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TMI Blog2014 (9) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Criminal Appeal No. 383 of 2013 with C.A. Nos. 463 and 951 of 2013 - - - Dated:- 26-9-2014 - Anand Byrareddy, J. Shri Hashmath Pasha and K.S. Vishwanath, Advocates, for the Appellant. Shri K.N. Mohan, Advocate, for the Respondent. JUDGMENT These appeals are heard and disposed of together as they arise out of the same judgment. The appeal in Criminal appeal 463/2013 is filed by accused No. 1 and the appeal in Criminal Appeal No. 383/2013 is filed by Accused No. 2 and the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to weigh 70 grams. Likewise, the buttons of the other two garments were also opened and were found to contain 54 grams and 47 grams, respectively, of an ivory coloured powder. Thereafter, the second parcel was opened and it was found to contain two pairs of shin guards, one pair was red and black coloured and another pair was blue and black coloured bearing, marking Sterling Hitech Surjeet Sports Products SSMJ . On opening the stitches of the said four shin guards, they were each found to contain a packet covered with carbon paper and each packet contained brown coloured powder. The said powder was weighed and it weighed 261 grams. Thereafter the third parcel was opened and it was found to contain four numbers of ladies nightwear, of which, two were orange coloured, one was pink and another was blue. Each had large sized buttons consisting of 46 buttons and 22 buttons each. On breaking open the said buttons, it was found to contain totally 278 grams of an ivory coloured powder. The fourth parcel was said to have contained five ladies nightwear, of which two were blue having 22 buttons each and two were pink having 22 buttons each and one was yellow having 23 buttons. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Peter Ntuli, No. 42, Dooran Street, Observatory Code 2198 Burma, Johannesburg, South Africa Ph. 2772973080, containing ladies night dress weighing 1.5 kilograms; 976174371130, dated 20-2-2009 consigned to NDMAXBIS Block - C No. 12, Old Flat 7455, Washington Street, Lanza, Cape Town, South Africa, Ph. 0786561848, containing ladies night suit weighing 2.5 kilograms and 976174371663, dated 20-2-2009 consigned to Mrs. Relebogie V Segoane, No. 3244, Block B, Mabopane, Pretoria 0790, South Africa Ph. 0720753892, containing ladies dress weighing 2.5 kilograms. Thereafter, on enquiry by the Inspector K.P. Sunil, is said to have informed that the said consignments were booked at their office around 13-00 hours on 20-2-2009 by the said shipper and was to be sent for further despatch through their network and he had no objection for examination of the said shipments and accordingly, the Inspector of Customs along with his colleagues opened the said five boxes. It was found that the same modus operandi was adopted and what was apparently found was heroin concealed in the buttons of garments and shin guards - billed as sports items. In all, the boxes contained totally 1024 grams of ivory colo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 21(C) of NDPS Act? (b) On the said date, time and place accused No. 1 and accused No. 2 were making attempts to illegally export from India to Netherland, Spain, UK, narcotic drug namely, Heroin and thereby committed the offence punishable under Section 23(C) of NDPS Act? (c) That on the said date, time and place accused No. 1 and accused No. 2 carried Heroin of totally 2565 grams and attempted to export the same to other countries and thereby committed the offence punishable under Section 28 of the NDPS Act? Point no. 1(a) was answered partly in the affirmative and the other points in the affirmative and the accused were convicted and sentenced to undergo rigorous imprisonment for 10 years each and to pay a fine of ₹ 1,00,000/- each for the offence punishable under Section 21(c) of the NDPS Act and further sentenced to undergo simple imprisonment for 10 years and to pay a fine of ₹ 1,00,000/- each for the offence punishable under Section 23(c) read with Section 28 of the NDPS Act. And both the sentences were ordered to run concurrently. It is that which is under challenge, on various grounds in these appeals. 4. The learned Counsel Shri Hasma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The search and seizure effected at that place, which was a public place, did not require compliance with Section 42 as Section 43 did empower the concerned officer to carry out such a procedure. This, the learned Counsel would contend, is not tenable. For if not for the search and seizure conducted at Kormangala, no clue would have been available for the concerned officer to visit Shivaji Nagar and conduct a search and seizure. The alleged search, seizure and recovery of the entire quantity of material - was only pursuant to the credible information said to have been received in the first instance and the proceedings cannot be broken up into two independent events - when the vital link to enable the search at the second place was said to have been discovered at the first search, which was admittedly vitiated. The learned Counsel would contend that in actual fact, even the discovery of five air way bills pertaining to other consignments from M/s. Fedex, Shivaji nagar, was in effect, information discovered or received and required the competent officer to reduce into writing the intention to proceed to conduct a search and seizure. The seizure effected at the Fedex office at Shiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Blue Dart Express Office, PW.2 has formed a team headed by Vijay Bellary - PW.3 to proceed to Federal Express India Ltd. and then conduct search and seizure proceedings. To prove this aspect prosecution has relied upon the evidence of PW.3 - Vijay Bellary, PW.8 - K.P. Sunil and PW.9 Mahadeva and documentary evidence namely Ex.P.21 - mahazar. I have referred to their examination-in-chief in the earlier paragraph. So far as search and seizure proceedings in Federal Express India Ltd. is concerned, it is pursuant to coming to know of airway bills in the hands of accused No. 1. Therefore, PW.3 who is the officer mentioned in Section 42 has proceeded to Federal Express India Ltd. and recovered the contraband. Therefore, without going further into the evidence of these witnesses, we may conclude that the recovery effected in Federal Express India Ltd. would come within the purview of Section 43 of the NDPS Act. In fact neither PW.2 nor PW.3 had any prior information that any contraband is booked in FedEx office. It has come to the knowledge of PW.2 and PW.3 only while conducting search and seizure proceedings in M/s. Blue Dart Express Office. Whereas to proceed to M/s. Blue Dart Exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. The safeguard or protection to be searched in the presence of a gazetted officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain the veracity of evidence derived from such search. But this strict procedural requirement has been diluted by the insertion of sub-section (5) and (6) to the Section by Act 9 of 2001, by which the following subsections were inserted accordingly : (5) When an officer duly authorized under section 42 has reason to beli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not to any other condition of the Section. Abdul Rashid (supra) has been decided on 1-2-2000 but thereafter Section 42 has been amended with effect from 2-10-2001 and the time of sending such report of the required information has been specified to be within 72 hours of writing down the same. The relaxation by the legislature is evidently only to uphold the object of the Act. The question of mandatory application of the provision can be answered in the light of the said amendment. The non-compliance of the said provision may not vitiate the trial if it does not cause any prejudice to the accused. (16) The advent of cellular phones and wireless services in India has assured certain expectation regarding the quality, reliability and usefulness of the instantaneous messages. This technology has taken part in the system of police administration and investigation while growing consensus among the policy makers about it. Now for the last two decades police investigation has gone through a sea-change. Law enforcement officials can easily access any information anywhere even when they are on the move and not physically present in the police station or their respective offices. For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof to the official superior, then it will be a suspicious circumstance being a clear violation of Section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex Court in Sukdhev Singh, supra, has held thus : 22. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non-compliance, thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purpose of the provisions of Section 42 which can broadly be stated are that : (a) it is a mandatory provision which ought to be construed and complied strictly; and (b) compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post-recovery. 23. Once the contraband is recovered, then there are other provisions like Section 57 which the empowered officer is mandatorily required to comply with. That itself to some extent would minimize the purpose and effectiveness of Section 42 of the NDPS Act. It is to provide fairness in the process of recovery and investigation which is one of the basic features of our criminal jurisprudence. It is a kind of prevention of false implication of innocent persons. The legislature in its wisdom had made the provisions of Section 42 of NDPS Act mandatory and not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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