Union Of India vs Louis Thomas Alias William & Ors
2014 Latest Caselaw 2678 Del

R-60
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment reserved on :20.5.2014
                                  Judgment delivered on :26.5.2014

+      CRL.A. 198/2006

       UNION OF INDIA                              ..... Appellant
                         Through:      Mr.Satish     Aggarwal      and
                                       Mr.Sushil Kaushik, Advocates.
                         versus
       LOUIS THOMAS alias WILLIAM & ORS.
                                                   ..... Respondents
                         Through       Mr.S.S.Das, Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The appellant i.e. the Union of India is aggrieved by the

impugned judgment dated 14.12.2001 wherein the respondents have

been acquitted of the offence under Section 135,135A of the Customs

Act and Sections 21,23, read with Section 29 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (NDPS Act) read with Section 120

B of the IPC.

2 Record shows that the residential premises of accused Louis

Thomas was searched on 19.01.1986. The contraband i.e. Heroin

weighing 2 kg was recovered and seized under the Customs Act along

with other incriminating documents. This search was conducted in the

presence of accused Louis Thomas; accused Raj Kumar, K.B.Nandwani

were also present. PW-1 D.A.Nistane and PW-11 V.Sriniwasan were

also present. This recovery was effected from a brown coloured

suitcase. The samples drawn from the aforenoted contraband had tested

positive for Heroin. The panchnama Ex.PW-1/A was drawn at the spot.

3 Thereafter on the same day from room no.7 of hotel Little Star,

Paharganj which was under the occupation of K.B.Nandwani

incriminating documents including passports of co-accused Raj Kumar

and Kashmiri were recovered along with confirmed air tickets from

Delhi to New York scheduled for 20.01.1986. On the personal search of

accused Kashmiri five loose documents including two passports and two

air tickets as also a grey coloured bag depicting name of K.B.Nandwani

were also recovered and taken into possession vide separate memos.

Panchnama Ex.PW-3/A was prepared.

4 Disclosure statements of all the accused Louis Thomas, Raj

Kumar, Kashmiri, K.B.Nandwani and Ashok Pahuja were recorded.

5 The Special Judge had, however, acquitted the accused persons.

6 On behalf of the appellants arguments have been addressed by

Mr.Satish Aggarwala, Advocate. Written submissions have also been

filed.

7 It is submitted that the trial judge holding that the recovery is

doubtful and that there has been a tampering of the case property has

committed a folly; there was sufficient evidence with the prosecution to

nail the accused persons.

8 These arguments have been refuted by the learned counsel for the

respondents. Learned counsel for the respondents has raised an

argument relating to the provisions of Sections 41 and 42 of the NDPS

Act; submission being that there is nothing to show that the provisions

of Section 41 and 42 of the NDPS Act has been complied with and

Section 42 being mandatory it could not be ignored. Submission is that

Sections 41 and 42 operate in two distinct and separate fields and even

presuming that there has been a compliance of Section 41 of the NDPS

Act, Section 42 which is mandatory also has to be complied with.

Reliance has been placed upon Criminal Appeal No.2118 of 2008

Sukhdev Vs. State of Haryana and 2006 [3] JCC [Narcotics] 150 Ritesh

Chakarvarti Vs. State of Madhya Pradesh. Additional submission being

that in this case even otherwise there has no compliance of Section 41 of

the NDPS Act. The search authorization has admittedly not been

proved. Additional submission being that the link evidence also does

not stand proved as there is no evidence to show that the case property

remained untampered. To support this submission reliance has been

placed upon AIR 2005 SC 1578 State of Rajasthan Vs. Gurmail Singh.

Submission being that in this case the Supreme Court had acquitted the

appellant on the ground that Register-19 had not been produced and in

this case also Register-19 does not form a part of the record. It has

lastly been submitted that the residential premises of Louis Thomas

where the search had been conducted does not establish that this

premises belonged to Louis Thomas as admittedly this property was not

owned by him. There is no evidence to connect Louis Thomas with this

search. On all grounds the impugned judgment having acquitted the

respondents suffers from no infirmity.

9 In rejoinder it is stated that in this case there was a search

authorization authorizing the search officer D.A.Nistane (PW-1) to

search the residential premises of accused Louis Thomas. Since

V.Sriniwasan (PW-11) was present at the time when the search was

being conducted, there has been compliance of Section 41 of the NDPS

Act; as such the provisions of Section 42 are not required to be complied

with and the Special Judge acquitting the respondents for non-

compliance of the provisions of Section 42 of the NDPS Act had

committed a folly. Learned counsel for the appellant has placed reliance

upon 2008 [3] JCC [Narcotics] 182 Union of India Vs. Satrohan,

2010(3) Scale 559 Bahadur Singh Vs. State of Haryana, 2005[3] JCC

[Narcotics] 228 G.Srinivas Goud Vs. State of A.P., JT 2003 (Suppl.2)

SC 468 Superintending Engineer & Ors. Vs. A Sankariah, JT 2003

(Suppl.2) SC 459 M.Prabhulal Vs. The Assistant Director, Directorate

of Revenue Intelligence, AIR 2000 SC 3494 State of Orissa Vs.

S.Mohanty & Ors. to substantiate this argument. Submission being that

where the search itself has been carried out under the supervision of a

gazetted officer, there is a substantial compliance of the provisions of

Section 41 of the said Act Section 42 would not come into play.

10 To appreciate the rival contentions raised by the parties it has

been necessary to extract the provisions of Section 41 and Section 42 of

the said Act; they read herein as under:

"41. Power to issue warrant and authorisation.-(l) A Metropolitan Magistrate or a Magistrate of the first class or any Magistrate of the second class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under this Act, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe 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 V A of this Act is kept or concealed:

(2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any 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 if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence 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 V A of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.

(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42.

42. Power of entry, search, seizure and arrest without warrant or authorisation.- (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence 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 V A 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 V A 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 subsection (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.

11 Under Section 41(2) an officer of the gazetted rank is empowered

to delegate his power to a subordinate who is of the rank of peon, sepoy

and constable. Section 42(1) allows any officer above the rank of peon,

sepoy and constable to take action for the enforcement of the NDPS Act

in the nature of entry, search, seizure and arrest. Section 42(1) is

therefore of wider implications than Section 41(2). Under Section 41(2)

an officer who is not of the gazetted officer rank cannot act without

authorization, whereas under Section 42(1) an officer above the rank of

peon, sepoy and constable can act without any authorization.

12 Another distinguishing factor between the two provisions i.e.

Section 41(2) and Section 42(1) is that the authorization under Section

41(2) to a subordinate must follow from the officer of a gazetted rank

whereas Section 42(1) does not put any restriction that the officer to act

should be of a gazetted rank. Officers acting under Section 42(1) have

been empowered only to act between sunset and sunrise.

13 In 2013 ALLMR (Cri) 1915 Yasihey Yobin and Anr. Vs. The

Department of Customs, Shillong the Supreme Court had an occasion to

consider the provisions of both Sections 41 and 42 of the said Act. It

had noted as under:

"A perusal of Section 42 contemplates two situations. It contemplates entry into and search of any building, conveyance or enclosed place in anytime between sunrise and sunset by an officer authorized under the Act with a reason to believe that any narcotic substance or any other controlled substance is kept or concealed in such premises and secondly, if the search is made between the sunset and sunrise, the requirement of the proviso to Section 42 is to be complied with under which the officer authorized under the Act is to record the grounds of his belief. But

if the search is made by an officer authorized under Section 41(2) of the Act then the said officer is said to be acting under Section 41(2) and therefore compliance under Section 42 is not necessary at all. This principle is reiterated in the case of M. Prabhulal v. The Assistant Director, Directorate of Revenue Intelligence, (2003) 8 SCC 449 and in Mohd. Hussain Farah v. Union of India & Anr.,2001 1 SCC 329, wherein it is observed that a gazetted officer is an empowered officer and so when a search is carried out in his presence and under his supervision, the provision of Section 42 has no application.

14 Thus where a search is carried out in the presence of the gazetted

officer who is an empowered officer under Section 41 of the said Act,

the provisions of Section 42 would have no application.

15 However, the question that arises in this case is whether there has

been a compliance of the provisions of Section 41 or not. PW-1 had on

oath deposed that he had a search warrant issued by Assistant Director

DRI S.S. Rana directing him to take search of the premises of Louis

Thomas at Saket. PW-11 (V.Sriniwasan) in the opening line of his

statement stated that he was working as a superintendant. A

superintendant is a rank of gazetted officer. As per his version he had

supervised the entire operation and he was present at the time when the

search of the house of Louis Thomas was conducted. It is thus apparent

that a gazetted officer was present at the time of the raid and thus the

argument of the learned counsel for the appellant that where the gazette

officer himself is present at the time of search, provisions of Section 42

of the Act would have no application is the correct proposition.

16 This argument is answered accordingly in favour of the appellant.

However, this Court notes the fact that the arguments addressed before

this Court were only qua the legal provisions of Sections 41 and 42 of

the said Act and arguments on the other counts have not been addressed.

Accordingly, the respondents are given another opportunity to address

arguments on the merits of the case.

17     For directions list on 08.7.2014.



                                              INDERMEET KAUR, J

MAY 26, 2014
ndn