Karnataka High Court
Pushparaj Mehta S/O Ghiswalaji vs The State Of Karnataka on 21 March, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.P No. 103123 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO.103123 OF 2024
BETWEEN:
PUSHPARAJ MEHTA S/O. GHISWALAJI,
AGED ABOUT 43 YEARS, OCC: BUSINESS,
R/O: NARAYAN PRIDE, NEAR CBT KILLA,
HUBBALLI, TQ: HUBBALLI,
DIST: DHARWAD.
...PETITIONER
(BY SRI. G. I. GACHCHINAMATH &
SRI. SHASHANT S. CHATNI, ADVOCATES)
AND:
THE STATE OF KARNATAKA,
THROUGH E AND N CRIME POLICE STATION,
HUBBALLI DHARWAD CITY,
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
Digitally signed by DHARWAD.
MOHANKUMAR B
SHELAR
Location: High
...RESPONDENT
Court of Karnataka,
Dharwad Bench,
(BY SRI. RAMESH B. CHIGARI, AGA)
Dharwad
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. (528 OF BNSS), PRAYING TO QUASH THE ENTIRE
PROCEEDINGS OF SPL.C. (NDPS) NO.10/2022 ON THE FILE OF THE
PRINCIPAL DISTRICT AND SESSIONS COURT, DHARWAD (ARISING
OUT OF E AND N CR. NO. 8/2020 OF E AND N CRIME POLICE
STATION, HUBBALLI DHARWAD CITY) FOR THE ALLEGED OFFENCES
PUNISHABLE UNDER SECTION 21 OF THE NARCOTIC DRUGS AND
PSYCHOTROPIC SUBSTANCES ACT SO FAR IT PERTAINS TO
ACCUSED NO.1 IN THE INTEREST OF JUSTICE AND EQUITY.
THIS CRIMINAL PETITION, COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
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CRL.P No. 103123 of 2024
CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL ORDER
This petition is filed by accused No.1 under Section
528 of BNSS praying to quash entire proceedings in
Spl.C.(NDPS) No.10/2022 pending on the file of the
Principal District and Sessions Court, Dharwad registered
for offence punishable under Section 21 of the Narcotic
Drugs and Psychotropic Substance Act, 1985 (hereafter
referred to as '"NDPS Act" for brevity)
2. The respondent on 12.09.2020 at about 4.30
p.m. has received information that narcotic substance is
being secured from the other State for the purpose of
selling at Osiya Markettling shop location at Broad way
market, New Killa, Hubballi and accordingly the Police
Inspector has intimated the same to his higher officers and
has taken his team consisting of police constables and at
the same time has summoned two of panchas and also the
Ayurvedic Doctor and request him to participate in the raid
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that is to be conducted. And accordingly, at around 5.50
p.m. has conducted the raid and at the time of raid he
came across two persons who are accused Nos.1 and 2.
When enquired, accused No.1 stated that he is owner of
the shop and accused No.2 stated that he is working in the
shop. Thereafter, the Police Inspector told them that they
have got the information regarding the narcotic drug being
sold in the shop and accordingly enquired and made
search for the same and found two boxes consisting of 40
packets in one box and 22 packets in another box
weighing about 486 grams valuing Rs.300/- and one of the
pack was opened and it was found that the packed
consisted of a material which was smelling pungent and
the same was seized at around 6.30 p.m. The said packet
has a wrapper stating the product is "Madhu Monakka"
and it is also stated that "Sales permitted in Rajasthan
only". Thereafter, when enquired further it was told that
the same material is kept in their godown. The godown
was also raided and the Police Inspector has seized three
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bags. In the first bag there were 120 boxes consisting of
40 packets of Madhu Monakka weighing 23Kgs 877 grams
valuing Rs.12,000/- and the second bag consisted of 120
boxes consisting of 40 packets of Madhu Monakka
weighing 23 kgs 657 grams valuing Rs.12,000/- and third
bag consisted of 60 boxes consisting of 40 packets of
Madhu Monakka weighing 12 kgs 200 grams valuing
Rs.6,000/-. The complainant seized all these materials and
took statement of panchas and the Doctor who had
accompanied raid. The raid process was completed at
about 9.30 p.m. thereafter, he lodged the complaint for
the offence punishable under Section 21 of the NDPS Act.
After completing investigation, charge sheet came to be
filed and now case is in pending on the file of the Principal
District and Sessions Court, Dharwad. The proceedings of
the said case are sought to be quashed in the present
petition by accused No.1.
3. Heard learned counsel for the petitioner -
accused No.1 and learned AGA for the respondent -State.
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4. Learned counsel for the petitioner -accused
No.1 would contend that there is no compliance of Sub-
Section (1) of Section 42 of the NDPS Act as information
received has not been reduced into writing. He further
submits that the search has been conducted after sunset
and it is not permitted under Sub-Section (1) of Section 42
of NDPS Act. The complainant has not recorded reasons
for search between sunset and sunrise. The information
reduced into writing has not been sent to Official Superior
in the proper form as required under Sub-Section (2) of
Section 42 of the NDPS Act. On perusal of the sachet
seized it is produced by Indian product Beawar, Rajasthan
and there is no investigation regarding the Manufacturer of
product seized. The said Manufacturer has not been made
as accused. The said sachet has been manufactured by the
Indian Product which is having license and same is part of
the charge sheet. The license No.703-D has also been
mentioned on the sachet. There is discrepancy in the
weight in the certificate of Destruction and mahazar. On
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the points canvassed the learned counsel has placed
reliance on the following decisions:
1) Mohinder Kumar Vs. The State, Panaji Goa1
2) Union of India (UOI) Vs. Bal Mukund And Others2
3) Boota Singh and Others Vs. State of Haryana3
4) Smt. Najmunisha Vs. The State Of Gujarat4
5) Nagappa Laxamappa Janawad And Another vs.
The State of Karnataka And Another5
6) Mahabir Singh Vs. State of Haryana6
7) Abdul Rakib Vs. The State of West Bengal7
5. Learned AGA would contend that requisition for
permission has been sent to Official Superior prior to raid
i.e. on 12.09.2020 and the Official Superior has issued
order granting permission for the raid on the same day i.e.
on 12.09.2020. As there is permission granted by the
authorised officer, a raid can be conducted by day or by
night which is permissible under Section 41(2) of NDPS
Reported in (1995) AIR (SCW) 1208
2 Reported in (2009)67 (ACrC) 394
3 Reported in (2021)4 S.C.R 180
Reported in (2024)4 S.C.R. 442
Rendered in Crl.P.no.100806/2025 Decided on 21.02.2025
Decided on 26.07.2001
Rendered in CRM(NDPS) 546 OF 2023 Decided on 25.082023
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Act. The FSL report indicates that the product seized is
positive for charas. There is presumption under Section
45 of the NDPS Act. There is compliance of Sub-Section
(2) of Section 42 of NDPS Act. With these, he prays for
dismissal of the petition.
6. In reply, learned counsel for the petitioner
would submits that grant of permission by authorised
officer has not been stated in the Station House Dairy and
that itself show that it is created subsequently.
7. Having heard learned counsels, this Court has
perused the charge sheet and other materials placed on
record.
8. It is specific contention of learned counsel for
the petitioner that search has been conducted after sunset
and before sunrise and the officer conducted search has
not recorded reasons for search between sunset and
sunrise. On that point he placed reliance on the decision
of the Hon'ble Apex Court in the case of Mohinder Kumar
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Vs The State of Panaji(Supra) wherein it is held that
under Section 42(1) proviso, if the search is carried out
between sunset and sunrise, officer must record the
grounds of his belief.
9. In the case of Union of Indian Vs Bal
Mukund and Others (Supra) the Hon'ble Apex Court has
observed thus:
"18. Section 42 of the Act mandates
compliance of the requirements contained therein,
viz., if the officer has reason to believe from
personal knowledge or information given by any
person which should be taken down in writing that
any drug or psychotropic substance or controlled
substance in respect of which an offence
punishable under the Act has been committed, he
is empowered to exercise his power enumerated
in clauses (a) and (b) of Section 42(1) of the Act
between sunrise and sunset. Subject to just
exceptions, thus, taking down the information in
writing is, therefore, very necessary to be
complied with.
The proviso appended to Section 42(1) of the
Act reads as under:
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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."
Sub-section (2) of Section 42 of the Act
provides that such an information reduced in
writing should be communicated to his immediate
superior officers within seventy two hours.
The information was received on the previous
night. The purported recovery was made at 5 a.m.
Even the Senior Superintendent of Police was
aware thereof, who had received the information
first and directed PW-7 to conduct the raid. No
explanation has been offered as to why the
mandatory requirements of law could not be
complied with."
10. The Hon'ble Apex Court in the case of Smt.
Najmunisha Vs State of Gujarat (supra) has observed
thus
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"43. The learned Counsel of the Respondent
No. 02 presents an alternate argument that the
expressions "personal knowledge" and "and taken
in writing" contemplated by Section 41(2) of the
NDPS Act 1985 ought to be read disjunctively,
thereby eliminating the requirement of taking down
information in writing when it arises out of the
personal knowledge of the Gazetted Officer. We are
not inclined to accept this interpretation. The
position for recording the reasons for conducting
search and seizure are well established through the
ratio in paragraph number 25 (2C) in Balbir
Singh case (supra) as mentioned below:
"(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.
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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."
11. The Co-Ordinate Bench of this Court in the case
of Nagappa and Another Vs State of Karnataka and
another(supra) relying on the decision of the Hon'ble
Apex Court in the case of Smt. Najmunisha Vs State of
Gujarat (supra) has held that total non-non-compliance
of Sub-Section (2) of Section 42 of NDPS Act vitiates the
trial.
12. The Hon'ble Apex Court in the case of Boota
Singh and others Vs State of Hariyana(Supra) has
held as under:
"10. In Karnail Singh , the Constitution Bench
of this Court concluded:-
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"35. In conclusion, what is to be noticed is that
Abdul Rashid [(2000) 2 SCC 513 : 2000 SCC
(Cri) 496] did not require literal compliance with
the requirements of Sections
42(1) and 42(2) nor did Sajan Abraham [(2001)
6 SCC 692 :2001 SCC (Cri) 1217] hold that the
requirements of Sections 42(1) and 42(2) need
not be 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 sub-section (1) of
Section 42] from any person had to record it in
writing in the register concerned and forthwith
send a copy to his immediate 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
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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 non-compliance with
requirements of sub- sections (1) and (2)
of Section 42 is impermissible, delayed
compliance with satisfactory explanation about
the delay will be acceptable compliance
with Section 42. To illustrate, if any delay may
result in the accused escaping or the goods or
evidence being destroyed or removed, not
recording in writing the information received,
before initiating action, or non-sending of a copy
of such information to the official superior
forthwith, may not be treated as violation of
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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."
11. In Jagraj Singh alias Hansa , the facts were
more or less identical. In that case, the vehicle (as
observed in para 5.3 of the decision) was not a public
transport vehicle. After considering the relevant
provisions and some of the decisions of this Court
including the decision in Karnail Singh, it was
observed:-
"14. What Section 42(2) requires is that
where an officer takes down an information in
writing under sub-section (1) he shall send a
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copy thereof to his immediate officer senior. The
communication Ext. P-15 which was sent to the
Circle Officer, Nohar was not as per the
information recorded in Ext. P-14 and Ext. P-21.
Thus, no error was committed by the High Court
in coming to the conclusion that there was
breach of Section 42(2).
16. In this context, it is relevant to note that
before the Special Judge also the breach
of Sections 42(1) and 42(2) was contended on
behalf of the defence. In para 12 of the
judgment the Special Judge noted the above
arguments of defence.However, the arguments
based on non-compliance with Section
42(2) were brushed aside by observing that
discrepancy in Ext. P-14 and Ext. P-15 is totally
due to clerical mistake and there was compliance
with Section 42(2). The Special Judge coming to
compliance with the proviso to Section
42(1) held that the vehicle searched was being
used to transport passengers as has been clearly
stated by its owner Vira Ram, hence, as per the
Explanation to Section 43 of the Act, the vehicle
was a public transport vehicle and there was no
need of any warrant or authority to search such
a vehicle. The High Court has reversed the
above findings of the Special Judge. We thus,
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proceed to examine as to whether Section
43 was attracted in the present case which
obviated the requirement of Section
42(1) proviso.
29. After referring to the earlier judgments,
the Constitution Bench came to the conclusion
that non-compliance with requirement
of Sections 42 and 50 is impermissible whereas
delayed compliance with satisfactory explanation
will be acceptable compliance with Section 42.
The Constitution Bench noted the effect of the
aforesaid two decisions in para 5. The present is
not a case where insofar as compliance
with Section 42(1) proviso even an argument
based on substantial compliance is raised there
is total non-compliance with Section
42(1) proviso. As observed above, Section
43 being not attracted, search was to be
conducted after complying with the provisions
of Section 42. We thus, conclude that the High
Court has rightly held that non-compliance
with Section 42(1) and Section 42(2) were
proved on the record and the High Court has not
committed any error in setting aside the
conviction order."
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13. Considering above decisions relied upon by
learned counsel for the petitioner if there is non
compliance of Sub-Section (1) and (2) of Section 42 of
NDPS Act vitiates trial. Considering the said aspect, now it
is to be considered in the present case whether there is
compliance of Section 42 of NDPS Act or not.
14. The Police Inspector has received credible
information and same has been entered in the Station
House Diary at about 4.30p.m. As per Sub-Section (1) of
Section 42 of NDPS Act any information received has to be
reduced into writing has been complied with. Learned
counsel for the petitioner would contend that the said
information reduced in the Station House Dairy is not in
the manner prescribed. Whether the said information
reduced in Station House Diary is in proper manner or not
cannot be considered at this stage and it is to be
considered at the trial.
15. The said information received by the Police
Inspector has been communicated to the Assistant Police
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Commissioner, Hubballi South Sub-Division on 12.09.2020
whereunder the permission has been sought for
conducting raid. The said letter dated 12.09.2020 sent by
the Police Inspector has been received by the Assistant
Police Commissioner, Hubballi South Sub-Division on
12.09.2020 and there is endorsement to that effect along
with signature and seal of the Assistant Police
Commissioner, Hubballi South Sub-Division. The Assistant
Police Commissioner, Hubballi South Sub-Division has
accorded permission to conduct raid and same is part of
the charge sheet and it is dated 12.09.2020 and there is
signature of the Police Inspector on it for having received
the same. Learned counsel for the petitioner would
contend that there is no outward number on the said two
letters and therefore, they are created. Merely because
they have no outward number, at this stage it cannot be
said that they are created and same can be urged at the
trial. The information received has been reduced into
writing and it is communicated to Official Superior within
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72 hours and there is compliance of Sub-Sections (1) and
(2) of Section 42 of NDPS Act.
16. It is not in dispute that alleged raid has been
conducted after sunset and before sunrise. Sub Section
(2) of Section 41 reads as under:
"1) XXXX
2) Any such officer of gazetted rank of
the departments of central excise, narcotics,
customs, revenue intelligence or any other
department of 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
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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, 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."
17. As provided under Sub -Section (2) if there is
authorization by authorised officer, the raid can be
conducted by day or by night. Therefore, Sub-Section (2)
of Section 41 of NDPS Act permits such an empowered or
authorised officer to exercise the said powers to authorise
raid by day or by night.
18. In the case on hand there is authorisation by
authorised officer as provided under Sub-Section (2) of
Section 41 of NDPS Act which provide for conduct of raid
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by day or by night. Therefore, recording of reasons to
believe that such a search warrant or authorisation cannot
be obtained without affording opportunity for the
concealment of evidence or facility for the escape of an
offender is not required.
19. Considering all these aspects, there are no
grounds for quashing as sought for.
In the result, the petition is dismissed.
SD/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP/CT-ASC
