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2012 (12) TMI 982 - SC - CustomsSearch and seizure of contrabands without warrant Trial Court convicted accused of offence punishable under Section 15 of NDPS Act, 1985 and awarded 10 years rigorous imprisonment with fine Impugned order of conviction was challenged for non-compliance of section 42 Held that - PW1 deposed that upon receiving secret information, information was neither reduced to writing nor communicated to senior officer as required under Section 42 No effort was made by PW1 to reduce information into writing and inform his higher authorities instantaneously or even after reasonable delay On contrary PW 1 had more than sufficient time to comply with provisions No documentary evidence available to show what Investigating Officer was doing for two hours and what prevented him from complying with provisions of Act Impugned judgment of conviction set aside Appeal allowed Decided in favour of Appellant.
Issues Involved:
1. Compliance with Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). 2. Legality of the search and seizure operation. 3. Validity of the conviction and sentence imposed by the Trial Court and upheld by the High Court. Detailed Analysis: 1. Compliance with Section 42 of NDPS Act: The primary contention of the appellant was the non-compliance with the statutory provisions of Section 42 of the NDPS Act, which mandates that any information received by an officer regarding narcotic drugs must be recorded in writing and communicated to a superior officer. The defense argued that the failure to comply with these mandatory provisions vitiated the entire prosecution case. The prosecution, on the other hand, argued that there was substantial compliance with Section 42, as the information was acted upon promptly, and a ruqa (written report) was sent to the superior officer after the recovery of contraband, leading to the registration of the FIR. 2. Legality of the Search and Seizure Operation: The search and seizure operation was conducted based on secret information received by ASI Nand Lal. The raiding party, which included police officials and an independent witness who later turned hostile, recovered five bags of poppy husk from the accused's house. The accused was given the option to have the search conducted in the presence of a Gazetted Officer or a Magistrate, and he chose a Gazetted Officer. The search was conducted in the presence of DSP Jagdish Nagar, and the contraband was seized, sealed, and taken into possession. 3. Validity of the Conviction and Sentence: The Trial Court convicted the accused under Section 15 of the NDPS Act and sentenced him to 10 years of rigorous imprisonment and a fine of Rs. 1 lakh. The High Court upheld the conviction and sentence, rejecting the appellant's arguments regarding non-compliance with Section 42 of the NDPS Act. Judgment Analysis: Compliance with Section 42 of NDPS Act: The Supreme Court examined the compliance with Section 42 in detail. It noted that ASI Nand Lal received the secret information at 11:30 a.m. but did not record it in writing or inform his superior officer before conducting the raid. The Court emphasized that Section 42 is mandatory and requires strict compliance. The Court referred to the Constitution Bench judgment in Karnail Singh v. State of Haryana, which clarified that while total non-compliance is impermissible, delayed compliance with satisfactory explanation is acceptable. In this case, the Court found that there was no effort made by ASI Nand Lal to comply with Section 42, despite having sufficient time. The delay in reaching the accused's house and the lack of any explanation for the delay indicated a clear violation of Section 42. Legality of the Search and Seizure Operation: The Court acknowledged the search and seizure operation but highlighted the importance of compliance with Section 42 to ensure fairness and prevent false implications. The failure to comply with the mandatory provisions of Section 42 rendered the search and seizure operation illegal. Validity of the Conviction and Sentence: Given the non-compliance with Section 42, the Supreme Court held that the prosecution's case was vitiated. The Court set aside the judgments of the High Court and the Trial Court, acquitting the accused of the charges under Section 15 of the NDPS Act. The Court directed the immediate release of the accused if not required in any other case. Directive to Police Authorities: The Supreme Court directed the Director General of Police of all States to issue appropriate instructions to investigating officers to ensure strict compliance with Section 42 of the NDPS Act. The Court emphasized that compliance is mandatory and must be adhered to in true substance and spirit. Conclusion: The appeal was allowed, and the accused was acquitted due to the total non-compliance with the mandatory provisions of Section 42 of the NDPS Act, highlighting the importance of adhering to procedural safeguards in criminal investigations.
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