TMI Blog2020 (3) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... eposition of the witnesses sufficiently proves and establishes the material fact of recovery of the incriminating articles from the conscious joint possession of all the three appellants beyond the shadow of reasonable doubt. Once the material fact of recovery of incriminating articles from the conscious possession of the appellants is proved and established by satisfactory and reliable evidence, the inconsequential infirmities and unimportant flaws in the case of prosecution tend to pale into insignificance - The learned trial Court has recorded the findings of conviction on the basis of satisfactory and reliable evidence establishing the guilt of the appellants beyond the shadow of reasonable doubt and the same does not call for any interference by this Court. Appeal dismissed. - CRA-S-1759-SB-2004 - - - Dated:- 3-3-2020 - HON'BLE MR. JUSTICE VIVEK PURI Mr. Gaurav Mohunta, Advocate and Mr. Gaurav Gogna, Advocate with Ms. Preeti Aggarwal, Advocate for the appellants Mr. Sulinder Kumar, AAG, Haryana ORDER VIVEK PURI , J . 1. The present appeal has been preferred against the judgment of conviction dated 12.08.2004 and order of sentence of even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused in the presence of ASI Jaswant Singh (PW3). The case property was retained in the malkhana by Kuldeep Singh (PW2) and Constable Gurjit Singh (PW1) took the sample parcels to the FSL. The prosecution has also produced documentary evidence to substantiate the version as put forth by it. 5. The statements of accused under Section Section 313 Cr.P.C. were recorded and they have alleged false implication. The defence version put forth by appellants-Boota Singh and Gurmohinder Singh is to the effect that they were taken from their house in the presence of Gurmail Singh. The defence version of appellant-Gurdeep Singh is to the effect that he was taken from his house by the police in the presence of Darbara Singh. 6. The appellants-accused have examined Rajbir Singh (DW1), who has deposed with regard to the registration of two other FIRs i.e. FIR No. 16 dated 07.02.2002 and FIR No. 17 dated 08.02.2002 pertaining of offence under the Act at police Station Rori. Constable Dharamvir Singh (DW4) has deposed from the log book of the vehicle of the police party. Gurmail Singh (DW2) and Sardara Singh (DW3) have testified with regard to the false implication of the accused on ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty is cast upon the Court to scrutinize the evidence with more care and caution. On the basis of this yardstick, the material on record has to be evaluated and appreciated. 13. It has been contended by the learned counsel for the appellants that the recovery has been effected from a conveyance and as such the mandatory provisions of Section 42 of the Act were required to be complied with. The information was neither reduced into writing nor sent to the senior officer and the same is fatal to the case of prosecution. In this regard, it may be mentioned here that there was a secret information that the accused were carrying narcotic substance and in the event any information had been reduced into writing, it would have consumed some time and possibility of the accused having fleeing from the spot could not be ruled out. A note of caution has been recorded in a decision reported as 2001 (3) R.C.R. (Criminal), 808, titled as Sajan Abraham versus State of Kerala and it has been held that the Court while construing the provisions strictly, should not interpret so literally to render its compliance impossible. In the event, there was possibility of the accused to escape, the case of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise. In the instant case there is no dispute that the tanker was moving on the public highway when it was stopped and searched. Section 43 therefore clearly applied to the facts of this case. Such being the factual position there was no requirement of the officer conducting the search to record the grounds of his belief as contemplated by the proviso to Section 42. Moreover it cannot be lost sight of that the Superintendent of Police was also a member of the searching party. It has been held by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re lifted from their house by the police officials in the presence of Gurmail Singh (DW2) and appellant-Gurdeep Singh was lifted in the presence of Darbara Singh. However, the name of the said witness emerges as Sardara Singh (DW3), who has deposed to the effect that Gurdeep Singh was picked up by the police from his house in his presence. Gurmail Singh (DW2) and Sardara Singh (DW3) have deposed to the effect that the accused have been falsely implicated on account of party faction in the village. It is also emerging in the statement of Gurmail Singh (DW2) that Gurmohinder Singh was falsely implicated under the influence of Gurcharan Mahant on account of political rivalry and Sardara Singh (DW3) has deposed to the effect that Gurdeep Singh accused has been falsely implicated at the instance of Balwant Singh, Lambardar due to political influence. 19. It is significant to note that such defence version has not been sought to be put forth by the appellants during the course of crossexamination of Inspector Nand Lal (PW4). He has been cross-examined on the aspect that Major Singh accused was falsely implicated at the instance of Gurcharan Mahant and significantly Major Singh has be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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