Narcotics Control Bureau vs Dr. Shyam Lal & Anr.
2009 Latest Caselaw 1060 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      Crl. APPEAL 418/1997

%                                 Date of reserve: 19.03.2009
                                  Date of decision: 31.03.2009

       NARCOTICS CONTROL BUREAU                ... APPELLANT
                     Through: Mr. Satish Aggarwal, Mr. Shirish
                              Aggarwal, Mr. Sushil Kaushik, advs.

                                    Versus

       DR. SHYAM LAL & ANR.                             ...RESPONDENTS
                       Through:        Mr. Puneet Mittal, Mr. Rahul Malik,
                                       Mr. Manoj Kumar, Mr. Ankur
                                       Aggarwal, advs.


     CORAM:
     HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers may be allowed
       to see the judgment?                                             Yes

2.     To be referred to Reporter or not?                               Yes

3.     Whether the judgment should be reported in the Digest?           Yes


:      MOOL CHAND GARG, J.

1. This order shall dispose of an appeal filed by the Narcotics

Control Bureau (hereinafter NCB) under Section 378 (4) of the Criminal

Procedure Code (Cr.P.C.) assailing the judgment dated 30.04.1997

passed by an Additional Sessions Judge/Special Judge whereby the

respondents were acquitted by the learned Special Judge in Sessions

Case No.76/88 titled as NCB Vs. Dr. Shyam Lal & Ors. for having

allegedly committed offence punishable under Section 22 and 29 of

the Narcotics Drugs and Psychotropic Substances Act, 1985

(hereinafter referred to as 'the NDPS Act'). The leave to file the appeal

was granted by a Division Bench of this Court who heard the appeal

initially vide order dated 20.11.1997.

2. Briefly stating it is the case of the appellants that:

a) That on a specific information received by the Officers of Narcotics Control Bureau, the premises of the respondents, i.e., Shop-cum-residence of Shyam and Company were raided in the morning of 31.7.1987 at Ladwa at 11.00 AM and the team was headed by Sh. D.C. Mishra and they were accompanied by two independent witnesses.

b) That during the course of search, the officers found 2 cardboard cartons (Ex.P71 and P72), one plastic jerry can containing 5 kgs. of Methaqulone powder each and Incriminating documents (Ex.PW4/A to J) were also recovered. A panchnama (Ex.PW-4/H) was prepared at the spot.

c) At about 3.15 on the same day, the NCB officers headed by Shri N.P. Kaushik and two independent witnesses viz; Madan Lal and Jai Bhagwan searched the premises of the aforesaid M/s Lily Pharmaceuticals at Ladwa (premises belong to the 2nd respondent) which resulted in the seizure of 8 packets containing Methaqualone powder as also 2 bag containing prodone tabs. The total weight of the Methaquolone powder recovered was 151.05 kgs. and on testing, 145.5 kgs. tested positive for Methaqualone. The weight of the Prodone tablets recovered was 22.1 Kgs. A panchnama (Ex.PW 1/A) was prepared at the spot.

d) From the first search from M/s Shyam and Co., three representative samples of 5 gms. each were drawn i.e. two from the cardboard boxes and one from the jerry can. Three samples weighing 5 gms approximately were also drawn from the eight gunny bags recovered from the factory premises of Lily Pharmaceuticals and three samples of 12 Prodone tablets each were drawn from the Prodone tablets which were recovered from the two packets. The samples were sealed with the seal of NCB 06 over a paper

slip signed by the panch witness, accused and NCB officers.

e) Vide chemical analysis report, (EX.PW-6A) the chemical analysis opinion of the samples were Methaquolone and were contained psychotrophic substance as contained under Section 22 of NDPS Act. The respondents were also examined under Section 67 of NDPS Act where they are said to have admitted the aforesaid recovery and seizure and inter alia other incriminating facts.

f) After investigations, a complaint for offences punishable under Section 22 & 29 of NDPS Act, 1985 was filed against all the respondents.

(g) On 16.11.96, charges against both the respondents were framed under Section 22 read with Section 29 of NDPS Act for having conspired together and having found to be in illegal and unlawful possession of huge contrabands as stated above. Both the respondents pleaded not guilty and claimed trial and ultimately vide judgment dated 30.4.1997, the Special Judge, New Delhi, acquitted the respondents which is the reason for filing this appeal.

3. During the pendency of this appeal Dr. Shyam Lal has expired

but his son who is the second respondent, namely, Sh. Ashwani Kumar

is still alive and has been represented in this Court through Sh. Puneet

Mittal, Advocate who has strongly opposed the appeal filed by the

appellant relying upon the judgment of the Apex Court in Balbir Singh

Vs.State of Punjab 1992 JT SC 108.

4. Before the Special Judge besides relying upon the evidences of

eight witnesses including PW-4 Sh. D.C. Mishra and PW-8 Anil Kumar

who conducted the first search at the shop-cum-residence of Shyam

and Co. PW-1, Sh. N.P. Kaushik, the Seizing Officer in the second

search conducted in the factory premises of Lily Pharmaceutical Pvt.

Ltd. belonging to the second respondent including two panch

witnesses, namely, PW-2 Madan Lal and PW-3 Jai Bhagwan. The

appellant also relied upon the statements of Sh. Shyam Lal and the 2nd

respondent under Section 67 of the NDPS Act by PW-4 and PW-7

respectively. They also produced Sh.S.C. Johri, PW-6 who submitted

the chemical analysis report to the effect that samples were positive to

be psychotropic substance namely methaqualone.

5. However the learned Sessions Judge after recording the

statement of accused persons under Section 313 Cr.P.C. acquitted

them on account of non-compliance of the provisions under Section 42

and 50 of the Act. In this regard following observations were made in

the impugned judgment:

21. This argument has been rebutted by the ld. Counsel for the accused. He has placed reliance upon a judgment of the Hon'ble High Court reported in Criminal Appeal No.8/95 dt. 9.5.96 rendered by Hon'ble Justice Ms. Usha Mehra of our Hon'ble High Court. It is argued that in the said case the search was conducted in the room where the accused persons were present as is so in the present case and non-compliance of Sec.50 of the NDPS Act had vitiated the trial.

22. In my view the arguments of the ld. Counsel for the accused have force. The provisions of Sec.50 of the NDPS Act are admittedly mandatory and this is a valuable right which is afforded to every accused person of being apprised of his right of search before a Gazetted Officer or a Magistrate which renders such an operation more creditworthy. In the judgment of the Hon'ble Apex Court reported in SLP Criminal 3688 of 1995 the Hon'ble Apex Court had held that when an article is out of reach or diverted away from the possession of the accused as in that case where the luggage of the accused had already been loaded into the aircraft it was held that the contraband recovered from the aforestated luggage in such circumstances could not be said to be a recovery from the persons of the accused and in these circumstances Sec.50 was held to be inapplicable. Keeping in view the intent and the purpose for which the legislature has enacted this provision i.e. to safeguard the interest of the accused the concept of a person cannot be confined only to the search of the body of the accused. Admittedly, in the instant case the accused

was present at the time when the godown of the shop- cum-residence of the accused was searched which had led to the recovery of the illegal contraband. In these circumstances, it cannot be said that this godown from where the contraband was recovered was out of reach of the accused and was not under his control. In the judgment relied upon by the ld. Counsel for the accused in Criminal Appeal No.8.95 dt. 9.5.96 the recovery had been effected from a room and non-compliance of Sec. 50 of the NDPS Act had been held to vitiate the trial completely.

6. It is now well settled that non-compliance with the statutory

provisions which have been held to be mandatory by the Apex Court in

the Judgment delivered in the case of Balbir Singh's Case (supra) which

goes to the root of the prosecution and entitles acquittal of the

accused persons. The relevant observation is reproduced hereunder

for the sake of reference:

26. 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) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. PC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.

(2A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc., when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal.

Likewise only empowered officers or duly authorised officers as enumerated in Sections 41(2) and 42(1) can act under the precisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act

by any one other than such officers, the same would be illegal.

(2B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention that would affect the prosecution case and vitiate the conviction.

(2C) 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.

(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.

(4A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr. PC fails to strictly comply with the provisions of Sections 100 and 165 Cr. PC including the requirement to record-reasons, such failure would only amount to an irregularity.

(4B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr. PC namely Sections 100 and 165 Cr. PC and if there is no strict compliance with the provisions of Cr. PC then such search would not per se be illegal and would not vitiate the trial.

The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.

(5) On prior information, the empowered officer or authorised of officer while acting under Section 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made an such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to

inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.

(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there in non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.

7. Relying upon the statement under Section 67 of the NDPS Act

where the statement has been recorded of Dr. Shyam Lal and Sh.

Ashwini Kumar, the surviving respondent it has also been observed by

the trial Court that the statements so recorded also cannot be relied

upon as the accused persons were admittedly kept in illegal custody

from 31.7.1987 to 4.8.1987, i.e., for a period of four days without any

order from the Court which fact is admitted by PW-4 in his statement.

8. Similarly, PW-7 also has admitted in his cross-examination that

while recording the statement of Sh. Ashwini Kumar he was not

apprised of the fact that his statement could be used adversely in a

Court of law against them or that he had a right to remain silent.

Similarly, in the present case no arrest memo was prepared which is

also barred and further the statements of the accused persons which

were recorded after their arrest is also violative of Article 20 sub-clause

3 of the Constitution of India.

9. Section 42 and Section 50 are the provisions incorporated under

the NDPS Act compliance of which have been held to be mandatory by

the Apex Court. Section 42 reads as under:

42 - Power of entry, search, seizure and arrest without warrant or authorization:- (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 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 official superior.

10. Admittedly the information received by the seizing officer was

not recorded in accordance with Section 42 of the NDPS Act before

conducting the raid nor it was communicated to higher officers within a

period of 72 hours even after the raid was conducted. Even the

provisions of Section 100 Cr.P.C. were also not complied with by the

prosecution inasmuch as the neighbours of the respondents were

never associated with the search.

11. Section 50 of the NDPS Act reads as under:

50. Conditions under which search of persons shall be conducted:-1) When any officer duly authorized under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall if such a 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 persons until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section 91)

3) The Gazetted Officer of 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 exception a female.

5) When an officer duly authorized 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 official superior.

12. Admittedly this provision has also not been complied with by the

appellant. In the facts of this case neither the statement of the

respondents under Section 67 were admissible nor the recovery can be

of any consequence due to non-compliance with the mandatory

provisions of the Act.

13. Thus, I do not find any infirmity in the approach or the judgment

delivered by the learned Special Judge and, thus, hold that there is no

reason to interfere with the order of the acquittal passed by the

learned ASJ/Special Judge in this case for the simple reason that it is

also settled law that when two views are possible and one view helps

the accused persons, the said view should normally be adopted by the

Appellate Court whenever an appeal is filed against an order of

acquittal.

14. Accordingly, the appeal filed by the appellant is dismissed.

MOOL CHAND GARG, J.

MARCH 31, 2009 anb