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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 ..... s said to have immediately proceeded to the courier agent's office at Koramangala and reached there in time, to see the African and the woman in conversation with a person at the counter in the said office. The complainant had immediately approached them and on enquiry, he was told by the woman that her name was, Daffy and by the African man, that his name was Bertrand Tochukwu and he was also told that they were booking shipments to Netherlands, Spain and the United Kingdom. The representative of the courier agent attending to them was one Kashi, an Operation Executive. He, in turn, had stated that there were four shipments and that he had prepared airway bills and cash memos in respect of the same. It was further learnt by the complainant that the shipments contained garments and sports items. The complainant had then informed the two suspects that he had reason to believe that the shipments contained narcotic drugs and that he would examine the same by virtue of power vested in him. The complainant and his men then commenced the inspection of each of the concerned parcels. According to the complainant, the first shipment under bill No. 1414397681 was parked in a green coloured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-1, Brown-2 and Brown-3, respectively, and were kept in a transparent polythene Cover and then packed in a brown coloured cover, which was embossed on top with the legend 'Government of India' and packed and wax sealed with the Ashoka Emblem. Thereafter, the remaining quantity of 679 grams of ivory coloured powder and 347 grams of brown coloured powder were put into two polythene covers and the same were again put into a green coloured cloth packed paper cover, and wax sealed with the Ashoka Emblem and the said covers were superscribed as "Blue Dart Heroine seizure dated 20-2-2009". The complainant had then found five airway bills issued by another courier service agent, Fedex, in the possession of Tochukwu. The said airway bills had been issued by the said agency from its branch at Shivajinagar. The complainant had immediately deputed a team of his colleagues headed by one Vijay Bellary. It transpires that the consignments corresponding to the airway bills were still available at the said office and on the request made by the officers the parcels were produced and the same were inspected. There were said to be five corrugated boxes of Fedex Express, which were of medium size, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was said to have been recorded and further on 24-2-2009, the complainant is said to have produced the above material before the Court, for being dispatched for chemical analysis at Chennai. Reports were eventually received certifying that the samples examined were heroin. 3. On the basis of the material placed before the Court, it was presumed that the accused were found in the possession of heroin. The burden was hence held to be on them to prove that they were innocent. The complaint was hence filed for offences punishable under Sections 8(c), 21, 23, 27A, 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act', for brevity). The presence of the above accused persons was secured before the Court immediately after registration of the case. The accused had entered appearance through Counsel. The parties were heard before framing of charges and the Court had framed the charges, to which the accused had pleaded not guilty and claimed to be tried. The prosecution had then tendered evidence and examined 13 witnesses, apart from producing several exhibits and material objects. The statements of the accused were recorded und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that he had not reduced into writing the information so received. It is pointed out that in terms of Section 42 of the NDPS Act, an officer who is duly empowered, if he receives such information, shall reduce the same into writing and then proceed to conduct search and seizure. Compliance with the said procedure is held to be mandatory and failure to do so, vitiates the entire search and seizure proceedings - even if possession of any narcotic drugs is proved. It is pointed out that the trial Court has, in fact, accepted the circumstance that there was a clear violation of the mandatory requirement under Section 42 of the NDPS Act, in so far as the search and seizure proceedings conducted at the premises of M/s. Blue Dart Express, Koramangala, is concerned. But it is the further reasoning of the trial Court to the effect, that in so far as the search and seizure proceedings conducted at the premises of M/s. Federal Express, Shivaji Nagar, is concerned, the rigour of Section 42 of the NDPS was not attracted, as it was to be construed as one covered under Section 43 of the NDPS Act and therefore, would not be bad in law. It is that which is sought to be questioned. It is contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid two places, were officers of the rank of inspectors and were not of a gazetted rank. This circumstance again made it mandatory that Section 42 of the NDPS Act was complied with. In the appeal filed by Accused No. 1, these very contentions are also urged. 5. While in the appeal filed by the complainant, it is sought to be canvassed that there is no legal infirmity in so far as the search and seizure conducted at the premises of M/s. Blue Dart Express and that the trial Court was in error in holding that the mandatory requirement contemplated under Section 42 of the NDPS Act attracted, when it was clearly a circumstance covered under Section 43 of the NDPS Act. And it is sought to be justified that there is no error committed otherwise in the Court having found that the accused were guilty. In addressing the aspect of the matter, namely, whether the search and seizure proceedings carried out on the basis of information received on the one hand and on information discovered on the other, could be a distinguishing feature in deciding whether the rigour of Section 42 of the NDPS Act was or was not attracted - we may take into account the reasoning of the trial Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0) 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, 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 v. State of Kerala, (2001) 6 SCC 692 = 2002 (139) E.L.T. 241 (S.C.), 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, the appeals were placed before a Constitution Bench to resolve the issue, in the case of Karnal Singh v. State of Haryana, 2009 Crl.L.J. 4299. The Constitution Bench while considering the ratio of the earlier decisions in State of Punjab v. Baldev Singh, (1999) 6 SCC 172, Abdul Rashid v. State of Gujarat, (2000) 2 SCC 513 and Sajan Abraham v. State of Kerala, (2001) 6 SCC 692 = 2002 (139) E.L.T. 241 (S.C.) - has expressed thus : "It is to be noted that Baldev Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior." Through this amendment the strict procedural requirement as mandated by Baldev Singh's case was avoided as relaxation and fixing of the reasonable time to send the record to superior official as well as exercise of Section 100 of CrPC was included by the legislature. The effect conferred upon the previously mandated strict compliance of Section 50 by 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 dilated. (15) Under Section 42(2) as it stood prior to amendment such empowered officer who takes down any inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disable the haste of an emergency situation and may turn out to be in vain with regard to the criminal search and seizure. These provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal. Consequently, these provisions should be taken as discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug-peddlers. (17) In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham hold 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. In a more recent judgment of the Apex Court in the case of Sukhdev Singh v. State of Haryana, AIR 2013 SC 953, it is reiterated that the provisions of Section 42 are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the Investigating Officer. He is obliged to furnish the information to his superior officer forthwith. That obviously means without any delay. But there could be cases where the Investigating Officer instantaneously, for special reasons to be explained in writing, is not able to reduce the information into writing and send the said information to his superior officer, but could do it later and preferably prior to recovery. Compliance of Section 42 is mandatory and there cannot be an escape from its strict compliance. In the instant case on hand, PW-2 had admittedly received the information when he was in his office chamber. It would have required a few minutes of his time to reduce the same into writing. Assuming there was a pressing urgency to rush to the spot where the seizure was successfully made, he then had sufficient time to record not only the fact of such seizure, the reason for not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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