TMI Blog2009 (1) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... 95, under the NDPS act, came to know that accused is also possessing and selling the contraband articles at his residence. Upon such information he and other Officers started for raid. 3 Initially, he informed about having received such information to the higher officers, namely D.S.R and Circle Inspector of Bharuch District, by writing a report in a sealed envelope, and sent it through one Police Constable. 4 On the basis of the said report, entry came to be recorded in Jambusar Police Station Diary at SL. No. 17 of 1995 at about 2.30 RM., the raid was affected on 15.12.1995 after calling panchas and other officers and a photographer, and after undertaking other exercise required under law. 5 The raiding party led by Mr. Pundya, PSI, went to the residence of accused, bearing Bharuch Municipal House No. 3132. The door of the house was open, and one person standing there was questioned, who replied that his name was Hamidbhai Azambhai Malik, the accused and the appellant before us. After introducing himself, he prepared a memorandum, to the effect as to whether, accused would like his house to be searched in presence of an Executive Magistrate or a Gazetted Officer, to whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of the trial court and affirmed by the High Court. 10 Before dealing with the factual aspect certain observations made by this Court in State of Punjab V/s. Baldeu Singhi, 1999 6 SCC 172 need to be noted: 9. Sub-section (1) of Sec. 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to 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 a warrant between sunrise and sunset, and he may do so without recording his reasons of belief. 10. The proviso to sub-sec. (1) lays down that if the empowered 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. Vide sub-sec. (2) of Sec. 42, the empo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person to be searched if he so requires to be searched before a gazetted officer or a Magistrate he must be made aware of that right and that could be done only by the empowered officer by informing him of the existence of that right. The Court went on to hold that failure to inform the person to be searched of that right and if he so requires, failure to take him to the gazetted officer or the Magistrate, would mean non-compliance with the provisions of Sec. 50 which in turn would affect the prosecution case and vitiate the trial . The following conclusions were arrived at by the two-Judge Bench in State of Punjab V/s. Balbir Singh, 1994 3 SCC 299 (SCC pp. 320-22, para 25) 25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows: (1) If a police officer without any prior information 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 Sec. 50 of the NDPS Act would not be attrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who takes down any information in writing or records the grounds under proviso to Sec. 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. 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. (4A) 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 Ss. 100 and 165 Code of Criminal Procedure including the requirement to record reasons, such failure would only amount to an irregularity. (4B) If an empowered officer or an authorised officer u/s. 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Ss. 100 and 165 of the Code of Criminal Procedure and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dance with the provisions of the Act. On facts it was found that the investigating officer did not record the grounds of his belief at any stage of the investigation, subsequent to his realising that the accused persons were in possession of charas and since he had made no record, he did not forward a copy of the grounds to his superior officer nor did he comply with the provisions of Sec. 50 of the Act, inasmuch as he did not inform the person to be searched that if he required, his search could be conducted before a gazetted officer or a Magistrate. The Bench held that for failure to comply with the provisions of Ss. 42 and 50, the accused was entitled to an order of acquittal and consequently the appeal was allowed and the order of conviction and sentence against the accused was set aside. 11 Coming to the factual background it has to be noted as follows: The search was made by the raiding party at about 4.30 PM. on 15.12.1995. Section 42 will be invocable only if the search is made by the police officer or the concerned authority, upon the prior information. If such a person has reason to believe from personal knowledge or information given by any person and obliged to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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