TMI Blog2019 (9) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... be searched by him or Gazetted Officer or Magistrate. Similarly, PW-5 DSP Navjot Singh had also given option to the accused that he had legal right to be searched from him (DSP) or any other Gazetted Officer or Magistrate. In his crossexamination, he categorically admitted that he never apprised the accused that he was a Gazetted Officer. He was also never apprised the nature of search or meaning of Gazetted Officer of various departments of Magistrate. Investigating Officer was required to give only two options to the appellant whether he wanted to get his personal search conducted before a Magistrate or a gazetted officer. He could not ask for third option to be searched by him. Section 50 of the NDPS Act is mandatory. According to PW-1 SI Sohan Lal, he was carrying computerized weighing scale. However, PW-5 DSP Navjot Singh deposed that he was carrying traditional weighing scale. There are material contradictions in the statements of official witnesses. The appellant is acquitted. The appellant is in custody. He be released forthwith if not wanted in any other case - Appeal allowed. - CRA-D-393-DB-2015 - - - Dated:- 27-8-2019 - MR RAJIV SHARMA AND MR HARINDER S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . DSP also sealed the same with his seal impression NS. The case property was taken into possession. The Investigating Officer prepared ruqa and sent it through PHC Gurjinder Singh, on the basis of which formal FIR was registered. Rough site plan was prepared. The sample was sent to the Chemical Examiner. The report was received. Challan was put up after completing all the codal formalities. 3. The prosecution examined a number of witnesses. Statement of appellant was recorded under Section 313 Cr.P.C. Appellant also examined four witnesses in support of his case. The appellant was convicted and sentenced, as noticed hereinabove. Hence this appeal. 4. Learned counsel appearing on behalf of the appellant has vehemently argued that the prosecution has failed to prove the case against the appellant. 5. Learned counsel appearing on behalf of the State has supported the prosecution case. 6. We have heard learned counsel for the parties and have gone through the judgment and record very carefully. 7. PW-1 Inspector Sohan Lal deposed that on 26.07.2012 he was posted at Police Station Tibber. He recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red consent and non-consent memo and recovery memo before the arrival of the FIR. Efforts were made to join independent witness but none agreed. The FSL form was prepared on 28.07.2012. He also admitted that original form no.29 was not on record. 8. PW-2 PHC Tarsem Singh had led his evidence by filing affidavit Ex.PW2/A. According to the contents of affidavit, SHO Sohan Lal had handed over to him sample parcel of 10 grams duly sealed with seal impression SL and NS. He had taken out it from the double lock vide road no.86/12 for depositing the same in the office of Chemical Examiner, Kharar. He deposited the same on the same day, i.e. 01.08.2012. 9. PW-4 ASI Surjit Raj had also corroborated statement of PW-1 SI Sohan Lal regarding the manner the accused was apprehended and codal formalities were completed on the spot. In his cross-examination, he admitted that no information was given to any higher officer regarding recovery of contraband from the accused. Volunteered special reports were forwarded. When the DSP reached the spot, accused was already arrested. No writing work was done by the DSP at the spot. He did not know where they were standing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. The mother of accused called him to her house. Police reached the house of accused. The police party forcibly took away Sukhdev Singh. In his cross-examination, he deposed that he was elected Sarpanch in the year 2007. Police came to the house of accused at about 6.00 A.M. He was on visiting terms with the accused. 13. DW-4 Satnam Singh deposed that he was Member Panchayat of village Aujla. According to him, police had reached the house of Sukhdev Singh and taken away Sukhdev Singh forcibly. 14. DW-5 Sarabjit Kaur is mother of the accused. She deposed that on 26.07.2012 she was present in house along with her family. Two police officials came to her house. They had come to take away Sukhdev Singh with them. She sent message to the respectables of village. Panchayat Members reached her house. Police took away Sukhdev Singh forcibly. 15. The Chemical Examiner's report is Ex.PO. According to it, sample contained dextropropoxyphene. 16. According to the prosecution case, PW-1 Inspector Sohan Lal received secret information that accused was coming with contraband. He was noticed. He tried to run away. He was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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. 21. The Division Bench of Bombay High Court in Lamin Bojang vs. State of Maharashtra, 1997 Crl.L.J.513 has 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 has held as under:- 12. Mr. Nalawade next urged that the requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent that information must reach the superior officer not only expeditiously or forthwith but definitely within the time 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elief. 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 issuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S 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 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 manda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, it is not found in the present case that section 42 (2) of Act, 1985 is complied with. 14. 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 21. 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 to 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 groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 42(1) proviso. 17. Section 43 of the Act is as follows: 43. Power of seizure and arrest in public place.- Any officer of any of the departments mentioned in section 42 may ( a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also depose such statement that Kartara used to use the jeep as Public Transport 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent is not a case where Section 43 can be said to have been attracted, hence, non-compliance of Section 42(1) proviso and Section 42(2) had seriously prejudiced the accused. This Court had occasion in large number of cases to consider the consequence of non- compliance of provisions of Section 42(1) and 42 (2), whether the entire trial stand vitiated due to above non compliance or conviction can be set aside. In this context reference is made to the judgment of this Court in State of Punjab Vs. Balbir Singh (1994) 3 SCC 299. In the above batch 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 up 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e search in respect of offences punishable under Chapter IV of the Act etc. 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 provisions of the NDPS Act by anyone other than such officers, the same would be illegal. ( 2-B) Under Section 41(2) only the empowered 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to noncompliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. ( 6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if 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. 25. A three Judges Bench in Saiyad Mohd. Saiyad Umar Saiyed 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). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquitted. 28. It is also relevant to note another Constitution Bench judgment of this 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 to 3 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 of this Court held that compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act ) is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to 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 conflict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to be searched from him (DSP) or any other Gazetted Officer or Magistrate. In his crossexamination, he categorically admitted that he never apprised the accused that he was a Gazetted Officer. He was also never apprised the nature of search or meaning of Gazetted Officer of various departments of Magistrate. Investigating Officer was required to give only two options to the appellant whether he wanted to get his personal search conducted before a Magistrate or a gazetted officer. He could not ask for third option to be searched by him. Section 50 of the NDPS Act is mandatory. 26. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan v. Parmanand and another, (2014) 5 SCC 345, have held that there is a need for individual communication to each accused and independent consent by each accused under Section 50 of the Act. Their Lordships have also held that Section 50 does not provide for third option. Their Lordships have also held that if a bag carried by the accused is searched and his personal search is also started, Section 50 would be applicable. Their Lordships have held as under: 15. Thus, if merely a ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50 (1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50 (1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated. 20. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search. The conviction of the respondents was, therefore, illegal. The respondents have rightly been acquitted by the High Court. It is not possible to hold that the High Court s view is perverse. The appeal is, therefore, dismissed. 27. According to PW-1 SI Sohan Lal, he was carrying computerized weighing scale. However, PW-5 DSP Navjot Singh deposed that he was carrying traditional weighing scale. There are material contradictions in the statements of official witnesses as notices her ..... X X X X Extracts X X X X X X X X Extracts X X X X
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