Bombay High Court

Gurmeet Singh S/O. Sh. Harjinder ... vs Davinder Singh on 6 April, 2021

Bench: R.P. Mohite-Dere

                                  1/18         apeal.351.2015w.apeal.426.2015(J).doc


nsc.
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION

                             CRIMINAL APPEAL NO.351 OF 2015


       Gurmeet Singh s/o Harjinder Singh
       Age - 28 years, Indian National,
       R/o.: House No.540, Sector-II,
       Nanak Nagar, Jammu
       (At present lodged at Nashik Central      ...Appellant
        Prison, Nashik Road.)                    Org. Accd. No.1

            Versus
       1.     Davinder Singh,
              Intelligence Officer,
              Narcotic Control Bureau,
              Exchange Building,
              Ballard Pier, Mumbai.
              (NCB/BZU/CR-04/2010)

       2.     State of Maharashtra                ...Respondents



                                         WITH
                             CRIMINAL APPEAL NO. 426 OF 2015

       Pyarelal Shridhar Keer @ Pahalwan
       Age - 54 years, Indian National,
       R/o.: Room No.7, Shiv Ram Sadan,
       Veer Savarkar Marg, Prabhadevi,
       Mumbai - 400 025.
       (At present lodged at Nashik Central      ...Appellant
        Prison, Nashik)                          Org. Accd. No.2
            Versus




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1.        Davinder Singh,
          Intelligence Officer,
          Narcotic Control Bureau, Mumbai.
          (NCB/BZU/CR-04/2010)

2.        State of Maharashtra                      ...Respondents


Mr. Ayaz Khan, for the Appellant in Criminal Appeal No.351 of 2015.

Mr. Dilip Mishra, for the Appellant in Criminal Appeal No.426 of 2015.

Ms. Ameeta Kuttikrishnan, Special Public Prosecutor, for the Respondent
No.1.

Mr. S. V. Gavand, APP for the Respondent No.2 - State.


                                     CORAM : REVATI MOHITE DERE, J.

DATE : 6th APRIL, 2021

ORAL JUDGMENT :

1. By these appeals, the appellants have impugned the judgment

and order dated 30th December 2014, passed by learned NDPS Special

Judge, City Civil and Sessions Court, Greater Bombay, in NDPS Special

Case No.148 of 2010, convicting and sentencing them, as under:-

- for the offence punishable under Sections 8(c), 20(b)(ii)(c) r/w 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to suffer rigorous imprisonment for 15 years and to pay fine of Rs.1 lakh each, in default of payment of fine, to undergo rigorous imprisonment for 1 year;

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- for the offence punishable under Sections 28 r/w 8(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to suffer rigorous imprisonment for 15 years and to pay fine of Rs.1 lakh each, in default of payment of fine, to undergo rigorous imprisonment for 1 year.

Both the aforesaid sentences were directed to run concurrently and sentence in default of fine was directed to run consecutively.

2. A few facts as are necessary to decide the aforesaid appeals,

are as under:-

On 8th May 2010, specific information was received by PW 1 -

Sanjay Kumar Sinha, Intelligence Officer, that 'one Gurmeet Singh, aged

24 years, resident of Jammu is to deliver a substantial quantity of Hashish, a

Narcotic Drug under the Narcotic Drugs and Psychotropic Substances Act,

1985 ('NDPS Act') to a person by the name Pyarelal Shridhar Keer @

Pahalwan, aged 50 years, a resident of Room No.7, Shiv Ram Sadan, Veer

Savarkar Marg, Prabhadevi, Mumbai and that Gurmeet Singh would be

coming in a white Maruti Car in front of ICICI Prudential Bank Building at

Veer Savarkar Marg, Prabhadevi, Mumbai, at around 11:00 p.m.'

On receipt of the said information (Exhibit - 31), PW 1 -

Sanjay Kumar Sinha, forwarded the same, at around 7:00 p.m., to PW 6 -

Claudius Fernandes as well as to the Zonal Director, Yashodhan Wanage.

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Accordingly, the Zonal Director gave permission to PW 2 - Davinder Singh

to proceed with the raid.

Thereafter, the officers of the Narcotic Control Bureau

('NCB'), organised a raid and maintained surveillance at the spot alongwith

two independent panch witnesses from 10:30 p.m. onwards. It appears that

shortly thereafter, a vehicle mentioned in the information (Exhibit - 31)

arrived at the spot and the said vehicle was parked in front of the ICICI

Prudential Bank Building. After some time, a middle aged person of

wheatish complexion (Gurmeet Singh) arrived near the said vehicle

carrying a white polythene bag. It is alleged that after a brief talk with the

driver (Pyarelal Shridhar Keer @ Pahalwan) of the said car, the said person

(Gurmeet Singh) sat on the rear seat of the car. Immediately, thereafter, the

officers of NCB encircled the car and asked the occupants to come out of

the car. The officers introduced themselves and asked the persons in the car

their names. The said persons gave their names as Gurmeet Singh and

Pyarelal Shridhar Keer @ Pahalwan.

The officers disclosed the information so received to both the

appellants. On enquiry, the appellant - Gurmeet Singh allegedly disclosed

that a total of 40 packets of Hashish were concealed in the gas cylinder and

in the cavity made in the rear seat and rear door panels. Accordingly, the

officers of the NCB took the car to the NCB office at Ballard Pier, Fort,

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Mumbai for conducting inspection. Thereafter, a detailed search and

examination of the car was undertaken and the said examination resulted in

recovery of 40 packets of 1 kg Hashish from the cavity of the said car. All

the packets were opened. They tested positive for Hashish when examined

by the field testing kit. Thereafter, samples were taken and necessary

formalities with respect to sealing were completed. The bulk as well as the

samples were deposited in the godown on 9 th May 2010 at 10:45 a.m.

Thereafter, the statements of the appellants were recorded under Section 67

of the NDPS Act and the appellants were placed under arrest on 9 th May

2010 in the evening. After completion of investigation, a complaint was

filed in the Special Court and the same was numbered as NDPS Special

Case No.148 of 2010.

Charge was framed as against the appellants, to which they

pleaded not guilty and claimed to be tried.

The prosecution in support of his case examined 10 witnesses.

PW 1 - Sanjay Kumar Sinha, Intelligence Officer, who received the secret

information (Exhibit - 31); PW 2 - Davinder Singh, Intelligence Officer,

who conducted the investigation, prepared the panchanama and filed a

complaint as against the appellants; PW 3 - Kiran Prakash Sable,

Intelligence Officer, who recorded the statements of appellant - Pyarelal

Shridhar Keer @ Pahalwan and arrested him. The said officer also

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deposited the samples with the DYCC; PW 4 - B. S. Bisht, Assistant

Chemical Examiner, DYCC; PW 5 - Babu Lal Yadav, Intelligence Officer,

who recorded the statements of appellant - Gurmeet Singh and arrested the

said appellant; PW 6 - Claudius Fernandes, Superintendent, NCB, who

received a copy of the information (Exhibit - 31); PW 7 - Balkrishna

Narayan More, panch to the seizure of contraband; PW 8 - Mohammed

Shafi Ahmed Khan, Intelligence Officer, who participated in the seizure

panchanama and house search of the appellant - Pyarelal Shridhar Keer @

Pahalwan; PW 9 - Prakash P.A. Antony, Intelligence Officer, who

participated in the seizure of the contraband and who took photographs of

the seized contraband; and PW 10 - Shriram Gajanan Dole, Intelligence

Officer who recorded the statement of the appellant - Pyarelal's wife. After

the prosecution closed its evidence, the learned Judge recorded the

statements of the appellants under Section 313 of the Criminal Procedure

Code.

The defence of the appellants was that of denial and false

implication. Each of the appellants examined one defence witness each, on

their behalf. DW 1 - Yogesh Bhoite, Administration Manager of ICICI

Prudential Life Insurance Company and DW 2 - Vikram Jain, a money

lender.

The learned Special Judge, after considering the evidence on

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record was pleased to convict and sentence the appellants as aforesaid in

paragraph 1 of this Judgment.

3. Several grounds were raised by both the appellants whilst

impugning the judgment and order passed by the learned NDPS Special

Judge, City Civil and Sessions Court, Greater Bombay. Learned Counsel

for the appellant - Gurmeet Singh also submitted written submissions.

4. However, having heard the first submission advanced by the

learned counsel for the appellants, essentially on non-compliance of the

proviso to sub-section (1) of Section 42 of the NDPS Act and having being

satisfied that there is non-compliance of the same, it is not necessary to

consider or delve into the other submissions/grounds. Learned Counsel for

the appellants relied on several judgments in support of the said submission

to show that the trial of the appellants had vitiated on the ground of non-

compliance of the proviso to sub-section (1) of Section 42 of the NDPS

Act, thus entitling their acquittal from the said case. Learned Counsel

relied on Mazzanti Esposto Gian Carlo v State of Goa1 ; Sukhdev Singh v

State of Haryana2 ; State of Rajasthan v Jagraj Singh Alias Hansa 3 ;

1 1996(3) Bom.C.R. 185 2 (2013) 2 SCC 212 3 (2016) 11 SCC 687

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State Of Punjab v Balbir Singh4 and State of Orissa v Laxman Jena5 in

support of the said submission.

5. Learned Special Public Prosecutor for the respondent No.1,

although supported the impugned judgment and order of conviction and

sentence, was unable to show that there was compliance of the proviso to

sub-section (1) of Section 42 of the NDPS Act, having regard to the law laid

down by the Apex Court, in this regard.

6. Perused the evidence, both oral and documentary, with the

assistance of the learned counsel for the parties. As noted above, it is not

necessary to consider or go into the other submissions canvassed by the

learned counsel for the appellants, inasmuch as, the aforesaid appeals ought

to succeed only on the ground of non-compliance of the mandate of the

proviso to sub-section (1) of Section 42 of the NDPS Act.

7. Section 42 of the NDPS Act deals with the Power of entry,

search, seizure and arrest without warrant or authorisation. The relevant

part of Section 42, of which non-compliance is alleged reads as under;

"42. Power of entry, search, seizure and arrest without

4 (1994) 3 SCC 299 5 JT 2002 (5) SC 1

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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 intellegence 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 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

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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 in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:

Provided further 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) ......

(Emphasis supplied)

As far as the second proviso to sub-section (1) of Section 42 of

the NDPS Act is concerned, it clearly stipulates that if an officer has reason

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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.

8. In the present case, PW 1 - Sanjay Kumar Sinha received

secret information (Exhibit - 31) to the effect that appellant - Gurmeet

Singh was to deliver a substantial quantity of Hashish, a Narcotic Drug

under the NDPS Act to appellant - Pyarelal Shridhar Keer @ Pahalwan. It

was also informed that appellant - Gurmeet Singh would be coming in a

white Maruti Car in front of ICICI Prudential Bank Building at Veer

Savarkar Marg, Prabhadevi, Mumbai, at around 11:00 p.m. on 8th May 2010

to give delivery of the said contraband. According to the prosecution, the

said information was received on 8th May 2010 at 7:00 p.m. The said secret

information was reduced into writing by PW 1 - Sanjay Kumar Sinha and

forwarded to PW 6 - Claudius Fernandes, as well as, to the Zonal Director,

Yashodhan Wanage, who in turn authorised PW 2 - Davinder Singh to

conduct the raid. Accordingly, the raid was conducted at 11:00 p.m.

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9. Admittedly, the search and seizure of the contraband was after

sunset and before sunrise. Admittedly, no authorisation was taken from any

officer as mandated by the said proviso nor has the reason to believe been

recorded, as mandated to show why such authorisation or search warrant

could not be obtained. The evidence on record, in particular the evidence of

PW 1 - Sanjay Kumar Sinha, clearly shows that he had prepared the

information (Exhibit - 31) and that he was aware of the fact that the vehicle

was to be intercepted after sunset. Infact, the secret information note itself

reflects that the car was to come at the spot at about 11:00 p.m. It is not the

prosecution case, that PW 1 - Sanjay Kumar Sinha asked for any search

warrant or authorisation. Infact, PW 1 - Sanjay Kumar Sinha in his cross-

examination has admitted that he was aware when he prepared the

information note (Exhibit-31) that the said vehicle was to be intercepted

after sunset; that search warrant was required for searching houses after

sunset; and that he did not apply for any search warrant. He has also

admitted that he was aware that the person who wants to go and search the

house after sunset, has to obtain permission to search from a Gazetted

Officer. He has also admitted that there were 2 Gazetted Officers at that

time in the office when the said information was received. He has also

admitted that he did not ask for authorisation nor did the Gazetted Officer

tell that such proforma was available with him. It is thus evident, that

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though the Gazetted Officers were present in the office at the time when

PW 1 - Sanjay Kumar Sinha received the information, their authorisation

for conducting the search was not taken. Neither does the information note

(Exhibit - 31) record any reason to believe, why such authorisation could

not be taken, as mandated. PW 1 - Sanjay Kumar Sinha has clearly

admitted that there were 2 Gazetted Officers who were present in the office

when the information was received. In these circumstances, no reason is

forthcoming why the authorisation/search warrant was not taken from

them.

10. PW 2 - Davinder Singh, the seizing officer has also admitted

that the vehicle was searched after sunset and before sunrise; and that no

Gazetted Officer was present during the search of the said vehicle. He has

also admitted that the proforma was available in the office for house search

and that neither he nor any officer applied for any search warrant or

authorisation though he was aware that the vehicle was to be intercepted

and searched after sunset and before sunrise.

11. Learned Special Public Prosecutor for the respondent No.1

fairly conceded that although the raid was to be conducted after sunset and

before sunrise, no authorisation/search warrant was taken from a Gazetted

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Officer to conduct the raid; nor does the information note reflect the reason

for not obtaining the said authorisation, as contemplated under the proviso

to sub-section (1) of Section 42 of the NDPS Act. Learned Special Public

Prosecutor could not also from the record or evidence show that the

mandate of the proviso to sub-section (1) of Section 42 of the NDPS Act

was followed by the officer concerned.

12. From the aforesaid discussion, it is clearly evident that no

officer had applied for any search warrant or authorisation nor reasons

recorded for not obtaining the said authorisation/search warrant as

mandated by the proviso to sub-section (1) of Section 42 of the NDPS Act.

13. The Apex Court in the case of State of Orissa v Laxman

Jena (Supra) has in paras 5 and 6, held as under:-

"5. There is no dispute that section 42 has two parts. The first part deals with the recording of the information and the second with the conduct of the search. Again first part of the section has two limbs, first dealing with the recording of the information received and the other relating to the belief of the officer based upon his personal knowledge. Any information recorded in terms of sub-section (1) of section 42 is required to be sent to the superior officer of the person recording the information as mandated by sub-section (2) of section 42. Second part of the section 42(1) deals with the power of the officer regarding entry, search, seizure and arrest without warrant of authorisation. The authorised officer has the power to enter into and search any building, conveyance or place and in case of resistance, break

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open any door and remove any obstacle to such entry. He has power to seize the 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 the Act and to detain and search, if he thinks proper, and arrest any person whom he has reason to believe to have committed any offence punishable under chapter IV relating to such drug or substance.

6. However, in exercising a power under the second part of section 42(1) the designated officer is under a legal obligation to comply with the mandate of the proviso to sub-section (1) providing for recording of grounds of his belief to make the search in terms of the powers conferred upon him. In the instant case the High Court has found on facts that before making the search, the officer concerned had not recorded reasons or grounds for his belief to make the search in terms of proviso to Section 42(1) of the Act."

The Apex Court in para 7 of the said judgment further held that

the mandate of law, as incorporated under the Act, is required to be strictly

complied in view of the grave consequences which are likely to be followed

on proof of illicit article under the Act; that the legislature had enacted and

provided certain safeguards in various provisions of the Act including

sections 42 and 50, in all cases which must be proved to have been strictly

followed; and that the harsh provisions of the Act cast a duty upon the

prosecution to strictly follow the procedure and comply with the safeguards.

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14. Infact, the Apex Court in State Of Punjab v Balbir Singh

(Supra), after referring to a large number of cases, recorded its conclusion

in para 25, as under:-

"25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows :

(1) .........

(2-A) ......

(2-B) .......

(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (Emphasis supplied)

(3) ...........