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TMI Blog2005 (10) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... ult of payment of fine further imprisonment of six months to the defaulter. As per the prosecution case, P.W. 1, who happens to be the Assistant Commissioner Prohibition and Excise, received information about illegal possession of Diazepam in premises bearing No. 12-13-700/2 Nagarjuna Nagar, Tarnaka, Secunderabad. Diazepam is a banned drug under the Act. On receipt of this information he prepared a memo of search proceedings and proceeded to the place in question along with two constables. On his way he took two persons along, one of them being a police constable to act as a mediators/independent persons. The memo of search proceeding is Exhibit P.1. After reaching the spot, he prepared a panchnama, Exhibit P.2 which is signed by the accused persons, two panch witnesses in addition to the three officers of the department. A copy of the panchnama was supplied to both the accused. According to the panchnama, on reaching the premises, the main doors were found open. The raiding party entered the house. They found two persons, the present appellants, sitting in a room. The house was searched and a plastic bag containing some chemical was found in a corner. The bag weighed about 20 k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Schedule to the Act. When the quantity recovered is so large, it does not appear to be a case of planting. Further a perusal of the panchnama leaves no scope for doubting the seizure. So far as association of independent witnesses is concerned it will be seen that the time of search was 5.30 a.m. in the morning. At that hour it is difficult to get people from general public to act as independent witnesses. Still the officer managed to get two witnesses one of whom has been examined. Referring to the statement of PW 5, the learned counsel for the appellant tried to pick holes in it. In our view, there is no substance in the argument. P.W. 5 is a reserve policeman and there is no bar in law for a policeman to act as a mediator/panch witness. It should be kept in view that this was a raid which was conducted by excise officials and not by the police. The main thrust of the argument on behalf of the appellants is about non- compliance of Section 42 of the Act. It is a two pronged attack. First, it is said to be non-recording of the information about contraband drug being stored at the premises in question. Second, it is not sending copy of information in terms of sub-section (2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e without warrant or authorisation under Section 41(1) or 41(2) of the Act. It is a general power of search, seizure and arrest. Section 42 does not use the words officers of gazetted rank'. It covers all empowered officers of the central excise, narcotics, customs, revenue intelligence or any other department of Central Government including officers of para military and armed forces and officers of State Governments. What is important is that the officers acting under Section 42(1) act without authorisation. Since the officers act without authorisation, sub-section (2) contains the requirement of sending copy of information on which they take action which they are required to note in writing at the time they receive it. The information is to be sent to their immediate official superiors. The question for our consideration is: whether it is necessary for officers of the gazetted rank to comply with sub-section (2) of Section 42, i.e. send the information taken down in writing by the officers to immediate official superior within seventy two hours? According to the learned counsel for the appellants Section 42(2) is mandatory and covers all officers including officers of gaz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eniority and power to authorise subordinates to proceed to action, is totally different. They are the source of power of authorization. The gazetted rank officers enjoy special position and privileges under the Act. They need not be equated to officers taking action without authorisation or warrants. The requirement of sending information to superior officers under sub-section (2) of Section 42 cannot be insisted upon in their case. There is no bar in the statute to functions of arrest, search and seizure being carried out by the officers of the gazetted rank themselves. When they act on their own, they do not have to report to their seniors on such things. The view expressed above finds support from a judgment of this court in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, [2003] 8 SCC 449 where it is observed: Section 41(1) which empowers a Magistrate to issue warrant for arrest of any persons whom he has reason to believe to have committed any offence punishable under the NDPS Act or for search, has not much relevance for the purpose of considering the contention. Under Section 41(2) only a Gazetted Officer can be empowered by the Central Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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