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2016 (3) TMI 1037 - SUPREME COURT

2016 (3) TMI 1037 - SUPREME COURT - TMI - Whether the registration of the FIR, narrating the factual position as has already been described at the beginning of this order, as also, the communication of the first information report to the Superintendent of Police, Panipat would constitute an effective compliance of the provisions contained in Section 42 of the NDPS Act - Non-compliance of Section 42(1) of the NDPS Act contended by appellant - Possession of charas, opium and smack - Held that:- th .....

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he State Government may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. The procedures under Section 41(1) and 42(2) ibid are separate and exclusive of one another. Compliance of one, would not infer the compliance of the other. In the circumstances contemplated under Section 42 of the NDPS Act the mandate of the procedure contemplated therein will have to be followed separately, in the manner interpreted by th .....

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Station Shahar, Panipat and its communication to the Superintendent of Police, Panipat would constitute sufficient compliance of the mandate of Section 42 of the NDPS Act. Therefore, Section 42 of the NDPS Act was not complied with at all. - Decided in favour of appellant - Criminal Appeal No (S). 216-217/2009 - Dated:- 2-9-2015 - Jagdish Singh Khehar And R. Banumathi, JJ. For the Appellant : Mr. R.S. Sodhi, Sr. Adv. Mr. S.S. Das, Adv. Mr. Yash Anand, Adv. Mr. Yash Singhal, Adv. Mr. David A., A .....

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Sukhdev Nagar, during the course of investigation in Case No. 275 of 1999, under Sections 457/380 of the Indian Penal Code. He received a secret information, that the accused-appellant before this Court, namely, Darshan Singh s/o Gopal Das Khatri, a resident of House No. 361/3, Panipat, was carrying on the business of selling charas, opium and smack, to small children of the locality, and was responsible for the said children falling in bad habits. The secret informant, allegedly disclosed to t .....

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ellant Darshan Singh, he was given a notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') informing him that he wished to conduct a search of the premises and of his person. Darshan Singh was required to choose, whether he desired to be searched by a Gazetted Officer, or by a Magistrate. The accused-appellant Darshan Singh accepted to be searched by a Gazetted Officer, and accordingly, he was searched by Bhim Sing .....

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of opium, 40 grams of charas and 9 grams of smack. Having taken samples of 10 grams of opium, 10 grams of charas and 9 grams of smack, separate packets thereof were prepared. The rest of the charas and opium were confiscated, and the confiscated material was separately sealed. The recovered opium, charas and smack were made into three separate packets. Each of the three packets were individually sealed with the seal KS . The AETO also affixed his seal BS separately on each of the three sealed p .....

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appellant Darshan Singh. Consequent upon the completion of the investigation of the case, and presentation of the charge-sheet, the Additional Sessions Judge, Panipat, framed the charges against the accused-appellant Darshan Singh, leading to the holding of a trial. On the culmination of the trial, Darshan Singh, the accused-appellant, was held guilty for the commission of the offences punishable under Sections 18, 20, 21 and 25 of the NDPS Act, and was accordingly convicted for the same. The ac .....

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00,000/- for the offence punishable under Section 20 of the NDPS Act, and in case of default, to further undergo rigorous imprisonment for a period of two years. The accused-appellant was sentenced to undergo imprisonment for a period of ten years, and was ordered to pay a fine of ₹ 1,00,000/- for the commission of the offence under Section 21 of the NDPS Act, and in case of default in payment of fine, to undergo rigorous imprisonment for a further period of two years. Likewise, he was sen .....

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Criminal Appeal No.344-SB of 2001 before the High Court of Punjab and Haryana. The aforesaid appeal came to be dismissed by the High Court vide the impugned judgment and order dated 08.04.2008. The appeal preferred by the accused-appellant Darshan Singh was dismissed, and the sentences imposed upon him under different provisions of the NDPS Act by the trial court were also affirmed. At the beginning of hearing the instant appeals, learned senior counsel for the appellant informed the Bench, that .....

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issions. Insofar as the contention of learned senior counsel for the appellant under Section 42 of the NDPS Act is concerned, he relied on the interpretation placed by a Constitution Bench judgment of this Court on the above provisions in Karnail Singh v. State of Haryana, (2009) 8 SCC 539, wherein, this Court recorded its conclusions in Paragraph 35, which is being extracted hereunder: In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirem .....

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on 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 .....

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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 ev .....

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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. (emp .....

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fficer concerned to record in writing the details in respect of secret information received by him under Section 42(1) of the NDPS Act, and further, to communicate the aforesaid details to the officer superior to him forthwith [under Section 42(2) of the NDPS Act], learned senior counsel seeks setting aside of the conviction of the accused-appellant Darshan Singh, at the hands of the Additional Sessions Judge, Panipat, and affirmed at the hands of the High Court. Whilst it was the case of the le .....

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ent case, no doubt the report of the arrest of the accused and the seize has not been sent to the Police Station, but in the present case immediately after effecting the recovery, the ruqua was sent to the Police Station and on the basis of the same formal FIR Ex.PB/1 was recorded at 5.15 p.m. and Ex.PB1 further proves that the copy of the said FIR was sent through special messenger, which was received by the then Chief Judicial Magistrate, Panipat at 8.45 p.m. on the same day and the copy was a .....

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day, i.e. to the officer superior to the officer, who had conducted the raid (on receipt of secret information). According to the learned counsel for the respondent-State since first information report was sent to the superior officer, non-compliance of Section 42 had not caused any prejudice to the appellant, and therefore, he could claim no benefit under Section 42. The solitary question that arises for our consideration in the instant appeal, is whether the registration of the first informat .....

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Act, requiring the recording in writing, the details pertaining to the receipt of secret information, as also, the communication of the same to the superior officer are separate and distinct from the procedure stipulated under the provisions of the Criminal Procedure Code. Sub-section 1 of Section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of Second Class specially empowered by the State Government may issue a warrant for the .....

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o believe from his personal knowledge, that offences under Chapter IV have been committed or that 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 warrant between sunrise and sunset and he may do so without recording his reasons of belie. The two separate procedures noticed above are exclusive of one another. Compliance of one, would not infer the compliance of the other. In the circumstances co .....

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