Smt.Kausalyabai @ Raibai ... vs State Of Mah. Thr. Narcotic Cell, ...
2017 Latest Caselaw 1512 Bom

                                                       1                       apeal778.03

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                              NAGPUR BENCH : NAGPUR



                        CRIMINAL APPEAL NO.778 OF  2003



Smt. Kausalyabai @ Raibai w/o
Pandurang Zade, aged about 
46 years, r/o Mini Mata Nagar,
House No.1435, Nagpur.                                     ...            Appellant 
                                                                          Accused
                 - Versus -

State of Maharashtra, through 
Narcotic Cell, Crime Branch, 
Nagpur.                                                    ...            Respondent


                                   -----------------
Shri  S.B. Trivedi, Advocate for appellant. 
Shri P.S. Tembhre, Additional Public Prosecutor for respondent.
                                   ----------------

                                          CORAM :   P.N. DESHMUKH, J.

DATED : APRIL 7, 2017

ORAL JUDGMENT :

This appeal takes exception to the judgment and order

dated 27/11/2003 passed by learned Special Judge, Nagpur in

Special Criminal Case No.6/1994 whereby appellant (hereinafter

referred to as "accused") came to be convicted for the offence

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punishable under Section 20(b)(i) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as "the

NDPS Act") and sentenced to suffer rigorous imprisonment for three

years and to pay fine of Rs.30,000/- and in default of payment of

fine, to suffer rigorous imprisonment for three months.

2) In brief, case of prosecution can be stated as follows :

On 27/12/1993, P.W.4 API Suresh Warade, while on

patrolling duty at around 4 p.m., received information from informer

involving accused in a transaction of sale of contraband ganja at Juni

Pardhi Naka Chowki. On that day, at about 5-5.30 p.m. information

was accordingly communicated telephonically to Assistant

Commissioner of Police, Crime Branch and thereafter in writing vide

Exh. 43. On receiving directions from Assistant Commissioner of

Police, Crime Branch to conduct raid, same came to be carried out in

the presence of two panch witnesses at the spot disclosed in the

information where one female arrived having one carry-bag in hand

and was thus intercepted. It is the case of prosecution that she was

apprised of the information received by Police and on further

apprising her of provisions of Section 50 of the NDPS Act, her

personal search was obtained when nothing incriminating was found

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in her possession, except for cash of Rs.1010/-, which came to be

recovered from her person. However, from the plastic bag carried by

her, it was found containing 2 kgs. of contraband ganja, which came

to be seized under panchanama (Exh. 33), out of which one sample

of 10 gms. was separated. It is the case of prosecution that on

apprehending accused, she was taken to Lakadganj Police Station

where report (Exh. 44) came to be lodged, on the basis of which,

offence was registered vide Crime No.486/1993 and was

investigated.

3) During the course of investigation, three contraband

samples were forwarded for analysis to Chemical Analyser under

covering letter (Exh. 47). Report in compliance to Section 57 of the

NDPS Act was forwarded vide Exh. 48. On receipt of Chemical

Analyser's report certifying samples to be positive for ganja, charge-

sheet was filed before learned Special Judge.

4) Charge was framed against accused for the offence

punishable under Section 20(1)(b) of the NDPS Act, to which she

pleaded not guilty and claimed to be tried. The defence of accused

is of total denial and false implication.

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5)               In   order   to   establish   charge   levelled   against   accused,

prosecution examined in all five witnesses and commenced its

evidence by examining P.W.1 PC Dattaraj Kawadkar, Clerk of Stores

where sample of contraband ganja was kept, P.W.2 ASI Hiraman

Meshram, Malkhana In-charge, P.W.3 LPC Hamida, who was one of

the members of the raiding team and had obtained personal search

of female accused, P.W.4 API Suresh Warade, who had received

information and carried out raid and investigation and concluded its

evidence by examining P.W.5 API Gajanan Kankale, who was

member of the raiding team.

6) The learned Special Judge on considering evidence as

well as proved documents on record convicted accused as aforesaid

and hence, this appeal.

7) Heard Shri Trivedi, learned Counsel for appellant/

accused, and Shri Tembhre, learned Additional Public Prosecutor for

respondent.

8) Shri Trivedi, learned Counsel for appellant/accused, has

submitted that as the case of prosecution is based on information

received by Police, provisions of Section 42(1) and (2) of the NDPS

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Act are clearly established. It is contended that since case of

prosecution is based on prior information and in consequence to

such information as personal search of accused is obtained,

provisions of Section 50 of the NDPS Act are further established. It

is further contended that in spite of applicability of above stated

mandatory provisions, there is no compliance of the same. It is,

therefore, submitted that for non-compliance of above provisions,

appeal is liable to be allowed.

9) Shri Tembhre, learned Additional Public Prosecutor for

respondent, has submitted that from the evidence of complainant,

supported with evidence of P.W.5 API Gajanan Kankale, who was

also member of raiding team, there is sufficient compliance of

Section 42(1) and (2) of the NDPS Act and by referring to evidence

of Investigating Officer as well as P.W.3 LPC Hamida, who had

obtained personal search of accused, it is contended that their

evidence coupled with contents of search and seizure panchanama

(Exh. 33) duly establish compliance of Section 50 of the NDPS Act.

It is, therefore, submitted that the appeal is liable to be dismissed.

10) Learned Counsel for both sides have relied upon

Authorities, which are duly considered while discussing evidence as

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follows :

In the background of submissions advanced as aforesaid,

on considering evidence of P.W.4 API Suresh Warade, it has come on

record that on 27/12/1993 when he was patrolling at around 4 p.m.

he received secret information about transaction of contraband ganja

by lady named Kausalya Zade on that day at about 5-5.30 p.m.,

which information was telephonically communicated by this witness

to Assistant Commissioner of Police, Crime Branch. This witness

claims to have forwarded written information in compliance to

Section 42(2) of the NDPS Act to said Officer through Police

Constable, Buckle No.1331, who is admittedly not examined and has

proved on record copy of information forwarded to immediate

superior Officer in writing at Exh. 43.

11) As case of prosecution is based on information received

by Police admittedly, sub-sections (1) and (2) of Section 42 of the

NDPS Act are attracted and thus, it is necessary to consider such

evidence on record to satisfy whether prosecution has established

compliance of said mandatory provisions. In the circumstances,

evidence of P.W.4 Suresh Warade, PSI, as he then was, when

considered, reveals that on receiving information, he had

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telephonically informed the same to Assistant Commissioner of

Police, Crime Branch and submitted the same in writing vide Exh.

43. On considering said provisions, requirement under law is of

sending such information to the immediate superior Officer within

72 hours. However, it is noted that Assistant Commissioner of

Police, Crime Branch is admittedly not immediate superior Officer of

P.W.4 Suresh Warade, who, at the material time, was PSI in Nagpur.

In that view of the matter, apparently it is found that P.W.4 Suresh

Warade had not forwarded copy of information received by him by

duly reducing it into writing to his immediate superior Officer.

Perusal of Exh. 43 reveals that same was addressed to Assistant

Commissioner of Police, Crime Branch, Nagpur in compliance to

Section 42(2) of the NDPS Act, upon which said Officer has issued

directions to conduct raid and submit report.

12) In view of above evidence, when cross-examination of

P.W.4 API Suresh Warade is perused, he in clear terms has admitted

that he had not reduced the secret information in writing on a

separate paper except for one in the form of Exh. 43 which, as

discussed above, is intimation given to Assistant Commissioner of

Police, Crime Branch, who admittedly is not immediate superior

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Officer of P.W.4 API Suresh Warade and had given directions to

conduct raid and submit report. No explanation is put forth by

prosecution for non compliance of mandatory provisions of Section

42(1) and (2) of the NDPS Act as no information, though alleged to

have been received by P.W.4 API Suresh Warade, appears to have

been reduced into writing. It is material to note that in the absence

of any information having been placed on record, which was alleged

to have been received by P.W.4 PSI Suresh Warade, there is nothing

to verify as to what was the information forwarded to the superior

Officer. In fact, in the appeal in hand, as already noted above, P.W.4

Suresh Warade, PSI has admitted that he had not reduced into

writing information separately and thus, there is nothing to verify as

to what was the information received and what was communicated

to superior Officer, which, even otherwise, is also not found

communicated to the immediate superior Officer of P.W.4 API

Suresh Warade, who was then attached as PSI in Narcotic Cell.

Learned Counsel for accused has thus rightly placed reliance on the

case of Kishan Chand vs. State of Haryana (AIR 2013 SC 357)

where in para 16 of its judgment, it is observed thus :

"The language of Section 42 does not admit any ambiguity. These are penal provisions and prescribe very harsh punishments for the offender. The question of

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substantial compliance of these provisions would amount to misconstruction of these relevant provisions. It is a settled canon of interpretation that the penal provisions, particularly with harsher punishments and with clear intendment of the legislature for definite compliance, ought to be construed strictly. The doctrine of substantial compliance cannot be called in aid to answer such interpretations. The principle of substantial compliance would be applicable in the cases where the language of the provision strictly or by necessary implication admits of such compliance."

In the circumstances, there has to be strict compliance of said

mandatory provisions unlike substantial compliance as held by

learned Special Judge.

13) Section 42(1) and (2) of the NDPS Act contemplate that

the Officer on receiving information of the nature referred to in sub-

section (1) of Section 42 from any person has to record in writing in

the concerned Register and forthwith send copy thereof to his

immediate superior Officer before proceeding to take action as per

information received in terms of Clauses (a) to (d) of Section 42(1)

of the NDPS Act. In para 17 of the judgment in the case of Kishan

Chand (supra), it is further observed as under :

"In our considered view, this controversy is no more res integra and stands answered by a Constitution Bench judgment of this Court in the case of Karnail Singh (2009 AIR SCW 5265) (supra). In that judgment, the Court in the very opening paragraph noticed that in the case of Abdul Rashid Ibrahim Mansuri vs. State of Gujarat

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(2000) 2 SCC 513 : (AIR 2000 SC 821 : 2000 AIR SCW

375), a three Judge Bench of the Court had held that compliance of Section 42 of the Act is mandatory and failure to take down the information in writing and sending the report forthwith to the immediate Officer superior may cause prejudice to the accused. However, in the case of Sajan Abraham (AIR 2001 SC 3190 : 2001 AIR SCW 2970) (supra), again a Bench of three Judges, held that this provision is not mandatory and substantial compliance was sufficient. The Court noticed, if there is total non-compliance of the provisions of Section 42 of the Act, it would adversely affect the prosecution case and to that extent, it is mandatory. But if there is delay, whether it was undue or whether the same was explained or not, will be a question of fact in each case."

14) Thus, from the aforesaid legal pronouncements, it can be

held that compliance with the requirement of Section 42(1) and (2)

of the NDPS Act in regard to writing down the information received

and sending copy thereof to immediate superior Officer should

normally precede the entry into any building or place, search and

seizure by the Officer, who, in special circumstances involving

emergent situation, may postpone recording of information in

writing and sending copy thereof to his immediate superior Officer

by a reasonable period. However, from the above discussed

evidence, one thing is clear that total non-compliance with

requirement of sub-sections (1) and (2) of Section 42 of the NDPS

Act is impermissible. In the appeal in hand, as already stated above,

P.W.4 API Suresh Warade has admitted to have received the

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information, but not reduced the same into writing. Similarly,

information whatsoever is sent to the superior Officer is not sent to

immediate superior Officer of P.W.4 Suresh Warade, who was then

PSI in Narcotic Cell. In that view of the matter, it is noted that in

the appeal in hand, prosecution has failed to establish compliance of

Section 42(1) and (2) of the NDPS Act.

15) Second question, which needs consideration in the

present appeal, is about compliance of mandatory provisions of

Section 50 of the NDPS Act, which admittedly is attracted in the

present case as it is the case of prosecution that 2 kgs. of ganja came

to be seized from the bag carried by accused on the spot and that

personal search of accused along with bag was obtained. For that

purpose, further evidence of P.W.4 API Suresh Warade, Investigating

Officer reveals that as per information, trap came to be laid at the

spot where in 15-20 minutes one female arrived having one plastic

bag in her hand, who was intercepted and on enquiring her name,

disclosed her name as that of accused and was then apprised of

information received by Police and after being introduced with the

Officials of the raiding team, was orally enquired if she wanted any

outside Gazetted Officer or Magistrate for carrying out search and

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intimation in writing to that effect was also served upon her, to

which she declined. It is further stated by Investigating Officer that

thereafter P.W.3 LPC Hamida obtained personal search of accused

and recovered Rs.1010/- and on obtaining search of plastic bag,

recovered 2 kgs. of contraband substance, which was seized under

panchanama.

16) In view of evidence of Investigating Officer as aforesaid,

which is substantially corroborated with the evidence of P.W.3 LPC

Hamida, it has come on record that personal search of accused was

obtained and thus, provisions of Section 50 of the NDPS Act, which

are mandatory in nature, are attracted. However, from the plain

reading of evidence of both these witnesses on the aspect of search

of accused, by no stretch of imagination it can be said that there is

compliance of Section 50 of the NDPS Act as according to settled

legal position, accused is required to be apprised of her/his right to

have search in the presence of Gazetted Officer or Magistrate and

failure to apprise accused as aforesaid, resultant seizure is liable to

be vitiated.

17) From the evidence of P.W.3 LPC Hamida and

Investigating Officer, what is revealed is that accused was informed

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that one of the members of the raiding team was Gazetted Officer

and whether she wants outside Gazetted Officer or Magistrate before

whom her personal search could be obtained. As such, it is found

that in fact, there was no apprisal to accused about her right to have

such search in the presence of Gazetted Officer or Magistrate as

required under law and in fact, it is noted that Gazetted Officer was

a member of the raiding team. In that view of the matter, learned

Counsel for accused has rightly placed reliance on State of

Rajasthan vs. Parmanand and another {(2014) 5 SCC 345). In

that case, Superintendent of Police, who was Gazetted Officer was

part of the raiding party and according to the case of prosecution,

accused was informed that he could be searched before outside

Gazetted Officer or nearest Magistrate, if he so requires. The Apex

Court considering such facts involved in that appeal, has observed

that such apprisal was in breach of Section 50(1) of the NDPS Act.

The idea behind taking an accused to the nearest Magistrate or the

nearest Gazetted Officer, if he so requires, is to give him a chance of

being searched in the presence of an independent Officer and,

therefore, it was improper on the part of the raiding party to give

third alternative to accused that he can have his search obtained by

raiding party in the presence of Superintendent, who was part of the

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raiding party, as it was not at all within the requirement of Section

50(1) of the NDPS Act as said provisions do not provide for any such

alternate option to be given to accused before he/she is subjected to

search and if any such alternate option is given, it would frustrate

the provisions of Section 50(1) of the NDPS Act and in this

background, the Apex Court had rendered search to be vitiated.

18) In view of apprisal of accused as aforesaid and since

evidence of Investigating Officer and P.W.3 LCP Hamida nowhere

indicates that accused was apprised of her right to have search

before Gazetted Officer or Magistrate, further reliance can usefully

be placed on State of Punjab vs. Balbir Singh (AIR 1994 SC 1872)

where in para 17 of the judgment, it is observed thus :

"In the context in which this right has been conferred it must naturally be presumed that it is imperative on the part of the Officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised Officer to inform the person to be searched of his right."

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19)              Shri   Tembhre,   learned   Additional   Public   Prosecutor   for

respondent, during the course of argument though has relied upon

the case of Jagat Singh vs. State of Uttarakhand {(2016) 13 SCC

119} and Sekhar Suman Verma vs. Superintendent of Narcotics

Control Bureau and another {(2016) 11 SCC 368}, both the

Authorities relied upon having distinguishing features are not

applicable in the appeal in hand as in both the Authorities, there

appears compliance of Sections 42 and 50 of the NDPS Act in letter

and spirit and in that view of the matter, appeals were dismissed.

However, in the appeal in hand, in view of above discussed evidence

and settled principles of law, it is noted that there is absolutely no

compliance of Sections 42 and 50 of the NDPS Act though same are

attracted in the present case.

20) Having considered above discussed evidence, since it is

found that there is no compliance of above stated mandatory

provisions, the appeal is liable to be allowed on these counts alone

as there is no necessity to evaluate evidence of other witnesses on

record. Having examined evidence as aforesaid, as it is found that

there is absolutely no compliance of provisions of Sections 42(1)

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and (2) and 50 of the NDPS Act, appeal is liable to be allowed.

Hence, following order :

ORDER

(i) The criminal appeal is allowed.

(ii) The impugned judgment and order dated 27/11/2003 passed by learned Judge, Special Court in Special Criminal Case No.6/1994 convicting appellant for the offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing to suffer rigorous imprisonment for three years and to pay a fine of Rs.30,000/-, in default of payment of fine amount, to undergo rigorous imprisonment for three months, is quashed and set aside.

(iii) The appellant be released forthwith, if he is not required in any other crime or case.

(iv) Fine amount, if any paid, be returned back to appellant.

JUDGE

khj