2014 (9) TMI 973 - HC - Customs

Attempt to export Heroin through Courier - Lapse on the part of prosecution to record the information - offence punishable under Section 23(C) and 28 of NDPS Act - Blue Dart Express Office and persons booking the parcel - Held that - In the instant case on hand, PW-2 had admittedly received the information when he was in his office chamber. It would have required a few minutes of his time to reduce the same into writing. Assuming there was a pressing urgency to rush to the spot where the seizure was successfully made, he then had sufficient time to record not only the fact of such seizure, the reason for not having recorded the information received and his intention to conduct the search and seizure could also have been given. Further, there was no reason forthcoming to also have recorded the discovery of five other air way bills, requiring PW.3 to immediately proceed to conduct a further search and seizure at Shivaji Nagar. To compound the glaring lapse, the requirement is not complied with at all entirely, even though sub-section (2) of Section 42 of the NDPS Act, provides that such information could be recorded and conveyed with appropriate reasons at least within 72 hours of the search and seizure being affected. This was a mandatory requirement to have been complied with The reasoning of the trial Court (which is extracted earlier above), in its endeavour to interpret and distinguish the circumstance of non-compliance with the mandatory provisions of law, is not tenable. - The entire proceedings would come to naught, by virtue of the search and seizure conducted being vitiated, as the material gathered at such proceedings form the very basis of the prosecution. - Consequently, the appeals filed by the accused are allowed.

Summary

Issues Involved:
1. Compliance with Section 42 of the NDPS Act.
2. Validity of search and seizure operations.
3. The distinction between Sections 42 and 43 of the NDPS Act.
4. The burden of proof and presumption of innocence.
5. The impact of procedural lapses on the trial's outcome.

Issue-wise Detailed Analysis:

1. Compliance with Section 42 of the NDPS Act:
The primary contention raised by the defense was the non-compliance with Section 42 of the NDPS Act, which mandates that any information received by an empowered officer about the possession of narcotic drugs must be recorded in writing and communicated to the officer's immediate superior. The defense argued that the complainant, PW-2, did not reduce the information into writing before proceeding to the Blue Dart Express office for search and seizure. The trial court acknowledged this lapse but distinguished it from the subsequent search at FedEx, considering the latter under Section 43 of the NDPS Act.

2. Validity of Search and Seizure Operations:
The defense argued that the entire search and seizure operation was vitiated due to the initial non-compliance with Section 42. They contended that the search at FedEx was not independent but a continuation of the operation initiated at Blue Dart Express, thus requiring compliance with Section 42. The trial court's reasoning that the search at FedEx was covered under Section 43 was challenged, asserting that the discovery of airway bills at Blue Dart necessitated compliance with Section 42.

3. Distinction between Sections 42 and 43 of the NDPS Act:
The trial court differentiated the searches at Blue Dart and FedEx, applying Section 42 to the former and Section 43 to the latter. However, the defense argued that the search at FedEx was a direct consequence of the information gathered at Blue Dart, thus falling under Section 42's purview. The court's interpretation was deemed erroneous, as the entire operation stemmed from the initial credible information received, which required adherence to Section 42.

4. Burden of Proof and Presumption of Innocence:
The court initially presumed the accused were in possession of heroin based on the material presented, shifting the burden of proof to the accused to establish their innocence. However, the defense highlighted procedural lapses, particularly the non-compliance with Section 42, which undermined the prosecution's case and reinforced the presumption of innocence.

5. Impact of Procedural Lapses on the Trial's Outcome:
The court emphasized that compliance with Section 42 is mandatory, and failure to do so vitiates the entire search and seizure proceedings. The Supreme Court's precedents in cases like Abdul Rashid Ibrahim Mansuri v. State of Gujarat and Sukhdev Singh v. State of Haryana underscored the necessity of strict adherence to Section 42. The trial court's attempt to distinguish between Sections 42 and 43 was invalidated, leading to the conclusion that the entire prosecution was flawed due to procedural lapses.

Conclusion:
The appeals filed by the accused were allowed, and the trial court's judgment convicting them was set aside. The accused were acquitted, and the appeal filed by the State was dismissed. The court reaffirmed the mandatory nature of Section 42 compliance, emphasizing that procedural lapses in recording and communicating information vitiate the entire search and seizure operation, thereby invalidating the prosecution's case.