CRM-M No.747 of 2018 (OM) 1

IN THE HIGH COURT OF PUNJAB HARYANA
AT CHANDIGARH

CRM-M No.747 of 2018 (OM)

Date of Decision: June 01, 2018

Prabh Singh @ Harry Anr. …..Petitioners

Versus

State of Punjab …..Respondent

CORAM: HON’BLE MR. JUSTICE SUDIP AHLUWALIA

Present: Mr. Vipul Jindal, Advocate for the Petitioners.

Mr. Luvinder Sofat, A.A.G., Punjab.

SUDIP AHLUWALIA, J.

This is an Application filed under Section 439 of the Code of

Criminal Procedure on behalf of Petitioners seeking regular bail in FIR

No.123 dated 15.09.2017, under Sections 22, 27-A 29 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”)

registered at Police Station Moti Nagar, Ludhiana.

2. The FIR was registered on 15.09.2017 against Gurlal Singh, Gurpreet

Singh and Prabh Singh on the basis of complaint made by SI Jaspal Singh.

On 15.09.2017, SHO Jaspal Singh, P.S. Moti Nagar, Ludhiana, who along

with the Police Party in connection with Patrolling and checking of bad

elements, was present at Gate of P.S. Moti Nagar. At that time, a Secret

Informer came and gave information that Gurlal Singh who is a Drug

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Smuggler and also Proclaimed Offender alongwith his companion Gurpreet

Singh and Prabh Singh, in connivance with each other, smuggles Heroin

from Pakistan and supplies it to customers, and that those culprits also keep

with them Mobile Sim of Pakistan. It was further informed that at that time,

Gurlal Singh @ Lali, Gurpreet Singh @ Gopi and Prabh Singh were sitting

in front of Vardhman Mill in white Car bearing Registration No.PB-46-U-

4771 and if raid is conducted then heavy amount of Heroin smuggled from

Pakistan and Mobile Sim of Pakistan can be recovered. On finding the

information reliable, the present FIR was drawn up.

3. Thereafter during Nakabandi, the concerned Car was got stopped and

on checking the same, in which three men were sitting, one black polythene

from the arm rest box of Car was recovered. When the black polythene was

opened, 500 Grams Heroin was recovered. Further, Gurlal Singh and Prabh

Singh later got recovered another two Kilograms Heroin which was hidden

by them in the land of Gurmail Singh @ Gaij. Samples were sent to the

Laboratory for FSL report vide order dated 16.09.2017 by the Illaqa

Magistrate, Ludhiana. Subsequently, investigation was conducted and

challan against the accused persons has since been submitted.

4. At this stage, the Petitioners have prayed for their release on bail by

raising certain contentions, which have already been noted in the earlier

order passed on 21.5.2018, and which are again set out as below –

“(i) That there was no compliance of the mandatory provision of
Section 50 of the NDPS Act in as much as the offer of search in
pursuance of a Gazetted Officer, allegedly made by Kuldeep Singh
DSP STF, Moga was improper since he had only given option to

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the petitioners to get the car searched from “Gazetted Officer of
some other Department or Magistrate who can be called at the
spot without delay on request.” It has been further contended
relying upon the decision of the Apex Court in “State of
Rajasthan versus Parmanand and another, 2014 (85) ACrC
662” that the offer for being searched by treating the DSP, who
himself was a part of the raiding party would not meet the test of
validity as required under the statute;

(ii) That the mandatory provision required under Section 42 (1)
was also not complied in as much as substance of the secret
information was not conveyed in writing by the complainant who
happens to be an Inspector of Police, to any of his superiors, and
that mere sending of the ruqa on the basis of which FIR was
drawn up in the Police Station cannot be treated as sufficient
compliance of Section 42 in terms of the decision of the Supreme
Court in “Darshan Singh versus State of Haryana, 2016 (1)
R.C.R. (Criminal) 333” ;

(iii) That even otherwise the fact that the complainant namely,
Jaspal Singh who conducted virtually all the investigation himself
after the FIR had also been drawn up on the basis of his own
complaint, was not justified in doing so himself in view of the
decision of the Supreme Court in “State by Inspector of Police,
Narcotic Intelligence Bureau, Madurai, Tamil Nadu versus
Rajangam, 2010 (15) SCC 369″ wherein acquittal of the accused
on the same ground was upheld.”

5. The application has been opposed on behalf of the State by relying

upon the Large Bench of the Supreme Court in ‘Vijaysinh Chandubha

Jadeja Vs. State of Gujarat’ 2011(1) SCC 609, wherein it had been held –

“That the object with which right under Section 50 (1) of the
NDPS Act, by way of a safeguard, has been conferred on the
suspect, viz. to check the misuse of power, to avoid harm to
innocent persons and to minimize the allegations of planting or
foisting of false cases by the law enforcement agencies, it would

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be imperative on the part of the empowered officer to apprise the
person intended to be searched of his right to be searched before
a gazetted officer or a Magistrate. We have no hesitation in
holding that in so far as the obligation of the authorised officer
under sub-section (1) of Section 50 of the NDPS Act is concerned,
it is mandatory and requires a strict compliance. Failure to
comply with the provision would render the recovery of the illicit
article suspect and vitiate the conviction if the same is recorded
only on the basis of the recovery of the illicit article from the
person of the accused during such search. Thereafter, the suspect
may or may not choose to exercise the right provided to him
under the said provision. As observed in Re Presidential Poll,
(1974) 2 SCC 33, it is the duty of the courts to get at the real
intention of the Legislature by carefully attending to the whole
scope of the provision to be construed.”

6. Ld. counsel for the Petitioner has however, submitted that in terms of

the aforesaid Judgment, “strict compliance” of the provisions as prescribed

in the Statute has been called for in preference to “substantial compliance”.

7. At the same time however, further observations of the Apex Court in

the same referential decision also warrant attention wherein it has been

observed –

“Needless to add that the question whether or not the procedure
prescribed has been followed and the requirement of Section 50
had been met, is a matter of trial. It would neither be possible nor
feasible to lay down any absolute formula in that behalf.”

8. Now it is not at all the case that absolutely no compliance of the

provisions of Section 50 of the NDPS Act was done. On the contrary, the

submission noted in this regard is that the offer given to the Petitioners to

get the Car searched from “Gazetted Officer of some other Department or

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Magistrate who can be called at the spot without delay on request” was in

itself a defective offer and non est in the eyes of law, since the requirement

of the Statute is that the offer should be to “take such person without

unnecessary delay to the nearest Gazetted Officer of any of the Department

mentioned in Section 42 or to the nearest Magistrate” and that the

authorized officer concerned could not have added the words “other

department or Magistrate can be called at the spot without delay”. This

contention in the opinion of the Court is not convincing enough, since the

basic gist of the offer as required under law was apparently communicated

to the Petitioners, which was declined by them, and since the Supreme Court

has itself observed that it would neither be possible nor feasible to lay down

any absolute formula for determining whether or not the procedure

prescribed has been followed in terms of the requirement of Section 50,

which in itself would be a matter of trial.

9. Now on perusal of the endorsement made by the officer recording the

FIR (Annexure P-1) at the end of Column No.12 therein, it is seen that it

was specifically noted therein that the Ruqa alongwith copy of FIR was

being forwarded for spot investigation and a “Special report prepared” was

being sent through Head Constable Hazura Singh No.425/Ludhiana to the

Area Magistrate as well as “Senior Officers”, and that information is

conveyed by DCR. Needless to mention, according to Section 125 of the

Indian Evidence Act, 1872, no Police Officer can be compelled to disclose

the source of gathering any secret information, on the basis of which the

FIR/criminal proceedings are started, and Section 42(2) of the NDPS Act

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itself specifies that where the officer concerned takes down any information

in writing under Sub-Section (1) or records his beliefs thereto, he shall

within 72 hours send a copy thereof to his immediate Superior Officer. In

the present case, the officer concerned happened to be Jaspal Singh holding

the rank of a Sub Inspector, who ostensibly sent the information to the SHO

of the Police Station, who in the normal course happens to be his immediate

superior by virtue of holding an Inspector’s rank. So it cannot be said that

no compliance in terms of Section 42(2) was done at all. It has been argued

that the concerned officer-in-charge at that time happened to be one

subordinate in rank to the Authorized Officer, being an ASI. This

submission would again appear to be unconvincing, as undoubtedly in terms

of Section 2(o) of the Code of Criminal Procedure, any Police Officer above

the rank of Constable falls within the definition of “Officer-in-charge

(Station House Officer) of a Police Station” in the event of a temporary

absence or inability to perform duties by the regular SHO. It can therefore,

be safely determined that the authorized officer holding a rank of Sub

Inspector of Police had in the normal course conveyed the requisite

information in terms of Section 42(2) to his immediate superior holding an

Inspector’s rank as officer-in-charge/SHO of the Police Station, and the fact

that at the given time when such information was received, an authorized

officer though lower in rank was performing the duties due to some

temporary absence or inability of the regular SHO in terms of Section 2(o)

of the Cr.PC, there cannot be said to be any material irregularity in the

matter of compliance of Section 42(2), since in any event a “special report

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prepared” was further sent up from the Police Station to the “Superior

Officers”.

10. To counter the submission that the complainant SI Jaspal Singh who

conducted virtually all the investigation himself, ought not have done so,

Ld. counsel for the State has cited the decision in ‘Hardip Singh Vs. State

of Punjab’ 2008(4) R.C.R. (Criminal) 97 in which the Apex Court

dismissing an appeal and a similar contention was raised had observed inter-

alia –

“14. As far as the submission that as Inspector Jarnail Singh was
the complainant he should not have been made the investigating
officer is concerned we may make reference to the decision of this
Court in State v. V. Jayapaul, 2004(2) RCR(Criminal) 317 : 2004
(2) Apex Criminal 568 : [(2004) 5 SCC 223], wherein it was held
as under:

“We find no principle or binding authority to hold that the
moment the competent police officer, on the basis of
information received, makes out an FIR incorporating his
name as the informant, he forfeits his right to investigate. If at
all, such investigation could only be assailed on the ground of
bias or real likelihood of bias on the part of the investigating
officer. The question of bias would depend on the facts and
circumstances of each case and it is not proper 12 of 13 to lay
down a broad and unqualified proposition, in the manner in
which it has been done by the High Court, that whenever a
police officer proceeds to investigate after registering the FIR
on his own, the investigation would necessarily be unfair or
biased”

Concurring with the Courts below we have already held that the
version of the defense is nothing more than a got up story of his
own whims and caprices, thus in the facts and circumstances of
the present case the question of bias does not arise. Sri Jarnail

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Singh made the recoveries of the opium and seized the same and
therefore, he was rightly made the Investigating Officer in the
case. The defence case which is found to be a got up story was
sought to be made out only during the trial by which time
investigation was complete. This contention therefore is also
found to be without merit.

15. In view of the aforesaid observations and findings recorded
by us, we find no merit in the appeal, which is accordingly
dismissed. The appellant, who is in the custody, shall serve the
remaining sentence, in accordance with law.” (Emphasis added)

11. For the aforesaid reasons, in view of the classified offences of the

NDPS Act under which the challan has been submitted, and considering that

the contraband involved happens to be above the commercial quantity, this

Court is not inclined to direct release of Petitioners on bail at this stage in

view of the Statutory bar of Section 37 of the NDPS Act.

12. Dismissed.

June 01, 2018 (SUDIP AHLUWALIA)
AS JUDGE

1. Whether speaking/ reasoned : Yes/ No

2. Whether reportable : Yes/ No

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