the
Act. The evidence of DW2the Sarpanch of village Tahliwala, to the effect that
the police took Durgo Baithe appellant into custody from her house on the 9th of August, 1987, was disbelieved. The learned Additional Sessions Judge convicted
and sentenced the accused as per the details already referred to.
On appeal, the High Court held that the prosecution case was fully
established by PW1 which has been corroborated by the evidence of PW2 and other
witnesses and that there was no legal flaw which vitiated the trial.
The first contention of the learned counsel for the appellants is that there
is any amount of doubt as to recovery of heroin from the accused inasmuch as
the same has not been produced before the Court even after granting opportunity
to the prosecution before arguments were commenced. It is then contended that
no evidence was let in as to how the seized packets, which were deposited in
the police property room after the samples were taken by PW3, were transferred
to Customs Division, Amritsar as mentioned in the petition dated 18.01.1988
filed in the Court by the prosecution. It is also pointed out that the identity
of the sample packets sent and the packets received by the Chemical Examiner
for analysis was not established beyond doubt. Though sample seals were
prepared, they were not sent to the Chemical Examiner. There was every
possibility of tampering.
It is conceded that none of these points were raised or argued before the
trial Court or the High Court. Even in the memorandum of SLP, no ground is
taken about non- production of case property or the custody of the goods during
the intervening period or the possibility of tampering the seals of sample
packets. Not even relevant questions were put in the cross-examination to cover
these aspects.
We cannot, for the first time, in this appeal under Article 136 of the
Constitution, go into these factual aspects especially when there is no clear pointer
one way or the other from the recorded evidence.
The next contention raised by the learned counsel for the appellants is
about the violation of the mandatory requirements of Sections 42 & 50 of
the Act. The learned counsel submits that the information about the commission
of the offence which was received by BSF Commandant and conveyed to PW1 was not
reduced into writing as required by Section 42(1) of the Act. This argument
overlooks the fact that there is nothing in the evidence on record to suggest
that prior information as contemplated by Section 42 of the Act was received by
the BSF Commandant or the Police Inspectors concerned. PW2 merely stated that
"Commandant Sharma had not given the naka party the names of the accused.
Information was that something is to be smuggled into India". Thus, check
was organized not because the Police or the BSF officials had specific
information about the offence in question or even that the heroin will be
carried or transported by someone from nearby villages. The general information
about the smuggling into India which led the Commandant to organize a nakabandi
cannot be equated to the receipt of information within the contemplation of
Section 42(1) of the Act. In any case, we need not dilate on this aspect further
as it is Section 43 that is attracted in the instant case but not Section 42.
It is not a case of entering into or searching any building, conveyance or
enclosed place.
The next argument is that Section 50 has been violated inasmuch as search
was done without adhering to the conditions laid down in the Section. This is
again based on the premise that the police officials concerned must be presumed
to have acted on the basis of definite prior information. Once this assumption
is held to be wrong, the [(1994) 3 SCC 299] gets attracted. The legal position
has been clarified thus:
"But when a police officer carrying on the investigation including
search, seizure or arrest empowered under the provisions of the CrPC comes
across a person being in possession of the narcotic drugs or psychotropic
substances then two aspects will arise. If he happens to be one of those
empowered officers under the NDPS Act also then he must follow thereafter the
provisions of the NDPS Act and continue the investigation as provided
thereunder. If on the other hand, he is not empowered then the obvious thing he
should do is that he must inform the empowered officer under the NDPS Act who
should thereafter proceed from that stage in accordance with the provisions of
the NDPS Act. But at this stage the question of resorting to Section 50 and
informing the accused person that if he so wants, he would be taken to a
Gazetted Officer and taking to Gazetted Officer thus would not arise because by
then search would have been over. As laid down in Section 50 the steps
contemplated thereunder namely informing and taking him to the Gazetted Officer
should be done before the search. When the search is already over in the usual
course of investigation under the provisions of Cr.P.C then the question of
complying with Section 50 would not arise." It was noted in the beginning
of the same paragraph that in the cases before the Court, the Police Officers
did not proceed to act under the provisions of the NDPS Act after having
necessary information or after entertaining reasonable belief as envisaged by
Section 42. It was again emphasized in paragraph 25 that if there is a chance
recovery of narcotic drug or psychotropic substance during a search in exercise
of the power under the provisions of Cr.P.C, the compliance with Section 50
does not arise.
However, the empowered officer should, from that stage, proceed to carry out
the investigation in accordance with the other provisions of NDPS Act.
The interpretation of Section 50 and the effect of failure to observe the
safeguards enshrined in Section 50 came up for consideration before a
Constitution Bench of this Court in The learned Judges, after referring
extensively to the exposition of law in Balbir Singh's case (supra), remarked
that none of the decisions of this Court after Balbir Singh have departed from
that opinion. Though the question of applicability of Section 50 in the context
of chance recovery did not directly fall for consideration in the said case,
the legal position in this regard clarified in Balbir Singh's case was
reiterated by A.S. Anand, C.J., speaking for the Constitution Bench. The
proposition was thus laid down in paragraph 12:
"On its plain reading, Section 50 would come into play only in the case
of a search of a person as distinguished from search of any premises etc.
However, if the empowered officer, without any prior information as
contemplated by Section 42 of the Act makes a search or causes arrest of a
person during the normal course of investigation into an offence or suspected
offence and on completion of that search, a contraband under the NDPS Act is
also recovered, the requirements of Section 50 of the Act are not
attracted." Again, at para 57, while summarizing the conclusions, it was
said:
"(1) That when an empowered officer or a duly authorized officer acting
on prior information is about to search a person, it is imperative for him to
inform the person concerned of his right under sub-Section (1) of Section 50 of
being taken to the nearest gazetted officer or the nearest Magistrate for
making the search. However, such information may not necessarily be in
writing." It is significant to notice that the prefatory expression
"acting on prior information" has been advisedly used in tune with
the law laid down in Balbir Singh's case.
We therefore find no substance in the contention raised by the learned
counsel for appellant in regard to violation of Section 50, even assuming that
the search of jhola involved search of person.
The last contention somewhat faintly urged was that the conviction under
Section 22 is illegal inasmuch as the article in question is not a psychotropic
substance. It is not denied that the seized substance answers the definition of
'manufactured drug' being an opium derivative containing 'di-acetyl morphine'
and therefore the appropriate Section providing for punishment is Section 21.
The punishments prescribed under Sections 21 & 22 are the same. By reason
of citation of wrong Section in the charge, we do not think that the appellants
were handicapped from meeting the case against them or otherwise suffered any
prejudice. The trial and conviction cannot therefore be set aside on this
score.
As regards the charge under Section 307 IPC against the second appellant,
the evidence of PWs 1 & 2 appears to be vague and scanty and it is not safe
to convict him on the basis of this evidence. Apart from the fact that the
lead/ empties were not recovered or attempted to be recovered, there is no
definite evidence that the accused targeted the members of the patrolling
party. The direction in which the shot from the revolver travelled and the
details relating to other logistics are not forthcoming. On the strength of the
evidence of PWs 1 & 2 it can only be said that they heard the sound of
firing and then they retaliated. There was every possibility of the accused
firing a shot aimlessly to scare away those who challenged him from a distance.
Hence he is acquitted of the charge under Section 307 IPC. Of course, his
acquittal for the offence under Section 307 does not make any difference as
regards the sentence which the appellant has been subjected to under the NDPS
Act.
Consequently, Criminal Appeal No. 1143 of 2003 is dismissed. Criminal Appeal
No. 1144 of 2003 filed by Phuman Singh is allowed to the extent of setting
aside the conviction under Section 307 IPC. Further, his conviction under
Section 22 of the NDPS Act is altered to one under Section 21 of the Act and
the sentence shall remain the same.
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