Bombay High Court
The State Of Maharashtra vs Ramsingasan J. Mourya on 31 January, 2022
Bench: S.S. Shinde, N. R. Borkar
j-cri-appeal-635-03.odt
Digitally
signed by
DINESH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
DINESH SADANAND
SADANAND SHERLA CRIMINAL APPELLATE JURISDICTION
SHERLA Date:
2022.01.31
14:36:16
CRIMINAL APPEAL NO. 635 OF 2003
+0500
The State of Maharashtra ] ... Appellant
V/s.
Ramsingasan Jamunaprasad Mourya ]
Age 42 yrs., R/o. Mahurai, ]
Taluka Basgaon, Dist. Gorakhpur (U.P.)] ... Respondents
----------------
Mr. S.S. Hulke, APP for the Appellant.
None present for the Respondent.
----------------
CORAM : S.S. SHINDE &
N.R. BORKAR, JJ.
RESERVED ON : 04.01.2022.
PRONOUNCED ON : 31.01.2022.
JUDGMENT (PER : N.R. BORKAR,J.)
1] This appeal takes an exception to the judgment and
order dated 18.2.2003 passed by the Special Judge, N.D.P.S.,
Thane, in Special Sessions Case No.5 of 2002. By the
impugned judgment and order, the respondent, who was
accused before the trial Court, has been acquitted of the
ofence punishable under Sections 20 and 22 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short
"NDPS Act").
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2] It is the case of the prosecution that on 9.10.2001 at
about 2.00 p.m., PW-5 Rajendra Tambat, who at the relevant
time was working as Sr.Police Inspector at Wagale Estate,
Police Station, had received an information that the accused
would be coming near Hotel Vikrant, Wagale Estate, Thane for
sale of charas. The description of the accused was also
informed to him. The information was reduced into writing.
The entry of information was taken in Station dairy. The panch
witnesses were then called. PW-5 along with other police
personnel and panch witnesses then reached to the spot at
about 3.20 p.m. The trap was arranged. At about 4.00 p.m.,
the accused came there and stood in front of Hotel Vikrant.
According to the prosecution at that time accused was
carrying a suitcase.
3] The accused was intercepted. PW-5 disclosed his identity
to him. The reason for his search was apprised to him. He was
then given option to be searched before a Gazetted Ofcer,
however, according to the prosecution the same was
declined. Thereafter search of the accused was taken.
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4] According to the prosecution, during search 2 Kgs
charas was found in the suit case. The samples were
collected. All the incriminating articles were seized and
accordingly, panchanama was prepared.
5] The complaint was then fled by PW-2 PSI Harishchandra
M. Sawant against the accused for the ofences punishable
under Sections 20 and 22 of the NDPS Act. On completion of
investigation, charge-sheet was fled.
6] The accused was charged and tried for the abovesaid
ofences. The trial Court by the impugned judgement and
order acquitted the accused inter alia on the ground of non-
complaince of sub-section (2) of section 42 of NDPS Act.
7] We have heard the learned APP for the appellant / State.
The learned APP for the appellant/ State submits that the trial
Court had erred in acquitting the accused for non-compliance
of sub-section (2) of Section 42 of the NDPS Act. It is
submitted that PW-5 has stated in his evidence that he had
submitted report to Assistant Commissioner of Police. It is
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submitted that the trial Court was therefore, not justifed in
acquitting the accused for non-compliance of sub-section (2)
of Section 42 of the NDPS Act. It is thus submitted that the
order of acquittal needs to be set aside and the accused
needs to be convicted for the ofences for which he was
charged.
8] The Hon'ble Supreme Court, in the case of Karnail
Singh vs. State of Haryana1, has observed :
"35. In conclusion, what is to be noticed is Abdul
Rashid did not require literal compliance with the
requirements of Sections 42(1) and 42(2) nor did
Sajan Abraham hold that the requirements of Sections
42(1) and 42(2) need not be fulflled at all. The efect
of the two decisions was as follows :
(a) The ofcer 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 register concerned and forthwith
send a copy to his immediate ofcial 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 ofcer 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,
1 (2009) 8 SCC 539
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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 ofcial
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
ofcer, should normally precede the entry,
search and seizure by the ofcer. But in special
circumstances involving emergent situations, the
recording of the information in writing and
sending a copy thereof to the ofcial 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 with
requirements of sub-sections (1) and (2) of
Section 42 is impermissible, delayed compliance
with satisfactory explanation about the delay will
be acceptable compliance with 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 of a copy of such information to
the ofcial superior forthwith, may not be
treated as violation of Section 42. But if the
information was received when the police ofcer
was in the police station with sufcient time to
take action, and if the police ofcer fails to
record in writing the information received, or
fails to send a copy thereof, to the ofcial
superior, then it will be a suspicious
circumstance being a clear violation of Section
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42 of the Act. Similarly, where the police ofcer
does not record the information at all, and does
not inform the ofcial 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 case. The above
position got strengthened with the amendment
to Section 42 by Act 9 of 2001.
36. We answer the reference in the manner
aforesaid. Let the appeals be now placed for disposal
before the appropriate Bench."
9] According to PW-5, on 9.10.2002 he was working as
Senior Police Inspector at Wagale Estate Police Station. At
about 2.00 p.m., when he was in police station, he was
informed that accused would be coming near Hotel Vikrant for
sale of Charas. According to PW-5, he had reduced that
information into writing. Necessary entry was taken in station
diary. PW-5 has stated that, thereafter he had submitted the
report to Assistant Commissioner of Police. PW-5 has,
however, not spelled out in his evidence as to what sort of
report was submitted to Assistant Commissioner of Police.
PW-5 has also not stated in his evidence that copy of
information was sent to the Assistant Commissioner of Police.
The prosecution has not examined the concerned Assistant
Commissioner of Police to prove that copy of information was
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sent to him. Thus, there is a total non-compliance of sub-
section (2) of Section 42 of the NDPS Act. The trial Court was
therefore, justifed in acquitting the accused for non-
compliance of sub-section (2) of Section 42 of the NDPS Act.
10] No interference is thus called for in the impugned
judgment and order of acquittal. In the result, the following
order is passed.
ORDER
Criminal Appeal stands dismissed.
(N.R. BORKAR, J.) (S.S. SHINDE, J.)
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