2016 (3) TMI 1037 - SC - Customs

Whether the registration of the FIR, narrating the factual position as has already been described at the beginning of this order, as also, the communication of the first information report to the Superintendent of Police, Panipat would constitute an effective compliance of the provisions contained in Section 42 of the NDPS Act - Non-compliance of Section 42(1) of the NDPS Act contended by appellant - Possession of charas, opium and smack - Held 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. The procedures under Section 41(1) and 42(2) ibid are separate and exclusive of one another. Compliance of one, would not infer the compliance of the other. In the circumstances contemplated under Section 42 of the NDPS Act the mandate of the procedure contemplated therein will have to be followed separately, in the manner interpreted by this Court in Karnail Singh v. State of Haryana 2009 (7) TMI 1144 - SUPREME COURT and the same will not be assumed, merely because the Station House Officer concerned had registered a first information report, which was also dispatched to the Superintendent of Police, in compliance with the provisions of the Criminal Procedure Code. So, the submission of the respondent-State is not acceptable, that the registration of the first information report at the hands of the Station House Officer, Police Station Shahar, Panipat and its communication to the Superintendent of Police, Panipat would constitute sufficient compliance of the mandate of Section 42 of the NDPS Act. Therefore, Section 42 of the NDPS Act was not complied with at all. - Decided in favour of appellant

Summary

Issues Involved:
1. Compliance with Section 42 of the NDPS Act.
2. Validity of the raid and subsequent search and seizure.
3. Adequacy of the procedural compliance by the police officers.
4. Impact of non-compliance on the conviction and sentence.

Detailed Analysis:

1. Compliance with Section 42 of the NDPS Act:
The primary contention in the appeal was the non-compliance with Section 42 of the NDPS Act by the police officers. According to the appellant's senior counsel, the Station House Officer (SHO) did not record the secret information in writing nor communicated it to his superior officer as mandated by Section 42(1) and 42(2) of the NDPS Act. The defense relied on the Constitution Bench judgment in *Karnail Singh v. State of Haryana*, which emphasized the importance of recording the information in writing and promptly informing the superior officer. The Court concluded that the SHO's failure to comply with these requirements constituted a violation of Section 42.

2. Validity of the Raid and Subsequent Search and Seizure:
The factual matrix revealed that the SHO, upon receiving secret information, conducted a raid at the appellant's premises without recording the information in writing or informing his superior officer beforehand. The search led to the recovery of opium, charas, and smack, and the appellant was subsequently charged under various sections of the NDPS Act. The trial court convicted the appellant, and the High Court upheld the conviction. However, the Supreme Court found that the procedural lapses in compliance with Section 42 invalidated the raid and subsequent search and seizure.

3. Adequacy of the Procedural Compliance by the Police Officers:
The respondent-State argued that the procedural compliance was adequate since the FIR was registered immediately after the raid and communicated to the Superintendent of Police. The trial court had noted that the FIR was recorded at 5:15 p.m. and sent to the Chief Judicial Magistrate and the Superintendent of Police on the same day. However, the Supreme Court clarified that the requirements of Section 42(1) and 42(2) are distinct and must be complied with separately from the provisions of the Criminal Procedure Code. The Court held that the registration of the FIR and its communication to the superior officer did not constitute compliance with Section 42.

4. Impact of Non-Compliance on the Conviction and Sentence:
The Supreme Court emphasized that non-compliance with Section 42 of the NDPS Act, as interpreted in *Karnail Singh's* case, necessitated setting aside the conviction and sentence. The Court concluded that the SHO's failure to record the secret information in writing and inform his superior officer before conducting the raid was a significant procedural lapse. Consequently, the Court set aside the conviction and sentence of the appellant, Darshan Singh, and ordered the refund of the recovered amount and fine.

Conclusion:
The Supreme Court allowed the appeal, setting aside the conviction and sentence of the appellant due to non-compliance with Section 42 of the NDPS Act. The Court underscored the importance of adhering to procedural mandates to ensure the validity of search and seizure operations under the NDPS Act. The appeal was disposed of with instructions to refund the recovered amount and fine to the appellant.