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2019 (9) TMI 566

..... ments - HELD THAT:- There is violation of mandatory provisions of Section 42 of the NDPS Act. Section 42 of the NDPS Act requires recording of reasons of belief and for taking down of information received in writing and the same is to be sent to the superior officers. There is no evidence that information was reduced into writing and superior officer was informed. Their Lordships of the Hon'ble Supreme Court in Sukhdev Singh vs. State of Haryana, [2012 (12) TMI 982 - SUPREME COURT] have underlined the objects 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. PW-1 SI Sohan Lal had given the options to the accused to 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 .....

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..... so apprised him of his legal right to be searched from the gazetted officer. He prepared his non-consent memo. He informed the DSP Sh.Navjot Singh. DSP Navjot Singh reached the spot within 20 minutes. He introduced himself to the accused. He apprised the accused of his legal right to get searched from him or gazetted officer. Accused gave his consent. DSP prepared the consent memo. The Investigating Officer made search of the accused. Intoxicant powder was recovered from the glazed envelope. The Investigating Officer took out two samples of 10/10 grams. Rest was weighed. It came to 2 kg. 100 grams. The Investigating Officer put the two samples and bulk into three separate plastic containers. He sealed the same with his seal impression SL. 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. Stateme .....

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..... 1.08.2012. He handed over the same to PHC Tarsem Singh. He deposited the same in the office of Chemical Examiner, Kharar. In his crossexamination, he admitted that whenever the case property was deposited in the police station, entry was required to be made in the DDR register and register no.19. He also admitted that there was no number of the register no.19, i.e. malkhana number on case property, i.e. MO-1 and MO-2. He also admitted that case property MO-1 and MO-2 did not bear the signature of the Judicial Magistrate. He further deposed in the cross-examination that no Magistrate was called on the spot before conducting the search. He had prepared 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 .....

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..... t. Two officials were present in civil dress. They told that SSP, Gurdaspur had called Sukhdev Singh. When they asked them to produce him at their own. In the meantime, two police vehicles came there. The house of Sukhdev Singh was searched. Police party forcibly took away Sukhdev Singh. In his cross-examination, he deposed that house of accused was at a distance of 3 killa from his house. He was on visiting terms with the accused being co-villager. 12. DW-3 Ramesh Lal also deposed that he was Sarpanch of village Aujla. On 26.07.2012 he was present in his house. 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 po .....

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..... al 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 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 hel .....

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..... lute certainty was brought in by binding the officer concerned to send the intimation to the superior officers within seventy two hours from the time of receipt of information. The amendment is suggestive of the legislative intent 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 .....

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..... ant between sunrise and sunset and he may do so without recording 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. .....

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..... 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 mandatory. Consequently the failure to comply with these requirements thus aff .....

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..... on 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 which is liable for seizure or free .....

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..... 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 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 grounds of belief anywhere. The High Court after considering the entire evidence h .....

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..... tion 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 public in general. The Motor Vehicles Act, 1939 and thereafter the Motor Vehicles Act, 1988 were enacted to regulate the l .....

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..... 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 which information was recorded in Exh. P-14 and Exh. P-21 Roznamacha and thereafter the Station House Officer with police party proceeded towards .....

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..... eferring 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 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. Subsection (2) of Section .....

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..... ) 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 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 t .....

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..... 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 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 trial but that would render the recovery of illicit articles suspect and vitiates the conviction and sentence of the accused. What is said about non- compliance of Section 50 is also true with regard to non-compliance of Section 42 of the Act. 27. In Beckodan Abdul Rahiman vs State Of Kerala, this Court had occasion .....

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..... ducting 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 noncompliance of requirement of Sections 42 and 50 is impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance of Section 42. The Constitution Bench noted the effect of the aforesaid two decisions in paragraph 5. The present is not a case where insofar as compliance of Section 42 (1) proviso even an arguments based on sub .....

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..... S Act will have application. In this case, respondent No.1 Parmanand s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 16. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before a nearest gazetted officer or a nearest Magistrate or before PW-5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in Baldev Singh case, it is not necessary to inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent No.2 - Surajmal is stated to have signed for himself and for respondent No.1 - Parmanand. Respondent No.1 Parmanand did not sign. xxx xxx xxx 19. We also .....

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