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TMI Blog2016 (7) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused from the charges under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act') after setting aside the judgment and conviction order of Special Judge, (NDPS Cases), Hanumangarh, Rajasthan dated 31.5.2000 by which judgment accused were sentenced to undergo 12 years rigorous imprisonment with fine of ₹ 1,20,000/- each. Accused were to go further rigorous imprisonment of one year each in case of not depositing the fine. Accused Kishan Lal had filed Single Bench Criminal Appeal No. 397 of 2000 and accused Jagraj Singh alias Hansa had filed Single Bench Criminal Appeal No. 98 of 2001. Both the appeals having been allowed by the High Court of Rajasthan, this appeal being Criminal Appeal No. 1233 of 2006 has been filed by the State of Rajasthan against the acquittal of Jagraj Singh alias Hansa. The Criminal Appeal No. 1232 of 2006 has already been dismissed by this court. 2. The prosecution case in the nutshell is: Shishupal Singh, Station House Officer, Bhadra received a secret information on 9th August, 1998 at 8 P.M. that a blue jeep car No. HR 24-4057 would come and pass through Haryana via Sirsa. A m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the vehicle was being used to transport passengers as has been clearly stated by PW-4 Veera Ram, hence, as per explanation to Section 43 of the NDPS Act, vehicle was covered within the ambit of public place. Therefore, there was no need of any warrant or authority to search. Learned Sessions Judge also found that Section 50 was complied since notices were issued to both the accused before search. Sessions Judge noted that although both the independent witnesses have turned hostile but the police officers and officials have been examined on behalf of the prosecution with whom the fact of enmity has not been proved. Chain of event was complete. After coming to the aforesaid conclusion, learned Sessions Judge convicted both the accused. 4. Both the Criminal Appeals filed by Kishan Lal and Jagraj Singh were decided by a common judgment of the High Court dated 24.11.2003. The High Court while allowing the appeal gave following reasons and findings: (i) The secret information which was recorded as Exh. P-14 and in Exh. P-21 Roznamacha it was not mentioned that two persons will come from Jhunjhnu who are carrying powder of opium , whereas Exh.P-15, the information sent to the Circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court has committed error in acquitting the accused whereas there was sufficient ground and material to support the conviction order recorded by the Special Judge. 6. The learned counsel appearing for the accused have supported the judgment of the High Court and submits that compliance of provisions of Section 42(1) and 42(2) have been held to be mandatory by this Court and due to non compliance of the said provisions, the conviction has rightly been set aside by the High Court. It is submitted that Section 43 of the Act is not attracted since the search was conducted after recording information from informer and Station House Officer himself in his statement had stated the facts for proving compliance of Section 42, hence, it cannot be said that compliance of Section 42 was not required more so the jeep was personal jeep of Vira Ram and High Court has rightly held that there was no material to prove that jeep was a public transport vehicle. No permit from transport authority to ply the vehicle as a public transport vehicle had been filed or even pleaded. 7. We have considered the submissions of learned counsel for the parties and have perused the record. 8. Whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extend to rigorous imprisonment for a term which shall not be less than IO years but which May extend to 20 years and also to fine which shall not be less than Rupees one lakh but which may extend to Rupees two lakhs, and the court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is Proved, that an accused has committed an offence under it in respect of the articles covered by it for the possession of which he fails to account satisfactorily . Having regard to the grave consequences that may entail the possession of illicit ar- ticles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorised to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (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. 12. The High Court has come to the conclusion that there is breach of mandatory provisions of Section 42(1) and Section 42(2) and further Section 43 which was relied by the Special Judge for holding that there was no necessity to comply Section 42 is not applicable. We thus proceed to first examine the question as to whether there is breach of provisions of Section 42(1) and Section 42(2). The breach of Section 42 has been found in two parts. The first part is that there is difference between the secret information recorded in Exh. P-14 and Exh. P-21 and the information sent to Circle Officer, Nohar by Exh. P-15. It is useful to refer to the findings of the High Court in the above c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to not obtaining the search warrant have been recorded. He has also not stated any such facts in his statements that he has conducted any proceedings in regard to compliance of proviso of Section 42(1). Since reasons to believe have not been recorded, therefore, under Section 42(2) it is not found on record that copy thereof has been sent to the senior officials. Shishupal Singh could be the best witness in this regard, who has not stated any fact in his statement regarding compliance of proviso to Section 42(1) and Section 42(2), sending of copy of reasons to believe recorded by him to his senior officials. 15. In this context, it is relevant to note that before the Special Judge also the breach of Section 42(1) and 42(2) was contended on behalf of the defence. In paragraph 12 of the judgment Special Judge noted the above arguments of defence. However, the arguments based on non-compliance of Section 42 (2) were brushed aside by observing that discrepancy in Exh. P-14 and Exh. P-15 is totally due to clerical mistake and there was compliance of Section 42(2). Special Judge coming to compliance of proviso to Section 42(1) held that vehicle searched was being used to transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passengers. In the present case, it is not the case of the prosecution that the jeep HR-24 4057 had any permit for transporting the passengers. The High Court has looked into the evidence and come to the conclusion that there was no material to indicate that there was any permit for running the jeep as public transport vehicle. The High Court has further held that even Kartara Ram who as per owner of the vehicle Veera Ram was using the vehicle, do not support that the jeep was used as public transport vehicle. The High Court held that personal jeep could not be treated as public transport vehicle. Following observations were made by the High Court: Kartara Ram is produced as PD-5,who has deposed the statement that Vira Ram is his brother-in-law (Saala), on whose name jeep bearing No.HR 24 4057 is lying registered. He had employed Inderjit singh as driver for that jeep. Person namely Krishan has never been employed as driver. This witness has been declared hostile and he has been examined too, who does not support the prosecution case. In this manner, Viraram is the owner of the jeep. According to him he had given the jeep to Kartara Ram, but Kartara Ram has not stated anywhere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording information under Section 42(1), the provisions of Section 42 has to be complied with. This Court in Directorate Of Revenue Another vs Mohammed Nisar Holia, (2008) 2 SCC 370, had occasion to consider Sections 41,42 and 43 explanation. Following was stated in paragraph 14: 14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under sub-section (1) of Section 42, need not be complied with, only because the place whereat search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with. An interpretation which strikes a balance between the enforcement of law and protection of the valuable human right of an accused must be resorted to. A declaration to the effect that the minimum requirement, namely, compliance of Section 165 of the Code of Criminal Procedure would serve the purpose may not suffice as non-compliance of the said provision would not render the search a nullity. A distinction therefor must be borne in mind that a search conducted on the basis of a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referring large number of cases, this Court recorded conclusion in paragraph 25 which is to the following effect: 25. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows : (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. (2-A) Under Section 41(1) only an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions 'of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity. (4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case. (5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompliance of Section 42 (2) as well as Section 50. It was also noticed that a Constitution Bench in State of Punjab Vs. Baldev Singh (supra) has already laid down that provisions of Section 42 and 50 are mandatory and their non-compliance would render the investigation illegal. Following was held in paragraphs 5 and 6: 5.In this case the violation of the mandatory provisions is writ large as is evident from the statement of K.R. Premchandran (PW1). After recording the information, the witnesses is not shown to have complied with the mandate of sub-section (2) of Section 42 of the Act. Similarly the provisions of Section 50 have not been complied with as the accused has not been given any option as to whether he wanted to be searched in presence of a Gazetted Officer or Magistrate. 6. We are of the firm opinion that the provisions of sub-section (2) of Section 42 and the mandate of Section 50 were not complied with by the prosecution which rendered the case as not established. In view of the violation of the mandatory provisions of the Act, the appellant was entitled to be acquitted . 24. It is also relevant to note another Constitution Bench judgment of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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