Page 1 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 31

st

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

1

Page 2 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 22

nd

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 19

th

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

2

Page 3 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.

3

Page 4 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

4

Page 5 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

5

Page 6 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

6

Page 7 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:-

“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

7

Page 8 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.

8

Page 9 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.”

9

Page 10 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.

1.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].

2.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

10

Page 11 suffer from error in appreciation of evidence as well as

in application of law.

3.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 20

th

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

11

Page 12 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:-

“....the distance between the place of secret

information and the place of recovery is about 1½

kilometre. Secret information was not reduced

12

Page 13 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

13

Page 14 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,

14

Page 15 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:-

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

15

Page 16 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

16

Page 17 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 non-

compliance 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

17

Page 18 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:-

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.

27. It is a settled canon of criminal

jurisprudence that when a safeguard or a right

18

Page 19 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.

19

Page 20 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

20

Page 21 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 non-

compliance of Section 42 of the Act. The sending of report as

required under Section 57 of the Act on 20

th

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

21

Page 22 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.

22

Page 23 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 19

th

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

23

Page 24 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 19

th

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

24

Page 25 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, non-

involvement 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.

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Page 26 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

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