Crl. Rev. No.1262 of 2007
Date of Decision: 19.11.2009

Salauddin       …Petitioner
Vs.
State of Haryana    …Respondent
….
CORAM: HON’BLE MR.JUSTICE RAJIVE BHALLA
****
Present: Mr. R.S. Sihota, Sr. Advocate with Mr. B.R. Rana, Advocate for the petitioner. Mr. Ajay Chaudhary, DAG, Haryana for respondent no.1.
….

RAJIVE BHALLA, J

This order shall dispose of Criminal Revision Nos.1262 of 2007 and 1830 of 2007.

The complainant and the State of Haryana have filed separate revisions challenging the order dated 3.5.2007, passed by the Additional Sessions Judge, Fast Track Court, Gurgaon, dismissing an application for taking the blood sample of the accused. Surat alias Sujja, is an accused in FIR No.318 dated 12.9.2004, registered under Sections 302/102- B/216/201/148/149 IPC and Sections 25/54/59 of the Arms Act. After his arrest the police filed an application, before the J.M.I.C. Ferozepur Jhirka for being allowed to take his blood sample. On 7.12.2004, the Surat @ Sujja made a statement before the Judicial Magistrate Ist Class, Ferozepur Jhirka that he has no objection if his blood sample is taken. The Magistrate, therefore, directed the civil Surgeon, Gurgaon to take the blood sample of the accused. Surat @ Sujja, filed Criminal Revision No.34 of 2004/2006, challenging this order. Vide order dated 3.5.2007, the revision was dismissed. It appears that when the doctor visited the jail to take a blood sample but Surat @ Sujja refused to cooperate, thus compelling the doctor to return.

The petitioner/complainant filed an application praying that the prosecution should be directed to take the blood sample of the accused by using force as prescribed by Section 53 of the Code of Criminal Procedure (hereinafter referred to as `the Code’). The trial court dismissed the application by holding that a second application, for taking a blood sample is not maintainable and even otherwise an accused cannot be forced to furnish his blood sample.

Counsel for the petitioner submits, that Section 53 of the Code, allows the use of “reasonable force” for “examination” of the person of an accused. The accused agreed and, thereafter, refused to undergo a blood test. The trial court should have, therefore, directed the Civil Surgeon, Gurgaon to use “reasonable force”, for the purpose of drawing a blood sample for the purpose of D.N.A. profiling. It is further submitted that the courts below misconstrued the prayer in the application as in essence, the prayer is to carry out the order dated 7.12.2004 in accordance with the provisions of Section 53 of the Code.

Counsel for the accused, on the other hand, submits that though he does not dispute the facts but in view of Article 20(3) and Article 21 of the Constitution, the accused cannot be forced to give a blood sample. It is argued that though Section 53 of the Code includes the taking of a blood sample within the meaning of the word “examination”, the prosecution or a medical examiner cannot be allowed to use force. It is further submitted that as the respondent had already refused to furnish his blood sample, the second application for the same purpose is not maintainable.

I have heard learned counsel for the parties and perused the orders passed by the courts below. It is not disputed that respondent no.2 voluntarily agreed to provide a blood sample but later refused to cooperate. The question that falls for adjudication is whether the prosecution can be allowed to use force to take a blood sample of an accused.

The argument against the use of force for an invasive “examination” of the person of an accused flows from Article 20(3) and Article 21 of the Constitution. Article 20(3) mandates that no person accused of an offence shall be compelled to be a witness against himself. Article 21 protects the life and personal liberty of a person and its import extends to the protection of personal privacy, except in accordance with the procedure established by law. A long line of judicial precedents have consistently held that where the intrinsic character of the evidence does not undergo a change, an order calling upon an accused to submit to a physical examination of his person would not breach the protective wall of Article 20(3) of the Constitution, as it does not fall within the mischief of the expression “to be a witness”. Evidence like finger prints, hair and skin samples, blood and semen sample, to name a few, are unvariable constants and, therefore, the calling cards of the genetic make up of a person. An order requiring an accused to undergo an “examination” would not fall within the mischief of the expression “to be a witness”. Reference in this regard would necessarily have to be made to a judgment of the Supreme Court in State of Bombay V. Kathikalu, AIR 1961 S.C. 1808, while considering the nature of an order directing an accused to furnish his specimen handwriting or finger impression, it was held as follows :-

“16. In view of these considerations, we have come to the following conclusions:-

1. An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

2. The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not ‘compulsion’.

3. ‘To be a witness’ is not equivalent to ‘furnishing evidence’ in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.

4. Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showings parts of the body by way of identification are not included in the expression ‘to be a witness’.

5. ‘To be a witness’ means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.

6. ‘To be a witness’ in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.

7. To bring the statement in question within the prohibition of Art. 20 (3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.”

As the intrinsic character of finger prints, blood samples, hair samples etc. do change even though the taking of a sample may amount to furnishing evidence in the larger sense of the expression but would not fall within the expression “to be a witness”.

In another judgement reported as Gobind V. State of M.P., (1975)2 SCC 148, while considering the necessity of surveillance and the rights available under Article 21 of the Constitution, the Hon’ble Supreme Court observed as follows :-

“Depending on the character and antecedents of the person subjected to surveillance, as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction upon the right of privacy. Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest.

Other judgements that may be referred to are Kharak Singh Vs. State of U.P. AIR 1963 S.C. 1295 and Malak Singh V. State of P unjab and Haryana , 1981(1), SCC 420.

While considering Articles 20(3) and 21 of the Constitution in the context of H.I.V. (+) patient, the Hon’ble Supreme Court in Mr.X Vs. Hospital Z, 1998(8) SCC, 296 after considering these judgements held that the right under Article 20(3) is not absolute and is subject to such action, as may be lawfully taken for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others. In Goutam Kundu Vs. State of West Bengal, AIR 1993 S.C. 2295, while considering the question whether the collection of a blood sample of a party violates Article 20(3) of the Constitution, in the context of a dispute with respect to paternity the Hon’ble Supreme Court held as follows :-

“1. That courts in India cannot order blood test as a matter of course.

2. Wherever applications are made for such prayer in order to have roving inquiry, the prayer for blood test cannot be entertained.

3. There must be a strong prima facie case in that the husband must establish non access in order to dispel the presumption arising under Section 112 of the Evidence Act.

4. The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

5. No one can be compelled to give sample of blood for analysis.”

In Sharda Vs. Dharampal, AIR 2003 SC 3450, the Hon’ble Supreme Court after considering the judgement in Gautam Kundu (supra) held as follows :-

“Gautam Kundu (supra) is, therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It having regard to the future of the child, has, of course, sounded a note of caution as regard mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child.”

After observing as above, the Hon’ble Supreme Court proceeded to review the entire law on the subject, in the context of Article 20(3) and Article 21 of the Constitution and observed as follows :-

“78. At this stage we may observe that taking of a genetic sample without consent may in some countries e.g. Canada be viewed as a violation of the persons physical integrity although the law allows such forced taking of sample. But even this practice was held to be valid when the sample is collected by a health care professional. Collecting samples from the suspects for DNA tests in some countries have not been found to be violative of right of privacy.

80. The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia….etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouse seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, themn it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase “personal liberty” this right has been read into Article 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In matters of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of the respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved.

81. If for arriving at the satisfaction of the Court and to protect the right of a party to the lis who may otherwise be found to be incapable of protecting his own interest, the Court passes an appropriate order, the question of such action being violative of Article 21 of the Constitution of India would not arise. The Court having regard to Article 21 of the Constitution of India must also see to it that the right of a person to defend himself must be adequately protected.

82. It is, however, axiomatic that a Court shall not order a roving inquiry. It must have sufficient materials before it to enable it to exercise its discretion. Exercise of such discretion would be subjected to the supervisory jurisdiction of the High Court in terms of S. 115 of the Code of Civil Procedure and/or Article 227 of the Constitution of India. Abuse of the discretionary power at the hands of a Court is not expected. The Court must arrive at a finding that the applicant has established a strong prima facie case before passing such an order. 83. If despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out. S. 114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidences in his power and possession.”

The framers of the Constitution may have intended to protect an accused against self incrimination but could not have intended to place obstacles in the way of efficient and effective investigation into a crime for bringing a criminal to justice. Articles 20(3) and 21 of the Constitution of India would admit to exceptions, as may be established by law. Section 53 of the Code, is one such exception to the rule of law enunciated by Articles 20(3) and 21 of the Constitution, as it prescribes a procedure established by law to extract evidence from the person of an accused.

Section 53 of the Code, in its present form, was enacted by the 1973 Code but by way of Act No.25 of 2005, the original explanation to Section 53 was deleted and a new explanation was added. The explanation defines the word “examination” by including the examination of blood, blood stains, semen, sputum and sweat, hair samples and finger nail clipping by use of modern and scientific technique including DNA profiling etc.

Section 53 of the Code reads as follows :-

“53. Examination of accused by medical practitioner at the request of police officer – (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of subinspector and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.”

Explanation – In this section and in sections 53-A and 54 (a) “examination” shall include the examination of blood, blood-stains, semen, swabs in case of sexual offences, sputum and sweat,hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;

(b) “registered medical practitioner” means a medical practitioner who possesses any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register.”

Section 53 of the Code, postulates that where there is reason to believe that “examination” of the person of an accused may afford evidence as to the commission of an offence, such force as may be “reasonably necessary” can be used, by a registered medical practitioner, for such an examination, acting at the request of a police officer not below the rank of Sub Inspector.

The provisions of Section 53 of the Code have been enacted, to provide a window, in the protective wall of Article 20(3) and Article 21 of the Constitution, so as to allow an invasive examination of the person of an accused, subject to certain procedural and medical safeguards. The provisions of Section 53 neither fall within the mischief of the expression “to be a witness against himself” or violate the privacy of person guaranteed by Article 21 of the Constitution. A note of caution needs to be sounded for the courts and the police. The power under Section 53 of the Code shall not be exercised mechanically but shall be based upon relevant material, sufficient for a court or a police officer to form an opinion that the “examination” of the person of an accused is imperative in order to gather evidence as to the commission of an offence. A court would, therefore, be required to satisfy itself that the request made by the prosecution under Section 53 is based upon sufficient material and is not a mere roving enquiry intended to fish for evidence as by its very nature “force” is an anathema to freedom, self incrimination and personal privacy.

The expression “reasonable force” used in Section 53 of the Code has to be read in the context of the definition of the word “investigation” as used in Section 2(h) of the Code that reads as follows:-

“(h) “Investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.”

It is, therefore, beyond doubt that where investigation involves the collection of evidence that can be gathered from the “examination” of the person of an accused, a court would be entitled to issue a direction in terms of Section 53 of the Code i.e. direct the medical officer concerned to extract a blood sample by use of such reasonable force, as may be necessary in the circumstances of a case. It would be necessary to mention here that a D.N.A. examination is a significant tool in the armoury of the investigating agency, as Section 53 of the Code permits the use of reasonable force in collecting any evidence from the person of an accused. A direction, therefore, issued by a court directing an accused to furnish his blood sample and simultaneously directing the use of a reasonable force would not violate Article 20(3) or Article 21 of the Constitution of India.

In the present case, the accused agreed to undergo a blood test but subsequently refused to allow such a test. The respondent cannot be allowed to retract from his earlier consent. The learned trial court fell into an error while dismissing the application, as in essence, the prayer was for issuance of a direction to the respondent to furnish his blood sample in accordance with his consent and did not involve the passing of a fresh order.

In view of what has been stated herein above, the revision petition is allowed. The order dated 3.5.2007 is set aside. The learned trial court shall direct the Civil Surgeon, Gurgaon, to take a blood sample of the accused and for the said purpose use such force, as may be reasonably necessary.

19.11.2009
GS

(RAJIVE BHALLA)
JUDGE

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A.K.SIKRI C.J.(Oral)

The instant petition by way of public interest litigation filed under Articles 226 of the Constitution of India seeks the following reliefs:- “i) direct the respondents that in order to ensure independence of the Armed Forces Tribunal, the functioning of the said Tribunal may be supervised by the Ministry of Law & Justice rather than being placed under the Ministry of Defence as the parent Ministry as is the case at present, in line with the directions of the Hon’ble Supreme Court in Union of India Vs. R. Gandhi since the Armed Forces Tribunal Act, 2007, nowhere grants power to the Ministry of Defence to take over the rule making powers, authority, functioning, appointments, infrastructure, manpower or administrative support of the Tribunal and the term ‘Central Government, as existing in the Act can solely mean the Ministry of Law & Justice in consonance with the above decision of the Hon’ble Supreme Court and in light of the Constitutional Allocation of Business Rules which place ‘Administration of Justice’ in the singular domain of Ministry of Law & Justice;
ii) direct the respondents to ensure processing of appointments of Judicial Members of the Tribunal in a time bound manner especially in case of the Chandigarh Bench which has the heaviest workload in the country and largest area under its jurisdiction and where only one (1) Court out of three (3) is functional and that too particularly;
iii) direct the respondents to provide proper courtesy, protection, infrastructure and security to the institution of the Tribunal, more so in light of the fact that it is performing Criminal Appellate functions besides original jurisdiction, in line with the directions of the Hon’ble Supreme Court in re; Incident Related to Criminal intimidation to Member of CAT Vs. UOI (Writ Petition (Criminal) No. 23 of 2008 decided on 25.08.2009) with a further prayer that proper facilities including accommodation may be provided to members to ensure that they are able to render service in a judicial capacity in a free, fair and fearless environment devoid of any pressures or encumbrances;
iv) direct the respondent no.1 to look into all issues raised in the instant petition by way of constitution of an independent committee to analyse and to sensitize and rein in the functioning of respondent No.2 as far as issues related to litigation involving defence personnel, disabled soldiers and widows are concerned.”
2. In nut shell, this petition seeks the following directions:-
a) the functioning of the Armed Forces Tribunal (AFT) be brought under the supervision of Ministry of Law & Justice instead of Ministry of Defence at present.
b) The appointments of judicial members of the Tribunal at the Chandigarh Bench be made immediately.
c) Proper infrastructure and security be provided to the institution of AFT and its members including facility of residential accommodation.

3. It is a matter of record that the idea of AFT initially germinated as a result of the observations of the Hon’ble Supreme Court in Lt. Col. Priti Pal Singh Bedi Vs. Union of India 1982 AIR 1413 wherein the Hon’ble Supreme Court emphasized the requirement of an independent judicial body to deal with law related to military personnel. Through the march of time and various reports of numerous committees and commissions, including the law commission, the idea culminated into the formation of the AFT through the Armed Forces Tribunal Act, 2007 (for short ‘the Act’). The cardinal principle behind all such reports and observations of the Courts and also the statement of objects and reasons was singular, that is, ‘Independence’.

4. As may be seen from the Act, Sections 1(2) and 4, the Tribunal is to be established by the Central Government, that is, the Government of India, without any mention of the Ministry that would be dealing with the establishment, functioning, infrastructure and other ancillary modalities of the said Tribunal. Needless to say, since the function of the Tribunal is purely judicial and adjudicatory, keeping in view the doctrine of separation of powers inherently ingrained in our Constitutional System, the Government per se ideally should have minimal say in the functioning of the Tribunal.

5. The Act only prescribes for the establishment of the Tribunal by the Central Government, it does not mention as to which Ministry of the Central Government should or would wield control over the Tribunal or whether it would be the Ministry of Law and Justice or some other Ministry. The Act also enjoins upon the Central Government the power to make Rules vide Section 41 of the Act. Again, it is not prescribed whether the term Central Government would refer to the Ministry of Law & Justice or some other Ministry. It is however, manifest that ‘Administration of Justice’ is a subject matter of the Department of Justice under the Ministry of Law and Justice as per the Constitutional Allocation of Business Rules.
Notwithstanding the above, the petitioner complains that for reasons best known to the respondents, the Ministry of Defence has been made the Parent Administrative Ministry of the AFT and is wielding all pervasive control over the Tribunal and is also the Rules Making and Appointment Authority not only for the staff but also of the Judicial and Administrative Members of the Tribunal.

6. According to the petitioner, this is patently incorrect and is also in teeth of the judgment of the Hon’ble Apex Court in Union of India Vs. R.Gandhi, President, Madras Bar Association 2010(6) SCR 857 wherein the Supreme Court in no uncertain and definite terms has held and passed positive directions that Tribunals shall only be provided in support by the Ministry of Law & Justice and not under any parent Department, the issue is related to which it is adjudicating. Following observations from the said judgment infact clinch the issue:-

“Recommendations for better working of Tribunals
20. Only if continued judicial independence is assured, Tribunals can discharge judicial functions. In order to make such independence a reality, it is fundamental that the members of the Tribunal shall be independent persons, not civil servants. They should resemble courts and not bureaucratic Boards. Even the dependence of Tribunals on the sponsoring or parent department for infrastructural facilities or personnel may undermine the independence of the Tribunal (vide : Wade & Forsyth : `Administrative Law’ – 10th Edn., pp.774 and 777).

21. The Leggatt Committee’s Report explained the task of improving the Tribunals thus:

“There are 70 different administrative tribunals in England and Wales, leaving aside regulatory bodies. Between them they deal with nearly one million cases a year, and they employ about 3,500 people. But of these 70 tribunals only 20 each hear more than 500 cases a year and many are defunct. Their quality varies from excellent to inadequate. Our terms of reference require them to be rendered coherent. So they have to be rationalized and modernized; and this Review has as its four main objects: first, to make the 70 tribunals into one Tribunals System that its members can be proud of; secondly, to render the tribunals independent of their sponsoring departments by having them administered by one Tribunals Service; thirdly, to improve the training of chairmen and members in the interpersonal skills peculiarly required by tribunals; and fourthly, to enable unrepresented users to participate effectively and without apprehension in tribunal proceedings.”

The Leggatt Committee explained what the users of the system expected from an alternative public adjudication system:

“We do not believe that the current arrangements meet what the modern user needs and expects from an appeal system running in parallel to the courts. First, users need to be sure, as they currently cannot be, that decisions in their cases are being taken by people with no links with the body they are appealing against. Secondly, a more coherent framework for tribunals would create real opportunities for improvement in the quality of services that can be achieved by tribunals acting separately. Thirdly, that framework will enable them to develop a more coherent approach to the services which users must receive if they are to be enabled to prepare and present cases themselves. Fourthly, a user-oriented service needs to be much clearer than it is now in telling users what services they can expect, and what to do if the standards of these services are not met.”

The Leggatt Committee expressed the view that a single structure for all Tribunals would achieve independence and effective functioning of the Tribunal. It stated:

“There is only one way to achieve independence and coherence: to have all the tribunals supported by a Tribunals Service, that is, a common administrative service. It would raise their status, while preserving their distinctness from the courts. In the medium term it would yield considerable economies of scale, particularly in relation to the provision of premises for all tribunals, common basic training, and the use of IT. It would also bring greater administrative efficiency, a single point of contact for users, improved geographical distribution of tribunal centres, common standards, an enhanced corporate image, greater prospects of job satisfaction, a better relationship between members and administrative staff, and improved career patterns for both on account of the size and coherence of the Tribunals Service. It should be committed by Charter to provide a high quality, unified service, to operate independently, to deal openly and honestly with users of tribunals, to seek to maintain public confidence, and to report annually on its performance.” The report expressed the view that the independence of tribunals would best be safeguarded by having their administrative support provided by the Lord Chancellor’s Department as he is uniquely placed to protect the independence of those who sit in tribunals as well as of the judiciary, through a Tribunals Service and a Tribunals System analogous with, but separate from, the Court Service and the courts. Most of the recommendations of the Leggatt Report were accepted and culminated in the `Tribunals, Courts & Enforcement Act, 2007′. The Act recognizes that Tribunals do not form part of administration, but are machinery of adjudication. As a result of the said Act, the appointments to Tribunals are on the recommendations of a Judicial Appointments Commission. The sponsoring Department (that generates the disputes that the Tribunal will have to decide) has no say in the appointments. Neither the infrastructure nor the staff are provided to the Tribunals by the sponsoring Parent Department. The Tribunals have become full-fledged part of Judicial system with no connection or link with the `parent department’. A common Tribunal service has been established as an executing agency in the Ministry of Law & Justice.”

22. This Court, in L. Chandra Kumar, made similar suggestions for achieving the independence of Tribunals:

“It has been brought to our notice that one reason why these Tribunals have been functioning inefficiently is because there is no authority charged with supervising and fulfilling their administrative requirements…. The situation at present is that different Tribunals constituted under different enactments are administered by different administrative departments of the Central and the State Governments. The problem is compounded by the fact that some Tribunals have been created pursuant to Central Legislations and some others have been created by State Legislations. However, even in the case of Tribunals created by Parliamentary legislations, there is no uniformity in administration. We are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set-up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises, there can be separate umbrella organisations at the Central and the State levels. Such a supervisory authority must try to ensure that the independence of the members of all such Tribunals is maintained. To that extent, the procedure for the selection of the members of the Tribunals, the manner in which funds arc allocated for the functioning of the Tribunals and all other consequential details will have to be clearly spelt out.”

23. But in India, unfortunately Tribunals have not achieved full independence. The Secretary of the concerned `sponsoring department’ sits in the Selection Committee for appointment. When the Tribunals are formed, they are mostly dependant on their sponsoring department for funding, infrastructure and even space for functioning. The statutes constituting Tribunals routinely provide for members of civil services from the sponsoring departments becoming members of the Tribunal and continuing their lien with their parent cadre. Unless wide ranging reforms as were implemented in United Kingdom and as were suggested by Chandra Kumar are brought about, Tribunals in India will not be considered as independent.

Whether the Government can transfer the judicial functions traditionally performed by courts to Tribunals?

7. That while summing up the law related to functioning of almost all Tribunals in the country and not just of the Company Law Appellate Tribunal which was the subject matter of the petition, the Supreme Court passed the following directions in paragraph No. 56 of the aforesaid judgment cited supra:-
“(xiii) The administrative support for all Tribunals should be from the Ministry of Law & Justice. Neither the Tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or concerned Department.”

8. On the strength of the abovestated observations and dicta of the Supreme Court in R.Gandhi’s case (supra), the petitioner has prayed that control of the Administrative Ministry namely Ministry of Defence be removed and Armed Forces Tribunal should come under the supervision of Department of Justice under the Ministry of Law & Justice.

9. These issues hardly need any adjudication in view of the positive stand taken by the Ministry of Law & Justice as well as the Ministry of Defence. Ministry of Law & Justice has, in its reply, supported this plea of bringing the Armed Forces Tribunal under its jurisdiction. It has referred to the another seven Judges Bench of Hon’ble Supreme Court in L. Chandra Kumar Vs. Union of India and others AIR 1997 Supreme Court 1125 wherein the Hon’ble Supreme Court had considered the functioning of various Tribunals and observed that there is no uniformity in administration in case of Tribunals created by Parliamentary Legislations. Following specific averments are made by the Ministry of Law & Justice in para No.2 thereof. The Apex Court further observed that unless a wholly independent agency of all such Tribunals is set up, it is desirable that all such Tribunals, as far as possible, be under a single Nodal Ministry, which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It should be open for the Ministry, in turn, to appoint an independent supervisory body to oversee the working of the Tribunals. The creation of a single umbrella organization will remove many of the ills of the present system. The relevant extracts of the aforesaid judgments are reproduced as follows:-

“The situation at present is that different Tribunals constituted under different enactments are administered by different administrative departments of the Central and the State Governments. The problem is compounded by the fact that some Tribunals have been created pursuant to Central Legislations and some others have been created by State Legislations. However, even in the case of Tribunals created by Parliamentary legislations, there is no uniformity in administration. We are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set-up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises, there can be separate umbrella organisations at the Central and the State levels. Such a supervisory authority must try to ensure that the independence of the members of all such Tribunals is maintained. To that extent, the procedure for the selection of the members of the Tribunals, the manner in which funds arc allocated for the functioning of the Tribunals and all other consequential details will have to be clearly spelt out.

The suggestions that we have made in respect of appointments to Tribunals and the supervision of their administrative function need to be considered in detail by those entrusted with the duty of formulating the policy in this respect. That body will also have to take into consideration the comments of experts bodies like the LCI and the Malimath Committee in this regard. We, therefore, recommend that the Union of India initiate action in this behalf and after consulting all concerned, place all these Tribunals under one single nodal department, preferably the Legal Department.”

10. It is further stated in the affidavit that acting on the aforesaid observations/recommendations of the Supreme Court, the Department of Legal Affairs and Department of Justice have made the efforts since 1997 to set up a Central Tribunal Division (CTD) in the Ministry for the limited purpose of bringing umbrella legislation in respect of tenure, terms and conditions of service of office bearers of the Tribunals and to deal with the matters relating to the code of conduct, enquiry into complaints or allegations against them. It is also emphasized that several attempts have been made to collect information about the Tribunals and move the proposal for decision by the competent authority for setting of a CTD. However, no success has been achieved as most of the Ministries/Departments presently dealing with the Tribunals, have not favoured the proposal for creation of CTD to deal with all the Tribunals. Reference is also made to the judgment in R.Gandhi’s case (supra) which has observed that “unless wide ranging reforms as were implemented in United Kingdom and as were suggested by L. Chandra Kumar are brought out, Tribunals in India will not be considered as independent”. The tenor of this affidavit is that these Tribunals including Armed Forces Tribunal should be brought under the Department of Justice in the Ministry of Law and Justice.

11. Though the Department of Justice may not have so far succeeded in convincing other Ministries/Departments about setting of CTD, in the reply filed by the Ministry of Defence, it has asserted that wherever the provisions of the Act referred to ‘Central Government’ in the context of this Act, it would mean Ministry of Defence. Following pertinent response is given in the affidavit with reference to the judgment of the Supreme Court in R.Gandhi’s case (supra):-

“The petitioner has also stated that the functioning of the AFT may be supervised by Ministry of Law and Justice rather than Ministry of Defence and has quoted the directions of the Apex Court in Union of India Vs. R.Gandhi. In this regard, it is stated that on the directions of the Apex Court for constitution of an institution/system for all Tribunals to achieve independence and effective functioning of Tribunals, Department of Justice under Ministry of Law & Justice had already circulated a Draft Note for the Cabinet on the subject of “Setting up of a Central Tribunal Division” for comments of various Ministries/Departments. Ministry of Defence conveyed to Ministry of Law & Justice in February, 2011 that this Ministry broadly agreed with the proposal made in the Draft Cabinet Note regarding setting up of a Central Tribunal Division and that Division should exercise the administrative and not judicial oversight over the functions of the Tribunals. Further, the subject matter of the Armed Forces Tribunal and any amendments thereof would continue to be dealt with by the Ministry of Defence.”

12. Thus, it is categorically stated that insofar as the Ministry of Defence is concerned, it agrees with the proposal of setting of CTD. Even otherwise, as far as the position in law is concerned, the same is amply clear from the mandate of Supreme Court in L. Chandra Kumar’s and R.Gandhi’s cases (supra) which is the law declared by the Supreme Court and is binding on all concerned under Article 141 of the Constitution.

13. Thus, insofar as the Armed Forces Tribunal is concerned, there is hardly any issue that it be brought within the control of Department of Justice in the Ministry of Law & Justice. Mechanism for control over the Armed Forces Tribunal can be worked out by the Department of Justice in the Ministry of Law & Justice. Accordingly, we issue a direction to this effect.

14. Insofar as filling up of the posts of the members of the Tribunal are concerned, we may point out that Rule 3 of the Armed Forces Tribunal (Procedure for Appointment of Vice-Chairperson and other Members) Rules, 2008, deals with the constitution of the Selection Committee for making such appointments, which reads as under:-
a) Sitting Judge of the Supreme Court Chairperson nominated by the CJI.
b) Chairperson, Armed Forces Tribunal: Member.
c) Secretary to the Government of India, Member Ministry of Defence.
d) Secretary, Government of India, Member Ministry of Law & Justice, Department of Legal Affairs.”

15. Once the Armed Forces Tribunal is brought under the Ministry of Law & Justice, any amendment to be made in Rule 3 of the aforesaid Rules, can also be carried out as a consequence thereof.

16. As far as filling up of the vacancies of Chandigarh Bench are concerned, it is pointed out that earlier two vacancies of judicial members out of three judicial members were vacant. However, one of the two vacancies has since been filled up on the joining of said members’ w.e.f. 15.06.2012. As regards other vacancies which fell vacant on 28.01.2012, it is stated that a candidate was recommended but he declined to join and thereafter the wait listed candidate too declined to join. The vacancy was recirculated in June, 2012; meeting of Selection Committee was held on 22.08.2012 for selection of suitable candidates and further action is being taken to fill up the vacancy at the earliest. We hope that this would be done in near future and all the vacancies of three judicial members would stand filled up.

We thus dispose of this writ petition in the aforesaid terms with the direction to the respondents to take immediate steps on the lines stated above.

(A.K.SIKRI)
CHIEF JUSTICE

20.11.2012 (RAKESH KUMAR JAIN)
‘ravinder’ JUDGE

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Daler Singh … Appellant
Versus
State of Punjab … Respondent

CORAM : Hon’ble Mr. Justice Jitendra Chauhan

Present : Ms. Anju Sharma, Advocate, for the appellant.
Ms. Seena Mand, DAG Punjab.

JITENDRA CHAUHAN.J.

This appeal is directed against the judgment of conviction dated 30.09.2016 and order of sentence dated 03.10.2016 passed by Judge, Special Court, Patiala vide which the accused/appellant has been convicted under Section 22 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”) and sentenced to undergo RI for 10 years and to pay fine of Rs.1 lakh with default stipulation.

The brief facts of the case as noticed in paragraph No.2 of the impugned judgment passed by the trial Court are as under:-
“The allegations in brief as levelled against the present accused Daler Singh are that on dated 02.09.2013 ASI Bhupinder Singh along with the other police party was present at the turning of village Shadipur in the revenue limits of Bhunerheri, connection with patrolling duty and search of bad elements, where Rinku son of Sunder Lal resident of village Bhunerheri met ASI Bhupinder Singh and when he was talking with aforesaid Rinku, ASI Bhupinder Singh received a secret information that Daler Singh son of Tehal Singh resident of village Rasoolpur Joran, is indulging in selling the intoxicant tablets to the villagers and at that time he is coming from village Shadipur towards village Bhunerheri on foot along with the intoxicant tablets and if he is arrested, the intoxicant tablets in large quantity can be recovered from him. Considering the aforesaid information reliable, ASI Bhupinder Singh laid a nakkabandi and in the meantime at about 4.20 pm, a person was seen coming from the side of village Shadipur, who on seeing the police party became perplexed and tried to turn towards Ruries on his left hand side. It has been further alleged that on suspicion, ASI Bhupinder Singh apprehended the said person and on enquiry, he disclosed his name as Daler Singh son of Tehal Singh resident of village Rasoolpur Joran. It has been further alleged that thereafter, ASI Bhupinder Singh after disclosing his identity to the accused told that he has a doubt that the accused may be carrying some narcotic substance, in his possession, and he is to be searched for that and before that, the accused has a right to get himself searched, either in the presence of some Gazetted Officer or a Magistrate, who can be called at the spot. The accused reposed confidence upon ASI Bhupinder Singh and thereafter, ASI Bhupinder Singh conducted the search and intoxicating tablets having inscription of MIADATIL wrapped in a polythene paper were recovered from the right pocket of the trousers worn by the accused. Thereafter, ASI Bhupinder Singh had separated two samples of 10 tablets each and put the same into plastic boxes. On counting, the remaining tablets were found to be 980 tablets and he had put the same into a plastic container and converted all the aforesaid plastic containers into parcels and had affixed his seal bearing impression BS on the said parcels. Specimen seals were prepared and ASI Bhupinder Singh handed over his seal to Rinku, the independent witness and the incriminating articles were taken into possession, vide a recovery memo. It has been further alleged that the formal FIR was registered on the basis of the ruqa sent through HC Dilbag Singh. Rough site plan depicting the place of recovery was prepared. Report u/S 57 of NDPS Act was prepared. It has been further alleged that the accused along with the entire case property was produced before ASI Surinderpaljit Singh, the officiating SHO of the Police Station. Statements of the witnesses were recorded. The sample was sent to the office of the Chemical Examiner. As per the report of the Chemical Examiner, the contents of the sample were found to be Diphenoxylate Hydrochloride. After completion of investigation, the challan against the accused was presented in the Court.”

Copies of challan along with other documents were supplied to the accused, free of costs.

Charge under Section 22 of NDPS Act was framed against the accused. The accused did not plead guilty and claimed trial.

In support of its case, the prosecution has examined PW-1 HC Rachhpal Singh, PW-2 C. Satnam Singh, PW-3 SI Surinderpaljit Singh, PW-4 HC Swaran Singh, PW-5 SI Bhupinder Singh and thereafter closed the evidence.

The statement of the accused was recorded under Section 313 Cr.P.C, wherein all the incriminating circumstances appearing in the prosecution evidence were put to the accused to which he denied and pleaded false implication.

No evidence in defence was led by the accused.

After appraisal of the evidence, the learned trial court convicted and sentenced the accused as narrated in paragraph No.1 of the judgment.

Feeling dissatisfied, the present appeal has been filed by the accused/appellant.

Learned counsel for the appellant refers to the statement of PW-5, SI Bhupinder Singh, Investigating Officer, to contend that it has been admitted by the witness that the FSCL form (Exhibit P-2) was partially filled at the spot; the case property was not produced before the SHO; it is further contended that as per the FIR, recovery of tablets having inscription MIADATIL was effected from the appellant whereas, as per the FSL report, on opening, the parcel was found to contain ten loose tablets of white colour.

On the other hand, the learned State counsel contends that there is sufficient evidence on record to convict the accused/appellant. She supports the judgment and order passed by the trial court.

Heard.
It is to be noticed that the Form No.29 was partially prepared on the spot as has been admitted by PW-5 SI Bhupinder Singh, Investigating Officer of the case. In Ram Lubhaya vs. State of Punjab 2014(1) RCR (Criminal) 697 this Court while relying upon the judgment rendered in Bhola Singh vs. State of Punjab 2005(2) RCR (Criminal) 520 held as under:-

“It has been observed that “CFSL Form” should be prepared at the spot and deposited in Malkhana. Where the seal remained with the police after use and the CFSL form was neither prepared on the spot nor deposited in the Malkhana, such circumstance would be fatal to the prosecution case. Filling of such form at the spot is a very valuable safeguard to ensure that the seal sample is not tampered with till its analysis by the FSL. In the present case, from the statements of PW-4 ASI Kulwant Singh and PW-5 SI Dharam Pal, it reveals that CFSL form was not attached with the case property, which also creates a dent in the prosecution case.

Not only that, as per the version recorded in the FIR, the intoxicating tablets having inscription of “MIADATIL” wrapped in a polythene paper were recovered from the right pocket of the trousers worn by the accused whereas, as per the FSL report, Ex.PW-5/D, the tablets were loose, therefore, the prosecution has failed to prove that the tablets which were recovered from the accused/appellant and the tablets which were sent to the FSL were the same.

Taking into consideration the fact that Form No.29 was partially filled at the spot and that the recovered substance and the examined substance did not match, this Court is of the opinion that a doubt has been created in the story put forth by the prosecution, the benefit of which goes to the accused/appellant.

In view of above, the appeal is accepted. The impugned judgment and order passed by the trial Court are hereby set aside. The accused/appellant is acquitted of the charges framed against him. He be released forthwith, if not required in any other case.

17.03.2018.
SN

(JITENDRA CHAUHAN)
JUDGE

Whether speaking/reasoned :Yes/No
Whether reportable : Yes/No

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CRA-D-260-DB of 2011(O&M)
Date of Decision : 16.02.2017

Wardi Chand and others ………. Appellants
Versus
State of Haryana …… Respondent

*****

CORAM: HON’BLE MR. JUSTICE S.S.SARON
HON’BLE MR. JUSTICE DARSHAN SINGH

Present : Mr. R.S.Malik, Advocate
for appellants no.1.

Mr.K.S.Dhaliwal, Advocate
for the appellants no.2 and 4.

Mr. Dinesh Sharma, Advocate
for appellant no.3.

Appellant no.5 died.

Mr. Randhir Singh, Addl.AG. Haryana, and
Mr. S.S.Pannu, Deputy Advocate General, Haryana, with
Mr. Kiran Kumar, Senior Scientific Officer, NDPS (now
Assistant Director, NDPS, FSL) Madhuban and SI Har
Narain, Police Station, City Panipat for the respondent.

****

DARSHAN SINGH, J.

The present appeal has been preferred by the appellants mentioned above against the judgment of conviction dated 13.01.2011, vide which they have been held guilty and convicted by the learned Judge, Special Court, Panipat for the offence punishable under Section 18 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) and the order of sentence dated 15.01.2011, vide which they were ordered to undergo rigorous imprisonment for a period of thirteen years and to pay a fine of ` 1,50,000/- each and in default thereof, they were further ordered to undergo simple imprisonment for a period of one year each.

2. In nutshell, the facts giving rise to this prosecution are that on 07.01.2009, Inspector Jagdeep Singh (PW-7), the Investigating Officer of the case received the secret information that accused-appellant no.1-Wardi Chand, accused-appellant no.2-Balbir, accused-appellant no.3-Trilok, accused-appellant no.4-Kuldeep, accused-appellant no.5-Vikas (now deceased) travelling in Qualis vehicle bearing registration no. RJ-24-C- 1987 were carrying contraband in huge quantity. The said vehicle was roaming around Panipat City and they can be apprehended if the ‘Nakabandi’ is held. On receiving this information, the Investigating Officer entered the Daily Dairy Report no. 6 dated 07.01.2009 Ex.PW-6/A (for short ‘D.D.R’). The said information was conveyed to DSP Randhir Singh (PW-8) through EHC Raj Kumar.

3. Inspector Jagdeep Singh along with other police officials started in the Govt. Sumo vehicle bearing registration no. HR-06-N-6798 in search of the said Qualis vehicle and the persons named in the secret information and also for laying the Nakabadi in the area of Police Station, City Panipat. The Nakabandi was held near G.T. Road opposite, the under construction Mini Secretariat, Panipat. After about one hour the Qualis vehicle bearing registration no. RJ-24-C-1987 was spotted coming from the side of bus stand, Panipat. The said vehicle was got stopped by the police party. All the four persons sitting on the rear seat of the vehicle and the driver of the said vehicle were apprehended. The driver of the vehicle disclosed his name as Tirlok. The persons sitting on the middle seat disclosed their names as Wardi Chand and Balbir. The persons sitting on the rear seat disclosed their names as Kuldeep and Vikas. One big size plastic box was lying in between the persons sitting on the middle seat and the another plastic box was lying in between the persons sitting on the rear seat. The Investigating Officer suspected some contraband contained in those plastic boxes. He served a notice under Section 50 of the NDPS Act (Ex.PW6/B) upon the accused-appellants giving an option to them to get their personal search and search of the bags conducted before any Magistrate or Gazetted Officer. They opted their personal search and search of their bags to be taken in the presence of a Gazetted Officer. The Investigating Officer telephonically informed (PW-8) DSP Randhir Singh, City Panipat. After 15 minutes, he reached at the spot. The Investigating Officer disclosed the facts of the case to him. DSP Randhir Singh also disclosed his identity to the accused-appellants. Thereafter, he gave a written direction Ex.PW6/D to the Investigating Officer to conduct the search of all the five persons and of the two big size plastic boxes. The said boxes were found containing opium. The opium was shifted to two big size polythene bags and they were found containing 10 kg 850 gms opium each. Out of the said opium, 2/2 samples of 50 gms opium each from each polythene bag were separated. The samples of the opium were kept in four empty small plastic boxes (‘Dibbi’s). The remainder opium was put in the same plastic containers. All the four sample parcels and both the boxes containing remainder opium were kept in the sealed parcels and were sealed by the Investigating Officer bearing seal impression ‘SS’. DSP Randhir Singh (PW-8) also affixed his seal bearing impressions ‘RS’on all the parcels. The specimen seal impressions were prepared. The parcels of the case property along with Qualis vehicle no. RJ-24-C-1987 were taken into possession vide memo Ex.PW6/E, which was attested by the witnesses as well as by DSP. The investigating Officer sent the written information EX.PW3/A to the police station, on the basis of which, the formal FIR Ex.PW3/B was registered. The investigating Officer prepared the site plan of the place of recovery. The accused-appellants were arrested.

4. Thereafter, Inspector Jagdeep Singh produced the accused, witnesses and the articles of the case property before PW-4-Inspector Ram Kumar, the then SHO, Police Station City Panipat. He after verifying the facts affixed his seal bearing impressions ‘RK’ on the samples and the residue parcels. Thereafter, he directed the Investigating Officer to deposit the articles of the case property in the Malkhana of the Police Station, City Panipat.

5. On 08.01.2009, the Investigating Officer took over the case property and sample parcels etc. from the Malkhana and produced the same before the learned Illaqa Magistrate for compliance of the provisions of Section 52-A of the NDPS Act vide application Ex.PW7/B. He had also prepared the inventory of the case property Ex.PW7/C. The photographs of the case property were also taken. The learned Illaqa Magistrate after examining the case property issued the certificate Ex.PW7/E. On return to the police station, the articles of the case property were again deposited in the malkhana. Two sample parcels were sent to Forensic Science Laboratory, Madhuban (for short ‘F.S.L.’) for examination, which were found to be of opium vide report Ex.PX and on completion of the investigation, the report under Section 173 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) was presented in the Court.

6. After compliance of the provisions of Section 207 Cr.P.C, the accused-appellants were charge sheeted by the learned Judge, Special Court, Panipat for the offence punishable under Section 18 of the NDPS Act vide order dated 18.02.2009 to which they pleaded not guilty and claimed trial.

7. In order to substantiate its case, the prosecution examined as many as eight witnesses.

8. When examined under Section 313 Cr.P.C, the accusedappellants pleaded false implication and that nothing was recovered from their possession. Accused-appellant-Vikas (now deceased) further pleaded that he has been apprehended at the instance of Ex-Sarpanch of village Daffarpur, District Sonepat due to monetary dispute. Accused-appellant- Wardi Chand pleaded that he had visited village Daffarpur, District Sonepat with Vikas regarding his monetary dispute with Ex-Sarpanch Ram Kumar of that village. He had participated in the Panchayat in this regard and Ram Kumar was having grudge against him and Vikas. No evidence was led by the accused-appellants in their defence.

9. On appreciating the evidence on record and the contentions raised by learned counsel for the parties, the learned Judge, Special Court, Panipat held guilty and convicted all the accused-appellants for the offence punishable under Section 18 of the NDPS Act and they were sentenced as mentioned in the upper part of the judgment.

10. Aggrieved with the aforesaid judgment of conviction dated 13.01.2011 and the order of sentence dated 15.01.2011, the present appeal has been preferred.

11. It is pertinent to mention that during the pendency of the present appeal, accused-appellant-Vikas had died on 09.11.2015 at PGI, Chandigarh. Thus, appeal qua him stands abated as per the order dated 14.02.2017.

12. We have heard Mr. R.S.Malik, Advocate, learned counsel for appellant no.1, Mr. K.S.Dhaliwal, Advocate, learned counsel for appellants no.2 and 4, Mr. Dinesh Sharma, Advocate, learned counsel for appellant no.3, Mr. Randhir Singh, Addl.AG for the State of Haryana and have carefully perused the record of the case.

13. Initiating the arguments, learned counsel for the appellants contended that the recovery is alleged to have been effected from the search of a private vehicle after sunset on the basis of secret information. But, the Investigating Officer has not complied with the mandatory provisions of Section 42 of the NDPS Act as he was required to obtain the search warrant or authorization to carried out the search. He has also not recorded any reason not to do so. Thus, they contended that the violation of the mandatory provisions of Section 42 of the NDPS Act vitiated the conviction. To support their contentions, they relied upon case State of Rajasthan Vs. Jag Raj Singh @ Hansa 2016 (3) R.C.R. (Criminal) 539.

14. They further contended that it is not plausible that the secret information containing all the particulars of the accused can be furnished to the Investigating Officer. The prosecution has also not examined EHCRaj Kumar, who allegedly conveyed the copy of Daily Dairy Report (for short ‘D.D.R.’) with respect to the secret information to DSP Randhir Singh (PW-8). They contended that on this account also there is violation of Section 42 of the NDPS Act.

15. They further contended that as per prosecution case and statements of the prosecution witnesses, sample parcels were stored in a plastic box. But, in the F.S.L. report (Ex.PX), it is mentioned that the samples were in polythene. They further contended that as per the case of the prosecution 50 gms of opium was separated as sample. But, the report of the FSL shows that one of the sample was weighing 55.2 gms and the other sample was weighing 64.2 gms. There was much difference of weight of sample parcels sent to the F.S.L. Thus, they contended that it is not established that the same sample parcels, which are alleged to have been separated, have been sent to the F.S.L. for examination.

16. They further contended that in-fact the entire prosecution story has been fabricated. PW-5-Mahabir Singh Nain, Photographer has categorically stated that he has taken the photographs on 07.01.2009. In the cross-examination, he has stated that he took the photographs at 12 ‘o clock noon, whereas the recovery is shown to have been affected after 5 pm of 07.01.2009 and this version of PW-5 has not been challenged by the prosecution. They further contended that the photographs Ex.PW5/A bears the date as 07.01.2009, whereas the second photograph Ex.PW5/B bears the date as 08.01.2009. No reference has been given in the Ruqa Ex.PW3/A that the photographs of the case property were taken on 07.01.2009. They contended that such fabrication renders the testimonies of the prosecution witnesses unworthy of credence.

17. They further contended that the recovery is alleged to have been effected at a public place. But, no independent witness has been associated by the Investigating Officer nor any satisfactory explanation has been given for non joining thereof. Thus, they contended that the learned trial Court has wrongly recorded the conviction of the appellants.

18. On the other hand, learned State counsel contended that there is complete compliance of Section 42 of the NDPS Act. The secret information was reduced into writing in Daily Dairy Register and copy of the report was sent to DSP Randhir Singh (PW-8). He further contended that the search was conducted on the basis of written authorization given by the DSP. So, there is no violation of the provisions of Section 42 of the NDPS Act.

19. He further contended that there is no material on record to show that the sample parcels were tampered with at any stage. The sample parcels were sealed with the seal of the Investigating Officer, the SHO and the DSP. All the sample parcels were produced before the learned Illaqa Magistrate, who also found the seals to be intact. Within two days of recovery, the sample parcels were sent to the F.SL., where also the seals were found intact. He contended that as per the worksheet prepared by the F.S.L., the container of the samples is mentioned as “plastic”. There appears to be some mistake in the F.S.L. report (Ex.PX). He further contended that the investigating Officer has weighed the samples with pen scale, which is not accurate, whereas in the F.S.L. the electronic digital scale is used. So, the difference of few grams is bound to occur.

20. He further contended that as per the record of the case, no photographs of the case property were taken on 07.01.2009. The photographs were only taken on 08.01.2009. Moreover, mere contradiction of the date written in the photographs will not be a ground to disbelieve the prosecution version with respect to the recovery.

21. He further contended that the Investigating Officer has made the efforts to join the independent witness, but none of them cameforward. He further contended that the accused-appellants have not alleged any animosity against the official witnesses. The version of the prosecution is also corroborated from the statement of DSP Randhir Singh (PW-8) a gazetted police officer. Learned counsel for the appellants has not been able to find out any material contradictions in their statements. So, there is no reason to disbelieve their testimonies. Thus, he contended that the conviction of the appellants does not suffer from any legal infirmity.

22. We have duly considered the aforesaid contentions.

23. The plea raised by learned counsel for the appellants that the mandatory provisions of Section 42 of the NDPS Act have been violated carries no substance. From the statement of PW-7-Inspector Jagdeep Singh, the Investigating Officer of the case, it comes out that immediately on receiving the secret information he reduced into writing the said secret information in the shape of the D.D.R. no. 6 dated 07.01.2009 (Copy Ex.PW6/A). Copy of the said D.D.R. was duly forwarded to PW-8-DSP Randhir Singh, his immediate official superior through EHC Raj Kumar. This fact is also corroborated from the testimony of PW-6- Inspector Vijay Singh . PW-8- DSP Randhir Singh has also categorically deposed that he came to know about the secret information at 05.30.p.m. through Constable Raj Kumar. Thus, from the aforesaid evidence the compliance of the provisions of Section 42 (2) of the NDPS Act is fully established.

24. The notification issued by the State of Haryana designating the empowered officers under the provisions of Section 41 (2) of the NDPS Act reads as under:- HARYANA Published in the Haryana Gazette, (Extra) Legislative Supplement, Part III, dated November 29, 1986 Excise and Taxation Department December 29, 1986 No. S.O. 104/C.A.61/85/S.41/86- In exercise of the powers conferred by sub-section (2) of Section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), the Governor of Haryana hereby empowers the officers, of and above the rank of Assistant Excise and Taxation Officer in the Excise and Taxation department; of and above the rank of Teshildars in the Revenue Department and of and above the rank of Deputy Superintendent of Police in Police Department, to exercise the powers specified in subsection(2) of that section within the area of their respective jurisdiction. As per the aforesaid notification, the Deputy Superintendent of Police is an empowered officer under the provisions of Section 41 (2) of the NDPS Act. The empowered officer under Section 41 (2) of the NDPS Act is competent to authorize any officers subordinate to him, but superior in the rank to a peon, sepoy or constable to arrest a person who has committed the offence under the Act or for the search of a building, conveyance or a place whether by day or by night. PW-8-DSP Randhir Singh has categorically deposed that he had given a written direction Ex.PW6/D to Inspector Jagdeep Singh to take the search of the containers kept in the Qualis vehicle which were in the possession of the accused. PW-7-Inspector Jagdeep Singh has also stated that the DSP had given a written direction Ex.PW6/D to him to take the search of the plastic jars lying in the qualis vehicle in possession of the accused. Thereafter, he conducted the search of the jars. PW-8-DSP Randhir Singh being the empowered officer under Section 41 (2) of the NDPS Act was competent to authorize PW-7-Inspector Jagdeep Singh to carried out the search even during night. So, there is no violation of proviso to Section 42 (1) of the NDPS Act. Case State of Rajasthan Vs. Jag Raj Singh @ Hansa (supra) relied upon by learned counsel for the appellants is quite distinguishable on facts. In that case, there was difference of the secret information recorded in the Rojnamcha and the information sent to the Circle Officer. Whereas, in this case no such difference could be pointed out by learned counsel for the appellants in the secret information recorded in the DDR Ex.PW6/A and the information sent to PW-8-DSP Randhir Singh as the copy of the same DDR has been forwarded to PW-8- DSP Randhir Singh. In case State of Rajasthan Vs. Jag Raj Singh @ Hansa (supra), the search was carried out by the Investigating Officer himself without seeking any search/ authorization and without procuring the presence of any empowered officer at the spot. Whereas, in this case the Investigating Officer was duly authorized vide written authorization Ex.PW6/D by PW-8-DSP Randhir Singh to carry out the search. Moreover, he himself has supervised the operation of the search. Thus, the provisions of Section 42 of the NDPS Act have been duly complied with in the present case.

25. There is no dispute with the proposition of law that it is incumbent upon the prosecution to establish that the sample parcels remained intact till it reached in the hands of the Chemical Examiner. It is an admitted case of the prosecution that 50 gms of opium separated as sample was kept in small plastic boxes (dibbis). However, in the report of the FSL (Ex.PX), the sample parcels received with polythene have been mentioned. There is no reference of the plastic container. It appears that the expert in the FSL report has mentioned the weight of the opium along with polythene. The said wording used by the expert does not convey that the samples itself were stored in polythene alone.

26. The prosecution has led the evidence to complete the chain of link evidence. HC Jasmer Singh, the then MHC Police Station, City Panipat with whom the case property was deposited has filed his affidavit Ex.PW1/A, wherein he has categorically deposed that so long the case property and the parcels remained in his custody neither he nor anybody else has tampered with the same. PW-2-C. Gulzar Singh has carried the sample parcels to FSL, Madhuban. He also deposed in his affidavit Ex.PW2/A that the sample parcels were neither tampered with by him nor by anybody else during the period it remains in his custody. The investigating Officer has also produced the articles of the case property before the learned Chief Judicial Magistrate, Panipat, who gave her certificate Ex.PW7/E that the seals bearing impressions ‘SS’ ‘RS’ and ‘RK’were visible on all the parcels. Then, there is the report of the FSL (Ex.PX), wherein it is categorically mentioned that the seals were intact and tallied with the specimen seal as per the Forwarding Authority’s letter. Thus, there is no material on record to show that the sample parcels were tampered with at any point of time. The omission on the part of the Chemical Examiner to properly describe the container in the FSL report (Ex.PX) is not a ground to conclude that the sample parcels which were sent to the FSL for examination were tampered with.

27. No doubt, there is difference of weight of the sample parcels. As per the prosecution story, four samples of opium weighing 50 gms each were separated. Whereas, in the report of FSL (Ex.PX), the weight of one sample along with polythene has been mentioned as 55.2 gms and the weight of the second sample is mentioned as 64.2 gms with polythene. It is evident that the weight of the sample has been taken by the expert in the FSL along with the polythene. As per the evidence on record, the Investigating Officer has used the pen type scale to weight the samples and residue opium. The samples were weighed in open. The pen type scale cannot be stated to be so accurate and definite, whereas in the FSL the sophisticated digital scales are used in closed premises to weigh the substance. In these circumstances, the variation in the weight of the sample is natural and it could not establish the tampering with of the samples. The Hon’ble Supreme Court in case Madan Lal and Anr. Vs. State of Himachal Pradesh 2003 (4) R.C.R. (Criminal) 100 has laid down as under;-

“18. Coming to the plea that there was reduction in weight of the samples sent for analysis and there was tampering, it has to be noted that this aspect has also been considered by the Trial Court which has recorded the reasons for rejecting the same. It has been noted that the seals were intact and there was no tampering. The view has been endorsed by the High Court. On considering the reasoning indicated that there was very minimal and almost ignorable variation in weight, we find no reason to interfere with the findings.”

28. The Division Bench of the Hon’ble Bombay High Court in case Firdous Ahmed Vs. Union of India 2008 (4) AIR Bom. R 774 has also laid down as under:- “As far as the difference in weight is concerned, it may be noted that the Complainant’s raiding party has used an ordinary balance to weigh the same and it is common knowledge that the experts use more accurate and sophisticated weighing machines. Moreover, the difference in weight is minimal and therefore could be ignored. The Apex Court in the case of Madan Lal and another V. State of Himachal Pradesh, (2003 Cri LJ. 3868) : (AIR 2003 SC 3642) has held that when the difference in weight is minimal the same could be ignored. Thus, in view of the ratio of law laid down above, mere difference of weight of sample which has in-fact occurred due to different type of scales used. Such marginal difference is of no legal consequences to create any dent in the prosecution case particularly where the chain of the link evidence is complete to rule out any tampering with of the sample parcels.

29. The fact that the separate dates have been written on the photographs Ex.PW5/A and Ex.PW5/B is also not such a material contradiction which can render the recovery doubtful, as it does not go to the root of the case. It appears to be some mistake on the part of the police officials in writing the date over the photographs. These photographs were even produced before the Chief Judicial Magistrate, Panipat, which is evident from her order Ex.PW7/E. Moreover, the contradiction of the date in one document cannot be made the basis to make all the proceedings suspicious.

30. No doubt, even though the recovery has been effected on the basis of the secret information and at a public place, but no independent witness has been associated. But, it is not a case where no efforts have been made by the Investigating Officer to associate the independent witness. Even, in the ruqa Ex.PW3/A, it has been mentioned that despite efforts no public witness could be joined. PW-6-Inspector Vijay Singh, the witness of recovery has also stated that after reaching the spot, they tried to join some public persons as witnesses, but they showed their helplessness. Inspector Jagdeep Singh (PW-7), the Investigating Officer of the case has also deposed that he tried to join the public persons in the investigation as witnesses, but they all had shown their inability to join the investigation. PW-8-DSP Randhir Singh has also stated in the crossexamination that he directed the Investigating Officer to join the public persons in the investigation and he tried to join some persons in the investigation, but nobody was ready to join the investigation as told by the Investigating Officer. Thus, the efforts have been made by the Investigating Officer to associate the independent witnesses in the investigation, but they expressed their helplessness/ inability to joint the investigation. So, the investigating Officer was left with no other option, but to proceed further by joining the police officials. It is well settled by this time that the testimonies of the official witnesses also carries the same evidentiary value and their testimonies cannot be discarded merely on the ground of their official designation. The learned defence counsel has not been able to point out any material contradiction in the statements of the prosecution witnesses. They also have not been able to point out any animus or motive for the false implication of the appellant. (PW-8) DSPRandhir Singh, a Gazetted Officer has supervised the search and seizure. It is not expected that a senior police officer will become a party to support the false version of his subordinates. The Hon’ble Supreme Court in case Akmal Ahmed Vs. State of Delhi, 1999(2) RCR (Criminal) 265 has laid down that the evidence of search or seizure made by the police will not become vitiated solely for the reason that same was not supported by any independent witness. The same ratio of law has been laid down by the Hon’ble Apex Court in cases State of NCT of Delhi Vs. Sunil (2000) 1 Supreme Court cases 748, Rohtash Vs. State of Haryana, 2013(3) RCR (Criminal) 355, M.Prabhulal Vs. Assistant Director, Directorate of Revenue Intelligence, 2004(1) RCR (Criminal) 160 and Ravinderan @ John Vs. Superintendent of Customs, 2007 (3) RCR (Criminal) 80. Thus, the non-joining of independent witness is also no ground to discredit the prosecution version.

31. Thus, from the evidence brought on record by the prosecution, it is established beyond shadow of reasonable doubt that the accused-appellants were found in conscious possession of total 21 kg 700 gms of opium without any permit.

32. Faced with this situation, learned counsel for the appellants contended that the appellants are poor persons. They are in custody for the last more than eight years. They have never been convicted for any offence under the NDPS Act prior to this case. So, they deserves the leniency in the matter of sentence.

33. We have duly considered the aforesaid plea.

34. From the statements of the accused-appellants recorded by the learned Judge, Special Court, Panipat on the quantum of sentence, it comes out that all of them have responsibilities towards their family members. The custody certificates produced by the learned State counsel show that none of the appellant was earlier convicted under any of the provisions of the NDPS Act. Accused-appellant Balbir has already undergone the actual sentence of seven years ten months and ten days and after adding remission, he has undergone total sentence for a period of eight years ten months and ten days. Accused-appellant-Tirlok has also remained in custody for actual period of seven years ten months and ten days and after adding remission, he has undergone total sentence of eight years ten months and ten days. Similarly, appellant-Kuldeep has actually undergone seven years ten months and ten days in jail and after adding remission, he has also undergone total sentence of eight years ten months and ten days. Appellant- Wardi Chand has not earned any remission and has undergone total sentence for a period of eight years one month and four days. Thus, all the appellants have already undergone a substantial period in jail. In view of the facts and circumstances of the case, they certainly deserves leniency in the matter of sentence.

35. Thus, keeping in view our aforesaid discussion, we do not find any legal infirmity in the conviction of the appellants recorded by the learned Judge, Special Court, Panipat. Thus, the conviction of the appellants recorded by the learned Judge, Special Court, Panipat for the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is upheld and appeal against conviction stands dismissed. However, the order on the quantum of sentence dated 15.01.2011 is hereby modified. Appellants Wardi Chand, Balbir, Tirlok and Kuldeep are sentenced to undergo rigorous imprisonment for a period of ten years and also ordered to pay a fine of ` 1 lac each and in default thereof, they will further undergo imprisonment for a period of one year.

(S.S.SARON)
JUDGE

(DARSHAN SINGH)
JUDGE

February 16, 2017
s.khan

Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No

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Letters Patent Appeal No. 1007 of 2013 (O&M)
Reserved on : 27.08.2013
Date of Decision: 26.09.2013

Justice Shanti Sarup Dewan, Chief Justice (Retired) and another …Appellants
Versus
Union Territory, Chandigarh and others ..Respondents

CORAM:
HON’BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE.
HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH

1. Whether Reporters of local papers may be allowed to see the judgment?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?

Present:
Mr. Puneet Bali, Senior Advocate with
Ms. Priyanka Ahuja, Advocate, for the appellants.
Mr. J.S.Toor, Advocate for Union Territory, Chandigarh.
Mr. Suvir Dewan, respondent No. 7 in person and
Mr. Sudeep Mahajan, Advocate with him.

****

SANJAY KISHAN KAUL

The filial affections of a father have cost him dearly in the twilight years of his life!
2. The appellant No.1 aged about 85 years is a retired Chief Justice of this Court while appellant No.2 is his wife aged about 74 years. The appellants have three progenies, one son and two daughters. The appellants’ elder son Suvir Dewan, aged about 49 years, a practicing Advocate of this Court, has been impleaded as respondent No. 7 herein. Suvir Dewan is married and has one daughter Shaina Dewan. The daughter of the appellant, namely, Joshita Budhraj is married to one Shri Sanjay Sen Budhraj having a daughter, namely, Nikita Budhraj. Their abode is Amritsar but they come to Chandigarh occasionally. Shri Sanjay Sen Budhraj is stated to be working in Punjab Council for Citrus and Agri. Juicing in Punjab and staying in a rented accommodation and Nikita Budhraj is staying with the appellants while pursuing her M.C.A. from Panjab University, Chandigarh. Third child of the appellants, namely, Sabina Grewal is married to Shri Harpreet Singh Grewal with a male child Udey Veer living in Auckland, Newzealand.

3. The cause of the dispute, as it often happens, is a property being House No. 642, Sector 11-B, Chandigarh, measuring 500 Sq. Yards, stated to have been purchased by appellant No.1 vide a Conveyance Deed dated 29.03.1962 in his own name. The Occupation Certificate was subsequently issued on 14.02.1967 by the Estate Officer (Capital Project), Chandigarh. It is the case of appellant No.1 that in the year 1980 he withdrew ` 20,000/- from his G.P.Fund to make additions and alterations in that house and a fresh Occupation Certificate was thereafter issued on 11.09.1990.

4. In true Indian tradition where the worry of the parents often is to ensure financial stability for their progenies, the appellant No.1 bought a plot No. 694, Sector 6, Panchkula for the benefit of his son. The plot was transferred from appellant No.1 to respondent No. 7 vide re-allotment letter dated 30.11.1990. Respondent No. 7 is stated to have sold the plot to Smt. Raj Rani vide letter dated 07.11.1991 and from the proceeds purchased a shamlat plot No. 1016, Sector 2, Panchkula, measuring 350 sq. yards while utilizing the balance amount for construction on that plot. However, respondent No. 7 continues to live with the appellants in their house in Sector 11, Chandigarh.

5. It is quite apparent that relationships between the appellants and their son respondent No. 7 became strained. Infact, the relationship is very strained with the whole family of respondent No.7. Suffice to say that the case of the appellants is that they want to reside in their own house and would like respondent No. 7 and his family to stay in their own house at Panchkula.

6. In view of the strained relationships inter-se the parties, the appellants filed a Civil Writ Petition under Articles 226/227 of the Constitution of India seeking directions against respondents No.1 to 6 to create a special cell to deal with the complaints of senior citizens and parents who are traumatized by their children. Respondents No.1 to 6 are Union Territory, Chandigarh, Home Secretary and police officers. The appellants also seek a direction to ensure shifting of respondent No. 7 from their house at Chandigarh to his own house at Panchkula and vide an interim measure seek adequate police protection.

7. The appellants have given various incidents which have occurred in their house vis-à-vis their son. It is not necessary to go into the details of the same but suffice to say there is a fair amount of acrimony largely on account of the belief of the appellants that their Chandigarh house is to be inherited by their daughters too. The allegations are of humiliation, use of unparliamentary language, raising of voice and shouting, showing lack of all sense of decency, etiquette etc. and so on. The appellant No.1 claims to be paying all the expenses including electricity, water, sewerage bills, Cable TV/Satellite TV rentals, newspapers bills, periodical bills for the library etc. The matter is stated to have so aggravated over the issue of visit of their younger daughter that due to this the appellant No.1 suffered a mild stroke on 19.12.2011. The appellants’ infact allege that even their life has been threatened.

8. It is stated that the appellants are staying in a part of the ground floor of the house. The first floor has been occupied by respondent No. 7 and his family and part of the ground floor is utilized by respondent No. 7 for his office. Appellant No.1 claims that he wanted to donate his legal books during his life time to some institution, at which respondent No. 7 lost his temper and had locked the office from 02.05.2013 onwards. The house at Chandigarh has three bed rooms on the ground floor (out of which one bed room is used by respondent No. 7 for his office) drawing room, dining room and a kitchen, while the first floor again has three bed rooms, a drawing room, a dining room and a kitchen.

9. On the other hand, the house at Panchkula owned by respondent No. 7 has three bed rooms alongwith attached bathrooms, one drawing cum dining room, one kitchen while the first floor has one constructed room and there are front and back courtyards.

10. The grievance of the appellants is that his daughters are not allowed to peacefully stay or enter the house making it difficult and humiliating experience with the appellants to interact with their daughters and their family. It is to prevent such incidents that the appellants are seeking protection under the “Maintenance & Welfare of Parents & Senior Citizens Act, 2007 (hereinafter referred to as the said Act). The appellants have made it clear that they do not want any maintenance from their son i.e. respondent No. 7. It is stated that the appellants have no other efficacious remedy on account of failure of respondents No.1 to 6 to make appropriate arrangements under the said Act for protection of the persons like the appellants.

11. The learned Single Judge, however, opined that the issue as regards eviction of respondent No. 7 from the premises in question cannot be gone into by the Court in exercise of writ jurisdiction as it would necessarily entail the determination of the nature of the property i.e. as to whether the same is self acquired or ancestral, the determination of rights inter-se the petitioners and respondent No. 7 in respect thereof etc. This would require formulation of triable issues which are left to be adjudicated at the hands of the Civil Court. The said act being a comprehensive legislation, provisions of the same could be invoked. However, a direction was issued to the Senior Superintendent of Police to visit the appellants at their residence within 24 hours from the communication of the order and interact with them and take stock of the situation.

12. The writ petition was disposed of even without issuing notice to the respondents.

13. The appellants aggrieved by this impugned order dated 17.05.2013 preferred the present Letters Patent Appeal. Notice was issued in this appeal on 22.05.2013 and it was recorded that the controversy deserved to be resolved amicably and peacefully through the good offices of family friends, counsellors and mediators and called upon both the parties to submit their respective list of such persons to whom the onerous duty of mediation and counselling could be entrusted.

14. However, on the next date, respondent No. 7 filed the counter affidavit as none had been filed before the learned Single Judge. A list of Hon’ble Judges, who were willing to mediate, was handed over by learned counsel for the appellants while learned counsel for respondent No. 7 had sought time to obtain instructions. Order dated 28.05.2013 also records that round-the-clock security be provided to the appellants at their residence and it was impressed upon learned counsel for Union Territory, Chandigarh to look into the provisions of the said Act and take up the matter at the highest level for notifying the statutory authorities under the Act.

15. The writ petition was contested by respondent No.7. He has pleaded that he was born in the house in Chandigarh which is a joint Hindu Family property. The house in question is a Hindu Undivided Family (HUF) house. He is a coparcener along with his wife and daughter and is residing in the same. The said respondent claims that they have a common kitchen on the ground floor which he had got renovated when his parents had gone to visit their younger daughter Sabina Grewal in Auckland. It has been admitted that daily expenses are borne by appellant No.1 but claims that he had offered the same but it is the appellant No.1 who refused to accept any money, though for all major expenses, the said respondent always pooled in the money.

16. Respondent No. 7 alleges that appellant No.1 not only made arrangements for him for purchasing a plot at Panchkula but had gifted a plot of one kanal to his sister Joshita and another plot to his sister Sabina. There is a categorical admission of the gift of a Panchkula plot to respondent No. 7 and from the sale proceeds of which a plot in Panchkula was purchased on which ground floor has been constructed.

17. Respondent No. 7 claims that his brother-in-law Sanjay Sen Budhraj started temporarily residing with them and it is because of that the mild misunderstanding between his wife and his mother get blown out of proportion at the instigation of his sister and her husband. In view of two plots of one Kanals each gifted to his sisters, it is claimed that they had already got their share in the property but they started eyeing the house at Chandigarh and that his brother-in-law was instigating his father to sell the Chandigarh property to which he protested that it was a joint family dwelling house and his wife’s matrimonial house. Once again there are allegations about harassment of respondent No. 7 and his wife by obscene writing against his wife painted outside on the gate pillars of the house, for which police complaints were lodged. The rear glass pane of his wife’s car was suddenly found smashed. A few pieces of jewellery went missing from the Almirah of the wife of respondent No. 7 and so on. He alleges that he was compelled to take his kitchen upstairs but wanted 45 days for the same and soon thereafter he came to know about filing the writ petition. Respondent No. 7 claims that he has highest regards for his parents but he blames his brother-in-law and sister for their greed.

18. On 30.05.2013, the Division Bench considered it appropriate to request Justice Kuldeep Singh, former Judge of the Supreme Court of India, Shri M.L.Sarin, Senior Advocate and Shri Ravinder Krishan, Advocate-cum-Consultant, to devote some time to find out a solution. However, simultaneously, the Bench expressed its dis-satisfaction with the steps taken by the Chandigarh Administration qua constitution and composition of various authorities under the said Act specially keeping in mind the legislative intentment and to provide an effective mechanism to achieve the statutory objects in their true letter and spirit. The matter was re-notified for 05.07.2013 when the Bench was informed that some more time was required by the committee. Simultaneously, Union Territory of Chandigarh was granted liberty to file its affidavit in the Court.

19. A perusal of the affidavit filed by Union Territory of Chandigarh through the Director, Social Welfare, Chandigarh shows that there are two old Age Homes/Senior Citizens Homes functioning in Chandigarh and there was a proposal to construct another one. In pursuance to sub Section (3) of Section 1 of the said Act, the Administrator, Union Territory, Chandigarh had enforced the said Act with effect from 22.10.2008 vide a notification of the even date. A panel of 11 Conciliation Officers had been notified to assist the Sub Divisional Magistrates designated as Maintenance Tribunal vide notifications dated 20.08.2009 and 02.06.2010. The Programmer ICDS Cell, Union Territory, Chandigarh was designated as Maintenance Officer under Section 18 of the said Act vide order dated 17.04.2012. It has been emphasized that Chandigarh police has been taking special care of the security needs of old persons living alone, inter-alia by establishing a toll free helpline. The State Council of Senior Citizens in terms of sub clause (2) of Rule 21 under Chapter VII of “The Maintenance and Welfare of Parents and Senior Citizens Rules, 2009” (hereinafter referred to as the said Rules”) has been constituted to advise the State Government on effective implementation of the provisions of the said Act. Dr. Satbir Singh, Senior Medical Officer has been appointed as a Nodal Officer of Geriatric Care and free advice is tendered to senior citizens to keep contacts on phone with their neighbourers and friends etc. Identity cards are stated to have been issued and certain facilities have been provided. Adequate publicity has been given to the said Rules. Programmes have been held in collaboration with the State Legal Services Authority and wide publicity has been given by holding different programmes.

20. The report of the Committee was received by this Court duly signed by all the three members. Unfortunately, there was no success. The report records that each member of the committee had meetings with the appellants and respondent No. 7 and his wife on different dates. The crux of the dispute, as stated above, was found to be house in Chandigarh which was claimed by appellant No.1 to be self acquired property while respondent No. 7 was of the opinion that the same was H.U.F. property as it was shown as such in the Income Tax Returns by appellant No.1 and thus he was of the view that his sisters had no right in the property. Appellant No.1 disclosed to Justice Kuldeep Singh that he had been so upset as he had executed a Will disinheriting respondent No.7 from all his assets moveable or immovable. In the deliberations, it was found that the feelings of the appellants towards respondent No. 7 were such that it was not possible for them to live together in the same house. Panchkula house, undisputedly gifted by appellant No.1 to respondent No. 7, was lying unoccupied ever since its construction. The panel unanimously offered a proposal to the parties as under:-

“i) Respondent No. 7 and his family should immediately vacate House No. 642, Sector 11-B, Chandigarh and shift to his own House No. 1016, Sector 2, Panchkula. We felt that this is the only way to enable the appellants to spend the evening of their lives with peace.
ii) In case respondent No. 7 agrees to the first proposal then appellant No.1 shall revoke the Will wherein he has disinherited respondent No. 7 from his property totally. He shall leave the immovable property to take its own course in accordance with law, after the appellant’s demise.
iii) The appellants shall also pay ` 10,000/- per month to respondent No. 7 and his family to cover the expenses for commuting from Panchkula to Chandigarh. This shall be operative only for a period of two years.”

21. The appellants were persuaded to accept this proposal despite the bitterness of appellant No.1 about third aspect of the aforesaid proposal. He thought that it should be the other way round but he did finally agree. Unfortunately, respondent No. 7 and his wife still did not accept the proposal as they insisted that they would live in the house in Chandigarh and would not go anywhere else. The report states that since the work entrusted to them was really not a type of mediation envisaged under the Code of Civil Procedure, they had taken the liberty to submit the details.

22. It would thus be seen that despite having gifted a house to his son, agreeing to revoke his Will, and thus leaving the immovable property to devolve in accordance with law and even agreeing to pay ` 10,000/- per month to respondent No. 7 to cover the expenses for commuting for a period of two years, the appellant No.1 is still being denied the right to exclusively enjoy his house with his wife even with such strained relationships with his son.

23. The appeal was listed before this Bench on 20.08.2013 and it was prima-facie noticed that we may not be able to determine the civil rights of the parties. However, qua house we further noticed that the stand of the appellants is that it was their individual property while on the other hand respondent No. 7 claims it to be HUF property. In view of the fact that there were two daughters of the appellants, even if the property for the sake of arguments is assumed to be HUF property, as per the current law, the share of respondent No. 7 would at best be 20%. Despite this, respondent No. 7 is occupying the complete first floor and part of the ground floor of the house. We thus put to learned counsel for respondent No. 7 that we were prima-facie inclined to relegate the parties to the civil suit with a direction in the present proceedings confining the occupation of respondent No. 7 to only 20% house of the property and remaining will have to be vacated by him forthwith. On this, learned counsel for respondent No. 7 sought time to obtain requisite instructions.

24. On 27.08.2013, the sale-deed dated 29.03.1962 in respect of the property in question in Chandigarh was taken on record and respondent No. 7 was permitted to place on record an additional affidavit. We admitted the appeal and proceeded to hear the parties. Respondent No. 7 chose to argue the defence in the appeal in person and was quite categorical that even what was proposed on the last date was not acceptable and he wanted to continue to reside in the first floor of the property. Other than stating that he wanted further time to negotiate with his father, he was not looking for anything else. We infact put to him if such time is given and he failed to settle with his father, whether he would abide by the settlement negotiated by three mediators but even that was not acceptable to him. On conclusion of the arguments, judgment was reserved on the said date.

25. The copy of the sale deed placed on record qua Chandigarh property makes it clear that it is executed in the individual name of appellant No.1. Additional affidavit brought on record by respondent No. 7 avers that his share could not be capped at 20% of the HUF property as a share of a member of a coparcenary property depends upon the number of existing members at the given point of time besides some other factors. A reference has been made to the allegation of property being HUF property and to Mitakshara law. No civil suit for partition of the property had been filed and thus no partition by metes and bounds was possible. In respect of the amendment carried to Section 6 of the Hindu Succession Act, 1956, it has been pleaded that the provisions do not apply to a daughter married before the commencement of Hindu Succession (Amendment) Act of 2005 and since his sisters were married earlier, they could not even seek partition in view of the judgment of the Supreme Court in Ganduri Koteshwaramma and another Vs. Capri Yanadi and another 2011 (9) Supreme Court Cases 788 where it was held that an unmarried daughter can seek partition of the joint family property. A reference has also been made to Chandigarh Estate Rules, 2007 and Chandigarh Apartment Rules, 2005 to contend that no fragmentation of property can take place nor further dwelling units can be created. Once again emphasis has been laid on the role played by his brother-in-law in instigating the proceedings. In the end, he claims that he wants to make all efforts to seek blessings of the appellants and undertakes that he will make all possible efforts that all the family members are back together again like old times.

26. After we had reserved orders in the matter, an application came to be filed by Union Territory, Chandigarh seeking to bring on record an additional affidavit alongwith annexures. A reference was made to their earlier affidavit wherein it was submitted that the proposal for constitution of Special Cell under Section 22 of the said Act was underway. This Special Cell is stated to have been created vide notification dated 20.08.2013 for the purposes of protecting the life and property of senior citizens under Sections 22(2) of the said Act. The Special Cell consists of Deputy Commissioner of Union Territory, Chandigarh alongwith 13 other members. On the other hand, the submission of learned Senior Counsel for the appellants was that the notification in the official gazette has still not been published and what was sought to be done was not in conformity with Section 22 of the said Act as conferment of powers and duties of a District Magistrate was required under Sub Section (1) of Section 22 as also a comprehensive action plan under Sub Section (2) of that Section. Learned Senior Counsel for the appellants had also drawn our attention to Section 32 (2), Clauses (e) and (f) to state that there was no notification published or rules made for carrying out the purposes of the Act.

27. On hearing learned counsel for the parties, two crucial questions arise for consideration:-
i) Whether any direction in the given facts and circumstances of the case can be given to protect the rights of the appellants under the said Act?
ii) Whether the writ petition could be maintained for the said purpose especially in the alleged absence of so called failure of Union Territory Administration in complying with its obligations under the said Act?

28. SCHEME OF THE ACT
In order to appreciate and answer the aforesaid questions in the context of the factual matrix, it is necessary to analyze the relevant provisions of the said Act. The Statement of Objects and Reasons set out that the traditional norms and values of the Indian Society which lay stress on providing care for elderly getting diluted due to the withering of the joint family system, the elders are facing emotional neglect and lack of physical and financial support. Thus, aging has become a major social challenge and despite the provisions of the Code of Criminal Procedure, 1973 for maintenance, it was deemed necessary that there should be simple, inexpensive and speedy provisions to claim maintenance for the parents. The Act is not restricted to only providing maintenance but cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives. One of the major aims was to provide for the institutionalization of a suitable mechanism for the protection of ‘life and property of older persons’.

29. Section 2 contains the definitions and clause (f) defines ‘property’ as under:-
Definitions:- In this Act, unless the context otherwise requires:-
a) xx xx xx
b) xx xx xx
c) xx xx xx
d) xx xx xx
e) xx xx xx
“(f) Property” means property of any kind, whether movable or immovable, ancestral or self acquired, tangible or intangible and includes rights or interests in such property.”

The aforesaid would thus show the definition of property within the meaning of the Act is wide and comprehensive with the object of securing the interest of the elders. This is to be read alongwith Section 6 which makes the provisions of the said Act to have overriding effect notwithstanding anything inconsistent therewith contained in any enactment other than the said Act including any instrument having effect under any other Act.

30. Chapter-II of the said Act deals with the maintenance of parents and senior citizens while Chapter-IV deals with the medical care. However, since the appellants before us are claiming neither, we are not delving these provisions in any detail. The relevant Chapter-V provides for protection of life and property of senior citizens. Section 21 provides for measures of publicity, awareness etc. for welfare of senior citizens, while Section 22 provides for the Authorities who may be specified for implementing the provisions of the said Act. Section 22 reads as under:-

“22. Authorities who may be specified for implementing the provisions of this Act
(1) The State Government may, confer such powers and impose such duties on a District Magistrate as may be necessary, to ensure that the provisions of this Act are properly carried out and the District Magistrate may specify the officer, subordinate to him, who shall exercise all or any of the powers, and perform all or any of the duties, so conferred or imposed and the local limits within which such powers or duties shall be carried out by the officer as may be prescribed.
(2) The State Government shall prescribe a comprehensive action plan for providing protection of life and property of senior citizens.”

Thus what is envisaged is both protection of life and protection of property through a comprehensive action plan.

31. In order to prevent interference by Civil Courts qua any action taken in furtherance of the provisions of the said Act, Section 27 bars the jurisdiction of the Civil Courts, especially in respect of injunction. Section 27 of the said Act reads as under:- “27. Jurisdiction of civil courts barred No Civil Court shall have jurisdiction in respect of any matter to which any provision of this Act applies and no injunction shall be granted by any Civil Court in respect of anything which is done or intended to be done by or under this Act.”

32. Sub Section (1) of Section 32 of the said Act requires the State Government to make rules for carrying out the purposes of this Act which in turn would imply that the same inter-alia provides for protection of life and property of senior citizens under clause (f) of sub section (2) of section 32 of the said Act.

33. The major grievance made by the appellants in the context of the aforesaid provisions thus is that there is failure to make statutory rules in terms of Section 32, as envisaged aforesaid, by the Chandigarh Administration which itself compelled the appellants to approach this Court under Articles 226/227 of the Constitution of India.

34. In the context of the aforesaid discussion about the provisions of the Act, now we proceed to analyze two crucial questions referred to aforesaid:-
Question No. (i):-
The stand of respondent No. 7 before the Court is not that there was any contribution given by him for acquisition of the plot at Chandigarh. It is also not his say that the property is an inherited property. The registered document of title is also in favour of only appellant No.1. Infact, out of his own earnings, appellant No.1 gifted the plot to respondent No. 7 as well as two other plots to his daughters. There is just a bald statement that the property at Chandigarh is joint Hindu family property. The failure, which has been attributed to Administration of Union Territory, Chandigarh, is qua the provisions of Section 32 read with Section 22 of the said Act. There are rules required to be made by a notification in the official gazette for carrying out the purposes of the Act under sub section (1) of Section 32 of the said Act. These Rules without prejudice to the generality of the powers, inter-alia are to provide for implementation of the provisions of the said Act under sub section (1) of Section 22 (clause (e) of sub section (2) of Section 32) and a comprehensive action plan for providing protection of life and property to senior citizens under sub section (2) of Section 22 (Clause (f) of sub section (2) of Section 32). No such Rules have been notified. The grievance thus being made is that in the absence of the Rules there is no effective procedure for the protection of life and property of senior citizens and issuing a notification by the Social Welfare Department dated 20.08.2013 constituting a Special Cell qua the life and property to be protected under section 22 (2) of the Act would not suffice. Infact sub section (1) of Section 22 of the said Act requires the State Government to confer powers and impose duties on a District Magistrate to ensure that the provisions of the Act are properly carried out. There has to be thus an enforcement mechanism set in place especially qua the protection of property as envisaged under the said Act. When we examine it from the context of the problem at hand, this is absent.

35. What is the right of respondent No. 7 and his family members to insist on occupying a portion of the house of appellant No.1 especially when the sale-deed is registered in the name of appellant No.1 in his individual name? Merely stating that it is a joint Hindu family property would not suffice. In order to establish that the property belongs to joint family, it must be established that a joint family had a sufficient nucleus at the time of its acquisition. (P. S. Sairam and another V. P.S.Rama Rao Pisey and others (2004) 11 SCC 320). Leave aside the corpus, it is not even alleged that the funds other than the individual funds of appellant No.1 were utilized to purchase the plot at Chandigarh. Respondent No. 7 could not have even alleged so as he actually received a self acquired plot at Panchkula from appellant No.1 by way of gift while daughters of appellant No.1 received one plot each in Karnal. Other than the oblique motive to grab the property at Chandigarh and keep possession of the same against the wishes of the owner, there can be no other reason. Infact, it was quite clear during the course of arguments that not only respondent No. 7 wants to deprive the appellant No.1 to deal with his property as per his wishes but wanted to grab the whole property for himself denying the share of his sisters.

36. In Ganduri Koteshwaramma and another Vs. Chakiri Yanadi and another 2011(9) SCC 788 it has been held by the Supreme Court that in view of the amendment of Section 6 of the Hindu Succession Act, 1956, a daughter is entitled to share in the ancestral property and is a co-parcener as if she had been a son w.e.f. 09.09.2005. Daughter of a co-parcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The only exception carved out is that where the disposition or alienation has taken place before 20.12.2004 and where testamentary disposition of property has been made before the said date.

37. It cannot be said that in such a situation, where respondent No. 7 was at best living with the permission of his parents, which permission stands long withdrawn, the appellants and more specifically appellant No.1 should be compelled to knock the door of the civil court and fight a legal battle to obtain exclusive possession of the property. This would defeat the very purpose of the said Act which has an overriding effect qua any other enactment in view of Section 3 of the said Act. Infact, the Civil Court has been precluded from entertaining any matter qua which jurisdiction is vested under the said Act and specifically bars granting any injunction. Respondent No. 7 is thus required to move out of the premises to permit the appellants to live in peace and civil proceedings can be only qua a claim thereafter if respondent No. 7 so chooses to make in respect of the property at Chandigarh but without any interim injunction. It is not the other way round that respondent No. 7 with his family keeps staying in the house and asking the appellants to go to the Civil Court to establish their rights knowing fully well that the time consuming civil proceedings may not be finished during the life time of appellant No.1. Infact, that is the very objective of respondent No. 7.

38. Though it is not directly relevant but it is not even as if respondent no. 7 is without a roof over his head as he is a beneficiary of a gift from his father-appellant No.1 of a plot which was sold, smaller plot purchased and constructed upon and the house is lying vacant. What can be a greater travesty of justice in this situation where respondent No. 7 insists that he will not stay in his own house built by him lying vacant, but insists on staying with his parents who do not want him or his family to live with them. We don’t have the slightest of hesitation in coming to a conclusion that all necessary directions can thus be made under the said Act to ensure that the appellants live peacefully in their house without being forced to accommodate respondent No. 7. Question No. (ii)

39. A lot of hue and cry has been raised on the issue as to whether directions can be issued in writ proceedings under Articles 226/227 of the Constitution of India to enforce the provisions of the said Act. We have already noticed above that a proper mechanism for enforcement of the provisions of the said Act for protecting the property rights of the appellants under Section 22 of the said Act has not been put in place by the Union Territory Administration and enforcement would be a big issue. How and through which machinery can a Special Cell ensure the eviction of respondent No. 7 from the property so that the appellants can live in peace in their house? Can we say that the Courts would be powerless both in equity and law to enforce such an order when primacy has been given to the provisions of the said Act over all other law. The answer to these questions should be in the negative. If the State fails to perform the functions envisaged under an Act, it would certainly give rise to a jurisdiction to be exercised under Article 226 of the Constitution of India. (A.B.L. International Ltd. Vs. Export Credit Guarantee Corporation of India Ltd. 2004(3) S.C.C. 553 and Mrs. Sanjana M.Wig Vs. Hindustan Petro Corporation Ltd. AIR 2005 SC 3454).

40. In the present case, there is, as noticed, a failure to provide mechanism and thus the protection of the property of the appellants envisaged under the salutary provisions of the said Act certainly can be enforced under Article 226 of the Constitution of India. We have already noticed above that if there is a legal right to share the property at Chandigarh, which respondent No. 7 seeks to establish, for whatever it is worth, it is for respondent No. 7 to approach the Civil Court and not vice-versa. The right of exclusive possession of a self owned property by a registered document of title can well be enforced under the provisions of the said Act by issuing appropriate directions in exercise of jurisdiction under Article 226 of the Constitution of India. We have thus once again in no hesitation in coming to the conclusion that there is nothing which prohibits the writ jurisdiction to be exercised in such a case.

CONCLUSION
41. Now we come to moulding of the appropriate relief to be granted under Article 226 of the Constitution of India given the aforesaid legal position and the facts of the case. We have already observed that the Courts cannot be left helpless to assist the senior citizens whose rights are protected under the said Act because of obdurate and unreasonable stand of the son/respondent No. 7. We thus issue the following directions:-

i) The Administration of Union Territory, Chandigarh should forthwith take steps to bring into force proper rules under Section 32(1) of the said Act for the purposes mentioned under sub section (2) of Section 32 more specifically clauses (e) and (f) so as to protect the life and property of senior citizens as envisaged under Section 22 of the said Act. This should include a comprehensive action plan including enforcement mechanism and conferring relevant powers to the District Magistrate or officers subordinate to him as envisaged under sub section (1) of Section 22 of the said Act. Such action may be taken within one month from today.
ii) Respondent No. 7 and his family members are directed to vacate the property bearing House No. 642, Sector 11-B, Chandigarh to the extent it is occupied by them and the keys be handed over to appellant No.1 within a period of 15 days from today.
iii) The Senior Superintendent of Police of Union Territory, Chandigarh/respondent No.3 is directed to ensure enforcement of the direction (ii) mentioned above. iv) If respondent No. 7 wants to establish any legal right or share in the aforesaid house, he is free to file appropriate civil proceedings but without infringing the exclusive rights of the appellants in the interregnum period implying that there would be no interim injunction qua occupation by the civil court as that would be a violation of the provisions of the said Act.

The impugned order of the learned Single Judge dated 17.05.2013 is consequently set-aside to the aforesaid extent. We part with the feelings of dismay at the attitude of respondent No. 7 despite all efforts by the Committee and the Court but with the hope that at some stage sanity would dawn and he would recognize the contribution made by his father including monetarily towards establishing him in an independent house gifted to him. The appeal is accordingly allowed with costs quantified at ` 50,000/- in favour of the appellants and against respondent No. 7 to be paid within 15 days.

(SANJAY KISHAN KAUL)
CHIEF JUSTICE

(AUGUSTINE GEORGE MASIH)
JUDGE

26.09.2013
‘ravinder’

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To,

The Addl. Registrar,

High Court, Chandigarh

CRM-M _________________ of 2017

Balwant Singh others   …Petitioners

Versus

State of Punjab     …Respondent

Sir,
Will you kindly treat the accompanying petition as an urgent one in accordance with the provision of Rule 9, Chapter 3-A, Rules and Order High Court, Volume V.

The grounds of urgency are:   prayer for stay has been made.

Place: Chandigarh,

Dated:   -09-17

(Mrs. Savita Bhandari), (Rohit Samhotra) Ambransh Bhandari

D/275/82   P/2057/15      P/ /2016

Advocates

Counsel for Petitioners

IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH

CRM-M _________________ of 2017

Balwant Singh others   …Petitioners

Versus

State of Punjab      …Respondent

INDEX

Total Court Fee: 29.00

Place: Chandigarh,

Dated: -09-17

(Mrs. Savita Bhandari), (Rohit Samhotra) Ambransh Bhandari

D/275/82   P/2057/15      P/ /2016

Advocates

Counsel for Petitioners

IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH

CRM-M _________________ of 2017

Balwant Singh others   …Petitioners

Versus

State of Punjab …Respondent

COURT FEE

Place: Chandigarh

Dated: 30-08-17

(Mrs. Savita Bhandari), (Rohit Samhotra) Ambransh Bhandari

D/275/82   P/2057/15      P/ /2016

Advocates

Counsel for Petitioners

IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH

CRM-M _________________ of 2017

MEMO OF PARTIES

1. Balwant Singh s/o Mahendra Singh, aged about 75 years, resident of Madan Mohan, Malviya ward, police station Naya Munda, Bodhghat, near Chopra Mill, Jagdalpur, Distt. Bastar, Chhattisgarh.

2. Nilmani Singh w/o Balwant Singh, aged about 70 years, resident of Madan Mohan, Malviya ward, police station Naya Munda, Bodhghat, near Chopra Mill, Jagdalpur, Distt. Bastar, Chhattisgarh.

3. Balbir Singh s/o Balwant Singh, resident of Kumhar Para, Near Ayurvedic Hospital, Jagdalpur, Distt. Bastar, Chhattisgarh.

4. Kuldeep Kaur w/o Lt. Sh. Bittu Singh, resident of Madan Mohan, Malviya ward, police station Naya Munda, Bodhghat, near Chopra Mill, Jagdalpur, Distt. Bastar, Chhattisgarh.

5. Hardeep Kaur w/o Lt. Sher Singh, resident of Madan Mohan, Malviya ward, police station Naya Munda, Bodhghat, near Chopra Mill, Jagdalpur, Distt. Bastar, Chhattisgarh.

6. Vikram Singh s/o Lt. Sher Singh, resident of Madan Mohan, Malviya ward, police station Naya Munda, Bodhghat, near Chopra Mill, Jagdalpur, Distt. Bastar, Chhattisgarh.

7. Surinder Kaur w/o Raj Rajinder Singh r/o Telibanda, near Marine Drive, Gehind Gurudwara, Raipur, Chattisgarh.

…Petitioners

Versus

State of Punjab  …Respondent

Place: Chandigarh

Dated: 28-12-15

(Mrs. Savita Bhandari), (Rohit Samhotra) Ambransh Bhandari

D/275/82   P/2057/15      P/ /2016

Advocates

Counsel for Petitioners

Petition under section 482, CrPC for quashing of FIR No. 58, dated 01.12.2016 under section 498A 406, IPC, Police station Women Cell against petitioners.

And

It is further prayed that the trial pending before the court of Ms. Parul JMIC, Mohali may kindly be stayed during the pendency of this case in the interest of justice.

And

Any other order or direction as this Hon’ble Court may deem fit in the facts and circumstances of the case.
Respectfully Showeth: –

1. That the instant petition is being presented for kind consideration of anticipatory bail to the petitioner who is a law-abiding citizen and falsely implicated in FIR No. 58/2016, u/s 406 498A, IPC, registered on 12.11.2016 at Police Station: Women cell, Mohali, by the complainant, Kiratjot Kaur, alias ‘Jyoti’. The petitioner is accused in FIR and apprehends arrest which is unwarranted and unjustified. The impugned FIR is annexed as Annexure P-1.

2. That the marriage of the complainant and petitioner was solemnised in 2002 (approx. 15 years ago), and a son was born in 2003. A simplistic non-traditional marriage was solemnized in 2002 where only family members were invited from the petitioner’s side, thus, the traditional concept of marriage Barat and dowry, is missing in the matter. In the afore-mentioned FIR, the petitioner along with seven other family members were falsely implicated as accused u/s 498-A 406, IPC. The petitioner along with all other family members/ accused are permanent residents of Chhattisgarh and the alleged events mentioned in FIR took place in Chhattisgarh.

3. That a perusal of FIR will dispel all doubts regarding guilt of the petitioner and vindictive nature of the complainant. Three incidents dated 09.08.2016, 10.08.2016 and 22.08.2016, mentioned in FIR are fabricated, highly imaginative and result of an illusionary mind. No iota of evidence like MLR, or any other independent witness has been produced by the complainant to corroborate these incidents, and yet the police has given weight to the hollow and vague statement of the complainant. FIR, in its fundamental perversity, and the generalized allegations therein, make it evident that the following family of the petitioner have been falsely implicated and pulled on broad on the basis of vague and frivolous allegations levelled by the complainant: – Neelmani Singh (mother-in-law), 73 years old, Balwant Singh (father-in-law), 75 years old, Balbir Singh (brother-in law), lives separately, Kuldeep Kaur (sister-in-law), widow, Hardeep Kaur (sister-in-law), widow, living separately, Vikram Singh (nephew), 22 years old, and Surinder Kaur (sister-in-law), lives separately.

4. That on 27.05.2017, the police went to Chhattisgarh and arrested two most vulnerable family members– Balwant Singh, 75-year-old (father-in-law) and Vikram Singh, 22-year-old son of another accused, Hardeep Kaur (sister in-law). Both the accused had absolutely no connections with the present FIR. All the names of accused were baselessly incorporated in FIR and there was no substantial reason to conduct arrest of any of the member. Yet, to put pressure on the entire family the arrest was conducted. Such grave violation of the constitutional rights of the accused reflects serious bias, malfunction and arbitrariness of police party and invites appropriate action by the concerned administrative and judicial authorities.

5. That the approach adopted by the police regarding the arrest of 75-year-old (father-in-law), and 21-year-old (nephew), and the manner in which the investigation is being conducted is contrary to the mandate laid down by the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, and another recent judgement delivered by Hon’ble Supreme Court Rajesh Kumar vs. State of Uttar Pradesh, Criminal Appeal No. 1265 of 2017. After arrest, both the accused were granted regular bail by the Hon’ble Court of Joshika Sood, JMIC, Mohali on 05.06.2017. All the remaining 5 accused named in FIR were granted the concession of pre-arrest/ anticipatory bail on 16.06.2017. The stereotypical allegations of dowry and its demand are not sufficient to register an FIR, let alone arrest of any. Not a single financial transaction, gold or of any other valuable item, has been placed on record by the complainant to corroborate her vague assertions of dowry and its demand.

6. That the petitioner had moved an anticipatory bail application before the Hon’ble Court of Ms. Girish, Addl. Sessions Judge, Mohali and impugned order passed on 20.07.2017 is annexed as Annexure P-2. The learned Addl. Sessions Judge overlooked the fact that complainant had failed to produce iota of evidence regarding alleged violence, reason of violence, dowry and its demand. The learned judge ought to have adequately considered peaceful duration of marriage i.e. more than 15 years, petitioner’s possibility of fleeing from justice, age of the child custody. Moreover, no list of dowry items was given to police till the date of arguments of anticipatory bail i.e. 20.07.2017 (FIR registered on 01.12.2016), this is a case where no recovery is to be made out. The learned judge ignored all the above-mentioned facts, medical ailment of the petitioner and passed a stereotypical order dismissing the anticipatory bail of the petitioner.

7. That during the advancement of the arguments in anticipatory bail, dated 20.07.2017, a fabricated list of dowry items was prepared by the complainant and handed it over to the police. It is important to mention here that in the ordinary course of proceedings, the list of dowry articles is provided to the police before the of registration of FIR. The so-called list prepared by the complainant alleged dowry items including gold, marriage expenditures, and other miscellaneous expenses produced in the court on 20.07.2017, no evidence was supplemented with the list. Her assertions pertaining to dowry items, marriage expenditures, and other miscellaneous expenses are wholly unreliable. The conduct of the complainant speaks volumes about her dubious character, especially in absence of any medical records directly related to her alleged incidents and receipts of dowry articles. The purpose of dowry laws will be frustrated in the absence of any credible evidence pertaining to dowry articles and harassment.

8. That in order to check miscarriage of justice in cases as such, the Hon’ble Apex Court expressed grave concern in Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273, with the relevant part of the judgment reproduced herein: –

“There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.”

9. That the police in this case should have acted as per the mandate laid down by the Hon’ble Apex Court in Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273. The relevant extract of the judgment is reproduced below: –

“We are of the opinion that if the provisions of Section 41, Cr.P.C, which authorizes the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasize that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.P.C for effecting arrest be discouraged and discontinued.

Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C;

(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

(4) The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;

(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

(6) Notice of appearance in terms of Section 41A of Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

(8) Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.”

10. That considering the rampant abuse of dowry laws in recent years, the Hon’ble Apex Court in the case of Rajesh Sharma vs. State of U.P., Criminal Appeal No. 1265 of 2017, held that: –

“16. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms is sometimes unavoidable. Just and fair procedure being part of fundamental right to life, interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable. The court has incidental power to quash even a non-compoundable case of private nature, if continuing the proceedings is found to be oppressive. While stifling a legitimate prosecution is against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised.

17. We have considered the background of the issue and also taken into account the 243rd Report of the Law Commission dated 30th August, 2012, 140th Report of the Rajya Sabha Committee on Petitions (September, 2011) and earlier decisions of this Court. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this Court. Still, the problem continues to a great extent.
18. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose.
19. Thus, after careful consideration of the whole issue, we consider it fit to give following directions: –
20. i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given suchhonorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

1. ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;

iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;

1. iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
2. v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
3. vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

viii) These directions will not apply to the offences involving tangible physical injuries or death.

20. After seeing the working of the above arrangement for six months but latest by March 31, 2018, National Legal Services Authority may give a report about need for any change in above directions or for any further directions. The matter may be listed for consideration by the Court in April, 2018.”
21. That conduct of the police in the present case brings utter setback to the evolution of the criminal justice system. The non-conformity of the police with the Apex Court’s expressed intentions and directions in cases of 498-A, IPC; the plotted implication and arrest of the two most vulnerable innocents throws us back to the primitive age of 498-A laws and the barbaric age of arbitrary police regime. The actual reason for filing FIR by the complainant is well known and recorded in the statements of accused, Balwant Singh and Vikram Singh (police ‘Zimmini’). This FIR depicts travesty of justice based on the facts and circumstances of this case.

12. That the petitioner is suffering from a medical ailment called Mild Global Cerebral Atrophy. It affects brain of the patient and definition of Mild Global Cerebral Atrophy is reproduced below:

Atrophy of any tissue means a decrement in the size of the cell, which can be due to progressive loss of cytoplasmic proteins. In brain tissue, atrophy describes a loss of neurons and the connections between them. Atrophy can be generalized, which means that all of the brain has shrunk; or it can be focal, affecting only a limited area of the brain and resulting in a decrease of the functions that area of the brain controls.”

The petitioner’s CT scan report and bill of the CT scan, dated 16 September 2016 are attached as Annexures P-3 P-4. He is experiencing from health issues like headache, dizziness, seizures, and unconscious, due to Mild Global Cerebral Atrophy. The government Hospital treatment card of the petitioner dated 16.9.2016 and medical prescription receipt dated 17.12.2016 are annexed as Annexure P-5 (Colly). The treatment card shows admission of the petitioner on 16.09.2016 due to ‘self fall on ground injury over head’, he suffered wound over right forehead 5 cm x 1cm and was shivering at the time of admission. The petitioner was discharged on 17.09.2016.

13. That the latest treatment report of the hospital dated 04.03.2017 10.04.2017, pertaining to the petitioner is annexed as Annexures P-6 P-7. The bill receipt of the hospital dated 10.04.2017 is annexed as Annexure P-8. The petitioner is physically and mentally incapacitated due to the disease and grant of the anticipatory bail will be in the interest of justice as no recovery is to be made out in this case. The entire treatment history of the petitioner was placed on record before the Hon’ble Court of Ms Girish, Additional Sessions Judge. However, learned Additional judge overlooked the ailment of the petitioner and record produced by the petitioner.

14. That the petitioner earnestly wishes to participate in the investigation to clarify each and every detail. He shall cooperate with investigation and will not leave the country or the city without permission of the Hon’ble Court, and abide by all the terms and conditions imposed by this Hon’ble Court.

15. That the petitioner is a law-abiding citizen there is no case against the petitioner except the one camouflage by the complainant and nothing is to be recovered from the petitioner. The custodial interrogation of the petitioner is not required at all. The petitioner has old-age parents to look after and there are no chances of him fleeing the course of justice or tempering with the witnesses.

16. That petitioner had not filed any other anticipatory bail application or revision or appeal against the impugned orders dated 20.07.2017. That no such or similar petition has been filed by the petitioner before this Hon’ble Court or the Hon’ble Supreme Court of India.

P R A Y E R:

It is, therefore, most respectfully prayed that the petition may kindly be accepted for kind indulgence of the Hon’ble Court and the Hon’ble Court may be pleased to:

1. Grant anticipatory bail to the petitioner in FIR no. 58 of 2016, u/s 498A 406, IPC, registered on 01.12.2016, pending in the court of Ms. Parul, JMIC, Mohali.
2. To exempt from filing of the certified copies of the Annexure P- to P- and Annexure P- to P- which are duly readable legible.

• Any other relief which the Hon’ble Court may deem fit in fact and circumstances of the case may kindly be granted in favor of the Petitioner.

Place: Chandigarh

Dated: 30-08-17   (Mrs. Savita Bhandari) (Rohit Samhotra)

D-275/82  P-2057/15

Advocates

Counsel for Petitioner

IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH

CRM-M _________________ of 2017

Dilip Singh     …Petitioner
Versus
State of Punjab  …Respondent

Dilip Singh S/o Balwant Singh, aged about 45 years, resident of Madan Mohan, Malviya ward, police station Naya Munda, Bodhghat, near Chopra Mill, Jagdalpur, Distt. Bastar, Chhattisgarh, I, the above-named deponent do hereby solemnly affirm and declare as under: –

1. That the petitioner/deponent is filing the accompanying Petition u/s 438 of Cr. P.C. for grant of Anticipatory Bail.
2. That the facts narrated in paras of the accompanying petition, which the deponent has read over, are true and correct to my knowledge. No part of it is false and nothing material has been concealed therein.
3. That no such or similar petition has earlier been filed by the petitioner/deponent in this Hon’ble Court or in the Hon’ble Supreme Court of India.

Deponent
Verification: Verified that the contents of para no. 1 to 3 of the above affidavit are true and correct to my knowledge. No part of it is false and nothing has been kept concealed. Deponent

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Case No. CRM-M ______________ of 2017

Dilip Singh  … Petitioner
VERSUS
State of Punjab …Respondent

KNOW ALL to whom these presents shall come that I/We ……………………………………… do hereby appoint the Advocate(s), of the Punjab & Haryana High Court, Chandigarh, (hereinafter called the Advocate/s) named below to be my/our Advocate(s) and do all or any of the necessary acts, deeds and things are particularly:

To act, appear and plead in the above-mentioned cause in this Court or any other Court in which the same may be tried or heard in first instance or in Appeal or Letters Patent Appeal or Review or Revision or Execution or in any other stage of its progress until its final decision.

To sign, file and present Pleadings, Appeals, Letters Patent Appeals, Cross-objections or leave to appeal to Supreme Court review, revision, withdrawal, compromise or other Petitions or affidavits or other documents as shall be deemed necessary or advisable for the prosecution of the said cause in all its stages.

To with draw or compromise the said cause or submit to arbitration any differences or disputes, that shall arise touching or in any manner relating to the said cause.

To deposit, draw and receive moneys and grant receipts thereof and to do all other acts and things which may be necessary to be done for the progress and in the course of the prosecution of the said cause.

To employ any other Legal Practitioner authorizing him to exercise the powers and authorities hereby conferred upon the Advocate whenever he may think fit to do so.

AND I/We hereby agree to ratify whatever the Advocate/s or his substitute shall do in the premises and in this connection.

AND I/We hereby agree not to hold the Advocate/s or his substitute responsible for the result of the said cause in consequence of his absence from the Court when the said cause is called up for hearing.

AND I/We hereby agree that in the event of the whole or any part of the fee agreed by me/us to be paid to the Advocate/s remaining unpaid, he shall be entitled to withdraw from the prosecution of the said cause until the same is paid.

IN WITNESS WHEREOF, I/We do hereunto set my/our hands to these presents, the contents of which have been explained to and understood by me/us, this the …………………… day of ………201………

(Signature/thumb impression of Client/s)

(Ambransh Bhandari) (Mrs. Savita Bhandari) (Rohit Samhotra)

P-3970/16     D-275/82 P-2057/15

Advocates for petitioner

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