Dalel
Singh Vs. State of Haryana [2009] INSC 1630 (7 October 2009)
Judgment
REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL
NO. 1034 OF 2003 DALEL SINGH ...APPELLANT VERSUS
V.S.SIRPURKAR,J.
1.
This is an appeal by the appellant-accused against his conviction
for the offence under Section 20 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (in short "NDPS Act") and the consequent
sentence of R.I. for 10 years and to pay fine of Rs. 1.5 lakhs, in default to
undergo further R.I. for one year.
2.
The prosecution story in very short conspectus is that on 4.7.1997
at about 2 p.m., Inspector Mahabir Singh along with other police officials was
present at Gubhana bus-stop where he received a secret information that the
appellant- accused was doing the business of selling charas and was keeping
charas in the courtyard of his house. On this information, Inspector Mahabir
Singh immediately informed his superior Kala Ramchandran, Additional Superintendent
of Police on wireless and the police party went to the house of the 2 accused
after joining Surajbhan, Namberdar and Chanderbhan, Chowkidar as witnesses. In
the meantime, ASP Kala Ramchandern also reached the spot and directed the
Inspector Mahabir Singh to conduct the search of the premises. The house of the
accused which was in a gher (compound) was found locked.
Ultimately,
it was the wife of the accused who brought the key of that "gher".
The "gher" had three rooms. The "gher" was opened and
searched. In the fodder room (kotha of tura ) inside the "gher", one
plastic bag was found which was opened and checked and charas weighing 6.5 kilo
gram was recovered.
The usual
investigation went on. The samples were collected and sent along with the seal;
a rukka (information) was immediately sent on the basis of which the first
information report was registered in the concerned police station. In support
of its case, prosecution examined PW6 Inspector Mahabir Singh, PW5 ASP Kala
Ramachandra apart from examining, PW1 Surajbhan, PW2 Satbir Singh, PW3
Constable Sunil Kumar and PW4 ASI Hari Singh. They were all part of the raiding
party along with Inspector Mahabir Singh. On the basis of their evidence, the
trial court convicted the accused against which there was an appeal before the
High Court. The High Court dismissed the appeal. Hence, the present appeal.
3.
Mr. Ratan Kumar Choudhary, learned counsel appearing 3 for the
appellant very painstakingly took us through the evidence of all the witnesses
and urged that this was a case where there was a total non-compliance of the
provision of Section 42 of the NDPS Act inasmuch as there was no recording of
the information prior to taking any action. Under the said Section, the
investigating officer had to record the information and send the same to the
immediate superior officer. However, that was not done either before the raid
or even thereafter. It was pointed that the said non-compliance was the breach
of a mandatory provision of the Act and as such the said non-compliance was
fatal to the prosecution case.
The other
point argued by the learned counsel is that there were discrepancies inasmuch
as the PW 6 Inspector Mahabir Singh had stated in his statement that the
recovered charas weighed 4 = kilo gram while PW1 Suraj Bhan, an independent
witness had said on oath that the recovered charas weighed only 1.5 kilo gram
while, actually it was 6.5 kilo gram which was alleged to have been recovered
from the appellant.
4.
We have seen the evidence ourselves. However, we are totally
convinced that there was undoubtedly the contraband of chars found in the house
which was described as "gher"
(compound).
Learned counsel was at pains to point out that there was no evidence collected
regarding the ownership of 4 the room from where the contraband charas was
seized. We do not think that this can be urged at this stage as both the courts
below have accepted that the house actually belonged to the accused and the
concerned room was within the "gher"
(compound)
and was in his possession. This is apart from the fact that there is no serious
cross-examination of any of the witnesses on the question of ownership of the
house. Insofar as the recovery of contraband charas is concerned, it has been
fully established that 6.5 kilo grams of charas was recovered and the samples
thereof were sent to the forensic laboratory along with the seals. The
documents like panchanama and seizure memos clearly bring out the position that
6.5. K.G. Of charas was found in the plastic bag. On that backdrop, the error
committed by witnesses could be attributed to failure of human memory which is
inconsequential. The courts below have accepted this discovery.
5.
Learned counsel for the appellant very vehemently urged that there
was total non-compliance of Section 42 of the NDPS Act. We do not think that
the accused can succeed even on this point in view of the judgment of
Constitution Bench of 2009(10) SCALE 255 wherein, in paragraph 10, it was held
as 5 under:
"In
conclusion, what is to be noticed is 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 Section 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 concerned
Register and forthwith send a copy to his immediately 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 6 the
official superior.
(c) In
other words, the compliance with the requirements of Section 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
officer 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 of requirements of sub-sections (1) and (2) of Section 42
is impermissible, delayed compliance with satisfactory explanation about the
delay will be acceptable compliance of 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 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 7 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."
6.
On this backdrop when we see the prosecution case here, it is
apparent that the information was received by PW6 Inspector Mahabir Singh when
he was not in the police station but was on patrol duty in the town. He
immediately, after receipt of the information, informed his superior officer on
wireless. There is no doubt that he did not record it in writing but passed on
it to his superior ASP Kala Ramachandran by wireless. The fact that the
superior officer was informed is deposed to by ASP Kala Ramachandran who appeared
as PW5.
7.
8 We have seen her cross-examination which really is totally
irrelevant. Similarly, we have gone through the evidence of PW6 Inspector
Mahabir Singh. Again, his cross-examination is also redundant
cross-examination. Both the witnesses have deposed about the information having
been transmitted through wireless and in our opinion would be a substantial
compliance of Section 42 of the NDPS Act since the situation was of emergency.
Had the police officer not moved right in the earnest, the appellant-accused
would have had an opportunity to remove the contraband charas and escaped from
the arms of police. Under the circumstances, we are unable to agree with the
contentions raised before us by learned counsel for the appellant. In our view,
there is no infirmity in the judgments of the courts below. The appeal, being
devoid of any merit, is dismissed.
8.
The appellant is reported to be on bail. The bail bonds are
cancelled. The appellant is directed to surrender within four weeks from today
to serve out the remaining sentence failing which non-bailable warrants shall
be issued to secure his arrest. We appreciate the sincere efforts made by Mr.
Ratan Kumar Choudhary, learned counsel appearing for the appellant to assist us
during the hearing of the matter as the learned counsel for the State of
Haryana remained absent.
.......................J. [ V.S. SIRPURKAR ]
......................J. [ DEEPAK VERMA ]
NEW DELHI
OCTOBER 7, 2009.
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