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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J.
Kanishka Shekhar Singh and others - Petitioner
Vs.
State of H.P. - Respondent
Cr. Revision No. 723 of 2022
Decided On : 12-01-2024
ND&PS Act - Jurisdiction of Head Constable to carry out investigation - Section 42, H.P. Police Act - [Section 42 of the ND&PS Act, Section 78(2) of the H.P. Police Act] - The court held that the Head Constable was competent to carry out the investigation under Section 42 of the ND&PS Act. The recovery of contraband from the vehicle occupied by all the accused established joint possession. The court also emphasized that at the stage of framing the charge, the court must proceed on an assumption that the material brought on record by the prosecution is true and evaluate the said material to determine whether the facts emerging therefrom disclose the existence of all the ingredients constituting the alleged offence. The court also highlighted that the revisional court cannot sit as an appellate court and start appreciating the evidence by finding inconsistency in the statement of witnesses. The plea that there was a violation of Section 42 of the ND&PS Act due to which the charge could not have been framed was not acceptable. The judgment of the Hon’ble Supreme Court in Roy V.D. v. State of Kerala, Boota Singh v. State of Haryana, Mohinder Kumar v. State, Panaji, Goa, and Rajasthan v. Jagraj Singh did not apply to the present case. The court dismissed the petition and directed the petitioners to appear before the learned Trial Court.
Fact of the Case:
The police stopped a vehicle for checking and recovered contraband from the vehicle occupied by all the accused. The accused filed an application for discharge asserting that the Investigating Officer was not vested with the powers to carry out the investigation. The accused were aggrieved from the order passed by the learned Trial Court and filed a revision asserting that the investigation was conducted by a Head Constable who is not an authorized officer, therefore, there is a violation of Section 42 of the ND&PS Act which is fatal to the prosecution case.
Finding of the Court:
The court held that the Head Constable was competent to carry out the investigation under Section 42 of the ND&PS Act. The recovery of contraband from the vehicle occupied by all the accused established joint possession. The court also emphasized that at the stage of framing the charge, the court must proceed on an assumption that the material brought on record by the prosecution is true and evaluate the said material to determine whether the facts emerging therefrom disclose the existence of all the ingredients constituting the alleged offence. The court also highlighted that the revisional court cannot sit as an appellate court and start appreciating the evidence by finding inconsistency in the statement of witnesses.
Issues: The main issue was whether the Head Constable was competent to carry out the investigation under Section 42 of the ND&PS Act and whether there was a violation of Section 42 of the ND&PS Act due to which the charge could not have been framed.
Ratio Decidendi: The court emphasized that the Head Constable was competent to carry out the investigation under Section 42 of the ND&PS Act. The recovery of contraband from the vehicle occupied by all the accused established joint possession. The court also highlighted that at the stage of framing the charge, the court must proceed on an assumption that the material brought on record by the prosecution is true and evaluate the said material to determine whether the facts emerging therefrom disclose the existence of all the ingredients constituting the alleged offence. The court also emphasized that the revisional court cannot sit as an appellate court and start appreciating the evidence by finding inconsistency in the statement of witnesses.
Final Decision: The court dismissed the petition and directed the petitioners to appear before the learned Trial Court.
JUDGMENT :
Rakesh Kainthla, J.
A police party consisting of HC Sameer Kumar No. 46, C. Maha Chand No. 403 and HHG Anil Kumar, No. 7-2/16 were present at Rashi-Aage Jungle on 16.4.2019 at around 11.00 PM for Nakabandi and traffic checking duty. A vehicle bearing registration No. UP-63Z-0003 came from Malana at about 11:20 PM. The police stopped the vehicle for checking. Shreshta Pandey (petitioner No.5) was driving the vehicle and other petitioners were present in the vehicle. The police searched the vehicle and recovered one black bag kept underneath the driver seat containing 118 grams of charas. The police arrested the occupants, seized the charas, conducted the investigation and filed the charge sheet against the accused before the Court.
2. The petitioners-accused filed an application for discharge asserting that the Investigating Officer was not vested with the powers to carry out the investigation. The investigation could have been conducted by a Non-Gazetted Police Officer Grade-I who should be assisted by Non-Gazetted Police Officer Grade-II. The State had not framed any rules and the rules prescribed by the Central Government would apply to the present case. The entire exercise conducted by the Head Constable is without jurisdiction and the accused cannot be charged and tried for the commission of any offence. The Assistant Sub Inspector is a Non-Gazetted Police Officer in Grade I and the Head Constables are Police Officers in Grade II. In the absence of the Assistant Sub Inspector, the investigation could not have been conducted by the Head Constable. Therefore, it was prayed that the accused be discharged.
3. The application was opposed by the State by asserting that HC Sameer Kumar, who conducted the investigation, was competent to do so. There is no bar under Section 78(2) of the H.P. Police Act to the Head Constable to carry out the investigations. Provisions of Section 42 of the ND&PS Act do not apply to the present case. Therefore, it was prayed that the application be dismissed.
4. The learned Trial Court held that the Court cannot sift the evidence while framing the charge and has to proceed on the basis whether the facts taken at their face value disclose the commission of any crime or not. The Court also cannot act as the Post Office or mouthpiece of the prosecution. There was no violation of the provisions of Section 42 of the ND&PS Act. HC Sameer Kumar was competent to carry out the investigation. The recovery was effected from the vehicle, which was being occupied by all the accused and they were in possession of the contraband. Hence, the application was rejected and the charge was framed.
5. Being aggrieved from the order passed by the learned Trial Court, the present revision has been filed asserting that the petitioners No.1 to 4 are Engineering Graduates in private service. Petitioner No.5 is an Advocate and petitioner No.6 is a businessman. The search and seizure were made at night after sunset. There was a clear violation of Section 42 of the ND&PS Act. No grounds of belief were recorded as to why a search warrant or authorization could not be obtained. The search in violation of Section 42 will vitiate the whole proceedings. The Government Order No. 171002 dated 18.8.1987 is contrary to the provisions of the ND&PS Act as it supersedes the provisions of Section 42 of the ND&PS Act. The law laid down in the case of Sanjay Kumar vs. State of H.P. is not a good law. Sub Inspector is competent to carry out the investigation under the Punjab Excise Act, 1914 and Head Constable is not competent to carry out any investigation. The Head Constable and Constable can only assist the Non-Gazetted Officer Grade-I. No rules were framed by the State Government and the authorities prescribed under the Central Act can carry out the investigation. The search and seizure have to be carried out by an Officer above the rank of the Constable. The Allahabad High Court also held that the Inspector is the authorized officer for
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