1
Dr. GRR, J
crla_37_2013
THE HON'BLE DR.JUSTICE G.RADHA RANI
CRIMINAL APPEAL No.37 of 2013
JUDGMENT:
This Criminal Appeal is filed by the appellants A1, A3 to A6 aggrieved by the judgment dated 07.01.2013 in NDPS SC.No.11 of 2011 passed by the Special Judge for Trial of Cases under NDPS Act cum I Additional Sessions Judge, Adilabad District in convicting them for the offence under Section 20(b)(ii)(c) of the Narcotic Drugs & Psychotropic Substances Act (for short "NDPS" Act), 1985 and sentencing them to rigorous imprisonment for a period of ten (10) years each and to pay a fine of Rs.1,00,000/- each, in default of payment of fine to suffer simple imprisonment for a period of six (06) months each.
2. The case of the prosecution in brief was that, A1 was a resident of Vanjariguda Village of Sirpur(U) Mandal. He used to collect ganja from the villagers of surrounding villages and with the support of A2 to A6, was transporting ganja from Vanjariguda to Parbhani of Maharashtra State with the help of A2 who was acquainted with smugglers there in Parbhani and had command over that area. A1 purchased ganja from A4 by name Babu, and A6 by name Mohan, of the same village and also from surrounding villages and stored the same in his house at Vanjariguda. On 27.01.2011, in the early hours, 2 Dr. GRR, J crla_37_2013 A1 gathered A2 to A6 at his house and planned to transport ganja from Vanjariguda to Gudihathnur and at about 6:00 AM along with ganja stock of 48kgs packed in seven (07) plastic bags, kept it in a Maxi Jeep bearing No. MH26-S-238 driven by A3 and asked A4 to A6 to travel in the said jeep and along with A2 proceeded on a motor cycle without registration number in advance as a pilot. It was planned that, if anything goes wrong and if any police checking was noticed on the road, the pillion rider of the motor cycle would inform the same to the jeep driver and he along with the other accused would hide the jeep in some place till further message was received from A1 and A2.
3. The SI of Police, Indervelli received credible information at about 12:45 PM about the illicit transport of ganja from Utnoor side to Adilabad side in between 1:00 PM to 2:00 PM. Immediately, he made entry of information in the general diary and informed the same to Sub-Divisional Police Officer (for short "SDPO"), Utnoor and deputed the ASI 225, PCs 1294 and 1956, near Church Hospital on the BT Road leading from Utnoor to Adilabad briefing them about the information and instructed them to start checking the vehicles. The SI sent a letter to the Tahsildar, Indervelli mentioning the details of information and requested him to visit the place of checking at Church Hospital, Indervelli. The SI secured the panch witnesses and briefed them about the information and requested them to act as panchas and proceeded to the place of checking along with the Tahsildar at 1:30 PM. At about 1:45 PM, they stopped 3 Dr. GRR, J crla_37_2013 the motor cycle without registration number on which A1 and A2 were travelling and enquired about the vehicle documents. While the enquiry was going on, meanwhile, the Maxi Jeep bearing No.MH26-S-238 also came to the said place. They stopped the vehicle and on checking, found four (04) persons including the driver and seven (07) plastic bags in the jeep. They got opened the bags and on checking, found them filled with dry ganja. The Tahsildar, Indervelli interrogated A1 to A6 individually one after the other, recorded their confession statements and seized the jeep, motor cycle and the ganja. The SI got photographed and videographed the entire process of checking and recording the confession cum seizure panchanama. The Tahsildar got weighed the ganja, found them to be of 48 kgs and collected three (03) samples of 100 grams each from each bag. The SI lodged a report and sent the confession cum seizure panchanama of all the accused along with them and the seized ganja, Maxi Jeep and motor cycle to SHO, Indervelli PS to register a case. Basing on the contents of the report and the confession cum seizure panchanama of all the accused, the ASI 1600, the SHO of PS Indervelli registered a case in Crime No.7 of 2011 under Section 8(c) read with 20(b)(i) of the NDPS Act and handed over the further investigation to the CI of Police, Utnoor. The CI of Police, Utnoor recorded the statements of SI, ASI, Police Constables and of the photo and videographer, affected the arrest of A1 to A6 and produced them before the court for their remand. He sent the samples to the Government Chemical 4 Dr. GRR, J crla_37_2013 Examiner for analysis and report. The Government Chemical Examiner of Regional Prohibition and Excise Laboratory, Nizamabad, analyzed and issued report that the samples were of ganja. After receiving the report, charge sheet was filed by the CI of Police, in-charge of Utnoor PS.
4. The Special Court had taken cognizance of the offence and on hearing the Additional Public Prosecutor and the learned counsel for the accused, framed charge for the offence under Section 8(c) read with Section 20(b)(i) of the NDPS Act, 1985, against all the accused.
5. During the course of trial, the prosecution examined PWs 1 to 9 and got marked Exs.P1 to P6 and MOs 1 to 4. No defence evidence was adduced by the accused. A2 died during the pendency of trial on 29.01.2012.
6. On considering the oral and documentary evidence on record, the Special Court convicted the accused, A1 and A3 to A6 for the charge under Section 8(c) read with 20(b)(ii)(c) of the NDPS Act instead of 20(b)(i) of the NDPS Act and sentenced them as stated above.
7. Aggrieved by the said conviction and sentence, the appellants, A1 and A3 to A6 preferred this appeal contending that the trial court erred in convicting them for the offence under Section 20(b)(ii)(c) of the NDPS Act, 1985, while 5 Dr. GRR, J crla_37_2013 charge was framed against them for the offence under Section 8(c) read with Section 20(b)(i) of the NDPS Act.
8. The Special Court ought to have seen that serious prejudice was caused to the appellants for not framing a charge under Section 20(b)(ii)(c) of the NDPS Act for which they were found guilty. The trial court erred in recording the conviction despite PWs 4 and 5, who were the panch witnesses turned hostile, the seizure of the contraband was not proved and the appellants were entitled for acquittal. The photographer who allegedly took the photographs of the crime property also turned hostile. The mandatory procedure as required under Section 50 of the NDPS Act was not followed by the investigating officer. The procedures under the provisions of Sections 42 and 58 of the NDPS Act were also not followed by the prosecution. There was no evidence to conclusively prove the possession of the accused with respect to the gunny bags and ganja. There were several missing links in the case of the prosecution which were not properly explained and as such conviction ought not to have been recorded and prayed to set aside the judgment dated 07.01.2013 in NDPS SC.NO.11 of 2011 passed by the Special Judge for the Trial of Cases under NDPS Act cum I Additional Sessions Judge, Adilabad District.
9. Heard the learned counsel for the appellants and the learned Additional Public Prosecutor for the respondent.
6
Dr. GRR, J crla_37_2013
10. The learned counsel for the appellants mainly contended with regard to the non-compliance of Section 42 of the NDPS Act and relied upon the Constitutional Bench judgment of the Hon'ble Apex Court in Karnail Singh v. State of Haryana1, Bahadur Singh v. State of Haryana2, Darshan Singh v. State of Haryana3 and Boota Singh and Others v. State of Haryana4. He contended that there was total non-compliance of Section 42 of the NDPS Act, the trial court failed to observe the same, though the entire incident was stated to be photo-graphed and video-graphed but no such photos or videos were filed before the court. The alleged CD was not marked. The accused belonged to Maharashtra State. The panchanama was recorded in Telugu Language. They did not understand the language in which it was recorded. The contents were not explained to them.
11. The learned Additional Public Prosecutor, on the other hand contended that the SI of Police, on receipt of reliable information about the transportation of ganja made an entry in general dairy and informed the SDPO over phone which would amount to sufficient compliance. As the offence was committed on a public road, Section 42 of the NDPS Act would not apply. It was a case falling under Section 43 of the NDPS Act and relied upon the judgment of the 1 (2009) 8 SCC 539 2 (2010) 4 SCC 445 3 (2016) 14 SCC 358 4 (2021) SCC OnLine SC 324 7 Dr. GRR, J crla_37_2013 High Court of Delhi in Ram Prakash v. State5, he also further contended that as the photographer turned hostile, the photos and videos could not be marked but the Tahsildar examined as PW6, supported the prosecution case. The trial court on considering all the aspects convicted the accused which would need no interference by this Court and prayed to dismiss the appeal.
12. Now the points for consideration are:
(i) Whether any prejudice was caused to the appellants for not framing the charge under Section 20(b)(ii)(c) of the NDPS Act and convicting them for the said offence?
(ii) Whether Section 42(1) of the NDPS Act is applicable to the facts and circumstances of the case?
(iii) Whether there is any illegality in the judgment of the trial court and whether the same is liable to be set aside?
13. POINT No.(i):
The charge framed against the appellants is as follows: "That you A1 to A6, on 27.01.2011 at about 13:45 hours, are found illegally transporting 48kgs of dry ganja in a Maxi Jeep bearing No.MH26- S-238 in front of Church Hospital at Indervelli to sell the same at higher price in Maharashtra State. When the Police checked your vehicle, you had failed to produce valid license or permit for such possession or transportation of ganja, thereby you accused Nos. 1 to 6 committed an offence punishable under Section 8(c) read with Section 20(b)(i) of the NDPS Act, 1985 and within the cognizance of this Court."
14. Section 8(c) of the NDPS Act, 1985 reads as follows:
"(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, 5 (2014) LawSuit(Delhi) 5039 8 Dr. GRR, J crla_37_2013 except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: 1[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes."
15. Thus Section 8(c) prohibits all activities like production, manufacture, possession, selling, purchase, transport, use, consume, import and export any narcotic drug or psychotropic substances including cannabis, except for medical or scientific purposes.
16. Section 20(b) is punishment for contravention of use of cannabis (ganja). Section 20 of the NDPS Act, 1985 reads as follows:
"20. Punishment for contravention in relation to cannabis plant and cannabis.--Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder,--
(a) cultivates any cannabis plant; or "(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable--
1[(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to sub-clause (b),--
(A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees, or with both;9
Dr. GRR, J crla_37_2013 (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding ' two lakh rupees."
17. The alleged quantity seized was 48 kgs of dry ganja. As per the notification issued by the Central Government under Section 2 of the NDPS Act, 1985, a table was released stating the small and commercial quantities of each of the narcotic drug and psychotropic substances. As per the said table at Sl.No.55, one thousand (1000) grams of ganja is considered as a small quantity and 20 kgs and more is considered as commercial quantity. As the alleged quantity of contraband (dry ganja) was 48 kgs, it comes under commercial quantity and the punishment for transporting commercial quantity of dry ganja attracts the contravention of Section 20(b)(ii)(c) of the NDPS Act. Section 20(b)(i) of the NDPS Act pertains to contravention to clause (a) i.e., for cultivating cannabis plant which is not the case on hand. As per the facts of the case, the appellants were illegally transporting dry ganja of 48 kgs in a Maxi Jeep bearing No.MH26-S-238. The charge would specify the date, time and nature of the offence that they were illegally transporting 48 kgs of dry ganja in a Maxi Jeep bearing No.MH26-S-238. The place of apprehension was also specified as in front of Church Hospital at Indervelli and the contravention was also specified as, when the Police checked the vehicle, they failed to produce 10 Dr. GRR, J crla_37_2013 valid license or permit for such possession or transportation of ganja. Thus, the charge framed gives all the details of the charge under Section 20(b)(ii)(c) of the NDPS Act but the provision was only mentioned as Section 8(c) read with Section 20(b)(i) of the NDPS Act, 1985. The cross-examination of all the witnesses also would disclose that the accused after understanding the contents of the charge, questioned the witnesses with regard to the non-compliance of Section 42 and 50 of the NDPS Act relating to search and seizure of the contraband dry ganja while transporting it, but not for cultivating the ganja. As such, the accused were not prejudiced for not framing the charge under Section 20(b)(ii)(c) of the NDPS Act.
18. The trial court observed that:
"The charge framed against the accused contains particulars such as time, place, manner, commission of the offence including quantity of MO3 ganja as required under Section 211 to 213 of the Code of Criminal Procedure, but the penal provision was mentioned as 20(b)(i) of the NDPS Act instead of Section 20(b)(ii)(c) of the NDPS Act. The accused and their counsel knew the nature of the offence and the charge framed is sufficiently explicit to give the accused notice of the offence committed and it was never the defence of the accused that the description of the charge is incomplete and they were misled by such error of mentioning incorrect penal provision for contravention of Section 8(c) of the NDPS Act. Be that as it may in view of Section 215 of Criminal Procedure Code, no such error in stating the correct penal provision shall be regarded as material unless the accused was misled by such error or omission and it has occasioned a failure of justice. Therefore, in that view of the matter, the charge framed is sufficiently clear to give the accused notice of the charge they have to meet, in my humble opinion, mere mentioning of penal provision as 20(b)(i) instead of 20(b)(ii)(c) is not material."
19. Thus, the trial court on considering the nature of the offence, the charge framed, the evidence recorded and the procedural and penal provisions rightly 11 Dr. GRR, J crla_37_2013 observed that no prejudice was caused to the accused by framing the charge under Section 20(b)(i) instead of 20(b)(ii)(c) of the NDPS Act, 1985. This Court does not find any merit in the contention of the learned counsel for the appellants that serious prejudice was caused to the appellants for not framing the charge under Section 20(b)(ii)(c) of the NDPS Act, for which they were found guilty. Hence, point No.(i) is answered against the appellants.
20. POINT No.(ii):
The contention of the learned counsel for the appellants was that, the procedure under the provisions of Sections 42, 50 and 58 of the NDPS Act were not followed by the prosecution. To consider the said contention of the learned counsel for the appellants, it is necessary to consider the above provisions.
21. Section 42 of the NDPS Act relates to:
"42. Power of entry, search, seizure and arrest without warrant or authorisation.--
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any 12 Dr. GRR, J crla_37_2013 illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub- section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate superior official."
22. Section 50 of the NDPS Act is pertaining to search of persons:
"50. Conditions under which search of persons shall be conducted.--
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).13
Dr. GRR, J crla_37_2013 (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate superior official."
23. Section 58 of the NDPS Act is pertaining to:
"58. Punishment for vexatious entry, search, seizure or arrest.--
(1) Any person empowered under section 42 or section 43 or section 44 who--
(a) without reasonable ground of suspicion enters or searches, or causes to be entered or searched, any building, conveyance or place;
(b) vexatiously and unnecessarily seizes the property of any person on the pretence of seizing or searching for any narcotic drug or psychotropic substance or other article liable to be confiscated under this Act, or of seizing any document or other article liable to be seized under section 42, section 43 or section 44; or
(c) vexatiously and unnecessarily detains, searches or arrests any person, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both.
(2) Any person willfully and maliciously giving false information and so causing an arrest or a search being made under this Act shall be punishable with imprisonment for a term which may extend to two years or with fine or with both."14
Dr. GRR, J crla_37_2013
24. Section 42 of the NDPS Act is applicable, when any officer specified under the said section had reason to believe either from his personal knowledge or information given by any person and taken down in writing that any such narcotic drug or psychotropic substance or controlled substance is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset enter into any such building or any conveyance or place.
25. Thus, it mandates the specified officer to take down in writing any information received from any person or to record grounds for his belief under the provision and to immediately send a copy thereof to his immediate superior official within 72 hours as per sub-section (2).
26. The contention of the learned Additional Public Prosecutor was that the search was not done in any building or enclosed place, but in a public place, as such, the provision applicable was Section 43 of the NDPS Act, but not Section 42 of the NDPS Act. As such, it is also considered necessary to extract Section 43 of NDPS Act.
27. Section 43 of the NDPS Act reads as follows:
"43. Power of seizure and arrest in public place. -- Any officer of any of the departments mentioned in section 42 may,
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has 15 Dr. GRR, J crla_37_2013 been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation: For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public."
28. Section 42 includes a conveyance also and as per the explanation to Section 43, public place includes any public conveyance. As per the facts of the case, the contraband dry ganja was found being transported in a Maxi Jeep bearing No.MH26-S-238. It is not proved that the persons travelling in the vehicle are paid passengers or not and hence it is to be inferred as a private vehicle.
29. As per the evidence of PW1, on 27.01.2011 during noon hours, he received information that some persons would transport ganja in a vehicle from Utnoor side to Adilabad side on the BT road, and he made an entry in the general diary about that information and intimated the same to his DSP and immediately, he along with the ASI and the constables went on to the road in Indervelli town near Church Hospital for vehicle checking. Immediately, after 16 Dr. GRR, J crla_37_2013 reaching the place near Church Hospital, he sent a requisition in writing to the MRO, Indervelli through his constable stating about the information received by him about transportation of ganja in a vehicle and that he was at the Church Hospital for checking vehicles and requested the MRO to come to the place to witness the search and seizure. He stated that, immediately the MRO came to the spot along with two (02) panchas. After that, they found two (02) male persons coming on a motor cycle and they stopped them. The motor cycle was of Bajaj make and it was without any registration number. The persons on the motor cycle did not show them any paper pertaining to the ownership of the vehicle. While they were talking to those two (02) persons, within 10 minutes a Maxi Jeep came there with registration No.MH26-S-238. They also stopped the Maxi Jeep for checking. On checking, they found 7 gunny bags in the body of the jeep. Apart from the driver, they found three (03) male persons in the jeep. On his enquiry, those three (03) persons and the driver did not give proper answers. On suspicion, he along with the MRO and staff, opened those 7 bags and found dry ganja in those bags. Then, they summoned a photographer cum videographer to the scene and got the jeep, bags and those persons photographed and video-graphed. He stated about the MRO, conducting the panchanama, recording the confessions of all the accused and seizure of the 7 bags containing dry ganja, Maxi Jeep and the motor cycle. He stated that the total weight of the ganja in all the seven bags was 48 kgs. From each bag, they 17 Dr. GRR, J crla_37_2013 had drawn 3 samples of 100 grams each for analysis and affixed the panch chits on each sample, the seven bags, Maxi Jeep and on the motor cycle. He prepared a report of the same and sent the same to PS Indervelli through ASI for registering the case. In his cross-examination, he stated that he received the information at about 12:30 PM and not mentioned in Ex.P1 panchanama about the general diary entry which he made after receiving the information. He stated that he had not obtained warrant from the I Class Magistrate for the search of persons or the vehicle and not mentioned in Ex.P1 panchanama about the reasons for not obtaining the warrant.
30. Thus, the evidence of PW1 would disclose that he received reliable information about transportation of dry ganja while he was in the Police Station and made an entry in the general diary and also informed the DSP. But the general diary entry was not filed before the court. The prosecution had not filed any document to show that PW.1 had reduced the said information into writing nor informed his immediate superior official in writing.
31. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat6, a three-Judge bench of the Hon'ble Apex Court held that:
"Compliance of Section 42 of the NDPS Act, 1985 was mandatory and failure to take down the information in writing and forthwith sent a report to his immediate superior official would cause prejudice to the accused."6
(2002) 2 SCC 513 18 Dr. GRR, J crla_37_2013
32. In Sajan Abraham v. State of Kerala 7 , a three-Judge bench of the Hon'ble Apex Court held that:
"Section 42 was not mandatory and substantial compliance was sufficient."
33. As the NDPS Act prescribes stringent punishment and the statement of objects and reasons of the NDPS Act makes it clear that, as the narcotic drugs and psychotropic substances were posing serious problems to national governments, a comprehensive law was enacted by the Parliament enabling exercise of control over psychotropic substances in India in the manner and usage of psychotropic substances, as per the International Convention on Psychotropic Substances, 1971, to which India also acceded as a party.
34. The Constitutional Bench of the Hon'ble Apex Court in Karnail Singh v. State of Haryana (1 supra) observed that:
"Search and seizure are essential steps in the armory of an investigating officer in the investigation of a criminal case and a balance must be struck between the need of the law and the enforcement of such law on one hand and the protection of citizens from oppression and injustice on the other. The provisions contained in Chapter V are intended for providing certain checks on exercise of powers of the authority concerned as they are capable of being misused through arbitrary or indiscriminate exercise unless strict compliance is required. The statute mandates that the prosecution must prove compliance with the said provisions."
and considering its judgments in Abdul Rashid Ibrahim Mansuri V. State of Gujarat (6 supra) and Sajan Abraham v. State of Kerala (7 supra) held that: 7
(2001) 6 SCC 692 19 Dr. GRR, J crla_37_2013 "35. In conclusion, what is to be noticed is that Abdul Rashid Ibrahim Mansuri V. State of Gujarat [(2002) 2 SCC 513] case did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham v. State of Kerala [(2001) 6 SCC 692] case hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :
(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section (42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to
(d) of section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior .
(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each 20 Dr. GRR, J crla_37_2013 case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001."
35. In Bahadur Singh v. State of Haryana (2 supra), the Hon'ble Apex Court held that:
"17. It cannot but be noticed that with the advancement of technology and the availability of high speed exchange of information, some of the provisions of the NDPS Act, including Section 42, have to be read in the changed context. Apart from the views expressed in Sajan Abraham's case [(2001) 6 SCC 692] that the delay caused in complying with the provisions of Section 42 could result in the escape of the offender or even removal of the contraband, there would be substantial compliance, if the information received were subsequently sent to the superior officer."
"19. Apart from the decision in Sajan Abraham's case, the decision of the Constitution Bench in Karnail Singh's case [(2009) 8 SCC 539], has also made it clear that non-compliance with the provisions of Section 42 may not vitiate the trial if it did not cause any prejudice to the accused. Furthermore, whether there is adequate compliance of Section 42 or not is a question of fact to be decided in each case."
36. The trial court on considering the evidence of PW1 observed that:
"PW1 on receipt of credible information about the transportation of dry ganja, immediately informed to his DSP. Though, PW1 did not mention the relevant general diary entry number either in Ex.P2 or in his oral evidence, there is no reason to disbelieve the oral evidence of PW1 to that effect. That apart, PW8, who is the immediate higher officer of PW1 took up investigation on the same day, affected the arrest of A1 to A6, later sent the seized vehicles and MOs along with samples."
37. Therefore, in his considered opinion, PW1 complied the provisions of Sections 42 and 57 of the NDPS Act.
21
Dr. GRR, J crla_37_2013
38. The learned counsel for the appellants relied upon the judgment of the Hon'ble Apex Court in Darshan Singh v. State of Haryana (3 supra), wherein it was held that:
"The mandate contained in Section 42(1) of the NDPS Act, requiring the recording in writing, the details pertaining to the receipt of secret information, as also, the communication of the same to the superior officer are separate and distinct from the procedure stipulate under the provisions of Criminal Procedure Code. Section 42(1) of the NDPS Act lays down that the empowered officer if he has a prior information given by any person, should necessarily taking down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of function of such offences or consiled in any building etc., or he may carry out the arrest or such without warrant between sunrise and sunset and he may do so without recording his reasons of belief. The two separate procedures noticed above are exclusive to one another compliance with one, would not imply compliance with the other. In the circumstances contemplated under Section 42 of the NDPS Act, the mandate of the procedure contemplated under Section 42(1) and Section 42(2) will have to be followed separately in the manner interpreted by the Supreme Court in Karnail Singh v. State of Haryana [(2009) 8 SCC 539], and the same will not be assumed merely because the Station House Officer concerned, had registered a First Information Report, which was also dispatched to the Superintendent of Police in compliance with the provisions of Criminal Procedure Code.
"Submission of the respondent-State state that the registration of FIR at the hands of SHO and its communication to Superintendent of Police, Panwar would constitute sufficient compliance with Section 42 of the NDPS Act is rejected. Section 42 of the NDPS Act was not complied with at all, in so far as the present controversy is concerned."
39. Thus the observation of the trial court, that PW1 immediately informed the DSP without any document in proof of the same and PW8, the CI, immediately taking up the investigation, considering it as sufficient compliance of Section 42 of the NDPS Act, is improper. The evidence on record would disclose that PW1 received the reliable information, while he was in the Police Station. Thus, he has sufficient time to record the same in writing and forthwith 22 Dr. GRR, J crla_37_2013 sent a copy to his immediate superior official. Though he stated that he recorded the same in the general diary entry, the same would not amount to sufficient compliance. In this case, even the said general diary entry was also not filed before the court.
40. In Karnail Singh v. State of Haryana (1 supra), the Constitutional Bench of the Hon'ble Apex Court also stated that:
"The compliance with the requirement of Section 42(1) and 42 (2) in regard to writing down the information received and sending a copy thereof to the superior officer should normally precede the entry, search and seizure by the officer, but in special circumstances involving emergent situations sending a copy thereof to the superior official may get postponed by a reasonable period that is after entry, search and seizure. The question was one of urgency and expediency. It also specified that while total non- compliance with requirements of Sub-Section (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42.
41. This is a case of total non-compliance, not even a case of delayed compliance as even after a search and seizure, no information in writing was given to the immediate superior official by PW1. His giving a report to register the case to the Station House Officer cannot be considered as compliance of Section 42 of the NDPS Act as observed by the Hon'ble Apex Court in Darshan Singh v. State of Haryana (3 supra) Case.
42. With regard to the contention of the Learned Additional Public Prosecutor, that the case falls under Section 43 of the NDPS Act but not under Section 42 of the NDPS Act, the learned counsel for the appellants relied upon 23 Dr. GRR, J crla_37_2013 the judgment of the Hon'ble Apex Court in Boota Singh and others v. State of Haryana (4 supra). The Hon'ble Apex Court in Boota Singh and others v. State of Haryana, while extracting its judgment in State of Rajasthan v. Jagraj Singh @ Hansa [(2016) 11 SCC 687] where in the said case the vehicle was not a public transport vehicle, held that:
"16. In this context, it is relevant to note that before the Special Judge also the breach of Sections 42(1) and 42(2) was contended on behalf of the defence. In para 12 of the judgment the Special Judge noted the above arguments of defence. However, the arguments based on non-compliance with Section 42(2) were brushed aside by observing that discrepancy in Ext. P-14 and Ext. P-15 is totally due to clerical mistake and there was compliance with Section 42(2). The Special Judge coming to compliance with the proviso to Section 42(1) held that the vehicle searched was being used to transport passengers as has been clearly stated by its owner Vira Ram, hence, as per the Explanation to Section 43 of the Act, the vehicle was a public transport vehicle and there was no need of any warrant or authority to search such a vehicle. The High Court has reversed the above findings of the Special Judge. We thus, proceed to examine as to whether Section 43 was attracted in the present case which obviated the requirement of Section 42(1) proviso."
"29. After referring to the earlier judgments, the Constitution Bench came to the conclusion that non-compliance with requirement of Sections 42 and 50 is impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance with Section 42. The Constitution Bench noted the effect of the aforesaid two decisions in para 5. The present is not a case where insofar as compliance with Section 42(1) proviso even an argument based on substantial compliance is raised there is total non-compliance with Section 42(1) proviso. As observed above, Section 43 being not attracted, search was to be conducted after complying with the provisions of Section 42. We thus, conclude that the High Court has rightly held that non-compliance with Section 42(1) and Section 42(2) were proved on the record and the High Court has not committed any error in setting aside the conviction order."
43. The Hon'ble Apex Court after considering the above judgment held that:
"15. The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The 24 Dr. GRR, J crla_37_2013 explanation to Section 43 shows that a private vehicle would not come within the expression "public place" as explained in Section 43 of the NDPS Act. On the strength of the decision of this Court in State of Rajasthan v. Jagraj Singh @ Hansa [(2016) 11 SCC 687], the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act."
"16. It is an admitted position that there was total non-compliance of the requirements of Section 42 of the NDPS Act."
"17. The decision of this Court in Karnail Singh v. State of Haryana [(2009) 8 SCC 539] as followed in State of Rajasthan v. Jagraj Singh @ Hansa, is absolutely clear. Total non-compliance of Section 42 is impermissible. The rigor of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh v. State of Haryana [(2009) 8 SCC 539], but in no case, total non-compliance of Section 42 can be accepted."
44. The vehicle involved in this case is MH26-S-238. The RC of the vehicle is not produced for verification. The prosecution has not proved whether it is Public Transport Vehicle. In the absence of specific evidence, it has to be construed as a private vehicle. As per the judgment of the Hon'ble Apex Court in the above case, a private vehicle would not come within the expression of public place under the explanation of Section 43 of the NDPS Act. As such, the appellants are entitled for benefit of doubt, and as Section 42 of the NDPS Act mandates a specific procedure to be complied and there was total non- compliance of the requirement of Section 42 of the NDPS Act, the contention of the learned counsel for the appellants with regard to the non-compliance of Section 42 of the NDPS Act is liable to be accepted.
25
Dr. GRR, J crla_37_2013
45. As the trial court failed to observe that there was non-compliance of Section 42 of the NDPS Act which was mandatory, it is considered fit to set aside the judgment of the trial court and the accused are acquitted for the offence under Section 8(c) read with Section 20(b)(ii)(c) of the NDPS Act.
46. In the result, the Criminal Appeal is allowed acquitting the accused for the offence under Section 8(c) read with Section 20(b)(ii)(c) of the NDPS Act. The bail bonds of the accused shall stand cancelled and the fine amount paid is liable to be refunded.
Miscellaneous applications pending, if any, shall stand closed.
____________________ Dr. G.RADHA RANI, J 6th December, 2022 nsk.