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TMI Blog2011 (8) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... sale, and that he had kept some opium in the shed used for storing fodder in his farm house, and if raid was organized, the opium could be recovered. On the basis of the aforesaid Ruqa, a formal First Information Report was drawn up for an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the "Act"). A wireless message was also sent to the DSP, Fatehabad PW-5 Charanjit Singh to reach the spot. The effort of the police party, however, to join some independent witnesses from the public was unsuccessful. In the meanwhile, PW-5 also reached that place and the police party made its way to the farm house of the appellant. The lock on the fodder room was opened after taking t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Section 42 of the Act had been complied with as the secret information received by PW-6 had been recorded by him in a Ruqa which had been sent to the Police Station for registration of a FIR and that he had also informed PW-5 on wireless about the information received by him on which the latter had reached the place of search and seizure. The trial court further noted that as the appellant was a previous convict, a lenient view could not be taken in his case. He was accordingly sentenced to undergo 20 years RI and to pay a fine of Rs. 2,00,000/- and in default of payment of fine to undergo RI for 2 years. The judgment of the trial court had been confirmed in appeal by the High Court leading to the present proceedings before us. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is reproduced below: "42. Power of entry, search, seizure and arrest without warrant or authorization. - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the Departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the Revenue, Drugs Control, Excise, Police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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. 42(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." 4. A reading of the above said provision pre-supposes that if an authorized officer has reason to believe from personal knowledge or information received by him that some person is dealing in a narcotic drug or a psychotropic substance, he should ordinarily take down the information i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplanation for the delay can, however, be countenanced.. We have gone through the evidence of PW-6 Kuldip Singh. He clearly admitted in his cross-examination that he had not prepared any record about the secret information received by him in writing and had not sent any such information to the higher authorities. Likewise, PW-5 DSP Charanjit Singh did not utter a single word about the receipt of any written information from his junior officer Inspector Kuldip Singh. It is, therefore, clear that there has been complete non- compliance with the provisions of Section 42(2) of the Act which vitiates the conviction. 6. Mr. Dalal, the learned counsel for the respondent-State has, however, referred to paragraph 34 of the judgment of the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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