Brijesh Kumar Gupta vs Narcotics Control Bureau
2014 Latest Caselaw 1806 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Judgment reserved on: 31.03.2014
                                      Date of Decision:     03.04.2014
+       CRL.A. 1242/2010
        BRIJESH KUMAR GUPTA                               ..... Appellant
                           Through: Ms Nandita Rao, Adv.

                           versus

        NARCOTICS CONTROL BUREAU                ..... Respondent
                     Through: Mr Rajesh Manchanda and Mr Rajat,
                     Advs.

CORAM:
HON'BLE MR. JUSTICE V.K. JAIN

                                    JUDGEMENT

V.K. JAIN, J.

On 05.05.2006, in the night intervening 4/5th May, 2006, at about 2.00

AM, Shri Prem Khanduri, Intelligence Officer (IO), NCB, DZU, New Delhi,

received a secret information that one Brijesh Kumar Gupta, a resident of

Mainpuri, U.P., who was engaged in supplying heroin in Delhi, would come

to Mayur Vihar, Akshar Dham Chowk between 03.00 to 4.00 AM, to supply

huge quantity of heroin to his customers. Shri Prem Khundari recorded the

aforesaid information and forwarded the same to his Superintendent Shri

R.R. Kumar, who directed him to take necessary action. Shri Prem

Khanduri collected the seal of NCB, DZU-5 from Shri R.R. Kumar, who

was having charge of the seals. A raiding party consisting of NCB officers

then reached the above-referred spot in a Government vehicle, driven by

Shri Bhuvnesh, Sepoy, NCB, at about 2.30 AM. Three persons found

present on the above-referred spot were requested to join the raiding party as

witnesses. Out of them, two persons, namely, Ajit Singh, S/o Shri Ram

Singh and Babu Khan, S/o Shri Akhlaq Khan agreed and were joined in the

raiding party. At about 3.30 AM, the appellant/accused Brijesh Kumar

Gupta came there carrying a bag on his right shoulder and stopped at the

side of Nizamudding bridge, waiting for someone to come. When the

aforesaid person started stopping some auto-rickshaws to go towards

Nizamudding bridge, the IO stopped him, introduced himself as well as the

other NCB officers and the witnesses and also informed him about the secret

information he had. A notice under Section 50 of NDPS Act was also

served on him and he was told that if he wanted, he could opt to be searched

before any Gazetted Officer or a Magistrate, under his legal right. The

appellant, however, declined the said option, whereupon Shri Prem

Khanduri took the bag which the appellant was carrying on his right

shoulder and searched the same. It was found to contain three transparent

packets containing light brown coloured powder wrapped in a towel. On

testing powder from the said packets, it gave positive test for heroin. On

weighing, two packets, which were marked as A and B, were found to

contain 2kg each of heroin, whereas the third bag, which was marked „C‟,

contained 3 kg of heroin. Two representative samples of five gram each

were drawn from all the three packets, which were marked as A1, A2, B1,

B2 and C1, C2. The sample packets as well as the residual substance were

sealed with the seal of Narcotics Control Bureau DZU-5, after separate

paper slips bearing signatures of the appellant, the witnesses and the IO were

pasted on them. The above-referred seal was also fixed on the test memos,

prepared on the spot.

2. A summon under Section 67 of the NDPS Act was, thereafter, served

upon the appellant, directing him to appear in NCB office at 7.00 AM on

05.05.2006. Accordingly, the appellant appeared before Shri Akhilesh

Mishra, Intelligence Officer, NCB and made a voluntary statement, inter

alia, admitting that the substance recovered from him was heroin.

3. Immediately, on returning to NCB office, Shri Prem Khundari

deposited the samples, test memos as well as the residual substance in the

Malkhana of NCB, whereas the seal of Narcotics Control Bureau DZU-5

was retuned to Shri R.R. Kumar. The appellant was got medically examined

in Safdarjung Hospital on 06.05.2006 and produced in the Court on the same

date. The samples A1, B1 and C1 were sent to CRCL along with the test

memos on 08.05.2006 through Shri Bhuvnesh, Sepoy, NCB, which were

received by Shri A.K. Singh, an official of CRCL.

On being analysed in the laboratory, the aforesaid substance was

found to be heroin. The appellant was, therefore, prosecuted under Section

21(c) of NDPS Act.

4. Since the appellant pleaded not guilty to the charge framed against

him, the prosecution examined nine witnesses in support of its case. Two

witnesses were examined by the appellant in his defence.

5. Shri Prem C. Khanduri came in the witness-box as PW-2 and inter

alia stated that at about 2.00 AM on 05.05.2006, he received a secret

information, from an informer who came to his office, that one Brijesh

Kumar Gupta, resident of Mainpuri, U.P., who used to supply heroin in

Delhi, was about to deliver huge quantity of heroin between 3.00 AM to

4.00 AM near Mayur Vihar, Akshardham Chowk. The information was

recorded by him and the writing Ex.PW-2/1 was put up to Shri R.R. Kumar,

Superintendent, who was present in the office. Shri R.R. Kumar constituted

a raiding team and instructed him to take necessary action. He also made an

endorsement to this effect on the written information Ex.PW-2/1. The

witness further stated that thereafter, he collected the seal of Narcotics

Control Bureau DZU-5 through Shri R.R. Kumar and reached the above-

referred spot at about 3.00 AM, along with other NCB officials and

informer. At about 3.30 AM, the accused came there carrying a black

colour bag on his right shoulder and stopped near Nizamuddin bridge. The

informer left the spot, after identifying the accused. After some time, the

accused tried to stop some auto-rickshaws to go towards Nizamuddin bridge,

whereupon he was apprehended. He (the witness) introduced himself and

other NCB officials as well as the witnesses to the accused and apprised him

of the information he had with him. A notice under Section 50 of NDPS

Act was then served upon him. The appellant, however, declined to be

searched in the presence of a Magistrate or a Gazetted officer, whereafter the

IO took the aforesaid bag from the appellant and searched it. Three

polythene packets were recovered from the bag which, on being tested, gave

positive test for heroin. Two bags weighed 2 kg each, whereas the third bag

weighed 3kg. He took out two samples from each of the packets and gave

them mark A1,A2, B1, B2 and C1, C2. The samples as well as the

remaining heroin were sealed with the seal of Narcotics Control Bureau

DZU-5 and CRCL Form was filled on the spot. He served summon under

Section 67 of NDPS Act on the accused, who voluntary accompanied them

to his office. On reaching office, he deposited the case property and test

memos in the Malkhana and made entry in this regard in the godown

register, which is Ex.PW-2/7. He also retuned the seal to Shri R.R. Kumar.

6. PW-6 Shri Akhilesh Kumar Mishra, Intelligence Officer, was a

member of the NCB team which went to the spot on 05.05.2006. He

corroborated the deposition of PW-2 Shri P.C. Khanduri as regards the

appellant having come near Akshardham, at about 3.00 AM, on 05.05.2006

with a bag on his shoulder, his having been intercepted and heroin being

found in the bag, which he was carrying. He further stated that subsequently

the appellant Brijesh Kumar appeared before him in NCB office in response

to the summons which had been issued to him under Section 67 of the

NDPS Act and made statement Ex.PW-6/2, which bears the signature of the

appellant at point „B‟ and the signature of the witness at point „A‟.

PW-8 Manoj Kumar Aggarwal is another member of the NCB team

which went to the spot in the night of 4/5 th May, 2006. He also corroborated

the deposition of Shri P.C. Khanduri with respect to the appellant having

come near Nizamuddin bridge and recovery of heroin from the bag he was

carrying on his shoulder.

7. PW-4, Shri Bhavnesh, Sepoy, NCB, was the driver of the vehicle in

which NCB officials went to the spot in the night intervening 4/5th May,

2006. He is also the official who took four samples along with two duplicate

test memos and a forwarding letter to CRCL, New Delhi on 08.05.2006.

According to him, the aforesaid samples, test memos and forwarding letter

were handed over to him by Shri R.R. Kumar and he delivered the same to

Shri A.K. Singh in CRCL, with seals intact on them.

PW-5 Shri R.R. Kumar, inter alia, stated that on 05.05.2006, Shri

P.C. Khanduri put up the information Ex.PW-2/1 before him. He discussed

the information with him and passed necessary instructions to constitute the

team and take suitable action. Thereafter, he issued departmental seal of

Narcotics Control Bureau DZU-5 to Shri P.C. Khanduri. The seal was

retuned to him by Shri Khanduri at 7.30 AM on the same day. On

06.05.2006, Mr Khanduri submitted seizure report under Section 57 of the

Act to him and the same is Ex.PW-2/11. The arrest report of the appellant

under Section 57 of the Act was also submitted to him and is Ex.PW-2/11A.

He also stated that on 08.05.2006, samples were sent by him to the Chemical

Examiner through Bhuvnesh Kumar, Spoy, vide forwarding letter Ex.PW-

2/1.

8. PW-1 Shri Ajay Kumar Singh is the Assistant Chemical Examiner,

CRCL, who received the samples from Shri Bhuvnesh Kumar on

08.05.2006. According to him, the samples, when received by him, were

sealed with the seal of Narcotics Control Bureau DZU-5 and the same were

in intact condition. The samples were handed over by him to Shri S.K.

Mittal, Assistant Chemical Examiner on 10.05.2006 with seals intact on

them.

Shri S.K. Mittal, Chemical Examiner came in the witness-box as PW-

3 and inter alia stated that the samples, which were received in CRCL, were

taken out from strong room, which was under lock and key under his

supervision. The seals were found intact on the samples when they were

taken out from the strong room and each of them was pasted with one paper

slip on one side which has some signatures on them. All the packets were

sealed with the seal Narcotics Control Bureau DZU-5, which tallied with the

facsimile given on the test memos. On being analysed, the samples tested

positive for heroin.

9. In his statement under Section 313 Cr.P.C., the appellant denied the

allegations against him and claimed that he was lifted from Choraha Mother

Darwaja at Mainpuri, U.P. in the night and made to sit in the NCB office. He

also stated that his scooter was still lying in Devi Road Police Station in

Mainpuri.

DW-1 Shri Kanhiya Lal stated that on 04.05.2006, he along with the

accused was going to Sheetla Mata Mandir. According to him, next day, the

father of the accused, came to him at about 9.00 AM and enquired about the

accused and told him that he had not retuned as yet. During cross-

examination, he stated that he did not meet the accused after 3.30 PM on

04.05.2006.

DW-2 Shri Rajesh Gupta stated that on 04.05.2006, at about 3.00 PM,

the accused had left for Darshan and in the evening, the mother of the

accused told him that he had not retuned home. Next day, he met Kanhiya

Lal (DW-1), who told him that he had gone with the accused to the temple.

He took Kanhiya Lal to Mainpuri Kotwali and reported the matter.

10. Vide impugned judgment dated 01.07.2010, the appellant was

convicted under Section 21(c) of NDPS Act and vide impugned Order on

Sentence dated 06.07.2010, he was sentenced to RI for 10 years and to pay a

fine of Rs 10,000/- or in default, to undergo SI for one year. Being aggrieved

from his conviction and sentence awarded to him, the appellant is before this

Court by way of this appeal.

11. The learned counsel for the appellant, who has also filed written

synopsis on his behalf, assailed the conviction of the appellant primarily on

the following grounds:-

(a). no public witness was examined, despite the arrest having been

alleged on a busy road;

(b). no Gazetted Officer was present when the raid was conducted;

(c). presence of PW-5 Shri R.R. Kumar in NCB office in night is not

believable and, therefore, his deposition with respect to handing over the

seal to Shri P.C. Khanduri and constituting a raiding party cannot be

believed;

(d). the application of the appellant for re-testing the samples was

wrongfully declined by the Trial Judge;

(e). there was some correction in the NCB register Ex.PW-2/7, which

creates a suspicion of manipulation.

12. As regards presence of Shri R.R. Kumar in the office of NCB in the

night intervening 4/5th May, 2006, I find nothing unusual in his presence

even at odd hours at night, considering the nature of the duty, officer of

NCB to perform. The documentary evidence produced by the

complainant/respondent corroborates the deposition of PW-5 Shri R.R.

Kumar and PW-2 Shri P.C. Khanduri in this regard. The information

Ex.PW-2/1 was recorded, at about 2.00 AM and immediately thereafter Shri

Kumar made endorsement mark „B‟ on the same. The seal movement

register, a copy of which is Ex.PW-2/8, shows that at about 2.25 AM, the

seal of Narcotics Control Bureau DZU-5 was handed over by Shri R.R.

Kumar to Shri P.C. Khanduri. The aforesaid register having been

maintained in the regular course of the business is an authentic public

document, wherein entries were made as and when the aforesaid seal was

handed over to an officer of NCB. The register is maintained in

chronological order. Therefore, there was no possibility of inserting the

entry with respect to handing over the seal to Shri P.C. Khanduri and return

of the same by him on the same date. I, therefore, find no merit in this

contention.

13. As regards public witnesses, the case of the complainant is that they

had joined two public witnesses, namely, Ajit Singh and Babu Khan, who

met NCB officials on the spot. The seizure memo is signed by both the

above-referred persons and so are the documents such as notice under

Section 50 of NDPS Act. The aforesaid witnesses could not be produced

since it was reported on the summons that no such person was residing at the

given address. If the public witnesses chose not to disclose their correct

address to the NCB officials, NCB cannot be faulted for not producing them

in the Court. It is quite possible that though the aforesaid witnesses did agree

to join the proceedings on being persuaded by NCB officials, they gave

wrong address to NCB officials so that they do not have to visit the Court

for the purpose of giving evidence during trial. The other possibility in this

regard is that the witnesses had left the place where they were residing at the

time of seizure of the drug, without conveying their fresh address to NCB.

It would also be pertinent to note here that the statements of both the

aforesaid witnesses are recorded under Section 67 of the NDPS Act. The

aforesaid statements also lends authenticity to the case of NCB with respect

to their having been associated with the seizure of the narcotic drug from the

appellant. Presuming, however, that no public witness was joined before

seizing drug from the appellant, that by itself cannot be a good ground to

reject the testimony of NCB officials, who, on receipt of an information,

which was duly reduced in writing and brought to the notice of the superior

officer, went to the spot and apprehended the appellant, on his being

identified by the informer and seized the narcotic drug from him. The

appellant does not claim any previous enmity or ill-will between him and the

NCB officials. Therefore, they had no reason to depose falsely against him

and implicate him in a false case of recovery of narcotic drugs.

In Ajmer Singh Vs. State of Haryana (2010) 3 SCC 746, it was

contended that the evidence of the official witness cannot be relied upon as

their testimony had not been corroborated by any independent witness. The

Hon‟ble Supreme Court, rejecting the contention, held as under:

"16. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence."

Rejecting a similar contention in Kashmiri Lal Vs. State of Haryana

(2013) 6 SCC 595, the Hon‟ble Supreme Court inter alia observed as under:

"9. ....it is evincible from the evidence on record that the police officials had requested the people present in the 'dhaba; to be witnesses, but they declined to cooperate and, in fact, did not make themselves available. That apart, there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighs over the quantity of evidence. These aspects have been highlighted in State of U.P. v. Anil Singh 1988 Supp SCC 686, State, Govt. of NCT of Delhi v. Sunil and another (2001) 1 SCC 652 and Ramjee Rai and others v. State of Bihar (2006) 13 SCC 229."

Dealing with a similar contention in Ram Swaroop Vs. State (Govt.

NCT) of Delhi 2013 (7) SCALE 407, where the alleged seizure took place at a

crowded place yet no independent witness could be associated with the

seizure, the Apex Court inter alia observed as under:

"7. ....We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh 1988 Supp SCC 686, wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and,

therefore, the prosecution case cannot be doubted for non- examining the independent witnesses."

In Ramjee Rai and others v. State of Bihar (2006) 13 SCC 229, it has

been opined as follows: -

"26. It is now well settled that what is necessary for proving the prosecution case is not the quantity but quality of the evidence. The court cannot overlook the changes in the value system in the society. When an offence is committed in a village owing to land dispute, the independent witnesses may not come forward.

Keeping in view the aforesaid authorities, it can safely be stated that in the case at hand there is no reason to hold that non- examination of the independent witnesses affect the prosecution case and, hence, we unhesitatingly repel the submission advanced by the learned counsel for the appellant."

14. During the course of arguments, it was contended by the learned

counsel for the appellant that the notice issued to the appellant under Section

50 of NDPS Act was not appropriate since he was not informed of his legal

right to be searched in the presence of a Magistrate or a Gazetted officer. I,

however, find no merit in the contention. The provisions contained in

Section 50 of the Act apply only when „a person‟ is to be searched. The

question as to what is the meaning of the word „search any person‟

occurring in sub Section (1) of Section 50, came up for consideration before

a three Judge Bench of the Hon‟ble Supreme Court in State of Himachal

Pradesh v. Pawan Kumar [(2005) 4 SCC 350] and the following view was

taken:

"10. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being.

Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.

11. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the word "search of person". One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person."

The Bench in this regard also referred to the decision of the

Constitution Bench decision in State of Punjab Vs. Baldev Singh 1999

Crl.LJ 3672. While allowing connected Crl. A. No.375/2003 titled State of

Rajasthan Vs. Bhanwar Lal, the Bench noted that in that case the accused

was found standing with a attaché in his hand. A written notice was given to

him that his attaché case would be searched as information had been

received that the same contained opium. He was also asked as to whether he

would like the search to be conducted before a Magistrate or a Gazetted

Officer. This fact was also mentioned in the notice. The accused said that

he did not want to be searched before any Magistrate or Gazetted Officer.

The High Court, however, held that the provisions of Section 50 of the Act

were not complied with. Allowing the appeal filed by the State, the Apex

Court held that the view taken by the High Court could not be sustained.

Thus, despite a notice under Section 50 of the Act having been given to the

accused and a contention having been raised that the notice was not in

conformity with the provisions of Section 50 of the Act, the three Judges

Bench, allowed the appeal filed by the State and set aside the acquittal of the

accused, on the ground that no such notice was required in law.

In Ajmer Singh Vs. State of Haryana [(2010) 3 SCC 746], the

appellant before the Apex Court was carrying on his shoulders, a bag which

was later found to contain 500 grams of charas. He was served a notice

under Section 50 of the Act giving an option to be searched either by the

Gazetted Officer or the Magistrate. He was then taken to a DSP where his

search was carried out on the directions of the DSP though not by the DSP

himself. It was contended before the Apex Court that the provisions of

Section 50 of the Act had not been complied with. Rejecting the contention,

the Apex Court held that the question of compliance or non-compliance of

Section 50 of the Act is relevant only where the search of person is involved

and the said Section does not apply where no search of a person is involved.

The Court was of the view that the said provision is not attracted in case of

recovery from a bag, brief case, container, etc., which do not come within its

ambit.

In K. Chithhayan Vs. State of Tamil Nadu (2008) 11 SCC 363, the

appellant was found standing near a bus stop with a bag on his right hand. It

was conveyed to him that he was entitled for the conduct of the search

before a Gazetted Officer or a Judicial Magistrate. The accused, however,

gave consent to be search by the police officer himself. It was contended on

behalf of the appellant that there was non-compliance of the mandatory

provisions of Sections 42(2) & 50 of the Act. Rejecting the contention, it

was held that Section 42 of the Act did not apply since the search was made

in a public place. It was further held that Section 50 of the Act also did not

apply since the search was of the bag carried by the appellant and there was

no personal search. Reliance in this regard was placed upon State of

Himachal Pradesh Vs. Pawan Kumar (supra).

In State of Haryana Vs. Ranbir @ Rana (2006) 5 SCC 167, the

contraband was recovered from the plastic bag which the respondent before the

Apex Court was carrying. He was told that the search was to be effected in the

presence of a Gazetted Officer or a Magistrate if he so desired. The High Court

having acquitted him, the State took the matter to the Apex Court by way of

appeal. Relying upon State of Himachal Pradesh Vs. Pawan Kumar (supra) and

State of Punjab Vs. Baldev Singh (supra), it was held that Section 50 of the Act

was applicable only in a case of personal search of the accused. The Apex

Court rejected the contention that the three Judges Bench in State of Himachal

Pradesh Vs. Pawan Kumar (supra) had wrongly distinguished the earlier

decision of another three Judges Bench in Namdi Francis Nwazor Vs. Union of

India (1998) 8 SCC 534.

15. In the case before this Court since the recovery of heroin was effected

from a bag which the appellant was carrying on his person and not from the

search of his body, the provisions of Section 50 of the Act, in view of the

above referred authoritative pronouncements of the Apex Court would be

inapplicable and consequently any defect in the notice would not vitiate the

recovery. Moreover, the notice given to the appellant clearly referred to his

legal right to be searched in the presence of a Magistrate or a Gazetted

officer and, therefore, it confirmed to the legal requirement. In any case, the

effect of non-compliance with requirement of Section 50 of the Act, as held

by the Constitutional Bench of the Hon‟ble Supreme Court in State of

Punjab Vs. Baldev Singh 1999 Crl.LJ 3672 would be that it would not

vitiate the trial but would render the recovery of an illicit article suspect and

vitiate the conviction where the conviction has been recorded only on the

basis of the illicit article. In the case before this Court, the conviction and

sentence of the appellant is not based solely on the recovery of heroin from

him but is also based on the confessional statement made by him under

Section 67 of the NDPS Act. Ex.PW6/2 wherein he expressly admitted on

that date he was apprehended, he had come to deliver 7 kg of heroin to one

Rajeshwar, which he had purchased from one Jamil. Thus, possession of 7

kg of heroin was expressly admitted by the appellant in his aforesaid

statement. Though, in his statement under Section 313 Cr.PC, the appellant

claimed that his signatures were forcibly obtained on blank papers, there is

no evidence of any force having been used on him. The appellant was

produced before the learned Special Judge for the first time on 6.5.2006. On

that date, he was remanded to judicial custody upto 19.05.2006. The order-

sheet does not show any complaint by him to the learned Special Judge with

respect to use of force against him. The same was the position when he was

produced before the Court on 19.05.2006, 2.6.2006, 15.06.2006. In fact, the

record does not show that the aforesaid statement was retracted by the

appellant at any point of time.

Ex.PW6/4 is the MLC of the appellant. No injury of any kind was

found on his person when he was examined in the hospital on 6.5.2006.

Thus, firstly the provisions of Section 50 of the NDPS were not

applicable, since the seizure took place form a bag which the appellant was

carrying on this person and in any case, the conviction of the appellant is not

based solely upon the recovery of heroin from him, same being based also

on his statement made under Section 67 of the NDPS Act.

16. The learned counsel for the appellant relied upon Baldev Singh

(supra). The aforesaid judgment is of no help to the appellant since the

recovery was not effected from the search of his person. The learned counsel

for the appellant also relied upon the decision of the Hon‟ble Supreme Court

in State of Punjab v. Balbir Singh [AIR 1994 SC 1872]. I have perused the

said judgment. The question involved in the aforesaid case was as to

whether any arrest and search of a person or search of a place without

confirming to the provisions of the NDPS Act becomes illegal and

consequently vitiates the conviction or not. In the aforesaid decision, the

Apex Court, inter alia, held that only an empowered officer or duly

authorized officers as enumerated in Section 41(2) and 42(1) of NDPS Act

can act under the provisions of the said Act and any search or arrest made by

any officer other than an empowered officer would be illegal. It was also

held that only an empowered officer could authorize his subordinate officer

to carry out arrest of a person or a search and if there is contravention, that

would affect the prosecution case and vitiate the conviction.

17. Section 41(1) of the Act enables a Magistrate to issue a warrant (i) for

the arrest of any person whom he has reasons to believe to have committed

any offence punishable under the Act; OR (ii) for the search of any building,

conveyance or place in which, he has reasons to believe any narcotic drug or

psychotropic substance or controlled substance in respect of which an

offence under the 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 of any illegally acquired property which is liable

for seizure of freezing or forfeiture under Chapter VA, is kept or concealed.

Sub-Section (2) of Section 41 empowers any gazetted officer of

central excise, narcotics, customs, revenue intelligence or any other

department of the Government as is empowered in this behalf by general or

special order by the Central Government, or any such officer of the revenue,

drug 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, to authorize any officer, subordinate to him but superior in

rank to a Peon, sepoy or a constable (i) to arrest a person if he has reason to

believe from personal knowledge or information given by any person and

taken in writing that he has committed an offence punishable under the Act

or (ii) to search a building, conveyance or place, if he has reasons to believe,

from personal knowledge or information given by any person and taken in

writing, that any narcotic drug or psychotropic substance or controlled

substance, in respect of which any offence under the 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 for

forfeiture under Chapter VA of the Act, is kept or concealed in such

building, conveyance or place. Such an officer (for short `empowered

officer‟) can himself also arrest such a person or search such a building,

conveyance or place.

Section 42 of the Act, to the extent it is relevant, empowers any such

officer of the departments of central excise, narcotics, customs, revenue

intelligence or any other department of the Central Government as is

empowered in this behalf by general or special order by the Central

Government or such officer 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 (for short `empowered

officer‟), if he has reasons to believe, from personal 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 the 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 the Act is

kept or sealed in any building, conveyance or enclosed place, to enter into

and search any such building, conveyance or place between sunrise and

sunset and 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 reasons to believe to be liable to confiscation under the Act

and any document or other article which he has reasons to believe may

furnish evidence of the commission of any offence punishable under the Act

or furnish evidence of holding any illegally acquired property which is liable

for seizure or freezing or forfeiture under Chapter VA of the Act.

18. It would thus be seen that both, Sections 41 as well as 42 apply only

to entry into and search of any building, conveyance or place where, as per

the knowledge of or information received by the concerned office (a) any

narcotic drug or psychotropic substance or controlled substance in respect of

which an offence punishable under the Act has been committed or (b) any

document or other article which may furnish evidence of the commission of

such offence or (c) 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, is kept or

concealed. As a necessary corollary, the aforesaid Sections would not apply

where the knowledge of the officer or the information received by him does

not pertain to the narcotic drug/psychotropic substance/controlled substance

or illegally acquired property or document or article furnishing evidence of

illegally acquired property being kept or concealed in any building,

conveyance or enclosed place.

19. Section 43 of the Act empowers any officer of any of the departments

mentioned in Section 42 to seize, (i) in any public place or (ii) in transit, any

narcotic drug/psychotropic substance/controlled substance in respect of

which he has reasons to believe an offence punishable under the Act has

been committed. He can also seize, in any public place or transit, any

animal or conveyance or article liable to confiscation under the Act as well

as any document or other article which he has reason to believe may furnish

evidence of the commission of an offence punishable under the Act 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 the Act. The explanation of Sections 41 to

43 of the Act gives only a deeming definition of the expression `public

place‟ which in terms of the said explanation includes any public

conveyance, hotel, shop or other place intended for use by, or accessible to

the public.

20. A combined reading of the provisions containing in Sections 41 to 43

would thus show that even where an officer of any of the departments

mentioned in Section 42 of the Act carries out search and/or seizure

pursuant to receipt of an information, he need not, before carrying out search

and/or seizure record such information into writing and convey the same to

his immediate official superior, where the seizure is effected either at a

public place or in transit. Any other interpretation would substantially

curtail the power conferred upon an officer under Section 43 of the Act. In

my view, it cannot be said that the provisions of Section 43 of the Act would

apply only to those cases where the concerned officer does not have a prior

information or knowledge. Any other interpretation, in my view, would be

contrary to the express provisions of the Act and substantially defeat the

objective behind conferring the power of seizure and arrest in a public place

on an officer of the departments mentioned in Section 42 of the Act.

21. The question as to whether Section 42 of NDPS Act applies to a case

of seizure of a narcotic drug at a public place or not has come up for

consideration of the Apex Court in a number of cases. In State of Haryana

Vs. Jarnail Singh & Ors. (2004) 5 SCC 188, the Apex Court inter alia held

as under:

"7. The next question is whether Section 42 of the NDPS Act applies to the facts of this case. In our view Section 42 of the NDPS Act has no application to the facts of this case. Section 42 authorises an officer of the departments enumerated therein, who are duly empowered in this behalf, to enter into and search any such building, conveyance or place, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance etc. is kept or concealed in any building, conveyance or enclosed place. This power can be exercised freely between sunrise and sunset but between sunset and sunrise if such an officer proposes to enter and search such building, conveyance or enclosed place, he must record the grounds for his belief that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender.

8. Section 43 of the NDPS Act provides that any officer of any of the departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.

9. Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any

building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise."

In Narayanaswamy Ravishankar Vs. Asstt. Director, Directorate of

Revenue Intelligence (2002) 8 SCC 7, heroin was recovered from a suit case

which the appellant was attempting to transport at the airport. The appellant

pleaded non-compliance of Section 42 of the Act. The contention was

rejected holding that the seizure had taken place at the airport which was a

public place.

In State, NCT of Delhi Vs. Malvinder Singh (2007) 11 SCC 314, the

opium was recovered from the body of the accused. The High Court

acquitted him on the ground of non-compliance of Section 42 of the Act.

Allowing the appeal filed by the State it was held that Section 42 had no

application. In taking the aforesaid view, the Apex Court relied upon its

earlier decisions in T. Thomson Vs. State of Kerala & Anr. (2002) 9 SCC

618 and State of Haryana Vs. Jarnail Singh & Ors. (supra).

In Union of India Vs. Major Singh & Ors. (2006) 9 SCC 170, the

narcotic drug was recovered from a truck at a public place. It was held that

since the seizure was made from a public carrier at a public place, between

sun rise and sun set, Section 42 of the Act was not applicable.

In Ravindran Vs. Superintendent of Customs (2007) 6 SCC 410, the

appellant was arrested at a bus stand pursuant to an information that he was

carrying drug with him. Noticing that the arrest and seizure took place at a

bus stand and not in any building, conveyance or enclosed place, the

Hon‟ble Supreme Court held that the case was covered by Section 43 of the

Act which did not acquire information to be taken down in writing and

similarly, there was no requirement that the officer concerned must send a

copy thereof to his immediate official superior within 72 hours.

In Crl. Appeal No.D-1097-DB of 2009 titled Ankit Kumar Vs. State

of Punjab decided on 21.12.2013, a Division Bench of Punjab & Haryana

High Court inter alia held as under:

"14. A reading of Section 42 of the Act shows that the requirement to take down the secret information in writing and sending to superior officers prior to search is in respect of recoveries made from a private place such as building, conveyance or enclosed place. There is no requirement to record such information in writing in respect of search and arrest in a public place or in transit. The expression 'transit' in Section 43 of the Act

is applicable to the expression 'conveyance' used in Section 42 of the Act as well, which is evident from the provisions of Section 49 of the Act, which authorizes an empowered officer to stop any conveyance, if the officer is suspecting that such conveyance is carrying narcotic drug or psychotropic substance or controlled substance. Thus Sections 43 & 49 of the Act, in respect of conveyance, creates an exception to carry out the search and seizure operations in respect of a vehicle in motion. The Supreme Court in State of Haryana versus Jarnail Singh, (2004) 5 SCC 188, while considering search of a tanker moving on a public highway, found that Section 43 is applicable to the case in question....."

22. As regards the application of fluid in Malkhana Register Ex.PW2/7, I

find no merit in the contention. It appears that initially the crime number

was written as 25/2006 which was later corrected to 26/2006. The error was

corrected and duly initialled by the concerned officer. The details given

against the relevant entry leave no doubt that the aforesaid entry pertains

only to the seizure effected in the present case. The name of the appellant

has been written in column no.7 of the register which requires name and

address of the accused. The date and time of the deposit has been recorded

in column no.10, the date of sending the sample has been recorded in

column no.10 and the date of sending the sample has been recorded in

column no.15 of the register. The quantity of drug as well as the weight of

the samples has also been noted in column no.5 of the aforesaid register.

Therefore, no importance can be attached to the clerical error in recording

the crime number particularly when it bears the initials of the concerned

officer.

23. As regards, the order declining to send the second sample to the

laboratory, the challenge has no merit in view of the decision of the Hon‟ble

Supreme Court in Thana Singh v. Central Bureau of Narcotics [(2013) 2

SCC 590. In the aforesaid case, the Apex Court, after considering the law on

the subject clearly held as under:

"25. Therefore, keeping in mind the array of factors discussed above, we direct that after the completion of necessary tests by the concerned laboratories, result of the same must be furnished to all parties concerned with the matter. Any requests as to re-testing/ re-sampling shall not be entertained under the NDPS Act as a matter of course. These may, however, be permitted in extremely exceptional circumstances, for cogent reasons to be recorded by the Presiding Judge. An application in such rare cases must be made within a period of fifteen days of the receipt of the test report; no applications for re-testing/-re-sampling shall be entertained thereafter. However, in the absence of any compelling circumstances, any form of re-testing/ re-sampling is strictly prohibited under the NDPS Act."

24. As regards depositions of DW1 and DW2, they, in my view, do not

help the appellant in any manner since, as admitted by DW1, the travel time

between Mainpuri and Delhi is only 7 hours and according to the witness he

did not meet the appellant after 4:00 p.m. on 4.5.2006. Therefore, it was

very much possible for the appellant to be present in Delhi on 5.5.2006 at

about 3:00 a.m.

25. For the reasons stated hereinabove, I find no ground to interfere with

the conviction of the appellant, which accordingly is confirmed. The

sentence awarded to the appellant being the minimum sentence prescribed

under Section 20(c) of the Act, there is no scope for its reduction. It is,

however, directed, unless the fine has already been deposited, the appellant

in default of payment of fine, shall undergo RI for three months as against

one year, as awarded by the learned trial court.

The appeal stands disposed of accordingly.

A copy of this order be sent to concerned Jail Superintendent for

information and necessary action.

Trial court record be sent back forthwith along with a copy of this

order.

APRIL 03, 2014                                              V.K. JAIN, J.
BG/rd/ks