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TMI Blog2009 (7) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... laced for disposal before the appropriate Bench. - APPEAL NO. 36 OF 2003 & APPEAL NO. 606 OF 2004 - - - Dated:- 29-7-2009 - BALAKRISHNAN, K.G., R.V. RAVEENDRAN, JAIN, D.K., SATHASIVAM, P AND PANCHAL, J.M., JJ. JUDGMENT P. Sathasivam, J. 1) In the case of Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, (2000) 2 SCC 513, a three-Judge Bench of this Court held that compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act ) is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused. In the case of Sajan Abraham vs. State of Kerala, (2001) 6 SCC 692, which was also decided by a three-Judge Bench, it was held that Section 42 was not mandatory and substantial compliance was sufficient. In view of the conflicting opinions regarding the scope and applicability of Section 42 of the Act in the matter of conducting search, seizure and arrest without warrant or authorization, these appeals were placed before the Constitution Bench to resolve the issue. 2) The statement of objects and reasons of the NDPS Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) were as follows: PW 2, Inspector of Police at Dariapur Police Station, got information on 12-1-1988 that one Iqbal Syed Husen was trying to transport charas up to Shahpur in an autorickshaw. At about 4.00 p.m. they sighted the autorickshaw which was then driven by the appellant. They stopped and checked it and found four gunny bags placed inside the vehicle. The police took the vehicle to the police station and when the gunny bags were opened ten packets of charas were found concealed therein. The value of the said contraband was estimated to be Rs. 5.29 lakhs. When appellant/accused was questioned by the trial court under Section 313 of the Code of Criminal Procedure he did not dispute the fact that he rode the autorick shaw and that the same was intercepted by the police party and the gunny bags kept in the vehicle were taken out and examined by them at the police station. His defence was that those four gunny bags were brought in a truck at Chokha Bazar by two persons who unloaded them into his vehicle and directed him to transport the same to the destination mentioned by them. He carried out the assignment without knowing what were the contents of the load in the gunny b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the accused It was also contended by the learned counsel for the State of Gujarat that as the accused did not dispute the factum of recovery of the charas from the vehicle it does not matter that the information was not recorded at the first instance by the police officer. The Court did not approve such contention because it held that non-recording of information has in fact deprived the accused as well as the Court of the material to ascertain what was the precise information which PW 2 got before proceeding to stop the vehicle. It further held that value of such an information, which was the earliest in point of time, for ascertaining the extent of the involvement of the accused in the offence, was of a high degree. It further held that it is not enough that PW 2 was able to recollect from memory, when he was examined in court after the lapse of a long time, as to what information he got before he proceeded to the scene. Even otherwise, it held that the information which PW 2 recollected itself tends to exculpate the appellant rather than inculpate him. Finally the court held that non-recording of the vital information collected by the police at the first instance can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at the spot. The appellant was also arrested. The charge-sheet was submitted, the appellant pleaded not guilty. The trial court found discrepancies in the evidence of the prosecution witnesses and thus disbelieved the prosecution story, hence acquitted the appellant. The High Court, on reappraisal of the evidence, came to the conclusion that the Trial Court was not justified in acquitting the appellant. It held that the prosecution has established with positive evidence beyond reasonable doubt that the appellant has committed an offence punishable under Section 21 of the Act, hence convicted and sentenced the appellant before this court. Learned counsel for the appellant submitted before this Court with vehemence that the prosecution has violated the mandatory provisions under Section 42, Section 50 and Section 57 of Act and hence conviction and sentence is liable to be set aside. The conclusion of this Court with regard to Section 42 is as under: With regard to Section 42, the submission is that PW 5 has not recorded the information given by PW 3 with respect to the appellant s involvement before proceeding to arrest him in his case. This constitutes violation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Police, PW 5, he found PW 5 along with his police party, who were on patrol duty coming, hence the said information was communicated there by PW 3 to PW 5. Thereafter, PW 5 along with his police party and PW 3 immediately proceeded towards the place where the appellant was standing. Had they not done so immediately, the opportunity of seizure and arrest of the appellant would have been lost. How PW 5 could have recorded the information given by PW 3 and communicated to his superior while he was on motion, on patrol duty, in the jeep before proceeding to apprehend him is not understandable. Had they not acted immediately, the appellant would have escaped. On these facts, this Court found that no inference could be drawn that there has been violation of Section 42 of Act. It is clear from Sajan Abraham (supra) that to enforce the law under the NDPS Act stringently against the persons involved in illicit drug trafficking and drug abuse, the legislature has made some of its provisions obligatory for the prosecution to comply with, which the courts have interpreted to be mandatory. It is further clear that this is in order to balance the stringency for an accused by casting an ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Sub-section (2) as replaced by Act 9 of 2001 is extracted below: (2) Where an officer takes down any information in writing under sub-Section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. 7) It is well established that search and seizure are es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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(1), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful. 13) Section 50 prescribes the conditions under which search of a person shall be conducted. Subsection (1) provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest gazetted officer or the Magistrate for the purpose. Under sub-section (2) it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such gazetted officer or the Magistrate. Sub-section (3) lays down that when the person to be searched is brought before such a gazetted officer or the Magistrate and such gazetted officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise, he shall direct that the search be made. 14) The Constitution Bench in Baldev Singh (supra) considered the compliance of Section 50 of the Act. While doing so, the Bench also considered the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful. It is to be noted that Baldev Singh s case (supra) has dealt with Section 50 of the Act and the effect of non-compliance of the same. It was held that the same provisions of Section 50 containing certain protection and safeguards implicitly make it imperative and obligatory and cast a duty on the investigating officer to ensure that search and seizure of the person concerned is conducted in a manner prescribed by Section 50. The unamended Section 50 as existed during that period is as follows: Section 50 - Conditions under which search of persons shall be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Baldev Singh s case was that the procedural requirements which may have handicapped an emergency requirement of search and seizure and give the suspect a chance to escape were made directory based on the reasonableness of such emergency situation. Though it cannot be said that the protection or safeguard given to the suspects have been taken away completely but certain flexibility in the procedural norms were adopted only to balance an urgent situation. As a consequence the mandate given in Baldev Singh s case is diluted. 15) Under Section 42(2) as it stood prior to amendment 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 would adversely affect the prosecution case and 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, it is to be concluded that the mandatory enforcement of the provisions of Section 42 of the Act non-compliance of which may vitiate a trial has been re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows : (a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior . (c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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