TMI Blog2019 (2) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... and purpose of ensuring strict compliance of Section 42. Their Lordships have held that Section 42 is mandatory which ought to be construed and complied with strictly. The compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. Appellants are acquitted. Appellant Harbhajan Singh alias Bhajan Singh is on bail. His bail bonds and surety bonds are discharged. Remaining accused are in custody. They be released forthwith - appeal allowed - decided in favor of appellant. - CRA-D-676-DB-2010, CRA-D-737-DB-2010 And CRA-S-2344-SB-2010 - - - Dated:- 8-2-2019 - MR RAJIV SHARMA AND MR HARINDER SINGH SIDHU, JJ. For The appellant : Mr.P.P.S. Duggal, Advocate And Mr.Karamjit Singh Brar, Advocate For The Respondent : Mr. Rajesh Bhardwaj,Sr.DAG, Punjab JUDGEMENT RAJIV SHARMA, J. Since common questions of law and facts are involved in the aforesaid three appeals CRA-D-676-DB-2010, CRA-D-737-DB-2010 and CRA-S-2344-SB-2010, therefore these are taken up together and disposed of by a common judgment. 2. These three appeals are instituted against the judgment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of some gazetted officer. Thereafter DSP (D) Ferozepur Rajinder Singh reached at the spot. The truck was searched. It contained 165 bags of cement of Birla. Under the bags of cement, 30 more bags containing poppy husk were recovered. These were numbered 1 to 30. Two samples each containing 250 grams of poppy husk were separated from each of the bag. These were converted into parcels. The remaining poppy husk on weighment was found to be 39 kgs 500 grams in each bag. All the sample parcels and bulk parcels were separately sealed by the investigating officer. The case property was taken into possession. The investigating officer produced the accused and case property before SI Harinder Singh. He after verifying the facts of the case, put his seal 'HS' on the case property. He took the case property in his possession vide memo Ex.P5. On 05.01.2008, SI Harinder Singh produced the case property and accused before the learned Illaqa Magistrate. He moved applications Ex.P6 to Ex.P8. The Illaqa Magistrate passed the orders vide Ex.P9 to Ex.P11. On 10.01.2008 SI Harinder Singh completed Form 29 Ex.P12. The form along with samples and sample seal were handed over to Constable Kewal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 he produced the case property, sample seal chit and accused along with applications Ex.P6 to P8 before the Illaqa Magistrate. The Illaqa Magistrate passed the orders Ex.P9 to P11. On 10.01.2008 he completed form No.29 Ex.P12 by pasting sample seal impression chit on it. He took 30 sample parcels of this case and handed over the same to Constable Kewal Singh. He directed him to get the docket forwarded from the office of SSP, Ferozepur and to deposit the samples with the office of Chemical Examiner, Amritsar. On receipt of report of the Chemical Examiner, the challan was put up. In his cross-examination, he admitted that sample seal chit Ex.P4 was pasted on separate piece of plain paper. This chit only bore his signatures and other writing on this slip including the words attestation above, his signatures and his designations are in the hand writing of SI Harpal Singh. The slip was pasted on docket form Ex.P12. It was also admitted that the case property was ordered to be deposited in judicial malkhana. This case property was still lying in police station. It was brought to the Court from police station. Volunteered there was no space in judicial malkhana. He did not get the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of his seal, and that of DSP and SHO were not directly put on CFSL form Ex.P12 at the spot. CFSL form bears his signatures but there was no date under the signatures on it. He prepared three copies of CFSL form like Ex.P12. He could not tell where the other two copies of CFSL form were used by the SHO. Sample seal slips were prepared on three chits. On the other two CFSL forms, impressions of their seals were not directly put. There was no record on judicial file indicating that three copies of CFSL form and three sample seal chits were prepared at the spot. 11. PW-4 DSP Rajinder Singh deposed the manner in which the truck was searched and contraband was recovered. 12. PW-5 SI Gurpiar Singh deposed that on 04.01.2008 he was posted at CIA Headquarter Ferozepur. On that day, he along with SI Harpal Singh and other police officials were going on two canters. They started checking process. At about 1.00 P.M., a truck bearing No.RJ13 GA-0378 was intercepted. Search was made and samples were drawn. Sample seal Ex.P4 was prepared and seal was handed over to him after its use. DSP Rajinder Singh also put one impression of his seal bearing impression RS on each parcel and also pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter taking due precautions. All the columns should be filled up and seals of impressions should be on form itself and the pasting of the same later on is deprecated. 15. Entry in the Malkhana register to the effect that who had taken the property to the Court and brought it back, is necessary as per Punjab Police Rules, 1934. Para 22.70 of the Punjab Police Rules, 1934, reads as under: 22.70. Register No. XIX- This register shall be maintained in Form 22.70. With the exception of articles already included in register No. XVI every article placed in the store-room shall be entered in this register and the removal of any such article shall be noted in the appropriate column. The register may be destroyed three years after the date of the last entry. The register is to be maintained in Form 22.70. It reads as under. FORM NO. 22.70. Police Station _________ ____District Register No. XIX.-Store-Room Register (Part-I) Column 1.- Serial No. 2. No. of first information report (if any), from whom taken (if taken from a person), and from what place. 3. Date of deposit and name of depositor. 4. Description of property. 5. Reference to report aski ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uarters, be taken out in the presence and under the personal order of an officer of rank not less than prosecuting subinspector and an entry made in the register of issue from and return to the prosecuting agency s store-room, which register shall be maintained in Form 27.18(1). Animals sent in connection with cases shall be kept in the pound attached to the police station at the place to which they have been sent, and the cost of their keep shall be recovered from the District Magistrate in accordance with Rule 25.48. ( 2) In all cases in which the property consists of bullion, cash, negotiable securities, currency notes or jewellery, exceeding in value ₹ 500 the Superintendent shall obtain the permission of the District Magistrate, Additional District Magistrate or Sub-Divisional Officer to make it over to the Treasury Officer for safe custody in the treasury. ( 3) All cash, jewellery and other valuable property of small bulk, which is not required under sub-rule (2) above to be sent to the treasury, shall be kept in a locked strong box in the store-room. Each court orderly shall be provided with a strong lock-up box in which he shall keep all case property wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the prosecuting agency s store-room, which register shall be maintained in Form 27.18(1). Property taken out of the main store-room for production in court is required to be signed by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the removal shall initial this entry. Such officer similarly, after personal check, is required to initial the entry of return of the property to the main store-room on the closing of the courts. It is further provided in this Rule that every day, when the courts close, an officer of the prosecuting branch of rank not less that of sub-inspector shall personally see that the articles produced in court are returned to the store-room, restored to their proper places in the shelves, cup-boards or strong box and registered as required by sub-rule (4) above. The opening of the storeroom in the morning and its closing in the evening shall invariably be in the presence of the police officials named in this rule. In case property is required to be committed to the higher Court, then under Rule 27.19, the parcel shall be sealed with the seal of the court and made over to the head of the police prosecuting agency, who shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty to judicial malkhana and its return. He did not record any case diary on 10.01.2008 regarding dispatch of samples to the lab. He admitted that whenever any case property is taken out from the malkhana for any official purpose and then redeposited, entries of both these activities are always made in register No.10 under the signatures of SHO or other officers. PW-3 SI Harpal Singh admitted that he had seen the case property outside the Court lying in canter. The seals on some of the bags were broken. It was serious lapse on the part of the police. Once it was ordered to deposit the case property in the judicial malkhana, it should have been deposited in the judicial malkhana alone. In case there was no space in judicial malkhana, the police should have moved an application for modification of the order dated 05.01.2008. There is no report from the Incharge of judicial malkhana that there is no space/room to keep the property in judicial malkhana. There is no corresponding entry when the case property was taken out from the malkhana and redeposited in the malkhana. There is detailed procedure under the Punjab Police Rules prescribing the manner in which the case property is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. ( 3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 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. 25. The Division Bench of Bombay High Court in Lamin Bojang vs. State of Maharashtra, 1997 Crl.L.J.513 have held that information which is to be sent is information prior to the raid. FIR lodged after the raid and though countersigned by superior official would not be compliance of requirement of Section 42(2). The Division Bench have held as under:- 12. Mr. Nalawade next urged that the requirements contained in Section 42(2) have been satisfied inasmuch as there is evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplated under the amended sub-section (2) of Section 42. This, in our opinion, provides a greater certainty to the time in which the action should be taken as well as renders the safeguards provided to an accused more meaningful. In the present case, the information was received by the empowered officer on 4th February, 1994 when the unamended provision was in force. The law as it existed at the time of commission of the offence would be the law which will govern the rights and obligations of the parties under the NDPS Act. xxx xxx xxx 18. No law can be interpreted so as to frustrate the very basic rule of law. It is a settled principle of interpretation of criminal jurisprudence that the provisions have to be strictly construed and cannot be given a retrospective effect unless legislative intent and expression is clear beyond ambiguity. The amendments to criminal law would not intend that there should be undue delay in disposal of criminal trials or there should be retrial just because the law has changed. Such an approach would be contrary to the doctrine of finality as well as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding his reasons of belief. In the circumstances contemplated under Section 42 of the NDPS Act the mandate of the procedure contemplated under Section 42(1) and Section 42(2) will have to be followed separately,in the manner interpreted by the Supreme Court in Karnail Singh, (2009) 8 SCC 539. Their Lordships have held as under:- 13. Having given our thoughtful consideration to the submission advanced at the hands of learned counsel for the respondent, we are of the view that the mandate contained in section 42(1) of the NDPS 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 arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Sub-section (2) of Section 41 refers to issue of aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 safeguards are provided which in the context have to be observed strictly. This Court in State Of Punjab vs Balbir Singh, 1994 (3) SCC 299, in paragraph 15 has made the following observations: 15.....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 safeguards are provided which in the context have to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 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 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 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 coming to the conclusion that there was breach of Section 42(2). 15. Another aspect of non-compliance of Section 42(1) proviso, which has been found by the High Court needs to be adverted. Section 42 (1) indicates that any authorised officer can carry out search between sun rise and sun set without warrant or authorisation. The scheme indicates that in event the search has to be made between sun set and sun rise, the warrant would be necessary unless officer has reasons to believe that a search warrant 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 42or 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 the proviso to Sub-section (1), he recorded his g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een committed, and, along with such drug or substance, any animal or conveyance or article liable 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 has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.- For the purposes of this section, the expression public place includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public 18. Explanation to Section 43 defines expression public place which includes any public conveyance. The word public conveyance as used in the Act has to be understood as a conveyance which can be used by publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which it could be stated that jeep was public transport vehicle and they have the permit for it, rather it was the private vehicle and it is stated that Vira Ram himself is the owner of that vehicle 21. There is nothing to impeach the aforesaid findings. We have also perused the statement of Vira Ram in which statement he has never even stated that he has any permit for running the vehicle as transport vehicle. He has stated that ..... I had given this jeep to Kartara Ram resident of ... who is my relative to run it for 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. 22. There is one more aspect which needs to be noted. The present is a case where prosecution himself has come with case that secret information was received from informer w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 have to proceed and act under the provisions of Sections 41 and 42. Under Section 42, the empowered officer even without a warrant issued as provided under Section 41 will have the power to enter, search, seize and arrest between sunrise and sunset if he has reason to believe from personal knowledge or information given by any other person and taken down in writing that an offence under Chapter IV has been committed or any document or other article which may furnish the evidence of the commission 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 facil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. ( 2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. 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 record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. ( 3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation of evidence regarding arrest or seizure as well as on merits of the case. 25. 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's case (supra). 26. A Constitution Bench of this Court in State of Punjab Vs. Baldev Singh, had occasion to consider the provisions of the NDPS Act and several earlier judgments of this Court. The Constitution Bench noticed that the earlier judgments in Balbir Singh's case has found approval by three Judges Bench in Saiyad Mohd. Saiyad Umar Saiyed others vs. The State Of Gujarat (supra) and a discordant note was struck by two Judges Bench in State of Himachal Pradesh Vs. Pirthi Chand and another. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused. In the case of Sajan Abraham vs. State of Kerala, (2001) 6 SCC 692, which was also decided by a three-Judge Bench, it was held that Section 42 was not mandatory and substantial 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 provide the officers of a number of important Central enforcement agencies like Narcotics, Customs, Central Excise, etc. with the power of investigation of offences with regard to new drugs of addiction which have come to be known as psychotropic substances posing serious problems to national governments, this comprehensive law was enacted by Parliament enabling exercise of control over. 29. After referring to the earlier judgments, the Constitution Bench came to the conclusion that noncompl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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