2018 (9) TMI 2147 - SC - Indian Laws

Possession of contraband - violation of Section 42 of Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 - HELD THAT - From a reading of the judgment of the Constitution Bench in KARNAIL SINGH VERSUS STATE OF HARYANA 2009 (7) TMI 1144 - SUPREME COURT it would appear that the law laid down in this regard is that the requirements of Section 42(1) and 42(2) of the Act should normally precede the entry, search and seizure by the Officer but in special circumstances the recording of information in writing and sending and copy thereof to the superior officer may be postponed by a reasonable period and may be effected after the search, entry and seizure. Such an exception illustratively has been laid down by the Constitution Bench to be in a case where the accused may escape or the goods or evidence may get destroyed or removed. In the present case PW-1, who is the Investigating officer, in his deposition has stated that the information i.e. the contraband was being carried from the Indo-Nepal Border identified in a vehicle, details of which had also been provided, had been received in the evening of 2nd July, 2007. Though, the investigating officer has stated that he had moved to Raxaul along with a team and two independent witnesses, the said independent witnesses were not examined. No explanation is forthcoming on this count also. That apart from the materials on record it appears that no memos including the seizure memo were prepared at the spot and all the papers were prepared on reaching the police station at Patna on 4th July, 2007. The accused-appellant is entitled to acquittal - The conviction and sentence passed by the Courts below is set aside. The appeal is accordingly allowed.

Summary

Issues: Violation of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985

In this judgment, the Supreme Court addressed an appeal against a conviction under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The central issue revolved around the violation of Section 42 of the Act, as interpreted by a Constitution Bench in Karnail Singh vs. State of Haryana. The Court highlighted the importance of complying with the requirements of Section 42(1) and 42(2) in conducting searches and seizures related to narcotics offenses. The judgment emphasized the need for immediate recording and communication of information to superior officers, except in exceptional circumstances where delay could lead to the destruction of evidence or escape of the accused.

The Court analyzed the facts of the case where the investigating officer received information about contraband being transported, leading to a seizure. However, the officer failed to record the information promptly as required by Section 42. Despite justifications for the delay, such as urgency due to the location being near an international border, the Court found additional suspicious circumstances. These included the absence of independent witnesses' examination and the delayed preparation of necessary documentation like memos until reaching the police station.

Considering the non-compliance with Section 42 and the precedents set by the Constitution Bench, the Court concluded that the prosecution's case lacked credibility. Consequently, the Court ruled in favor of the appellant, ordering acquittal and setting aside the conviction and sentence imposed by lower courts. The judgment highlighted the significance of strict adherence to procedural requirements in narcotics cases to ensure fairness and prevent violations of accused rights.