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2016 (7) TMI 44 - SUPREME COURT

2016 (7) TMI 44 - SUPREME COURT - TMI - Acquittal of the accused from the charges u/s 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) - Held that:- Section 43 being not attracted search was to be conducted after complying the provisions of Section 42. We thus, conclude that the High Court has rightly held that non compliance of 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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d 24.11.2003 acquitting the accused from the charges under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act') after setting aside the judgment and conviction order of Special Judge, (NDPS Cases), Hanumangarh, Rajasthan dated 31.5.2000 by which judgment accused were sentenced to undergo 12 years rigorous imprisonment with fine of ₹ 1,20,000/- each. Accused were to go further rigorous imprisonment of one year each in case .....

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ion case in the nutshell is: Shishupal Singh, Station House Officer, Bhadra received a secret information on 9th August, 1998 at 8 P.M. that a blue jeep car No. HR 24-4057 would come and pass through Haryana via Sirsa. A memo was prepared regarding the above information which was also entered into Roznamacha and information was also conveyed to the Circle Officer, Nohar at 8:05 p.m. on the same day through a constable. Station House Officer along with certain other police personnel proceeded aft .....

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weighed and two samples of 200 grams each were taken from each bag. Seizure memo was prepared on the spot. Both the persons were arrested. Material was sealed and after reaching the police station first information report being FIR No. 291/98 was registered. Samples were sent to Forensic Science Laboratory, Jaipur and on receiving a positive report, chargesheet was filed against both the accused under section 8/15 of the Act. The prosecution produced 12 witnesses including Station House Officer, .....

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independent witnesses have not supported the status of recovery and that entire action had taken place at police station; the chain of event is not present so as to convict the accused. The test report is not admissible and readable. The contentions of accused were refuted by the learned Special Public Prosecutor. Learned Sessions Judge held that information received by Station House Officer was recorded as Exh. P-14 and the same was sent to Circle Officer, Nohar by Exhibit P-15. Hence, the Sta .....

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used before search. Sessions Judge noted that although both the independent witnesses have turned hostile but the police officers and officials have been examined on behalf of the prosecution with whom the fact of enmity has not been proved. Chain of event was complete. After coming to the aforesaid conclusion, learned Sessions Judge convicted both the accused. 4. Both the Criminal Appeals filed by Kishan Lal and Jagraj Singh were decided by a common judgment of the High Court dated 24.11.2003. .....

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plied with. (ii) The proviso to sub-section (1) of Section 42 provides that if such officer has reasons to believe, he may carry the search after recording the grounds of belief whereas no ground of belief as contemplated by the proviso was recorded in the present case and search took place after sun set which violates the provisions of Section 42(2) proviso. (iii) The jeep which was the personal jeep of Viraram could not be treated as public transport vehicle. No evidence was brought on the rec .....

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suddenly. (v) The sealing of the material sample was not proper nor the sample of seal was deposited in the stock house. The seal vide which material has been sealed has not been kept safe any where, it remained in the possession of the officer who conducted the search. (vi) The independent witnesses have not supported the case of prosecution at all. 5. The State of Rajasthan feeling aggrieved against the judgment of the High Court has come up in this appeal. Learned counsel for the appellant h .....

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(1) was not complied with. It is contended that Station House Officer and other police personnel accompanying the team have been examined and they have proved the recovery and chain of events. The High Court has committed error in acquitting the accused whereas there was sufficient ground and material to support the conviction order recorded by the Special Judge. 6. The learned counsel appearing for the accused have supported the judgment of the High Court and submits that compliance of provisio .....

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more so the jeep was personal jeep of Vira Ram and High Court has rightly held that there was no material to prove that jeep was a public transport vehicle. No permit from transport authority to ply the vehicle as a public transport vehicle had been filed or even pleaded. 7. We have considered the submissions of learned counsel for the parties and have perused the record. 8. Whether the High Court committed error in acquitting the accused is the issue which needs to be considered in this appeal .....

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o make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. This Court had occasion to consider the provisions of NDPS Act in large number of cases. This Court has noted that the object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain sa .....

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be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial. 10. To the similar effect are the ob .....

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rt is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is Proved, that an accused has committed an offence under it in respect of the articles covered by it "for the possession of which he fails to account satisfactorily". Having regard to the grave consequence .....

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ase, Section 42 is relevant which is extracted as below: 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 o .....

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n 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 .....

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ch 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,conveya .....

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by the Special Judge for holding that there was no necessity to comply Section 42 is not applicable. We thus proceed to first examine the question as to whether there is breach of provisions of Section 42(1) and Section 42(2). The breach of Section 42 has been found in two parts. The first part is that there is difference between the secret information recorded in Exh. P-14 and Exh. P-21 and the information sent to Circle Officer, Nohar by Exh. P-15. It is useful to refer to the findings of the .....

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d of their own. From the above examination, it is not found in the present case that section 42 (2) of Act, 1985 is complied with. 13. What Section 42(2) requires is that where an officer takes down an information in writing under sub-Section (1) he shall sent a copy thereof to his immediate officer senior . The communication Exh. P-15 which was sent to Circle Officer, Nohar was not as per the information recorded in Exh. P 14 and Exh. P 24. Thus, no error was committed by the High Court in comi .....

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ant or authorisation cannot be obtained without affording the opportunity for escape of offender which grounds of his belief has to be recorded. In the present case, there is no case that any ground for belief as contemplated by proviso to sub-section (1) of Section 42 or Sub-section (2) of Section 42 was ever recorded by Station House Officer who proceeded to carry on search. Station House Officer has appeared as PD-11 and in his statement also he has not come with any case that as required by .....

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cts in his statements that he has conducted any proceedings in regard to compliance of proviso of Section 42(1). Since reasons to believe have not been recorded, therefore, under Section 42(2) it is not found on record that copy thereof has been sent to the senior officials. Shishupal Singh could be the best witness in this regard, who has not stated any fact in his statement regarding compliance of proviso to Section 42(1) and Section 42(2), sending of copy of reasons to believe recorded by him .....

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coming to compliance of proviso to Section 42(1) held that vehicle searched was being used to transport passengers as has been clearly sated by its owner Veera 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, proceed to examine as to whether Section 43 was attracted in the present case whic .....

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le to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act 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; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person .....

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lic conveyance as used in the Act has to be understood as a conveyance which can be used by public in general. The Motor Vehicles Act, 1939 and thereafter the Motor Vehicles Act, 1988 were enacted to regulate the law relating to motor vehicles. The vehicles which can be used for public are public Motor Vehicles for which necessary permits have to be obtained. Without obtaining a permit in accordance with the Motor Vehicles Act, 1988, no vehicle can be used for transporting passengers. In the pre .....

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gh Court held that personal jeep could not be treated as public transport vehicle. Following observations were made by the High Court: Kartara Ram is produced as PD-5,who has deposed the statement that Vira Ram is his brother-in-law (Saala), on whose name jeep bearing No.HR 24 4057 is lying registered. He had employed Inderjit singh as driver for that jeep. Person namely Krishan has never been employed as driver. This witness has been declared hostile and he has been examined too, who does not s .....

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Vehicle , whereas Kartara Ram PD-5 does not affirm this fact. Jeep was personal, it is clear on the record. In this manner, just on this ground that he has given the jeep to his brother-in-law and he used it to carry the passengers, the personal jeep could not be treated as public transport vehicle. However, the fact that jeep is used to carry the passengers has not been affirmed from the statements of Kartara Ram. There is no evidence on record on the basis of which it could be stated that jeep .....

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transporting passengers Admittedly the jeep was intercepted and was seized by the police. In view of the above, the jeep cannot be said to be a public conveyance within the meaning of Explanation to Section 43. Hence, Section 43 was clearly not attracted and provisions of Section 42(1) proviso were required to be complied with and the aforesaid statutory mandatory provisions having not been complied with, the High Court did not commit any error in setting aside the conviction. 18. There is one m .....

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to prove compliance of Section 42. When search is conducted after recording information under Section 42(1), the provisions of Section 42 has to be complied with. This Court in Directorate Of Revenue & Another vs Mohammed Nisar Holia, (2008) 2 SCC 370, had occasion to consider Sections 41,42 and 43 explanation. Following was stated in paragraph 14: 14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on t .....

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compliance of Section 165 of the Code of Criminal Procedure would serve the purpose may not suffice as non-compliance of the said provision would not render the search a nullity. A distinction therefor must be borne in mind that a search conducted on the basis of a prior information and a case where the authority comes across a case of commission of an offence under the Act accidentally or per chance…………. 19. Thus the present is not a case where Section 43 can be said .....

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of cases, the High Court has acquitted accused on the ground that search was conducted without conforming to the provisions of the NDPS Act. Sections 41,42 43 and other relevant provisions came for consideration before this Court, referring to the provisions of Chapter IV following was stated in paragraph 8: 8. But if on a prior information leading to a reasonable belief that an offence under Chapter IV of the Act has been committed, then in such a case, the Magistrate or the officer empowered .....

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n of such offence is kept or concealed in any building or in any place. Under the proviso if such officer has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for the concealment of the evidence or facility for the escape of the offender, he can carry out the arrest or search between sunset and sunrise also after recording the grounds of his belief. Sub-section (2) of 8 1990 Cri LJ 414 (Del) Section 42 further lays down that when such office .....

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ion as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then th .....

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. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisi .....

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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. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must rec .....

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. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. (4-A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions 'of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregul .....

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rmation the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take .....

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there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case. 21. A three Judges Bench in Saiyad Mohd. Saiyad Umar Saiyed & others vs. The State Of Gujarat (supra) after elaborate consideration of provisions of the NDPS Act including section 50 had endorsed the judgment of this court in Balbir Singh& .....

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esh Vs. Pirthi Chand and another, (1996) 2 SCC 37. The Constitution Bench approved the view of this Court in Balbir Singh's case that there is an obligation on authorised officer under section 50 to inform the suspect that he has right to be informed in the presence of the Gazetted Officer. It was held by Constitution Bench that if search is conducted in violation of Section 50 it may not vitiate the trial but that would render the recovery of illicit articles suspect and vitiates the convic .....

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f Section 42 and 50 are mandatory and their non-compliance would render the investigation illegal. Following was held in paragraphs 5 and 6: 5.In this case the violation of the mandatory provisions is writ large as is evident from the statement of K.R. Premchandran (PW1). After recording the information, the witnesses is not shown to have complied with the mandate of sub-section (2) of Section 42 of the Act. Similarly the provisions of Section 50 have not been complied with as the accused has no .....

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his Court in Karnail Singh Vs. State of Haryana, 2009 (8) SCC 539, where this Court had again occasion to consider the provisions of Sections 42 and 50. The Constitution Bench noted the divergence of opinion in two earlier cases which has resulted in placing the matter before the larger Bench. The question was noticed in paragraphs 1 and 2 of the judgment which are to the following effect: 1) In the case of Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, (2000) 2 SCC 513, a three-Judge Bench .....

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l compliance was sufficient. 2) In view of the conflicting opinions regarding the scope and applicability of Section 42 of the Act in the matter of conducting search, seizure and arrest without warrant or authorization, these appeals were placed before the Constitution Bench to resolve the issue. 3) The statement of objects and reasons of the NDPS Act makes it clear that to make the scheme of penalties sufficiently deterrent to meet the challenge of well organized gangs of smugglers, and to prov .....

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