Bahadur
Singh Vs. State of Haryana [2010] INSC 530 (6 April 2010)
Judgment
BAHADUR
SINGH v. STATE OF HARYANA
1.
(Special Leave Petition (Crl.) No. 5523 of 2009) APRIL 6, 2010
[Altamas Kabir and Cyriac Joseph, JJ.] 2010 (4) SCR 402 The Judgment of the
Court was delivered by ALTAMAS KABIR, J. 1. The petitioner was convicted for an
offence punishable under Section 15 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as the `NDPS Act') and was
sentenced to undergo rigorous imprisonment for a period of 12 years and to pay
a fine of Rs. One lakh and in default of payment of the same to undergo further
rigorous imprisonment for a period of three years. The allegation against the
petitioner that he had been found in possession of six bags each containing 32
kilograms of Poppy Husk without any permit or licence, was found to have been
proved by the Trial Court as well as the High Court. In order to appreciate the
submissions made by Mr. R.K. Talwar, learned counsel appearing for the
petitioner, it is necessary to set out the facts of the case in brief.
2.
On 2nd December, 1995, Gian Singh, Inspector, along with other
Police officers, was on patrol duty at the turning of Bhawani Khera on the
Thanesar-Jhansa Road. He received a secret information that the petitioner
herein, a resident of Singpura, was selling Poppy Husk in his house and the
same could be recovered in case a raid was conducted. In the meantime, one
Sukhdev Singh son of Sampuran Singh, reached the spot and he was also joined
with the Police party as an independent witness. The police party thereafter
raided the house of the petitioner, who was present, and on being interrogated
he disclosed that he had concealed six bags in a locked room under the wheat
chaff and that the key was with him. The disclosure statement made by the
petitioner was reduced into writing and the thumb impression of the petitioner
was affixed thereupon and attested by witnesses.
Thereafter,
Gian Singh sent a wireless message to the Deputy Superintendent of Police,
Kurukshetra, who rushed to the spot and in his presence the petitioner led the
police party to the room in question and opened the lock with a key which was
in his possession and from the said room six bags, each containing 32 kilograms
of Poppy Husk, were recovered from underneath the wheat chaff kept in the room.
Thereafter, as required, samples were taken out from the seized contraband and
the remaining Poppy Husk was sealed and taken into possession vide a separate recovery
memo and attested by the witnesses and the same was sent to the Police Station
along with the Ruqa on the basis whereof the First Information Report
(Exh.PB/1) was registered. A site plan was also prepared and statements were
duly recorded. After completion of investigation challan was duly filed before
the Special Court, Kurukshetra. Charge was framed against the petitioner under
Section 15 of the NDPS Act, to which he pleaded not guilty and claimed to be
tried. On the evidence adduced by the prosecution, the petitioner was found
guilty of the charged offence and was convicted and sentenced in the manner
indicated hereinbefore.
3.
Aggrieved by the judgment of conviction and sentence, the
petitioner preferred the appeal before the High Court, being Criminal Appeal
No.107-DB of 2000, which was partly allowed to the extent that the sentence of
imprisonment was reduced from 12 years to 10 years. The rest of the judgment of
the Trial Court was not disturbed.
4.
Mr. R.K. Talwar, learned Advocate, appearing for the petitioner,
assailed the judgments both of the Trial Court as well as the High Court,
mainly on two grounds. He urged that the prosecution case stood vitiated on
account of non-compliance of the provisions of Sections 42 and 57 of the NDPS
Act. He submitted that, as has been held in various decisions, the provisions
of Section 42 of the NDPS Act are mandatory and any failure by the
investigating agency to comply with the same would vitiate the investigation
and also the trial on the basis of such investigation. In that regard Mr.
Talwar referred to the decision of this Court in Directorate of Revenue and
another vs. Mohammed Nisar Holia [(2008) 2 SCC 370] in which it was, inter
alia, held that since the information as to the offence had not been reduced
into writing by the officer who received the same, but by someone later on, the
High Court had rightly set aside the conviction of the accused on the basis
that the statutory requirement of Section 42 had not been complied with. Mr.
Talwar pointed out that in the said case this Court maintained the judgment of
the High Court on the same grounds relating to non-compliance of the provisions
of Section 42 of the NDPS Act.
5.
Mr. Talwar also referred to the Constitution Bench decision of
this Court in Karnail Singh vs. State of Haryana [(2009) 8 SCC 539 ] wherein
the effect of the amendment of Section 42 with effect from 2.10.2001, relaxing
the time for sending the information from "forthwith" "within 72
hours" was considered along with the effect of the decisions rendered by
this Court in the case of Abdul Rashid Ibrahim Mansuri vs. State of Gujarat
[(2000) SCC (Cri) 496] and Sajan Abraham vs. State of Kerala [(2001) 6 SCC 692]
in the context of the advent of cellular phones and wireless phones in dealing
with emergent situations. The Constitution Bench held that whether there was
adequate or substantial compliance with Section 42 or not would have to be
decided on the facts of each case and non-compliance with Section 42 may not
otherwise vitiate the trial if it did not prejudice the accused.
6.
Mr. Talwar next submitted that even the provisions of Section 57
of the NDPS Act had not been complied with, inasmuch as, after the petitioner's
arrest the police authorities did not, within the time prescribed, make a full
report of all the particulars of such arrest and seizure to his immediate
superior. Mr. Talwar submitted that the prosecution also stood vitiated by the
aforesaid lapse.
7.
Apart from the two aforesaid points, Mr. Talwar also urged that
the petitioner had not been found to be in conscious possession of the seized
Poppy Husk and the mere fact that the bags containing the Poppy Husk were
recovered from his premises did not automatically establish "conscious
possession". Mr. Talwar submitted that, in any event, having regard to the
failure of the investigating agency in complying with the mandatory provisions
of Sections 42 and 57, the trial of the petitioner and his conviction and
sentence therein stood vitiated and the High Court erred in upholding the same.
8.
Appearing for the State of Haryana, Mr. Rao Ranjeet, learned
Advocate, while refuting the submissions of Mr. Talwar, submitted that the view
of this Court with regard to the mandatory requirement of Section 42 had to a
great extent been watered down with the advent of electronic equipment such as
wireless as also cell phones. Mr. Ranjeet submitted that even prior to such
consideration, this Court in Sajan Abraham's case (supra) had taken the view
that in an emergent situation it may not always be possible to strictly comply
with the provisions of Section 42 since the delay involved in effecting such
strict compliance could help the offender to remove the contraband or to flee
the place so as to make any raid for recovery of such contraband meaningless.
He pointed out that in Sajan Abraham's case (supra) this Court had held that it
was not possible for the officer concerned, who was on patrol duty, to comply
with the requirements of sub-sections (1) and (2) of Section 42 as the same
would have delayed the trapping of the accused which might have led to his
escape.
9.
With regard to non-compliance of Section 57 of the above Act it
was held that the same was not mandatory and that substantial compliance would
not vitiate the prosecution case, since the copies of the FIR along with other
remarks regarding the arrest of the accused and seizure of the contraband
articles had been sent by the concerned officer to his superior officer
immediately after registering the case. It was held that this amounted to
substantial compliance and mere absence of such report could not be said to
have prejudiced the accused. It was further held that since the Section was not
mandatory in nature, when there were substantial compliance, it would not
vitiate the prosecution case.
10.
Mr. Ranjeet also referred to the decision of this Court in State
of Punjab vs. Balbir Singh [(1994) 3 SCC 299] where also similar views were
expressed and such views had been relied upon by this Court in deciding Sajan
Abraham's case (supra). Mr. Ranjeet submitted that no grounds have been made
out on behalf of the petitioner warranting interference with the judgment
impugned in the Special Leave Petition.
11.
We have carefully considered the submissions made on behalf of the
respective parties and we are inclined to agree with the submissions advanced
by Mr. Rao Ranjeet appearing on behalf of the State of Haryana.
12.
It cannot but be noticed that with the advancement of technology
and the availability of high speed exchange of information, some of the
provisions of the NDPS Act, including Section 42, have to be read in the
changed context. Apart from the views expressed in Sajan Abraham's case (supra)
that the delay caused in complying with the provisions of Section 42 could
result in the escape of the offender or even removal of the contraband, there
would be substantial compliance, if the information received were subsequently
sent to the superior officer. In the instant case, as soon as the investigating
officer reached the spot, he sent a wireless message to the Deputy
Superintendent of Police, Kurukshetra, who was his immediate higher officer and
subsequent to recovery of the contraband, a Ruqa containing all the facts and
circumstances of the case was also sent to the Police Station from the spot
from where the recovery was made on the basis whereof the First Information
Report was registered and copies thereof were sent to the Ilaqa Magistrate and
also to the higher police officers. As was held by the High Court, there was,
therefore, substantial compliance with the provisions of Section 42 of the NDPS
Act and no prejudice was shown to have been caused to the accused on account of
non-reduction of secret information into writing and non-sending of the same to
the higher officer immediately thereafter.
13.
Apart from the decision in Sajan Abraham`s case (supra), the
decision of the Constitution Bench in Karnail Singh's case (supra), has also
made it clear that non-compliance with the provisions of Section 42 may not
vitiate the trial if it did not cause any prejudice to the accused.
Furthermore, whether there is adequate compliance of Section 42 or not is a
question of fact to be decided in each case.
14.
As far as compliance with the provisions of Section 57 of NDPS Act
is concerned, as has been indicated earlier, it has been held by this Court
that the same was not mandatory, and, in any event, information of the arrest
of the petitioner and seizure of the contraband had been duly reported to the
local police station on the basis of which the First Information Report had
been drawn up.
15.
As to the submissions advanced with regard to conscious possession
of the seized Poppy Husk, we are of the view that the same cannot be accepted
having particular regard to the fact that the six bags containing 32 kilograms
of Poppy Husk in each of the bags were not only recovered from the premises of
the petitioner but from a room which was opened by him with a key in his
possession.
16.
We, accordingly, find no merit in the Special Leave Petition, and
the same is dismissed.
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