Himachal Pradesh High Court

State Of Himachal Pradesh vs 2. Cr.M.P.(M) No. 1479 Of 2019 on 29 July, 2024

Bench: Tarlok Singh Chauhan, Sushil Kukreja

Neutral Citation No. ( 2024:HHC:5946 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Criminal Appeal No.132 of 2019

a/w Cr.M.P(M) No. 1479 of 2019.

Reserved on: 25.07.2024.

Date of decision: 29.07.2024.

1. Criminal Appeal No.132 of 2019.

State of Himachal Pradesh ...Appellant.




    Prem Bhadur Rawat
                    r          to
                            Versus



    2. Cr.M.P.(M) No. 1479 of 2019.
                                                 ...Respondent.

    Court on its own motion                     ....Petitioner.

                            Versus



    Hira Singh                               .....Surety of
                                        respondent/accused.




    Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.

Whether approved for reporting? No

For the Appellant : Mr. Anup Rattan, Advocate General with Mr. I.N. Mehta, Mr. Yashwardhan Chauhan, Senior Additional Advocates General, Ms. Sharmila Patial, Additional Advocate General and Mr. Raj Negi, Deputy Advocate General.


    For the Respondent:       Mr. Manohar Lal Sharma, Advocate,
                              Legal  Aid    Counsel,    for  the

respondent in Cr. Appeal No. 132 of

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2019 and for surety of respondent in Cr.M.P(M) No. 1479 of 2019.

Tarlok Singh Chauhan, Judge

Criminal Appeal No.132 of 2019

Aggrieved by the acquittal of the respondent

for the offence punishable under Section 20 of the

Narcotic Drugs and Psychotropic Substances Act, 1985,

(for short, "ND&PS

Act") vide judgment

21.08.2018 passed by the learned Special Judge (I),

Shimla, H.P., the State has filed the instant appeal.

dated

2. Case of the prosecution, in a brief, is that on

09.02.2017, a police party headed by H.C. Inder Singh

No.110 along with HHC Dhani Ram and Constable

Sandeep Kumar left Police Post, Chhaila at 9.00 a.m.

and at about 11.15 a.m., when the aforesaid police

party was present at place Shakarnala, then they found

one person with a 'pithu' bag on his back coming from

Sainj side. On seeing the police party, the aforesaid

person turned back and started running towards Sainj

side. On suspicion, the person was apprehended and on

inquiry, he disclosed his name as Prem Bhadur Rawat.

In the meantime, two persons, namely, Jai Singh son of

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Sh. Sukh Lal, resident of Baldhan, Tehsil Theog, District

Shimla and Inder Chauhan, son of Sh. Relu Ram,

resident of village Kanhal, P.O. Kaidi, Tehsil Chopal,

District Shimla, H.P. were going on Sainj road. Both of

them were associated in search and recovery

proceedings.

3. It is further the case of the prosecution that

H.C. Inder Singh served a notice under Section 50 of the

Act to Prem Bhadur Rawat informing him about his legal

right to give his personal search either to the

Magistrate or a Gazetted Officer, however, he opted to

be searched by the police party present on the spot.

The police party gave their personal search to Prem

Bhadur Rawat in the presence of Jai Singh and Inder

Chauhan and no contraband was found in the

possession of the police party. The black 'pithu' bag

having marka "The North Face" was taken from Prem

Bhadur Rawat, which was having three pockets. On

opening it, black substance, wrapped with 'khakhi'

plastic tape in three packets, one packet wrapped with

pink plastic tape, were found. On opening the aforesaid

four packets, black substance in shape of sticks was

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found and on smelling and experience, it was found to

be 'charas'. H.C. Inder Singh asked HHC Dhani Ram to

bring an electronic balance from the shop of Bhopal

Singh at Sainj, who in turn, brought the same and the

recovered 'charas' was weighed with the help of

aforesaid electronic balance and on weighing, it was

found to be 2kg 70 grams. The 'charas' was put into

the same 'pithu' bag and the same was then put into a

cloth parcel, which was sealed with seal impression 'P'

at 10 places.

4 The other codal formalities like preparing of

NCB-I in triplicate and taking of sample seal etc. were

completed. The recovered contraband was taken into

possession in the presence of aforesaid independent

witnesses. The Investigating Officer H.C. Inder Singh

scribed a rukka and sent the same through HHC Dhani

Ram to police station, Theog, on the basis of which, an

FIR came to be registered there. The accused was

arrested and joined in the investigation. The

Investigating Officer recorded the statements of the

witnesses as per their versions and also made inquiry

from the accused.

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5 After completion of spot investigation, the

I.O. along with case property and other police officials

and accused came to police Station, Theog and G.D.

entry No. 026 was drawn to this effect in police station,

Theog by M.C. Ashwani Kumar. The investigating Officer

on reaching at Police Station produced the case

property along with NCB form, specimen seal

impression before SHO Sandeep Kumar for the purpose

of resealing and the SHO in turn filled NCB form-I in

triplicate and resealed the parcel with seal impression

'B' at 5 places. The specimen of seal impression 'B' was

separately taken on a piece of cloth and the SHO then

issued resealing certificate. Thereafter, the case

property was deposited with Mohar Singh and G.D.

entry No. 30 was drawn.

6 It is also the case of the prosecution that on

10.02.2017, H.C. Inder Singh himself handed over

special report to Dy. S.P. Manoj Kumar Joshi. On

10.02.2017, as per G.D. entry No. 25, H.C. Inder Singh

and S.I. Rajinder Singh had taken back the case

property from MHC Mohar Singh for the purpose of

preparation of inventory under Section 52-A of the Act.

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The case property along with the inventory was

produced before learned Judicial Magistrate 1 st Class,

Court No.5, Shimla, who in turn issued certificate under

Section 52-A(3) of the Act and during the process of

certification, photographs were also clicked and two

representative samples of 100 grams each were sealed

with seal impression of Civil Nazir Court and sample

parcels were referred as Mark S-1 and S-2.

                    r                                     The case

    property was again deposited       with MHC.            He sent

parcel mark S-1 to FSL for the purpose of chemical

analysis.

7 After conclusion of investigation, charge-

sheet was filed before the Court of learned Special

Judge-cum-Sessions Judge, Shimla on 08.05.2017

against the accused for trial and it was then that the

challan was assigned to the trial Court.

8 On finding a prima facie case, the accused

was charged for the offence punishable under Section

20 of the Act to which he pleaded not guilty and

claimed trial.

9 In order to prove its case, the prosecution

examined as many as 13 witnesses. Thereafter, on

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closure of the prosecution evidence, statement of the

accused under Section 313 Cr.P.C. was recorded in

which he denied the prosecution case and pleaded his

false implication. The accused was called upon to enter

his defence, however, he did not lead any evidence in

his defence.

10 It is vehemently argued by the learned

Senior Additional Advocate General that the findings

recorded by the learned Special Judge are absolutely

perverse and, therefore, deserve to be set aside.

11 On the other hand, learned counsel for the

respondent would argue that the findings rendered by

the learned Special Judge are based upon the evidence

that was available on record.

12 We have heard the learned counsel for the

parties and have also gone through the material

available on record.

13 At the outset, we would reiterate the

principles laid down by the Hon'ble Apex Court,

governing the scope of interference by the High Court

in an appeal filed by the State for assailing the acquittal

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of the accused, on the findings recorded by the learned

trial Court.

14 In Rajesh Prasad vs. State of Bihar and

another (2022) 3 SCC 471, a three Judge Bench of the

Hon'ble Apex Court encapsulated the legal position

governing the field after considering various earlier

judgments and held as under:-

"29. After referring to a catena of judgments,

this Court culled out the following general

principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words:

(Chandrappa v. State of Karnataka (2007) 4 SCC 415, SCC p. 432, para 42)

"42. From the above decisions, in our considered view, the following general

principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons",

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"good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are

.

not intended to curtail extensive powers of

an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate

court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the r fundamental principle of criminal jurisprudence that every person shall be

presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his

innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are

possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by

the trial court."

15 Further, in case titled as H.D. Sundara and

others vs. State of Karnataka (2023) 9 SCC 581, the

Hon'ble Apex Court summarized the principles governing

the exercise of Appellate jurisdiction, while dealing with

an appeal against acquittal under Section 378 Cr.P.C.

The relevant paragraphs No. 8 to 10 of the judgment are

reproduced as under:-

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"8. In this appeal, we are called upon to consider the legality and validity of the

.

impugned judgment rendered by the High Court

while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure,

1973 (for short, 'Cr.P.C.'). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of Cr.P.C. can be summarised

as follows:-

8.1. The acquittal of the accused further

strengthens the presumption of innocence;

8.2. The Appellate Court, while hearing an appeal against acquittal, is entitled to re-

appreciate the oral and documentary evidence;

8.3. The Appellate Court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether

the view taken by the Trial Court is a possible view which could have been taken on the basis of the evidence on record;

8.4. If the view taken is a possible view, the Appellate Court cannot overturn the order of

acquittal on the ground that another view was also possible; and

8.5. The Appellate Court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.

9. Normally, when an Appellate Court exercises appellate jurisdiction, the duty of the Appellate

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Court is to find out whether the verdict which is under challenge is correct or incorrect in law

and on facts. The Appellate Court normally

ascertains whether the decision under challenge is legal or illegal. But while dealing with an

appeal against acquittal, the Appellate Court cannot examine the impugned judgment only to find out whether the view taken was correct or incorrect. After re-appreciating the oral and

documentary evidence, the Appellate Court must first decide whether the Trial Court's view was a possible view. The Appellate Court cannot

overturn acquittal only on the ground that after

re-appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only by recording such a

conclusion an order of acquittal cannot be reversed unless the Appellate Court also

concludes that it was the only possible conclusion. Thus, the Appellate Court must see

whether the view taken by the Trial Court while acquitting an accused can be reasonably taken

on the basis of the evidence on record. If the view taken by the Trial Court is a possible view, the Appellate Court cannot interfere with the order of acquittal on the ground that another view could have been taken.

10. There is one more aspect of the matter. In many cases, the learned Trial Judge who eventually passes the order of acquittal has an

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occasion to record the oral testimony of all material witnesses. Thus, in such cases, the Trial

Court has the additional advantage of closely

observing the prosecution witnesses and their demeanour. While deciding about the reliability

of the version of prosecution witnesses, their demeanour remains in the back of the mind of the learned Trial Judge. As observed in the commentary by Sarkar on the Law of Evidence,

the demeanour of a witness frequently furnishes a clue to the weight of his testimony. This aspect has to be borne in mind while dealing with an

appeal against acquittal."

16 Thus, it is beyond the pale of doubt that the

scope of interference by an Appellate Court for reversing

the judgment of acquittal rendered by the learned trial

Court has to be exercised within the four-corners of the

following principles:-

a) That the judgment of acquittal suffers from patent perversity;

b) That the same is based on misreading/omission to consider material evidence on record;

c) That no two views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.

d) The Appellate Court in order to interference with the judgment of acquittal would have to record pertinent findings on the above factors, if it is

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inclined to reverse the judgment of acquittal rendered by the trial Court."

17 Equally settled is the proposition that it is

not the duty of the Appellate Court when it agrees with

the view of the trial Court on the evidence to repeat the

narration of the evidence or to reiterate the reasons

given by the trial Court, expression of general

agreement with reasons given by the Court, the

decision of which is under appeal, would ordinarily

suffice.(Refer: Girijanandini Devi and others vs.

Bijendra Narain Choudhary AIR 1967 SC 1124).

18 Now, adverting to the findings rendered by

the learned Special Judge whereby it has found

contradictions in the statements of PW-1 Jai Singh, PW-3

HHC Dhani Ram and PW-12 HC Investigating Officer

Inder Singh regarding the question whether the police

party was patrolling on foot or having vehicle.

19 We have no hesitation to conclude that such

findings were unwarranted as these were not relevant

as the same did not by itself are not sufficient enough

to dent the case of the prosecution.

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20 Even, the other findings regarding the

Investigating Officer being the complainant and the trial

thus being vitiated are also not sustainable.

21 For, it is more than settled that unless the

action of the complainant, who also happens to be the

Investigating Officer is personally biased and prejudiced

and personally interested to get conviction of the

accused, the conviction cannot be sustained.

22 In taking this view, we are duly supported by

the judgment of the Hon'ble Supreme Court in Mukesh

Singh vs. State (Narcotic Branch of Delhi) AIR

2020 SC 4794. Therein one of the arguments raised

was that the complainant/informant and the

investigator must not be the same person as this would

be in consonance with the age-old principles of law

that "Nemo debetessejudex in causa proporiasua" (no

person can be a judge in his own cause) and that

"justice should not only be done but appears to have

been done".

23 The Hon'ble Supreme Court after taking into

consideration various judgments rendered by it both in

favour and against the propositions observed that the

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Court had declined to lay down a hard and fast rule with

regard to the said question despite taking note of the

judgments which in peculiar facts had held that the

Investigating Officer and the complainant cannot be the

same person. It shall be apt to reproduce the

observations as contained in paras 4 to 5.9 which read

as under:

"4. Shri Ajay Garg, learned Advocate appearing on behalf of Mukesh Singh has made the

following additional submissions other than the

submissions made by Shri Sushil Kumar Jain, learned counsel appearing on behalf of the accused;

4.1 Right from Bhagwan Singh (supra) till the recent judgment in the case of Varinder Kumar

(supra), this Court is of the firm view that the complainant/informant and the investigator

must not be the same person. The same is in consonance with the age-old principles of law

that "Nemo debetessejudex in causa proporiasua" (no person can be a judge in his own cause) and that "justice should not only be done but appears to have been done";

4.2 The aforesaid principles of law are touchstone of the principles of natural justice and is a useful tool to maintain free, fair and unbiased investigation and adjudication across legal systems;

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4.3 Considering the scheme of the NDPS Act, more particularly Sections 41, 42, 43, 52(3) and

53 of the Act require that the officer empowered

to raid, seize and arrest who may be the complainant shall be different from the

investigator of the case;

4.4 The criminal proceedings stand vitiated if the complainant/ informant and the investigator

of the case is the same person in view of the following reasons:

a) If the complainant/informer and the

Investigator are same persons, it will violate the principle of Rule against Bias which is a

part of Principles of Natural Justice and included in Fundamental Right enshrined in Article 14 and 21 of the Constitution of India. In this regard he is relying upon para 14, 18 and 31 of Mohan Lal (Supra).

b) In such case like NDPS where there is reverse burden of proof in sections 35, 54, 66 and 68, the burden shall be on the

prosecution to prove that no prejudice is caused to the accused in the investigation conducted by the complainant/Informer. In

this regard he is relying upon para 14 and 18 of Mohan Lal (Supra).

c) In such case, the complainant will always be interested in filing charge sheet against the accused (which is normal human behavior). He will have personal bias against the accused and there will be no objectivity in the Investigation. He is relying upon Megha Singh (Supra), Bhagwan Singh (supra), Mohan Lal (supra).

d) This Hon'ble Court has consistently considered this as a serious infraction to the guaranteed constitutional rights of accused and declared it to be the grave infirmity which reflects on the credibility of the prosecution case.

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e) Giving due weightage as observed in Mukeshsingh (supra) will have same result because if the evidence of the

Complainant/Investigating officer is

discarded, nothing remains in the prosecution case and the entire Criminal proceedings stands vitiated.

f) The Accused will be deprived of his valuable rights of cross examining the complainant/informer and the Investigation officer separately if both are same. Further, the accused will also be deprived of his valuable right of contradicting the previous

information recorded under section 154 or 155 Cr.P.C. and previous statements of the witnesses, being a police officer, complaint recorded under section 151 Cr.P.C. enjoined in section 145 and 157 of Indian Evidence

Act and proviso to section 152 Cr.P.C.

g) The meaningful reading of the scheme of NDPS Act as discussed above also indicate that the Informer/complainant/raiding officer cannot Investigate the said case.

h) There is no compulsion for the Police/any other agency to get the Investigation conducted by the complainant/informer and on the other hand it can be an easy tool of

false implication.

i) Investigating Officer could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation.

The whole bedrock of the investigation on the basis of which the appellant has been prosecuted is found be unfair and against the basic tenets of criminal jurisprudence, the conviction and sentence based on such a highly infirm investigation as aforesaid cannot be sustained in the eye of law and accordingly the whole proceedings based on such investigation as aforesaid deserve to be quashed and set aside.

5. Shri Tushar Mehta, learned Solicitor General of India has made the following submissions:

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5.1 Section 2(h) defines "investigation".

"Investigation" includes all the proceedings under the Cr.P.C. for the collection of

.

evidence conducted by a police officer or by

any person other than a magistrate who is authorised by a magistrate in this behalf. Section 2(o) defines "officer in charge of a police station" and it includes when the

officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of a constable

or, when the State Government so directs, any other police officer so present. It is submitted that under Cr.P.C., the criminal law is set into motion either under Chapter XII which relates to information to police

officers; or Chapter XV which relates to complaints to magistrates. The present

case relates to Chapter XII, Cr.P.C. where the informant of the offence is a police officer;

5.2 As per Section 154 Cr.P.C., every

information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station shall be reduced in writing by him or under his

direction, and be read over to the informant; and every such information,

whether given in writing or reduced in writing shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer

in such form as the State Government may prescribe in this behalf. As per sub-section 3 of Section 154 Cr.P.C., any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub- section 1 may send the substance of such information, in writing and by post to the Superintendent of Police concerned, who if satisfied that such information discloses the commission of a cognizable offence shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him and such officer shall have all the powers of an officer in

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charge of the police station in relation to that offence;

.

5.3 Section 156 Cr.P.C. provides that any

officer in charge of a police station may investigate a cognizable offence without an order of the magistrate. Thus, even where the FIR under Section 154 Cr.P.C. is

registered at the instance of a police officer, there is no bar under Section 156 Cr.P.C. to an officer in charge of a police station to investigate the same. Further, the competence of such investigating officer cannot be called in question in any

proceedings;

5.4 Section 157 Cr.P.C. provides that if some information received or otherwise, an officer in charge of a police station has

reason to suspect the commission of an

offence which he is empowered under Section 156 of the Code to investigate, he shall proceed in person to the spot to investigate and if necessary to take measures for the discovery and arrest of

the offender. Thus, an officer in charge of a police station who himself receives information of commission of cognizable offence is empowered to investigate the case. It is submitted that thus, under the

scheme of Cr.P.C., there is no bar on a police officer receiving information of

commission of a cognizable offence, recording the same and then investigate it;

5.5 Cr.P.C. itself has provisions for vitiation

and non-vitiation of trial if there is illegality committed by the magistrate. Section 460 of the Code enumerates that if a magistrate does any of the acts specified in the said section, which he is not empowered to, then his proceedings would not be set aside only on this ground. Section 461 of the Code enumerates that if a magistrate does any of the acts specified in the said section, which he is not empowered to, then his proceedings would be void. However, the illegalities under both these provisions are by the magistrate and not by the investigating officer;

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5.6 Section 462 of the Code provides that no finding, sentence or order of any Criminal Court shall be set aside merely on

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the ground that the inquiry, trial or other

proceedings took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.

Section 463 of the Code provides that even if there is non- compliance in recording the confession under Section 164 of the Code, even then the same may be admissible if such non-compliance has not injured the accused in his defence on the merits and

that he duly made the statement recorded, admit such statement. Section 465 of the Code provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a

Court of Appeal on account of any error, omission or irregularity in the complaint,

summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, or any error or irregularity in any sanction for the

prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. Thus, under Section 465, irregularity in other proceedings under

the Code shall not lead to reversal of conviction unless it led to failure of justice.

Irregularity in investigation would not lead to acquittal unless failure of justice is shown;

5.7 Further, illustration (e) to Section 114 of the Indian Evidence Act which permits the Court to raise a presumption that official acts have been regularly performed;

5.8 The decisions of this Court in the cases of Bhagwan Singh (supra); Megha Singh (supra); Rajangam (supra) and Mohan Lal (supra) were, as such, can be said to be on facts;

5.8.1 In the case of Bhagwan Singh (supra), the head constable who caught the accused for smuggling of grains lodged an FIR under

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Section 161 IPC for offering Rs.510/- as bribe to the head constable. The head constable himself was the complainant and the IO.

.

There were no independent witnesses in the

case. Even, this Court also commented that no effort was made by the IO to have independent witnesses. That thereafter, it

was held by this Court that the complainant himself cannot be an investigator. Therefore, the said decision can be said to be on the facts and circumstances of that case and cannot be said to be an absolute general

proposition of law that in any case the complainant cannot be the investigator and in such a case the accused is entitled to acquittal.

5.8.2 In the case of Megha Singh (supra) also,

no independent witnesses were examined. Head constable who arrested the accused with a country made pistol and cartridges lodged the complaint and he only proceeded

with the investigation. In the said case, it was found that there were discrepancies in depositions of public witnesses. Therefore,

this Court held that PW3 - Head Constable himself being a complainant ought not to have proceeded with the investigation;

5.8.3 In the case of Rajangam (supra), this Court followed its earlier judgment in the

case of Megha Singh (supra);

5.8.4 Now so far as the decision of this Court in the case of Mohan Lal (supra) is concerned, the same again came to be considered by this Court in the case of Varinder Kumar (supra) and it is specifically observed that the facts in Mohan Lal (supra) were indeed extremely telling insofar as the defaults on the part of the prosecution were concerned. It is further observed that in that background it was held that the issue could not be left to be decided on the facts of a

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case, impinging on the right of a fair trial to an accused under Article 21 of the Constitution of India. It is further observed in

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the said decision in para 11 that the

paramount consideration being to interpret the law so that it operates fairly, the facts of that case did not show any need to visualise

what all exceptions must be carved out and provided for. The attention of the Court was also not invited to the need for considering the carving out of exceptions. It is further observed that individual rights of the accused

are undoubtedly important, but equally important is the social interest for bringing the offender to book and for the system to send the right message to all in the society -

be it the law-abiding citizen or the potential

offender. It is further observed that the social interest mandates that the law laid down in Mohan Lal (supra) cannot be allowed to become a spring board by an accused for

being catapulted to acquittal, irrespective of all other considerations pursuant to an investigation and prosecution when the law in that regard was nebulous. Therefore, even as

observed by this Court in the case of Varinder Kumar (supra), the facts in the case of Mohan

Lal (supra) were glaring and on facts it was held that the accused was entitled to acquittal;

5.9 On the contrary there is a line of judgments wherein this Court held that the investigating officer and the complainant being the same person, does not vitiate the investigation. Reliance is placed upon the decisions of this Court in the cases of Sunil Kumar Banerjee v. State of West Bengal (1980) 3 SCC 304; State v. V. Jayapaul (2004) 5 SCC 223; S. Jeevantham v. State (2004) 5 SCC 230; Bhaskar Ramappa Madar v. State of Karnataka (2009) 11 SCC 690;Vinod Kumar v.

State of Punjab (2015) 3 SCC 220; and

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Surender v. State of Haryana (2016) 4 SCC

617.)

Therefore, it may be seen that this Court declined to

lay down a hard and fast rule with regard to the said question despite taking note of the judgments, which in peculiar facts, had held that the

investigating officer and the complainant cannot be the same person."

24 Even the findings regarding non-production

of seal could hardly have bearing in the instant case as

it is more than settled that simply because the seal is

not produced, the same by itself cannot be a ground for

acquittal and would have to be seen with other link

evidence in the case.

25 However, we endorse the findings regarding

non-compliance of Sections 42 and 43 of the Act. Even

though the prosecution tried to portray its case as

being one of chance recovery, however, the material on

record clearly belies such stand.

26 It has been candidly admitted by PW-12 H.C.

Inder Singh that in consent memo Ext. PW-1/A, he had

only filled up FIR number i.e. 29 with red ink

subsequently and all other contents were already

written by him on the spot.

Neutral Citation No. ( 2024:HHC:5946 )

27 Now the moot question arises that when

PW-12 had already written all the contents, except FIR,

on Ext. PW-1/A, then how he had come to know that

'charas' is going to be recovered from the respondent.

It clearly reveals and goes to show that he was having

prior information and in case of prior information,

provisions of Sections 42 and 43 of the Act had to be

complied with. r 28 As per the settled provisions of Section 42

of the Act, the police officer, by whom a secret

information has been received, is required to reduce the

same into writing and is also required to inform his

immediate superior official about the secret information

and copy thereof is required to be sent to the superior

official which admittedly has not been done in this case.

29 It is not in dispute that the secret

information received by PW-12 was neither reduced

into writing nor copy of the same was sent to the

superior official. Since, the mandatory provisions of law

have not been complied with, therefore, the respondent

is entitled to be acquitted on this ground alone.

Neutral Citation No. ( 2024:HHC:5946 )

30 As observed above, the question posed

before us is whether failure to take down the

information in writing and non-sending the same to the

superior officials would amount to violation of Section

42 of the Act. This question has now been settled by

the Constitution Bench of the Hon'ble Supreme Court in

Karnail Singh vs. State of Haryana (2009) 8 SCC

539 wherein it was observed as under:

"35. In conclusion, what is to be noticed is Abdul

Rashid Ibrahim Mansuri v. State of Gujarat (2000) 2 SCC 513 did not require literal compliance with the requirements of Sections

42(1) and 42(2) nor did Sajan Abraham v. State of Kerala (2001) 6 SCC 692 hold that the requirements of Section 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 concerned Register 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

Neutral Citation No. ( 2024:HHC:5946 )

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 .

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 of requirements of sub-sections (1) and (2)

of section 42 is impermissible, delayed compliance with satisfactory explanation

about the delay will be acceptable compliance of 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 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,

Neutral Citation No. ( 2024:HHC:5946 )

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...."

31 Since, the mandatory provisions of Sections

42 and 43 of the Act have been violated in the instant

case, therefore, we find no merit in this appeal and the

same is accordingly dismissed.

Cr.M.P(M) No. 1479 of 2019.

32 In view of dismissal of the main appeal, the

instant proceedings initiated against the surety have

been rendered infructuous and are disposed of as such.