TMI Blog2004 (9) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... f the mandatory provisions of the Act by the appellants 2-3. Under such circumstances, we are of the opinion that the judgment of the High Court cannot be characterized as perverse judgment warranting interference in appeal by this Court. Hence, we are of the opinion that no compensation can be awarded to the accused in the facts and circumstances of this case. We, therefore, allow the appeal in part and set aside that part of the impugned judgment ordering compensation to the accused and also the direction to launch prosecution against PW 2 and PW 4 (2nd appellant) under Section 58 of the NDPS Act. Appeal pertly allowed. - CRL.A. 426 OF 1998 - - - Dated:- 2-9-2004 - K.G. BALAKRISHNAN DR. AR. LAKSHMANAN, JJ. JUDGMENT This appeal is preferred by the State of West Bengal and two others to set aside the judgment of the Division Bench of the Calcutta High Court and also for expunging certain strictures passed against appellant Nos. 2 and 3, who belong to the Indian Police Service Cadre and a member of the West Bengal Police respectively. The High Court set aside the order of conviction and sentence passed by Additional Sessions in Sessions trial No. 29 of 1990 convicting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused preferred Criminal Appeal No. 461 of 1990 Before the High Court of Calcutta. The High Court, on 03.10.1997, pronounced the impugned judgment allowing Criminal Appeal No. 461 of 1990 and acquitted the accused. While passing the said order, several strictures and observations were made against appellant Nos. 2 and 3. According to the counsel for the appellant, the said observations and strictures were made by the High Court without giving even an opportunity of being heard to the said appellants to explain their stand. Aggrieved by the impugned judgment, a Special Petition was filed before this Court on 05.01.1998 and leave was granted by this Court on 06.04.1998. Interim stay of the direction regarding payment of Rs. l lakh as compensation was also made on 29.01.1998 and continued till date. We heard Mr. Tapas Ray assisted by Ms. A. Subhashini, learned counsel for the appellant and Mr. K.V. Vishwanathan, learned counsel for the contesting respondent. We have been taken through the judgment passed by the Sessions Court and of the High Court and the documents and annexures filed therein and also in this Court. Mr. Tapas Ray raised the following contentions : 1. tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9] 6 SCC 172. It was further submitted that great significance has been attached to the mandatory nature of the provisions keeping in mind the stringent punishment prescribed in the Act. Arguing further, the learned counsel submitted that where mandatory provisions are not complied and where independent mahazar witnesses are not examined the accused would be entitled to be acquitted. At the time of hearing, the learned counsel has also pointed out other infirmities found by the High Court. They are : (i) In exhibit-8, it is stated against Serial No. 2 regarding description of seal wax as West Bengal Excise seal No. Ex. 23 in red sealing wax. But curiously enough on left hand margin of Exhibit 8 a plain rubber stamp impression is seen. There is no such seal in red sealing wax as noted in exhibit-8 at serial No. 2; (ii) There is no explanation why the other search witness namely Swapan Samata did not sign on the labels covering the seized articles being marked as exhibit-4, 5 6; (iii) PW 2 is wholly incompetent and unreliable witness regarding the search and seizure as in his cross-examination he has admitted that he conducted the search as per the direction of PW 4 withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Another, [1998] 6 SCC 666, In the matter of: 'K' A Judicial Officer, [2001] 3 SCC 54, P.K. Dave v. Peoples Union of Civil Liberties (Delhi) and Others, [1996] 4 SCC 262 were cited for the above proposition. Learned counsel for the respondent submitted that this Court in the case of Daulat Ram v. State of Haryana, [1996] 11 SCC 711 and Mohd. Zahid v. Govt. of NCT of Delhi, [1998] 5 SCC 419 held that in hearing an appeal against the conviction, compensation can be awarded to the accused where ultimately he is acquitted and that this power is also available in the High Court since the High Court is having plenary power and there is no statutory bar. Additionally, the power is also traceable to Section 482. Concluding his arguments, Mr. Vishwanathan submitted that though the cases of Rudul Sah v. State of Bihar and Anr, [1983] 4 SCC 141, Nilabati Behera v. State of Orissa Ors., [1993] 2 SCC 746 and D.K. Basu v. State of West Bengal, [1997] l SCC 416 were cases under Article 32 and the Court held that compensation for breach of fundamental rights by the Public Officials could be awarded in a proceeding under Articles 32 and 226, that principle should be extended to Section 482 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, policy 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 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; bre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross-examination, deposed that no search memo was prepared and, PW 4 K.L. Meena said he does not remember if any search memo was prepared. Further, it is alleged that they came to Memari P.S. at 11.30 pm and Ex. l G.D. Entry was prepared. This G.D. Entry shows that the seized articles were recovered from the bed room of the accused. The accused was also arrested on 05.05.1989. Thereafter, the case was made over to PW 3 and after receiving the report from the Central Public Health and Laboratories, the accused was sent up for trial. The trial Court convicted the accused and punished the respondent for offences under Section 21 of the Act and sentenced him to undergo 10 years R.I. and pay a fine of Rs. l lakh. The accused filed an appeal in the High Court and the High Court, after finding violation of Section 42(1), proviso to Section 42(1) and 42(2) of the NDPS Act and after finding several discrepancies acquitted the respondent and awarded compensation of Rs. l lakh. Strictures have also been passed on PW 4 and PW 2 and direction to the Magistrate to prosecute PW 4 and PW 2 was ordered. As noticed earlier, the views of the High Court on Section 42 of the Act finds support fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down information received in writing with regard to the commission of an offence before conducting search and seizure. Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful."Great significance has been attached to the mandatory nature of the provisions, keeping in mind the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies, in view of the pronouncement of the judgment of three Judges of this Court in Abdul Rashid Ibrahim Mansuri v. State of Gujarat (supra), the approach by the Court in interpreting the law for the non-compliance of Section 42 and Section 50 must remain the same. In this case, PW-2 and PW-4 and any other prosecution witness do not speak about the compliance with the mandatory provisions of Section 42(1), proviso to Section 42(1) and Section 42(2). It has been held that in any case where mandatory provisions are not complied with and where independent mahazar witnesses are not examined, the accused would be entitled to be acquitted and that any seizure in violation of the mandatory provisions would be inadmissible since these provisions are in the nature of statutory safeguards. In the case of Sajan Abraham v. State of Kerala, [2001] 6 SCC 692, it was a chance recovery on the road and the observations made in the said judgment have to be confined to the facts of that case. The said judgment will not apply since in this case, the recovery is alleged from the house. For the same reason, the referral order in the case of Narcotics Control Bureau v.Pradeep Nath Mathur Anr, [2003] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent/accused giving liberty to the State to realize or to recover the whole of such compensation from appellant No. 2, Mr. K.L. Meena, a member of the Indian Police Service, is wholly unjustified. In our view, officers who are discharging their statutory duties cannot be blamed when the action taken by the State Government and the officials concerned are for implementing the objects behind the Act by resorting the check and to direct the raids etc. The High Court has further penalized the State Government and its officers for such an action. Since the strictures passed against them are wholly unjustified, we have no hesitation in expunging the remarks. Above all, the respondent/accused who was the appellant before the High Court did not take any plea in the memorandum of grounds attributing motive against the appellants, particularly, appellants 2 3. The High Court by pronouncing the impugned judgment has not followed the parameters laid down by this Court inasmuch as when the appellant before the High Court, the accused, has not taken the plea attributing motives to appellants 2 3 specifically. However, we hold that the High Court is right in giving a finding that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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