Chattisgarh High Court
State Of Chhattisgarh vs Manish Sharma on 29 April, 2022
1
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Acquittal Appeal No. 359 of 2010
The State of Chhattisgarh through P.S. Kotwali,
Jagdalpur Distt. Bastar Chhattisgarh.
Appellant
Versus
Manish Sharma S/o Bharatlal Sharma, Aged about 24
years, Occupation Labour, R/o TemriKapa, P.S.
Mungeli, Distt. Bilaspur, Chhattisgarh.
Respondent
For Appellant : Mr. Ashish Tiwari, G.A.
For Respondent : Mr. Santosh Bharat, Advocate
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board
29/04/2022
Sanjay K. Agrawal, J.
1. This acquittal appeal under Section 378 (1) of
CrPC is directed against the impugned judgment
dated 27/08/2008 passed by learned Special Judge
(NDPS Act), Jagdalpur by which the respondent
herein has been acquitted from the charge
punishable under Section 20(b)[ii(c)] of
Narcotics Drugs and Psychotropic Substances Act,
1985 (hereinafter, 'the Act of 1985') holding
that the prosecution has failed to bring home the
offence in question.
2. The case of the prosecution, in brief, is that on
17/02/2008, at about 05:50 PM, on the way of
Village Dhobiguda at N.H.43, the respondent was
riding his motorcycle Hero Honda Splender bearing
No. CG 10 ZJ/9176 having 20 kgs of ganja which
was recovered from his possession punishable
under Section 20(b)[ii(c)] of the Act of 1985.
3. Further case of the prosecution, in brief, is
that on 17/02/2008 at about 03:30 PM, Sub
Inspector Vivekanand (P.W.4) posted at Police
Station Kotwali, Jagdalpur received information
through telephone that two persons are riding on
a motor cycle and they are carrying ganja to sell
in Raipur. The said information was registered in
Roznamcha Sanha No. 44 (Ex. P/20) and thereafter,
at about 03:55 PM, he called Constable Moti Verma
and two witnesses namely Raghunath (P.W.1) and
Amar Dewangan (P.W.2) in the Police Station
which was registered in Sanha No. 46 (Ex. P/21).
The witnesses were told about the information
received from the informant and Informer
Panchnama (Ex. P/1) was prepared. Pursuant
thereof, search warrant (Ex. P/2) and Crime
Intimation panchnama (Ex. P/3) were prepared and
the copies of Exhibits P/1, P/2 and P/3 were sent
by Constable Moti Verma to the office of C.S.P.,
Jagdalpur which was mentioned in Ex. P/21. Sub
Constable Vivekanand (P.W.4) at about 04:05 PM,
proceeded towards the place of occurrence along
with witnesses Raghunath and Amar Dewangan which
was registered at Roznamcha Sanha No. 47 (Ex.
P/22) and intercepted the respondent herein who
was riding his bike Hero Honda Splender bearing
No. CG 10 ZJ/9176 along with one boy who was
sitting behind him and between them, they were
carrying a plastic bag. At about 04:30 PM, Sub
Inspector Vivekand (P.W.4) issued notice to the
respondent under Section 50 of the Act of 1985
for searching the plastic bag vide Ex. P/4. The
respondent agreed to the notice in writing.
Thereafter, at about 05:00 PM, SubInspector
Vivekanand (P.W.4) found some objectionable
material which looked like ganja from the plastic
bag that the respondent was carrying on his
motorcycle. Search Panchnama (Ex. P/6) and
Recovery Panchnama (Ex. P/7) were prepared on the
spot and notice under Section 91 of CrPC was
given to the respondent (Ex. P/23) and the
substance seized was identified as ganja by
Rambhagat Tiwari (Ex. P/8) and it was weighed and
found to be 20 kgs (Ex. P/11). Two packets of 25
gms each of ganja were prepared and after sealing
them they were sent for chemical analysis and
other formalities were completed. The FSL report
was received vide Ex. P/28 in which the seized
substance was found to be ganja. Thereafter, the
respondent was chargesheeted for offence
punishable under Section 20(b) of the Act of
1985. The appellant/accused abjured his guilt and
entered into defence.
4. In order to bring home the offence, prosecution
examined 4 witnesses and brought into record 29
documents. Statement of the respondent/accused
was recorded wherein he denied guilt but he
examined none in his defence.
5. Learned Special Court (NDPS Act), upon
appreciation and evaluation of oral and
documentary evidence on record, acquitted the
respondent from the aforesaid charge holding that
prosecution has failed to bring home the offence
against which this acquittal appeal has been
preferred by the appellant/State.
6. Mr. Ashish Tiwari, learned Government Advocate
for appellant/State, would submit that learned
Special Court is absolutely unjustified in
acquitting the respondent herein from the
aforesaid charges by recording a finding which is
perverse and contrary to the record holding that
there is noncompliance of the provisions
contained under Sections 42(1), 55 and 57 of the
Act of 1985 whereas Sections 55 and 57 of the Act
of 1985 are directory in nature as held by the
Supreme Court in the matter of Gurbax Singh v.
State of Haryana1 which has been followed
subsequently in the matter of Babubhai Odhavji
Patel and Others v. State of Gujarat 2. He would
further submit that noncompliance of Section 42
of the Act of 1985 has been considered by Their
Lordships of the Supreme Court in the matter of
Karnail Singh v. State of Haryana 3. In the
instant case, mere nonexamination of the officer
who received the document Ex. P/29 at C.S.P.,
Jagdalpur would not mean that there is such non
compliance of Section 57 of the Act of 1985. Ex.
P/3 i.e. Crime intimation under Section 42(2) of
the Act of 1985 is an official document and it is
presumed to be correct until contrary is proved
and merely because constable Motiram Verma who
1 (2001) 3 SCC 28
2 (2005) 8 SCC 725
3 (2009) 8 SCC 539
delivered the said document to the office of
C.S.P., Jagdalpur has not been examined, it
cannot be held that there is noncompliance of
Section 42(2) of the Act of 1985, as such, the
impugned judgment is liable to be set aside.
7. Mr. Santosh Bharat, learned counsel for the
respondent, would submit that though Sections 42,
55 and 57 of the Act of 1985 are directory in
nature but in the instant case, the lapse is so
fatal that the prosecution case has rightly been
held to be suspicious by learned Special Court.
Furthermore, Section 42 of the Act of 1985 has
not been complied with at all and no witness has
been examined to prove that the information was
received in writing under Section 42(1) of the
Act of 1985 and it was delivered to the office of
C.S.P., Jagalpur by virtue of Section 42(2) of
the Act of 1985, as such, the instant appeal
deserves to be dismissed.
8. We have heard learned counsel for the parties,
considered their rival submissions made herein
above and went through the records with utmost
circumspection.
9. The first question for consideration is whether
learned Special Court (NDPS Act) is justified in
recording the finding that provisions of Section
42 of the Act of 1985 has not been complied with
in the instant case ?
10. In order to consider the plea raised at Bar, it
would be appropriate to notice Section 42 of the
Act of 1985, which states as under :
"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
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
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 of
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) Where an officer takes down any
information in writing under subsection
(1) or records grounds for his belief
under the proviso thereto, he shall within
seventytwo hours send a copy thereof to
his immediate official superior."
11. Section 42(2) of the Act of 1985 came up for
consideration before the Constitution Bench of
Supreme Court in the matter of Karnail Singh
(supra) in which their Lordships considered the
statutory requirement of writing down and
conveying information to superior officer prior
to entry, search and seizure, while resolving the
conflict between two earlier decisions rendered
by the Supreme Court in the matters of Abdul
Rashid Ibrahim Mansuri v. State of Gujarat4 and
Sajan Abraham v. State of Kerala 5 and held that
whether there is adequate or substantial
compliance with Section 42 or not is a question
of fact to be decided in each case and while
total noncompliance with requirements of
Sections 42(1) and (2) is impermissible, delayed
compliance with satisfactory explanation about
the delay will be acceptable compliance with
Section 42. Their Lordships further held that
noncompliance of Section 42 of the Act of 1985
may not vitiate the trial if it does not cause
any prejudice to the accused and observed in
paragraph 35 as under:
"35. In conclusion, what is to be noticed
is that 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
4 (2000) 2 SCC 513
5 (2001) 6 SCC 692
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
Subsection (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 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 noncompliance of
requirements of subsections (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 nonsending 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
case. The above position got strengthened
with the amendment to section 42 by Act 9
of 2001."
12. Reverting to the facts of the present case in
light of the principle of law laid down by the
Supreme Court in the matter of Karnail Singh
(supra), it is quite vivid that in the instant
case the information as required under Section 42
of the Act of 1985 was reduced in writing vide
Ex. P/3 and it was sent through the Constable
Motiram Verma on 17/02/2008 to be delivered to
the office of C.S.P., Jagdalpur. The said
document (Ex. P/3) though bears the seal of
C.S.P., Jagdalpur but there are no initials of
the person who received the said document.
Moreover, neither Constable Motiram Verma has
been examined to prove that it was delivered to
the office of C.S.P., Jagdalpur as required under
Section 42(2) of the Act of 1985 nor anyone from
the office of C.S.P, Jagdalpur has been examined
to prove that they have received the said
information vide Ex. P/3 under Section 42(2) of
the Act of 1985. Either constable Motiram Verma
could have been examined to prove that he has
delivered the said information (Ex. P/3) or
someone from the office of C.S.P., Jagdalpur
could have been examined to prove that the said
information was delivered to them as required
under the provisions contained in Section 42 of
the Act of 1985, but none of them have been
examined and that is the reason why learned
Special Judge has recorded the finding that there
is total noncompliance of Subsections (1) and
(2) of Section 42 of the Act of 1985, which are
mandatory in nature.
13. Their Lordships of the Supreme Court have clearly
held in paragraph 35(d) of Karnail Singh (supra)
that while total noncompliance of requirements
of subsections (1) and (2) of section 42 is
impermissible, delayed compliance with
satisfactory explanation about the delay will be
acceptable compliance of section 42. 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 nonsending 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. The principle
of law laid down in Karnail Singh (supra) has
further been followed by the Supreme Court
recently in the matter of Boota Singh v. State of
Haryana6.
14. From the aforesaid legal discussion, it is quite
evident that prosecution has failed miserably to
prove the compliance of Section 42 of the Act of
1985 rather it is a case of total noncompliance
6 (2021) SCC Online SC 324
of subsections (1) and (2) of Section 42 of the
Act of 1985 covered by paragraph 35(d) of the
judgment rendered by the Supreme Court in the
matter of Karnail Singh (supra). As such, we are
of the considered opinion that learned Special
Court is absolutely justified in recording a
finding that provisions of Section 42 of the Act
of 1985 has not been complied with in the instant
case and we hereby affirm the said finding.
15. The next question for consideration is whether
learned Special Court is justified in recording
the finding that there is noncompliance of
Sections 55 and 57 of the Act of 1985 as well ?
16. Their Lordships of the Supreme Court in the
matter of Gurbax Singh (supra) have clearly held
that provisions of Sections 52 and 57 of the Act
of 1985 are directory and their violation thereof
would not ipso facto violate the trial or
conviction. However, the investigating officer
cannot totally ignore these provisions. Such
failure will have a bearing on appreciation of
evidence regarding arrest of the accused or
seizure of the article. It has been in paragraph
9 as under :
"The learned counsel for the appellant
next contended that from the evidence it
is apparent that the IO has not followed
the procedure prescribed under Sections
52, 55 and 57 of the NDPS Act. May be that
the IO had no knowledge about the
operation of the NDPS Act on the date of
the incident as he recorded the FIR under
Section 9/1/78 of the Opium Act. In our
view, there is much substance in this
submission. It is true that provisions of
Sections 52 and 57 are directory.
Violation of these provisions would not
ipso facto violate the trial or
conviction. However, IO cannot totally
ignore these provisions and such failure
will have a bearing on appreciation of
evidence regarding arrest of the accused
or seizure of the article. In the present
case, IO has admitted that seal which was
affixed on the muddamal article was handed
over to the witness PW 1 and was kept with
him for 10 days. He has also admitted that
the muddamal parcels were not sealed by
the officer in charge of the police
station as required under Section 55 of
the NDPS Act. The prosecution has not led
any evidence whether the chemical analyser
received the sample with proper intact
seals. It creates a doubt whether the same
sample was sent to the chemical analyser.
Further, it is apparent that the IO has
not followed the procedure prescribed
under Section 57 of the NDPS Act of making
full report of all particulars of arrest
and seizure to his immediate superior
officer. The conduct of panch witness is
unusual as he offered himself to be a
witness for search and seizure despite
being not asked by the IO, particularly
when he did not know that the substance
was poppy husk, but came to know about it
only after being informed by the police.
Further, it is the say of the Panch
witness that muddamal seal used by the PSI
was a wooden seal. As against this, it is
the say of PW 2 SI/IO that it was a brass
seal. On the basis of the aforesaid
evidence and faulty investigation by the
prosecution, in our view, it would not be
safe to convict the appellant for a
serious offence of possessing poppyhusk."
17. Reverting to the facts of the present case in
light of the principle of law laid down by their
Lordships of Supreme Court in the matter of
Gurbax Singh (supra), it is quite vivid that in
the instant case learned Special Judge has
clearly recorded the finding that Section 57 of
the Act of 1985 has not been complied with and
though the information was sent in writing on
19/02/2008 vide Ex. P/29 to Superintendent of
Police, Jagdalpur but no one has been examined to
prove the said fact, neither from the Office of
City Inspector, Police Station Kotwali, Jagdalpur
to prove that the said information was duly sent
nor from the office of Superintendent of Police,
Jagdalpur to prove that the said information was
received by them. As such, there is total non
compliance of Section 57 of the Act of 1985.
18. Similarly, noncompliance of Section 55 of the
Act of 1985 is also found in the present case as
the seized articles have not been sealed in
accordance with Section 55 of the Act of 1985. We
find the said finding recorded by learned Special
Judge to be absolutely in accordance with law.
Learned Special Judge has also recorded the
aforesaid finding citing the reason that
prosecution witnesses P.W.1 Raghunath and P.W.2
Amar Dewangan have not supported the case of the
prosecution, which also appears to be correct and
in accordance with law. In that view of the
matter and the prejudice having been suffered by
the respondent herein, we are unable to hold that
learned Special Judge has committed any
illegality in acquitting the respondent herein
from the charge punishable under Section 20(b)
[ii(c)] of the Act of 1985. We do not find any
merit in this acquittal appeal.
19. Accordingly, the instant appeal stands dismissed.
Sd/ Sd/
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
Harneet
