Held:
1. When there
is total and definite non-compliance of such statutory provisions, the 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.
2. The language of Section 42 does not admit any ambiguity.
These are penal provisions and prescribe very harsh punishments for the
offender. The question of substantial compliance of these provisions would
amount to misconstruction of these relevant provisions. It is a settled canon
of interpretation that the penal provisions, particularly with harsher
punishments and with clear intendment of the legislature for definite
compliance, ought to be construed strictly. The doctrine of substantial
compliance cannot be called in aid to answer such interpretations. The
principle of substantial compliance would be applicable in the cases where the
language of the provision strictly or by necessary implication admits of such
compliance.
REPORTABLE
IN THE
SUPREME COURT OF INDIA
CRIMINAL
APPELLATE JURISDICTION
CRIMINAL
APPEAL NO. 1375 OF 2008
Kishan
Chand
... Appellant
Versus
State
of Haryana
... Respondent
J U D G M E N T; 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
Code of Criminal Procedure, 1973 (for short “CrPC”) were recorded. After completion of the
investigation at the spot, the case property was deposited with the MHC along
with the scooter and seal impressions on the same day. A report under Section
57 of the Act Ext. PG was also sent to the higher officer. After completing the
investigation, a report under Section 173 CrPC was prepared by PW7 and
submitted before the court of competent jurisdiction.
6.
The prosecution examined eight witnesses
including Shri S.K. Nagpal, Senior Scientific Officer, FSL, Madhuban. The accused
in his statement under Section 313 CrPC refuted all allegations of the
prosecution levelled against them and pleaded innocence. Accused Kishan Chand
stated that ASI Balwan Singh was resident of his village and there was a dispute
regarding land between the two families. The possession of the land had been
taken by the family of the accused from ASI Balwan Singh. Thereafter, he had
gone to see Sarpanch Bansa Singh of Village Bhoosla in connection with some
personal work and at about 4 p.m., he was going towards Village Kalar Majra and
on the way, Joginder, son of Dewa Singh met him at the Buss Adda Bhagal and
when they were taking tea in a shop, then two police officials came in a civil
dress and asked them to go to police post Bhagal as he was required by ASI
Mohinder Singh Incharge Police Post Bhagal and, thus, a false case was planted
against him.
7.
As already noticed, the Trial Court acquitted
accused Ramphal, but convicted Kishan Chand and the conviction was upheld by
the High Court giving rise to the filing of the present appeal.
8.
At this stage itself, we would like to notice
certain findings of the Trial Court which were recorded, while acquitting the accused
Ramphal and convicting accused Kishan Chand.
“33.
The learned defence counsel further argued that in the present case inspite of secret
information the information was not sent to the higher officer as required
under Section 42(2) of the NDPS Act nor the case was registered. As such, on
this sole ground, accused are entitled to acquittal. The reliance has been
placed on Beckodan Abdul Rahiman Versus
State of Kerala, 2002 (2) RCR (Criminal)-385, where in that case, police recovered
opium from accused on receipt of secret information on telephone. Information was
not reduced in writing as required under section 42 of the NDPS Act. The
conviction was set aside. The reliance was also placed on Lamin Bojang versus State of Maharashtra, 1997 (2) RCR – 294.
34.
Admittedly in the present case, the secret information was received against the
accused. The investigation officer did not reduce the secret information in
writing nor send the same to the higher officer or to the police station for registration
of the case. Non-compliance of section 42(2) is not fatal to the prosecution case
in the present case, because had the investigating officer tried to take down
the secret information in writing and send the same to the police officer in
that eventuality, there was possibility of the accused to escape as they were
to come on a scooter. The statement of investigating officer proves that after
picketing within 20 minutes, the accused appeared on the scooter. Since, there
was possibility of the accused to escape, so in such a situation, if the
investigating officer did not reduce into writing the secret information and send
the same to the superior officer, then it cannot be said that any prejudice has
been used to the accused, particularly, when the recovery has been effected in
the presence of Subhash Seoran Teshildar who is an Executive Magistrate. The
Hon’ble Supreme Court in a case Sajjan
Abraham versus State of Kerala [2001 (2) RCR (Criminal)-808], wherein it
was observed as under:-
v
“In construing any
facts to find, whether prosecution has complied with the mandate of any
provision which is mandatory, one has to examine it with pragmatic approach.
The law under the aforesaid act being stringent to the persons involved in the
field of illicit drug abuse, the legislature time and again has made some of
the provisions obligatory for the prosecution to comply, which the courts have
interpreted it to be mandatory. This is in order to balance the stringency for
an accused by casting an obligation on the prosecution for its strict
compliance. The stringency is because of the type of crime involved under it,
so that no such person escapes from the clutches of law. The court however,
while construing such provisions strictly should not interpret it so, literally
so as to render its compliance, impossible. However, before drawing such an
inference, it should be examined with caution and circumspection. In other
words, if in a case, the following of mandate strictly, results in delay in trapping
an accused, which may lead the accused to escape, then prosecution case should
not be thrown out.”
9.
The Division Bench of the High Court confirmed
the finding recorded by the Trial Court. It also recorded that the accused was
in motion at the time when the secret information was received. Since secret
information was from a reliable source, PW7 acted swiftly and arrested the
accused and under these circumstances, the secret information report was not recorded
by the investigating officer immediately nor was it sent to the superior
officer. Therefore, in these circumstances, it is to be seen whether any
prejudice was caused to the accused or not.
10. Relying upon the following paragraph of the
judgment of this Court regarding ‘substantial compliance’ in Sajan Abraham v. State of Kerala [(2001)
6 SCC 692], the High Court sustained the order of the Trial Court.
§
“6........ In
construing any facts to find, whether the prosecution has complied with the
mandate of any provision which is mandatory, one has to examine it with a pragmatic
approach. The law under the aforesaid Act being stringent to the persons involved
in the field of illicit drug traffic and drug abuse, the legislature time and
again has made some of its provisions obligatory for the prosecution to comply
with, which the courts have interpreted it to be mandatory. This is in order to
balance the stringency for an accused by casting an obligation on the prosecution
for its strict compliance. The stringency is because of the type of crime involved
under it, so that no such person escapes from the clutches of the law. The court
however while construing such provisions strictly should not interpret them so
literally so as to render their compliance, impossible. However, before drawing
such an inference, it should be examined with caution and circumspection. In
other words, if in a case, the following of a mandate strictly, results in
delay in trapping an accused, which may lead the accused to escape, then the prosecution
case should not be thrown out.”
11. While challenging the above concurrent
findings of the courts, the learned counsel appearing for the appellant has raised
the following contentions for consideration by the court.
a)
Apparently
and, in fact, admittedly there is no compliance with the provisions of
sub-sections (1) and (2) of Section 42 of the Act and they are mandatory and
not directory. Once, there is non-compliance of these mandatory provisions, the
appellant is entitled to acquittal. In this regard, the counsel for the
appellant has relied upon the judgment of this court in the case of Rajinder
Singh v. State of Haryana [(2011) 8 SCC 130] and the Constitution Bench
judgment in the case of Karnail Singh v. State of Haryana [(2009) 8 SCC 539].
b)
Once, on similar facts and evidence, and
particularly for non-production of key of the diggy of the scooter, the accused
Ramphal was acquitted, the appellant could not have been convicted by the
courts, thus, there is inbuilt contradiction in the judgments and they suffer
from error in appreciation of evidence as well as in application of law.
c)
The entire recovery is vitiated as PW5,
Subhash Seoran, Tehsildar-cum-Executive Magistrate, was never present at the
site and there was no compliance to the provisions of Section 50 of the Act as
stated. No independent witness had been associated which itself will show that
the prosecution had not been able to establish its case beyond reasonable doubt
and that the appellant had been falsely implicated in the case.
12. To the contra, the submission on behalf of the
State of Haryana is that the prosecution has been able to establish its case
beyond reasonable doubt. There had been substantial compliance to the
provisions of Section 42 of the Act. The compliance with the provisions of
Section 57 and the Report which was sent vide Ext. PG on 20th July, 2002, fully
establishes the substantial compliance to the provisions of Section 42 of the
Act. The provisions of Section 50 had also been complied with and, therefore, the contentions raised on
behalf of the appellant have no merit. On the other hand the question of falsely
implicating the appellant does not arise as the secret information was reliable
and has so been established by the prosecution evidence. The judgment under
appeal, according to the counsel for the State, does not call for any
interference.
13. First and the foremost, we will deal with the
question of non-compliance with Section 42(1) and (2) of the Act. It is necessary
for us to examine whether factually there was a compliance or non-compliance of
the said provisions and, if so, to what effect. In this regard, there can be no
better evidence than the statement of Investigating Officer PW7 himself. PW7, Kaptan
Singh in his statement while referring to the story of the prosecution as
noticed above, does not state in examination-in-chief that he had made the
report immediately upon receiving the secret information and had informed his senior
officers.
14. In his examination-in-chief, such statement is
conspicuous by its very absence. On the contra, in his cross-examination by the
defence, he clearly admits as under:-
v
“....the
distance between the place of secret information and the place of recovery is
about 1½ kilometre. Secret information was not reduced into the writing so no
copy of the same was sent to the higher officer. I did not ask any witness of the
public in writing to join the raiding party”
15. The learned Trial Court in para 34 of its
judgment clearly recorded that admittedly in the present case, the secret information
was received against the accused. The Investigation Officer did not reduce the
secret information in writing nor did he send the same to the higher officer or
to the police station for registration of the case. However, stating that if
this was done, there was possibility that the accused escaped, the trial court
observed that if the Investigating Officer did not reduce into writing the
secret information and sent the same to the superior officer, then in light of
the given circumstances, it could not be said that any prejudice was caused to
the accused.
16. We are unable to contribute to this
interpretation and approach of the Trial Court and the High Court in relation to
the provisions of sub-Section (1) and (2) of Section 42 of the Act. The
language of Section 42 does not admit any ambiguity. These are penal provisions
and prescribe very harsh punishments for the offender. The question of substantial
compliance of these provisions would amount to misconstruction of these
relevant provisions. It is a settled canon of interpretation that the penal
provisions, particularly with harsher punishments and with clear intendment of
the legislature for definite compliance, ought to be construed strictly. The
doctrine of substantial compliance cannot be called in aid to answer such
interpretations. The principle of substantial compliance would be applicable in
the cases where the language of the provision strictly or by necessary implication
admits of such compliance.
17. In our considered view, this controversy is no
more res integra and stands answered
by a Constitution Bench judgment of this Court in the case of Karnail
Singh (supra). In that judgment, the Court in the very opening
paragraph noticed that in the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat
[(2000) 2 SCC 513], a three Judge Bench of the Court had held that compliance
of Section 42 of the Act is mandatory and failure to take down the information
in writing and sending the report forthwith to the immediate officer superior
may cause prejudice to the accused. However, in the case of Sajan
Abraham (supra), again a Bench of three Judges, held that this
provision is not mandatory and substantial compliance was sufficient. The Court
noticed, if there is total non-compliance of the provisions of Section 42 of
the Act, it would adversely affect the prosecution case and to that extent, it
is mandatory. But, if there is delay, whether it was undue or whether the same
was explained or not, will be a question of fact in each case. The Court in
paragraph 35 of the judgment held as under:-
Ø
35. 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.
18. Following the above judgment, a Bench of this
Court in the case of Rajinder Singh (supra) took the view that total
noncompliance of the provisions of sub-Sections (1) and (2) of Section 42 of
the Act is impermissible but delayed compliance with a satisfactory explanation
for delay can, however, be countenanced.
19. The provisions like Section 42 or 50 of the Act
are the provisions which require exact and definite compliance as opposed to
the principle of substantial compliance. The Constitution Bench in the case of Karnail
Singh (supra) carved out an exception which is not founded on
substantial compliance but is based upon delayed compliance duly explained by
definite and reliable grounds.
20. While dealing with the requirement of
complying with the provisions of Section 50 of the Act and keeping in mind its mandatory
nature, a Bench of this Court held that there is need for exact compliance
without any attribute to the element of prejudice, where there is an admitted
or apparent non-compliance. The Court in the case of State of Delhi
v. Ram Avtar alias Rama [(2011) 12 SCC 207], held as under:-
Ø
26. The High Court
while relying upon the judgment of this Court in Baldev Singh and rejecting the
theory of substantial compliance, which had been suggested in Joseph Fernandez,
found that the intimation did not satisfy the provisions of Section 50 of the
Act. The Court reasoned that the expression “duly” used in Section 50 of the
Act connotes not “substantial” but “exact and definite compliance”. Vide Ext.
PW 6/A, the appellant was informed that a gazetted officer or a Magistrate
could be arranged for taking his search, if he so required. This intimation
could not be treated as communicating to the appellant that he had a right
under law, to be searched before the said authorities. As the recovery itself
was illegal, the conviction and sentence has to be set aside.
Ø
27. It is a settled
canon of criminal jurisprudence that when a safeguard or a right is provided,
favouring the accused, compliance therewith should be strictly construed. As already
held by the Constitution Bench in Vijaysinh
Chandubha Jadeja, the theory of “substantial compliance” would not be applicable
to such situations, particularly where the punishment provided is very harsh and
is likely to cause serious prejudice against the suspect. The safeguard cannot
be treated as a formality, but it must be construed in its proper perspective,
compliance therewith must be ensured. The law has provided a right to the accused,
and makes it obligatory upon the officer concerned to make the suspect aware of
such right. The officer had prior information of the raid; thus, he was
expected to be prepared for carrying out his duties of investigation in
accordance with the provisions of Section 50 of the Act. While discharging the onus
of Section 50 of the Act, the prosecution has to establish that information
regarding the existence of such a right had been given to the suspect. If such
information is incomplete and ambiguous, then it cannot be construed to satisfy
the requirements of Section 50 of the Act. Non-compliance with the provisions
of Section 50 of the Act would cause prejudice to the accused, and, therefore,
amount to the denial of a fair trial.
21. When there is total and definite
non-compliance of such statutory provisions, the 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.
22. The purpose of these provisions is to provide
due protection to a suspect against false implication and ensure that these
provisions are strictly complied with to further the legislative mandate of
fair investigation and trial. It will be opposed to the very essence of
criminal jurisprudence, if upon apparent and admitted non-compliance of these
provisions in their entirety, the Court has to examine the element of prejudice.
The element of prejudice is of some significance where provisions are directory
or are of the nature admitting substantial compliance. Where the duty is
absolute, the element of prejudice would be of least relevancy. Absolute duty
coupled with strict compliance would rule out the element of prejudice where
there is total non-compliance of the provision.
23. Reverting to the facts of the present case, we
have already noticed that both the Trial Court and the High Court have
proceeded on the basis of substantial compliance and there being no prejudice
to the accused, though clearly recording that it was an admitted case of total
non-compliance. The statement of PW7 puts the matter beyond ambiguity that there
was ‘total non-compliance of the statutory provisions of Section 42 of the
Act’. Once, there is total non-compliance and these provisions being mandatory
in nature, the prosecution case must fail.
24. Reliance placed by the learned counsel
appearing for the State on the case of Sajan Abraham (supra) is entirely misplaced,
firstly in view of the Constitution Bench judgment of this Court in the case of
Karnail
Singh (supra). Secondly, in that case the Court was also dealing with
the application of the provisions of Section 57 of the Act which are worded
differently and have different requirements, as opposed to Sections 42 and 50
of the Act. It is not a case where any reason has come in evidence as to why
the secret information was not reduced to writing and sent to the higher
officer, which is the requirement to be adhered to ‘pre-search’. The question
of sending it immediately thereafter does not arise in the present case, as it
is an admitted position that there is total noncompliance of Section 42 of the
Act. The sending of report as required under Section 57 of the Act on 20th
July, 2000 will be no compliance, factually and/or in the eyes of law to the provisions
of Section 42 of the Act. 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 of the Act. They are neither inter-linked
nor inter-dependent so as to dispense compliance of one with the compliance of
another. In fact, they operate in different fields and at different stages.
That distinction has to be kept in mind by the courts while deciding such
cases.
25. Now, we will deal with a serious doubt that
has been pointed out on behalf of the appellant in the recovery and the very
presence of PW5, Subhash Seoran, at
the time of recovery. The prosecution has not been able to establish this aspect
of the case beyond reasonable doubt. According to PW7 after stopping the
scooter of the accused at T-Point, Theh Banehra, he had sent for PW5 who had
reached there and recovery was effected in his presence after giving option to
the accused as required under Section 50 of the Act. We do not consider it
necessary to deal with the other contentions including the plea taken with
regard to compliance of Section 50 of the Act. We would only confine ourselves
in regard to the doubt that has been created in recovery of the contraband from
the custody of the accused.
26. PW5 in his statement had categorically stated
that he had come to the site in his official jeep No. HR 09 7007 driven by DW1,
Desraj and no other person was in the jeep. He claimed to have left the spot at
about 11.15 a.m. on 19th July, 2000. The accused had contended that he was
falsely implicated, no independent witness was associated in the recovery or in
the entire investigation and lastly that no recovery was effected and even PW5
has falsely deposed before the court. To support this contention, the accused
had examined DW-1 Desraj, the driver of the car along with log book of Jeep No.
HR 09 7007. It will be interesting to note the examination in chief of this
witness.
“I have brought the Log Book of Jeep no. HR09-7007. I am
working as driver in Tehsil Office, at Guhla. In this Log Book at sr. no. 422
dated 19.7.2K, the vehicle was used by Naib Tehsildar from 12.30 P.M. to 7 P.M.
and it was used in the area of Kamehri, Baupur, Gagarpur, Harnoli, Landaheri
and the beginning of journey, the reading of speedometer was 85056 and closing of
the journey was 85173. Total numbers covered 117 kilometers. The Naib Tehsildar
was Sh. Batti Sahib, of Guhla. Except this journey, the said vehicle has not
gone anywhere. I had not gone with Sh. Subhash Seoran, the then Tehsildar at
the area of village Theh Banehra at its T-point or in that area. Copy of entry
in the Log book is Ex. D1, nor I went in this vehicle with Tehsildar Sh.
Subhash Seoran in the area of village Bhagal or at the turn of vill. Theh
Banehra. The entry of the movement of the vehicle is definitely recorded in the
Log book. It is correct that I had not gone anywhere with Tehsildar Guhla Sh. Subhash
Seoran on 19.7.2000. It is incorrect to suggest that the entries in the Log
Book has not been made correctly and that every movements of the vehicles are
not mentioned in this log book, rather it has been made later on as per
convenience of the driver. It is incorrect to suggest that on the alleged day,
i.e. 19.7.2000, the vehicle was used by the Tehsildar Sh. Subhash Seoran and I
was also with him. It is further incorrect that on 19.7.2000, I had visited the
area of village Bhagal at the turning of vill. Theh Banehra along with
Tehsildar Subhash Seoran in the aforesaid jeep.”
27. In his cross-examination, except the
suggestion that every movement of the vehicles is not entered in the log book and
that the vehicle was used by PW7 on that day, which suggestion he categorically
denied, no other question was put to this witness. One has no reason to
disbelieve the statement of DW1 particularly when he produced the log book maintained
in normal course of business. The log book showed a clear entry at serial no.
422 dated 19th July, 2000 where the vehicle in question was stated to be used
by Mr. Bhatti, Naib Tehsildar, from 12.30 p.m. to 7.00 p.m. and was driven for
117 kms. PW5, Tehsildar-cum-Executive Magistrate, in fact, did not use the
official vehicle on that day as per the log book. The witness even gave the
exact reading of the meter of the vehicle which showed that it was driven for
117 kilometers on that date by the Naib Tehsildar, not even anywhere near to the
area where the accused is alleged to have been apprehended It was also stated
that except that journey, the vehicle had gone nowhere. He specifically stated
that he had never taken PW5 to the place in question. Once, the statement of
this witness is examined with the statement of PW7, that he did not associate
any private person, independent witness in the recovery or in the entire
process of investigation and that he did not even record such a fact in this proceedings
casts a shadow of doubt over the case of the prosecution. Total non-compliance
of Section 42, noninvolvement of any independent witness at any stage of the investigation
and the presence of PW5 at the spot being so very doubtful, thus, compel this
Court to hold that the prosecution has failed to prove its case beyond
reasonable doubt.
28. As already noticed, we do not propose to
discuss other arguments raised on behalf of the appellant. We may also notice
here that both the High Court and the Trial Court have noticed the above
evidence as well as its legal position. Thus, the Trial Court as well as the
High Court has fallen in error of law as well as that of appreciation of
evidence.
29. Resultantly, the present appeal is accepted.
The accused is acquitted of the offence under Section 18 of the Act and is directed
to be set at liberty forthwith. The case property be disposed of in accordance
with the provisions of the Act.
………...….…………......................J.
(Swatanter
Kumar)
………...….…………......................J.
(Madan
B. Lokur)
New Delhi,
December 13, 2012
