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SUPREME COURT OF INDIA
SWATANTER KUMAR & MADAN B. LOKUR, JJ.
Kishan Chand
Versus
State of Haryana
CRIMINAL APPEAL NO. 1375 OF 2008
Decided on : 13-12-2012
Narcotics Drugs and Psychotropic Substances Act, 1985-Sections 42 and 50-Search, seizure and arrest-Substantial compliance-When there is total and definite non-compliance of such statutory provisions, question of prejudice loses its significance-It will per se amount to prejudice-These are indefeasible, protective rights vested in a suspect and are incapable of being shadowed on the strength of substantial compliance-It will be opposed to very essence of criminal jurisprudence, if upon apparent and admitted non-compliance of these provisions in their entirety, Court has to examine element of prejudice-Element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance-Where duty is absolute, element of prejudice would be of least relevancy-Absolute duty coupled with strict compliance would rule out element of prejudice where there is total non-compliance of provision-Accused acquitted-Appeal allowed. (Paras 21 to 29)
Narcotics Drugs and Psychotropic Substances Act, 1985-Section 18 read with Section 42, 50 and 57-Seizure of Opium-Total non-compliance of Section 42-These are separate rights and protections available to an accused and their compliance has to be done in accordance with the provisions of Sections 42, 50 and 57-They are neither inter-linked nor inter-dependent so as to dispense compliance of one with the compliance of another-They operate in different fields and at different stages-Once there is total non-compliance and these provisions being mandatory in nature, prosecution case must fail-Accused acquitted-Appeal allowed. (Paras 23 to 29)
[(2001)6 SCC 692]; [(2009)8 SCC 539]-Distinguished.
[(2011)8 SCC 130]; [(2000)2 SCC 513]; [(2011)12 SCC 207-Relied.
Key Points: - Trial Court convicted accused Kishan Chand under Section 18 of NDPS Act for 10 years RI and fine, acquitted co-accused Ramphal; High Court affirmed conviction (!) [1000521840001] - Secret information received by SI Kaptan Singh (PW7) about accused smuggling opium on scooter; nakabandi set up, scooter stopped, notice under Section 50 given, accused opted for Gazetted Officer search, Tehsildar PW5 called, 3.8 kg opium recovered from tool box [1000521840002][1000521840003] - PW7 admitted secret information not reduced to writing or sent to superior officer, distance to recovery site 1.5 km, no public witnesses joined [1000521840013] (!) - Trial and High Courts held non-compliance of Section 42(2) not fatal due to urgency to prevent escape and substantial compliance, relying on Sajan Abraham [(2001)6 SCC 692] (!) (!) [1000521840008] (!) - Supreme Court held Sections 42(1) and (2) mandatory, total non-compliance impermissible, no substantial compliance doctrine applies to penal provisions with harsh punishments; prejudice inherent, prosecution fails [1000521840015] (!) [1000521840020][1000521840022] - Distinguished Sajan Abraham, relied on Karnail Singh Constitution Bench: immediate recording and sending copy required unless emergent situation with delayed compliance explained; here total non-compliance [1000521840016] (!) (!) (!) (!) (!) - Sections 42, 50, 57 independent, operate at different stages, compliance not inter-dependent [1000521840023] - Doubt on PW5 presence: DW1 driver testified jeep logbook shows no trip to site with PW5 on 19.7.2000, used by Naib Tehsildar elsewhere [1000521840025] (!) (!) [1000521840026] - Prosecution failed to prove case beyond reasonable doubt due to total non-compliance of Section 42, doubtful recovery, no independent witnesses; appeal allowed, accused acquitted under Section 18 [1000521840026][1000521840028]
JUDGMENT :-
Swatanter Kumar, J.
1. The Judge, Special Court, Kaithal, Haryana vide his judgment dated 31st July, 2002 rendered the judgment of conviction and passed an order of sentence under Section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) and awarded the punishment to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs. 1 lakh, and in default thereto and to further undergo rigorous imprisonment for a period of two years to accused Kishan Chand, while it acquitted the other accused Ramphal as the prosecution had failed to prove its charge against that accused.
2. Upon appeal, the judgment of the Trial Court was affirmed by the High Court as it was of the opinion that the judgment of the Trial Court did not warrant any interference. Thus, by its judgment dated 22nd April, 2008, the High Court sustained the conviction and sentence of the accused. Aggrieved from the judgment of the Division Bench of the High Court, the accused filed the present appeal.
3. Before we dwell upon the merit or otherwise of the contentions raised before us, it will be appropriate for the Court to fully narrate the facts resulting in the conviction of the appellant. On 19th July, 2000, a secret information was received by Sub-Inspector Kaptan Singh, PW7 who at the relevant time was the Station House Officer of Police Station, Cheeka and was present near the bus stand Bhagal in relation to investigation of a crime. Assistant Sub-Inspector Mohinder Singh was also present there. According to the information received the accused/appellant Kishan Chand and Ramphal, the other accused, used to smuggle opium on their Scooter No. HR 31 B 1975. On that day, they were coming on Kakrala-Kakrali Road and were on their way to Bhagal. It was further informed that upon nakabandi, they could be caught red handed and a large quantity of opium could be recovered from the scooter. Kaptan Singh, PW7, then reached T-Point, turning Theh Banehra and made the nakabandi. After 20-25 minutes, both the accused came on scooter from the side of Kakrala-Kakrali. Accused Kishan Chand was driving the scooter, whereas accused Ramphal was the pillion rider. Suspecting the presence of narcotic substance in the scooter of the accused, a notice under Section 50 of the Act, Ext. PC was given to both the accused and they were asked to get the scooter searched in the presence of a Gazetted Officer or a Magistrate. Ext. P C, was signed by both the accused which was also signed by Assistant Sub-Inspectors Manohar Lal (PW6) and Mohinder Singh. The accused vide their reply Ext. PD opted to give the search in the presence of a Gazetted Officer. Ext. PD was also signed by the witnesses in addition to the accused.
4. Thereafter, the investigating officer called for Subhash Seoran PW5, Tehsildar-cum-Executive Magistrate, Guhla on the spot, who then directed PW7 to conduct the search of the scooter. The scooter was having a Diggi (Tool box) and upon checking the same, opium was recovered which was wrapped in a polythene. From the recovered opium, 50 grams opium was separated for the purposes of sample and a separate parcel was made of the same. On weighing, the residue opium was found to be 3 kg and 750 grams. It was sealed in a separate parcel with the seals SS of Tehsildar, Subhash Seoran, PW5 and KS of the investigating officer, Kaptan Singh, PW7.
5. Kaptan Singh handed over his seal KS to ASI Manohar Lal, PW6 whereas PW5 retained his seal with him. The case property, sample parcel, specimen seal impressions were taken into custody by recovery memo Ext. PG, along with the scooter. It was attested by the Tehsildar and other witnesses. A rukka, Ext. PA was sent to the police station, where on the basis of the same, a formal First Information Report Ext. PA/1 was recorded. Rough site plan, Ext. PF was also prepared by the Investigating Officer. Thereafter, the accused were arrested. The statements of the witnesses under Section 161 of the
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