Rajasthan High Court - Jodhpur

Chunni Lal vs State on 2 December, 2022

Bench: Dinesh Mehta

(1 of 18) [CRLA-283/1990]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 283/1990

Chunni Lal son of Shri Rizumal, by caste Khatri, resident of Barmer.


                                                                            ----Appellant
                                           Versus
     The State of Rajasthan
                                                                          ----Respondent


     For Appellant(s)              :     Mr. LD Khatri
     For Respondent(s)             :     Mr. Anees Bhurat, Public Prosecutor


                            JUSTICE DINESH MEHTA

                                        Judgment

Reportable                                                                  02/12/2022

1. The present appeal under section 374 of the Code of Criminal

Procedure is directed against the judgment and order dated

29.08.1990, passed by learned Additional Sessions Judge, Barmer

in Sessions Case No.51/1989, whereby the appellant was

convicted under sections 8 and 18 of Narcotics Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as "the

NDPS Act") and has been sentenced to undergo rigorous

imprisonment for ten years with a fine of Rs.1,00,000/- and in

default of payment of fine, to further undergo two and a half

years' simple imprisonment.

2. The case as set up by the prosecution was that S.H.O.,

Barmer- Ghanshyam Singh (PW-7) was asked by the

Superintendent of Police, Barmer to conduct search at residence

and shop of one Rizumal Khatri, who was reportedly engaged in

illicit business of purchase and sale of opium.

(2 of 18) [CRLA-283/1990]

3. On receipt of such direction, the S.H.O., Barmer proceeded

to conduct search at the business and residential premises of M/s

Chunnilal Babulal - a proprietory concern of said Rizumal Khatri.

4. Before the police personnel could reach the shop (M/s

Chunnilal Babulal) they saw two persons running from the said

shop and trying to flee on finding that the police was approaching.

Those persons were interjected and searched; out of which one

was the present appellant (Chunnilal s/o Rizumal Khatri) who was

carrying a box/container.

5. According to the prosecution, the appellant was explained

about the provisions of section 50 of the NDPS Act and his choice

to be searched in presence of a Gazetted Officer or Magistrate. But

when the appellant refused to exercise such option, the Seizure

Officer himself proceeded to search the appellant so also the box

he was carrying. It was revealed that the box which was being

carried by the appellant was containing 8.5 kg of substance that

was suspected to be opium.

6. May not be relevant, but for the sake of completing the

factual narration it may be noted that the other person (Babulal)

was also searched and was found having about 570 gms of the

same substance with him.

7. 30 gm substance was taken out as sample from the said box

and sent for chemical analysis, which was reported/confirmed to

be opium.

8. On the charge-sheet being filed, charges under section 8/18

of the NDPS Act were framed against the appellant, who denied

the allegation and sought trial.

9. During the course of trial, Jethu Singh (PW-1); Om Prakash

(PW-2); Pabaram (PW-3); Goklaram (PW-4); Channaram (PW-5);

(3 of 18) [CRLA-283/1990]

Bhanwar Singh (PW-6) and Ghanshyam Singh (PW-7) appeared in

witness box as witnesses to prove the case as set up by the

prosecution and B.R. Nimbawat (DW-1) appeared for the defence.

10. The following documents were also produced :-

Ex.P/1- Forwarding letter dated 04.07.1989

Ex.P/2- Fard Baramdgi

Ex.P/3- Fard Arrest Chunnilal

Ex.P/4- Statement of Om Prakash under section 161

Ex.P/5- Statement of Pabaram under section 161

Ex.P/6- FSL Receipt

Ex.P/7- Malkhana entry register

Ex.P/8- Certificate

Ex.P/9- Roznamcha Report

Ex.P/10- Roznamcha Report

Ex.P/11- FIR Parcha

Ex.P/12- FSL Report

Ex.P/13- Remand Applciations

Ex.P/14- Report

Ex.D/1- Statement of Gokhlaram under section 161

Ex.D/2- Site plan

Ex.D/3- Statement of Bhanwar Singh under section 161

Ex.D/4- Statement of Roopram under section 161/chargesheet

Ex.D/5- Ration Card Chunnilal

Ex.D/6- Photographs

11. On behalf of the accused-appellant, the defense counsel

raised various arguments to establish his innocence and to show

that the search was illegal on various counts, including that the

Seizure Officer did not follow the mandate and procedure

prescribed under sections 40, 42 and 50 of the NDPS Act.

(4 of 18) [CRLA-283/1990]

12. The learned trial Court considered the evidence and material

available on record and held the appellant guilty of offence under

section 8/18 of the NDPS Act and awarded sentence as stated in

para No.1 above, while rejecting contentions/grounds raised on

behalf of the accused.

13. Mr. Khatri, learned counsel for the appellant navigated the

Court through the material, statements and documents on record

and submitted that the present appellant had been falsely

implicated and wrongly convicted. He argued that no recovery as

alleged has ever been made from the appellant's possession and

the entire case set up by the prosecution was false.

14. In this regard, he submitted that the motbirs in relation to

recovery of the opium, viz. Om Prakash (PW-2) and Pabaram

(PW-3) had turned hostile, which is indicative of the fact that the

appellant had been falsely implicated in this case. He further

argued that since the recovery itself was not proved, appellant's

conviction is unsustainable in the eye of law.

15. It was vociferously argued by learned counsel that as per the

prosecution's own case, information of existence of contraband

substance was at the shop or at the residence of Rizumal

(appellant's father) and, therefore, it was required of the Seizure

Officer/Prosecution to obtain a warrant for search as mandated

under section 42 of the NDPS Act. He added that in absence of a

search warrant, it was required of the Seizure Officer to record

reasons for not obtaining the same and give information to such

effect to the higher officer(s) within a period of 72 hours.

16. In order to bring home this argument, learned counsel took

the Court through the record including Roznamcha and statement

of Seizure Officer - PW-7, to highlight that there is not even a

(5 of 18) [CRLA-283/1990]

whisper about recording of reasons for inability to obtain search

warrant, let apart, sending its copy to the higher officers.

17. Having satisfied the Court about absence of recording

grounds and its intimation, Mr. Khatri argued that since search

and seizure were made in clear contravention of the provisions of

section 42 of the NDPS Act, not only the search and seizure but

also the consequential conviction of the appellant is vitiated.

18. In support of his contention aforesaid, learned counsel relied

upon judgment of this Court rendered in the case of Jagdish and

Anr. Vs. State of Rajasthan reported in 2011(1) Cr.L.R.

(Raj.) 787.

19. It was argued by Mr. Khatri that appellant's conviction is

contrary to law also because compliance of provisions of section

50 of the NDPS Act was not made. It was argued that section 50

of the NDPS Act enjoins upon the Seizure Officer to explain the

person being searched about his rights to be searched in presence

of a Magistrate or a Gazetted Officer, whereas in the present case,

the Seizure Officer has proceeded to search the appellant without

apprising him about his right to be searched in presence of

Magistrate or Gazetted Officer and as such, the search in question

was contrary to provisions of section 50 of the NDPS Act.

20. Learned counsel elaborated that the IO simply told/informed

the appellant, instead of explaining that the accused-appellant has

a "right" to be searched before a Gazetted Officer or a Magistrate.

He relied upon Ladulal Gurjar vs. State of Rajasthan, reported

in 2020(1) Cr.L.R. (Raj.) 1, and Sanjeev and Anr. Vs. State

of Himachal Pradesh (Criminal Appeal No. 870/2016 before

the Apex Court) to substantiate that it is now a settled

proposition that provisions of section 50 need to be complied with

(6 of 18) [CRLA-283/1990]

strictly and exactly; merely substantial compliance is not

sufficient.

21. Relying upon S.K. Raju @ Abdul Haque @ Jagga Vs. State

of West Bengal reported in (2018) 9 SCC 708, learned counsel

for the appellant further submitted that as per the recent

interpretation of Hon'ble the Supreme Court, provisions of section

50 are also applicable in cases where both the person as well as

belongings of the person are searched, even if the recovery is

made solely from the belongings of the person.

22. Learned counsel argued that both the legal arguments which

went to the root of the matter have been brushed aside by the

trial Court in a cursory manner and the order impugned thus,

deserves to be quashed and set aside.

23. It was also argued by Mr. Khatri that the prosecution has

simply showed that the sample of 30 grams of the substance

recovered was packed in a plastic polythene bag and then, in a tin

metallic box and sealed. But the fact that the seal and packaging

remained intact has not been proved beyond doubt.

24. He contended that no specimen seal was prepared on the

spot and when the sample was analyzed by the Forensic Science

Laboratory its quantity was found to be 28 grams, hence, the

possibility of the sample being tampered with cannot be ruled out.

He thus argued that the appellant - accused has been wrongly

framed and convicted.

25. Learned counsel relied on the judgment of Rusi vs. State of

Rajasthan reported in 1996 Cr.L.R. (Raj.) 1985 to assert that

lack of preparation of seal memo on the spot raises doubt as to

the FSL report and is sufficient ground to acquit the accused.

(7 of 18) [CRLA-283/1990]

26. Per contra, Mr. Anees Bhurat, learned Public Prosecutor,

submitted that the arguments advanced by the appellant's counsel

are too technical to be accepted. He argued that the recovery of

contraband substance from the appellant's possession has been

aptly proved and the appellant has not been able to find any fault

in the evidence adduced and produced by the prosecution; hence,

his conviction deserves to be upheld.

27. In relation to the appellant's arguments about provisions of

section 42 of the NDPS Act, learned Public Prosecutor contended

that recovery of the contraband substance was made while the

appellant was trying a get away - on public road and not in the

shop or house, hence, provisions of section 42 of the NDPS Act

are not attracted.

28. He further argued that the contraband substance (8.5 kgs of

opium) was recovered from the box being carried by the appellant

and not from his person, as such provisions of section 50 of the

NDPS Act were also not applicable.

29. In support of his contention aforesaid, learned Public

Prosecutor cited the following judgments rendered by Hon'ble the

Supreme Court:

i. Jeet Ram vs. The Narcotics Control Bureau, Chandigarh, reported in AIR 2020 SC 4313; ii. Dayalu Kashyap Vs. State of Chhattisgarh, Criminal Appeal No. 130/2022, SLP No. 514/2021, decided on 25.01.2022 and;

iii. Kallu Khan Vs. State of Rajasthan, Criminal Appeal No. 1605/2021, decided on 11.12.2021.

30. Notwithstanding his stand that provisions of section 50 are

not attracted, learned Public Prosecutor took an alternative plea

that the same stood complied with. He took the Court through the

testimony of the Seizure Officer (PW-7) and while underscoring

(8 of 18) [CRLA-283/1990]

the relevant part of the statement, he argued that the accused

was explained about his rights provided under Section 50 of the

NDPS Act and therefore, the appellant's contention in this regard

is liable to be rejected.

31. Heard learned counsel for the parties and perused the

material available on record.

32. On perusal of the testimony of the prosecution witnesses and

material available on record, this Court is of the view that the

prosecution has established its case that 8.5 kg of contraband

substance (opium) was recovered from the conscious possession

of the appellant. The fact that Motbirs have turned hostile hardly

has a bearing on the prosecution's case. The stand of the Motbirs

- Om Prakash and Pabaram that the recovery was not made in

their presence, can be ignored, given the fact that they have

admitted their signatures on the 'fard recovery'.

33. That apart, the Seizure Officer and the Investigating Officer

and other prosecution witnesses have proved beyond a pale of

doubt that the recovery was made from possession of the

appellant and the appellant has not been able to unsettle the

evidence/stand of the prosecution.

34. This Court is not much convinced with the arguments of Mr.

Khatri that the prosecution had not prepared the specimen of the

seal, and that the reduction of quantity (from 30 grams to 28

grams) when it reached the laboratory for chemical analysis

suggests tampering of the sample.

35. This Court is firmly of the view that such trivial discrepancies

cannot demolish the well-established prosecution case, in which

the recovery of the substance from the accused has been proved

(9 of 18) [CRLA-283/1990]

and further, because the substance recovered has been found to

be a contraband substance.

36. The judgment of Rusi (supra) relied upon by the appellant

is clearly distinguishable on facts, as in that case, neither the FIR,

nor the report, nor even the seizure memo showed that any seal

impression was prepared, which is not so in the case at hand.

37. Adverting to the argument of learned Public Prosecutor that

since the recovery of the substance was made from the

box/container being carried by the appellant, the provisions of

section 50 of the NDPS Act were not attracted, the same is not

tenable. Such argument was backed by the judgments of the Apex

Court in the case of Kallu Khan (supra) and Jeet Ram (supra).

But the facts in those cases are clearly distinguishable. In the case

of Kallu Khan, the bag that was searched and seized was lying

aside on a motorcycle and in the case of Jeet Ram, the gunny

bag containing charas was recovered from under the counter of

the dhaba where the accused was having meals.

38. In the case in hands, the box was being held very much in

appellant's hands. That apart, the appellant himself and his

clothes were searched and in addition thereto, the box he was

carrying was also searched. Hence, it was incumbent upon the

officer to follow the provisions of section 50 of the Act.

39. This issue in almost similar fact-situation has been duly settled

by Hon'ble the Supreme Court in the case of S.K. Raju (supra) in

the following words:

"PW-2 conducted a search of the bag of the appellant as well as of the appellant's trousers. Therefore, the search conducted by PW-2 was not only of the bag which the appellant was carrying, but also of the appellant's person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case.

(10 of 18) [CRLA-283/1990] Accordingly, PW-2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a PW-2 conducted a search of the bag of the appellant as well as of the appellant's trousers. Therefore, the search conducted by PW-2 was not only of the bag which the appellant was carrying, but also of the appellant's person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW-2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate."

40. Moving on to the judgment in the case of Dayalu Kashyap

(supra) relied upon by the learned Public Prosecutor, suffice it to

observe that the same also does not apply to this case as in the

peculiar facts of that case, the search of the person and the

search of the polythene bag being carried in a Kanwad were held

to be distinct from each other.

41. Then comes the question, as to whether the procedure

adopted by the Seizure Officer can be said to be a proper

compliance of the provisions of section 50 of the NDPS Act. This

Court, on the appraisal of the factual matrix, is of the view that

the requisite compliance was made. As per the provisions of

section 50 of the NDPS Act and its interpretation given by various

judicial pronouncements, it is obligatory upon the Seizure Officer

to make a person known about his right to be searched in

presence of Magistrate or Gazetted Officer.

(11 of 18) [CRLA-283/1990]

42. The relevant part of section 50 reads thus:

"50. Conditions under which search of persons shall be conducted.--(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate."

43. It is to be noted that 'fard baramdgi' Ex.P/2 records that

when the appellant was asked as to whether he wants the search

to be conducted in presence of Magistrate or Gazetted Officer, he

refused to get such right exercised. It will not be out of place to

reproduce relevant extract of Ex.P/2 - recovery memo.

",d O;fDr gkFk esa yksgs ds ihis dh isVh ysdj Hkkxk rks mldk fiNk dj dksus pqUuh yky ds edku ds dksus ij idM+k ftldks mldk uke iwNk rks mlus viuk uke pqUuh yky s/o fj>wey [k=h fuoklh jk; dksyksuh ckM+esj crk;k ftl ij pqUuh yky dks viuh o fiis dh ryklh nsus ckcr dgk fd og viuh o fiis dh fdlh eftLVªsV ;k jktif=r vf/kdkjh ds lkeus nsuk pkgs rks ns ldrk gS ftl ij pqUuhyky us ryklh nsus ls bUdkj fd;kA"

44. As per section 50 of the NDPS Act, what is expected of a

Seizure Officer is, to take such person to the nearest Gazetted

Officer or Magistrate, etc., if he so requires. The language of the

provision, its import and purport has given rise to many judicial

debates and judgments with diverse opinions, until a reference

answered by a Constitution Bench of Hon'ble the Supreme Court

in the case of Vijaysinh Chandubha Jadeja vs. State of

Gujarat reported in (2011) 1 SCC 609 has settled the law

authoritatively in the following words:

"29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of

(12 of 18) [CRLA-283/1990] power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. ......

31. We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf."

45. A perusal of the recovery memo shows that it records that the

appellant was given the option to be searched in the presence of a

Magistrate or a Gazetted Officer. Not only this, PW-7 -

Ghanshyam Singh, the Seizure Officer has deposed in his

statement that the appellant was 'counseled' about his right to be

searched in the presence of a Magistrate or a Gazetted Officer. It

will not be out of place to reproduce relevant extract of the

statement:

"उसके बाद उसे रूबरू मजिस्ट्रे ट के या राजपत्रित अधिकारी के समक्ष अपनी व अपने साज-सामान की तलाशी लिवाये जाने की समझाइश की लेकिन उसने दोनों ही बातों से इंकार किया।"

(13 of 18) [CRLA-283/1990]

46. The expression "समझाइश" encapsulates something more than

the expression "समझाना". Its synonym / nearest translation in

English can be - "counselling". The ambit of the term counselling

is wider than the word "explaining" simpliciter. समझाइश or

counselling goes to the extent of impressing upon the accused to

get himself searched in the presence of a Magistrate or a Gazetted

Officer.

47. In the case of Ladulal Gurjar (supra), the police personnel

instructed the accused to accompany them to a Gazetted Officer

or Magistrate for the purpose of being searched unlike the present

case, where the accused was informed of the choice available to

him. Similarly, in the case of Sanjeev (supra), the arrest memos

did not reflect that the accused persons were informed or given a

choice before their personal search was conducted. Therefore,

both the judgments relied upon by the accused-appellant do not

favour him as they are distinguishable on facts.

48. That apart, the search in question was made in the year 1989,

when the law was still in the making on this issue. Courts have

taken divergent view on the scope and requirement under section

50 and the same has been settled as late as in 2011. Hence, even

if the officer concerned was wanting on some aspects, the search

cannot be set at naught. For the reasons stated afore, in the

opinion of this Court, what has been recorded in Ex. P/2, is

necessary compliance of section 50 of the NDPS Act, as envisaged

by the law at the time.

49. Next comes the core question involved in the present case -

whether the provisions of section 42 were to be followed in the

extant facts and if yes, what would be the effect of non-

compliance of the provisions of section 42 of the NDPS Act.

(14 of 18) [CRLA-283/1990]

50. Section 42 of the NDPS Act is being reproduced hereunder

for ready reference :-

"42. Power of Entry, search, seizure and arrest without warrant or authorisation. - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure 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;

(15 of 18) [CRLA-283/1990] Provided that in respect of holder of a license for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:

Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under 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."

51. It is an admitted case of the prosecution that the Seizure

Officer received a direction from the Superintendent of Police,

Barmer to proceed for search as there was an information that

contraband substance was lying in shop/residence of Mr. Rizumal.

It was only in furtherance of such direction that the Seizure Officer

had proceeded to the shop of Rizumal - (M/s. Chunnilal Babulal)

for the purpose of conducting search.

52. Before the police could enter the shop, the appellant is said

to have run off from the shop, at which point of time he was

stopped, intercepted and searched. Though, as per prosecution's

story, the recovery of contraband substance was made on the

road and not from the shop or residence, but the fact remains that

the Seizure Officer had essentially set off for conducting search at

the shop/residence of said Rizumal.

53. It was only a fortuitous circumstance that the appellant had

left the shop/residence and was intercepted while he was

managing an escape from the shop. It is the proposal to conduct

(16 of 18) [CRLA-283/1990]

search which requires a warrant or in other words, the warrant is

a must before one conducts a search at a shop or the residence of

a person.

54. It was obligatory upon the Seizure Officer/S.H.O concerned

to have obtained a warrant as required under section 42 of the

NDPS Act and section 94 of the Code of Criminal Procedure. If the

S.H.O. was of the view that obtaining a search warrant would

provide a window to the accused to conceal the substance or

evidence, he was required to record grounds for such belief. As a

matter of fact, he was not only required to record grounds for the

belief, but also required to send copy of such grounds to the

higher officers within 72 hours.

55. If the argument of the learned Public Prosecutor is accepted

that since the recovery was made not from the shop or residence

but on the way, the provisions of section 42 of the NDPS Act were

not attracted, then, it will frustrate the whole purpose of the

provisions of section 42 of the NDPS Act. Admittedly, the Seizure

Officer had proceeded to conduct search at the business premises

and residence of said Rizumal. It was only a matter of chance that

the appellant - accused realized that the police was approaching

and hence, ran away with the substance which was lying in the

shop, only to be caught outside the shop.

56. According to this Court, the provisions of section 42 of the

NDPS Act have been enacted in order to avoid arbitrary and

unwarranted searches; eliminate fictitious recoveries and to ward

off unnecessary harassment to the citizens. In the instant case,

neither the grounds for proceeding without a search warrant have

been recorded nor has any intimation of such reason to the higher

officers been given. Hence, the search was fundamentally void.

(17 of 18) [CRLA-283/1990]

57. If the interpretation which is being given in the case in hand

is not given, then, it would be very convenient for the police

personnel to flout the mandate of section 42 of the NDPS Act and

stage manage or portray a recovery just outside the shop to claim

immunity from the rigours/mandate of section 42 of the NDPS Act.

58. An action which was otherwise illegal or without authority of

law cannot be validated or held legit in hindsight, merely because

the seizure was ultimately made on the road and not in the shop

or residence. Non-compliance of the mandatory provisions

encapsulated in section 42 of the NDPS Act is writ large in the

instant case.

59. My above view is fortified by the judgment of Jagdish

(supra), where, in similar circumstances, the prosecution failed to

adduce any evidence as to the compliance of the provisions of Sec

42(2) and thus, the Court observed as follows:

"18. The requirement of Section 42 of the Act is not merely a technical one. In fact, Section 42 of the Act requires a substantial compliance or its mandatory provisions. Since NDPS Act is almost a draconian law, a large number of safety precautions have been prescribed by the Act itself. The first and foremost precaution is that the moment the police receives an information from an informant, it is legally bound to inform the higher, authorities. This requirement is laid down in order to check the excess of the police, and to ensure that the police does not falsely implicate a citizen. This requirement also places a burden on the higher authorities to supervise the functioning of the subordinate officers. Hence, this requirement is both in the interest of the accused, and in the interest of the efficiency of the Police Department.

.........

21. It is true that both in the case or Dalel Singh (Supra) and in case of Kamal Singh (Supra), the Apex Court had observed that in case there is substantial compliance of Section 42 of the Act, then the trial is not vitiated. However, in both these cases, the Apex Court had pointed out that the information to the superior officers can be transmitted

(18 of 18) [CRLA-283/1990] through wireless only if the raiding party was on petrol. In case the information is received at the Police Station, then it is imperative to write down the information and to transmit the same to the superior officers. In the case of Beckodan Abdul Rahiman v. State of Kerala 2002 Cri. L.J. 2529: RLW 2002 (4) SC 560 the Hon'ble Supreme Court had observed that safeguards provided in provisions of Section 42 and in Section 50 of the Act are mandatory in nature. Therefore, their compliance is essential."

60. In the present set of facts, since the action of proceeding for

search sans a search warrant itself was illegal, not only the

corresponding recovery but also the conviction is vitiated.

61. As an upshot of the discussion foregoing, this Court has no

hesitation in concluding that there was a conscious and clear

breach of the provisions contained in section 42 of the NDPS Act,

for which the appellant's conviction is liable to be quashed and set

aside.

62. The appeal, therefore, succeeds. The appellant's conviction

so also the impugned judgment and order dated 29.08.1990,

passed by learned Additional Sessions Judge, Barmer is hereby

quashed and set aside.