Rajender Singh vs State Of Haryana

Rajender Singh ... ......Appellant

Versus

State of Haryana .........Respondent

J U D G M E N T

HARJIT SINGH BEDI,J.

This appeal arises out of the following facts.

1. At 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 appellant. 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.

2. Mr. 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.

3. We 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.

42(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."

4. A 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."

5. It 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.

6. Mr. 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 Baddi

(2010) 12 SCC 495.

7. In 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.

.................................J.

(HARJIT SINGH BEDI)

.................................J.

(GYAN SUDHA MISRA)

AUGUST 08, 2011

NEW DELHI.