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TMI Blog2017 (12) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... ties of the said branch at Coimbatore and the said Ramakrishnan procured psychotropic substances such as Alprazolam, Lorazepam, Nitrozapam etc on daily orders received by him through E-mail from Seethapathy of M/s.Chandra Importers Inc, New York, packed it at his office and effected despatch to various customers abroad, officers camping at Coimbatore conducted a search in the premises of second appellant on 25.01.2008 at about 13.00 hours in the presence of two independent witnesses and the accused D.Ramakrishnan after complying with the necessary formalities under section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act'). On inquiring about the operations of M/s.Chandra Importers Inc, A1 informed that he was the Branch Manager of the company and his boss Seethapathy used to inform consolidated requirement of drugs through e-mail which he purchased from local pharmacies, packed and sent to individual customers abroad. He showed the files containing packing slips and receipts for the purchase of drugs. The drugs dealt with by him included psychotropic substances such as Alprazolam, Lorazepam, Nitrozapam etc. He also informed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... psychotropic substances have been illegally exported without permission from Narcotics Commissioner, Gwalior. There had been correspondences between A1 and Seethapathy with the concurrence of other accused authorizing A1 to open a Branch office of M/s.Chandra Importers Inc, in Coimbatore and illegally export psychotropic substances to various destinations abroad. During investigation, it came to light that a consignment of Narcotics Substances despatched by M/s.Chandra Importers Inc, Coimbatore, was seized by Air Customs, Chennai. Thus, A1 to A8 had contravened the provisions of section 8(c) r/w sections 22, 23, 25, 27A, 29 & 38 of the NDPS Act, 1985. The Company, by name, M/s.Chandra Importers Inc, Coimbatore/A2, its Manager/A1, its Chairman and President and 5 others comprising the Board of Directors of the Company were arrayed as accused. 3. The case was taken on file in C.C.No.100 of 2008 on the file of learned Additional Sessions Judge/Presiding Officer, Special Court for Essential Commodities Act Cases, Coimbatore. As Chairman/President and Directors of the Company were absconding, non-bailable warrants were issued against them but the same could not be executed and hence, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, NCB, u/s.57 of the Act, the number of hard disk is informed to be 5L8K86PM and in Ex.P34 Forwarding Memo 2/08 27.01.2008 addressed to Superintendent Officer in charge of the godown, NCB, Chennai, the number is informed to be 5LBK86PM and that in Ex.P146, report of the Government Examiner of Questioned Documents, the number is informed as 5LAK86PM. No modem had been seized although PW-1 having admitted to seeing the same in the company premises. It was not possible to communicate via computer without addressing communications to particular e-mail accounts but no particulars there regards had been gathered. The prosecution has avoided conducting search in the presence of independent witnesses. Of the two witnesses one PW-3 admittedly was an Inspector of Police, CCIW, CID, Karur, while PW-4, who was a Cashier in a private concern, had initially been examined and owing to his illness his further examination or cross could not be effected. Serial No.3, Mahazar, dated 25.01.2008 in Annexure-III in the list of documents is shown to have been drawn at entry gate of Thiruvanmiyur Bus Stand, Chennai and it is the evidence of PW-1 that he had no knowledge about it. The confession of firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proof of possession of illicit articles under the Act, namely, the shifting of the onus to the accused and severe punishment to which he becomes liable, the Legislature has enacted and provided certain safeguards in various provisions of the Act including Sections 42 and 50 of the Act. A Constitution Bench of this Court in State of Punjab v. Baldev Singh (1999 (6) SCC 172) has held that while conducting search and seizure in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the Act are also required to be followed. The harsh provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and compliance of the safeguards. ..." In such case, the Supreme Court rendered a finding of acquittal informing that mandatory provisions both of Sections 42 and 50 of the Act had not been complied with with the result that the prosecution case was rendered unestablished. The decision in this case would turn on compliance or otherwise with the provisions of Section 42 of the Act. This Court holds that Section 42 of the Act indeed stands contravened in the present case and once this Court does so, it becomes unnecessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42. 42. Power of entry, search, seizure and arrest without warrant or authorisation. - (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 intellegence or any other department of the Central Government including para-military forces or armed forces 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 persons knowledge or information given by any person and taken down in wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom under authority of another, may effect search, seizure and arrest between sunrise and sunset as distinct from whether by day or night permitted u/s.41 of the Act. Section 42 of the Act also contains a proviso that in particular circumstances envisaged therein, the officer may conduct a search between sunset and sunrise after recording the grounds of his belief. In the event of his so doing, sub-section 2 of Section 42 requires the officer to forward a copy thereof to the immediate superior within 72 hours. PW-1 admitted that he issued summons to A1 to appear before him at 21.00 hours on 25.01.2008 and A1 on his appearance before him gave a voluntary statement. PW-1 further deposed that based on the voluntary statement and material objects seized he issued the arrest memo contents of which were explained to A1 as were the reasons for his arrest. His evidence clearly informs that search and seizure were effected during night hours after the appearance of A1 before him. In the instant case, the prosecution really falls between two stools. Ex.P1 reads as follows: 'INFORMATION REPORT U/S.41(2) OF THE NDPS ACT 1985 Based on the inputs received from NCB Hqrs, New Delhi regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to one authorised by a Magistrate u/s.41(1) of the Act or by a superior officer u/s.41(2) of the Act. Though the concluding portion of sub-section 2 of Section 41 of the Act permits an authorised officer 'himself to arrest such a person or search a building, conveyance or place', an officer acting on his own steam cannot take such action between sunset and sunrise as otherwise Section 42 of the Act which specifies action conditionally permissible during such hours in certain contingencies becomes redundant. If not understood as stated, issue of warrants by Magistrates and authorisation by superior officers spoken of in Section 41 are rendered dead letters. It is the evidence of PW-1 that PW-2 initially informed him orally and later in writing under Ex.P1 and the endorsement addressed to him required him to take necessary action and that he decided about the house search immediately on receipt of Ex.P1. Therefore, it is clear that PW-1 acted in exercise of powers vested in him u/s.42 of the Act. It is admitted case that PW-1 recorded Ex.P4 - the statement of A1, on 25.01.2008 at 09.00 p.m. i.e., after sunset and before sunrise. Contents of Ex.P1 even if taken to be true onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kes no mention of Ex.P1. What is worse, Ex.P33 - Section 57 report dated 26.01.2008 i.e., the date immediately following the arrest and seizure, bears an endorsement of the Superintendent, NCB, Chennai, seen of the date 27.01.2008 and informs production and deposit of the seized property in the Court for EC and NDPS Act Cases, Coimbatore, on 28.01.2008. Ex.P34 Forwarding Memo No.2/2008 of NCB to the NCB Godown incharge dated 27.01.2008 and Ex.P35 Godown receipt No.1/2008 dated 27.01.2008 issued by Superintendent, NCB, reveal that the seized goods indeed were deposited in the Narcotic Bureau Godown on 27.01.2008. The possibility of preparation of Ex.P33-Section 57 report on 26.01.2008 is ruled out and the preparation thereof only after 27.01.2008 is apparent. The prosecution case visits itself with falsity after falsity. Not only is Ex.P1 termed a report u/s.41(2) of the Act an afterthought but even Ex.P33 - Section 57 report is not of the date espoused. To repeat ourselves, the endorsement of the Zonal Director to the effect 'IO Sundar to take necessary action as discussed', even if taken to be true, cannot be read as authorising PW-1 to search or cause arrest 'by day o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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