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TMI Blog2024 (9) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of detaining the said accused but the testimonies of the members of the raiding party showcase the idea of search of the house to be an afterthought with an admitted time gap of 40-45 minutes between having raided the auto-rickshaw which was alleged to be abandoned by the driver and Accused No. 4 and subsequent search of the house of Accused No. 4, wherein Accused No. 1 was present - Moreover, it appears from the record that even the idea to search the house was for the purpose of recovery of more contraband and not to apprehend the said absconded accused at the first instance. Thence, it can be safely concluded that the search conducted at the residence of the Accused No. 4 is not a continuance of action of the raiding party towards the search of the auto-rickshaw based on the secret information received by Mrs. Chaube. Accordingly, it does not appropriately fulfil the requirements of the test laid down in Gentela Vijyvardhan Rao. Compliance of Section 42 of the NDPS Act, 1985 - HELD THAT:- From the perusal of provision of Section 42(1) of the NDPS Act, 1985, it is evident that the provision obligates an officer empowered by virtue of Section 41(2) of the NDPS Act, 1985 to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r NDPS Act, 1985 has been committed and is thus not even in the nature of a confessional statement. Hence, question of its being admissible in trial as a confessional statement against the accused does not arise. These appeals are allowed by setting aside the impugned judgment of the High Court as well as that of the Trial Court. The appellants are acquitted of the charges framed against them by giving benefit of doubt. - ANIRUDDHA BOSE AND AUGUSTINE GEORGE MASIH, JJ. Shri Sanjay Jain, AOR, for the Appellant. Shri Shailesh Madiyal, Sr. Advocate, K.M. Nataraj, A.S.G., Ms. Deepanwita Priyanka, Ms. Devyani Bhatt, Ms. Srujana Suman Mund, T.A. Khan, Vatsal Joshi, Annirudh Sharma Ii, Advocates, Ms. Swati Ghildiyal and Arvind Kumar Sharma, AORs, for the Respondent. JUDGMENT The instant criminal appeals arise out of SLP (Criminal) No(s). 7419-7420 of 2009 assailing the Common Impugned Judgment dated 16-3-2009 of the Division Bench of Gujarat High Court in Criminal Appeal Nos. 1702 of 2004 and 2097 of 2004 moved by the Original Accused No. 1 (Smt. Najmunisha - Appellant in Criminal Appeal No. 1702 of 2004 before the High Court) and Original Accused No. 4 (Abdul Hamid Chandmiya alias Ladoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-12-1999, it is submitted by the prosecution that on directions of Mr. Tomar, they assembled at about 6:30 AM near the raiding point and arranged for the panchas and waited for the Accused No. 4 at different points of the raiding route. When the Accused No. 4 showed up in the said vehicle as per the information, they attempted to stop the auto-rickshaw, instead it sped away at a high speed. Therefore, the members of the raiding party arranged for and chased the said auto-rickshaw which was eventually, after covering a certain distance, found abandoned near a road and the Accused No. 4 was said to have escaped. On conducting the search of the said auto-rickshaw, the raiding party found a driving license of one Shri Abdulgafar Gulamali Shaikh alias Rajubhai in addition to charas to the tune of 1.450 kilograms. 6. As Accused No. 4 had run away, the raiding party eventually was led to the house of Accused No. 4 wherein the Accused No. 1 was already present. Thereinafter, the son of Accused No. 1 and Accused No. 4 - namely Abdul Rajak (hereinafter referred to as Accused No. 2 ) - came inquiring. Eventually the raiding party conducted a search of the said house wherein in the open kit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). None of the accused had either retracted the said statements or they had moved any complaints alleging perversity. The defence, despite leading evidence, could not establish their version that the officers had come inquiring about house of Accused No. 4 and eventually arrested Accused No. 1 and Accused No. 2 as against all legalities. Furthermore, there was consistency in the statements of prosecution witnesses and that no specific unreliability was established in the panchnama by the defence. As to the necessary compliance laid down in the provisions of the NDPS Act, 1985, the procedure established under Section 52A of the NDPS Act, 1985 was not to be considered and that there was no requirement of any authorization under Section 41 of the NDPS Act, 1985. Since Mr. Tomar, being a Gazetted Officer, had accompanied the raiding party pursuant to the information communicated by Mrs. Chaube on 10-12-1999, defence has also not raised any contention as to breach of Section 36 or Section 53 of the NDPS Act, 1985. 11. The High Court of Gujarat had also observed in paragraph Number 36 of its judgment that there is compliance of Section 57 of the NDPS Act, 1985 as established from the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was variation on the point that who called the panch witness. Considering the aforementioned, the High Court of Gujarat affirmed the case of conviction of the Accused No. 1 and Accused No. 4. 15. The Learned Counsel for the appellants herein contends that the statement of the appellants/accused in the instant case recorded under the provision of Section 67 of the NDPS Act, 1985 was not admissible and ought not to have been the basis of conviction of the Accused No. 1 and Accused No. 4. It has been brought to our attention that the High Court has critically scrutinized the said statements of Accused No. 1 to Accused No. 4 and has observed that the same being voluntary in nature and having been corroborated by other evidence can form the basis of their conviction. For this purpose, reliance has been placed on the decision in Tofan Singh v. State of Tamil Nadu - (2021) 4 SCC 1 whereby it has been categorically held that a statement recorded under Section 67 of the NDPS Act, 1985 is inadmissible in evidence. The majority opinion herein had held that power of recording of statement under Section 67 of the NDPS Act is limited in nature and conferred upon subject to the safeguards as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eason to believe to have committed any offence punishable under Chapter IV. Sub-section (2) of Section 41 refers to issuance of authorisation for similar purposes by the officers of the Departments of Central Excise, Narcotics, Customs, Revenue Intelligence, etc. Sub-section (1) of Section 42 of the NDPS Act lays down that the empowered officer if he has a prior information given by any person, should necessarily take it down in writing, and where he has reason to believe from his personal knowledge, that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building, etc. he may carry out the arrest or search, without warrant between sunrise and sunset and he may do so without recording his reasons of belie. The two separate procedures noticed above are exclusive of one another. Compliance with one, would not infer compliance with the other. In the circumstances contemplated under Section 42 of the NDPS Act the mandate of the procedure contemplated therein will have to be followed separately, in the manner interpreted by this Court in Karnail Singh case [Karnail Singh v. State of Haryana, [200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in 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 urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion the testimonies of Mrs. Chaube (PW-02) and Mr. Tomar (PW-03). Alternatively, even assuming that the said latter part of the raid/search at the house of the Accused No. 1 and Accused No. 4 was not in continuation of the action taken towards Accused No. 4 as per the secret information, there has still been appropriate compliance of Section 42 of the NDPS Act, 1985 for the reason that the same was based on the personal knowledge of Mr. Tomar, who is a Gazetted Officer. It is further contended that the provision of Section 42(2) of the NDPS Act is to be read disjunctively and henceforth there is no requirement to take down the information in writing where it emanates from the personal knowledge of the superior officer. To further this argument, the Learned Counsel has distinguished the facts of the present case from the ratio in decisions in State of Punjab v. Balbir Singh - (1994) 3 SCC 299 and Karnail Singh (supra) as they refer only to the process to be followed upon receipt of information from any person and not to personal knowledge of the officer. 21. Furthermore, it is submitted that there has been a substantial compliance of Section 42(1) of the NDPS Act, 1985 as during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the legal principles and jurisprudence existing in each contention, it is pertinent to refer to the heart and soul of the Constitution of India, 1950 (hereinafter referred to as Constitution of India ) - Article 21 - necessitates a just and fair trial to be a humane and fundamental right and actions of the prosecution as well as the authorities concerned within the meaning of the NDPS Act, 1985 must be towards ensuring of upholding of the rights of the accused in order to allow to have a fair trial. The harmonious balance between the Latin maxims salus populi suprema lex (the safety of the people is the supreme law) and salus republicae suprema lex (safety of the State is the supreme law) is not only crucial and pertinent but lies at the core of the doctrine that welfare of an individual must yield to that of the community subject to the State being right, just, and fair as was iterated in the decision of Miranda v. Arizona - (1966) 384 US 436. 25. The NDPS Act, 1985 being a special law with the purpose to curtail the drug menace in the republic necessitated the comprehensive control in favour of the authorities. The same is well reflected in the decisions of this Court across th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -rickshaw based on the secret information received by Mrs. Chaube. Accordingly, it does not appropriately fulfil the requirements of the test laid down in Gentela Vijyvardhan Rao (supra). 29. Having reached the conclusion that the searches of the abandoned auto-rickshaw, and at the house wherein Accused No. 1 was present, to be different transactions, the subsequent consideration is apropos necessary statutory safeguards enlisted in the NDPS Act, 1985. Henceforth, we shall further delve into the legal analysis of relevant provisions of the NDPS Act, 1985. 30. The next issue that falls for our consideration is with respect to the compliance of Section 42 of the NDPS Act, 1985. For the said purposes, an analysis of the bare text of Section 42 of the NDPS Act, 1985 is undertaken hereinafter. Section 42 of the NDPS Act, 1985 is worded as follows : 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 intelligence or any other department of the Central Government including paramilitary forces or armed force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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. 31. From the perusal of provision of Section 42(1) of the NDPS Act, 1985, it is evident that the provision obligates an officer empowered by virtue of Section 41(2) of the NDPS Act, 1985 to record the information received from any person regarding an alleged offence under Chapter IV of the NDPS Act, 1985 or record the grounds of his belief as per the Proviso to Section 42(1) of the NDPS Act, 1985 in case an empowered officer proceeds on his personal knowledge. While the same is to be conveyed to the immediate official superior prior to the said search or raid, in case of any inability to do so, the Section 42(2) of the NDPS Act provides that a copy of the same shall be sent to the concerned immediate official superior along with grounds of his belief as per the proviso hereto. This relaxation contemplated by virtue of Section 42(2) of the NDPS Act, 1985 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seizure memo were not prepared on the spot but after having had reached police station only. Since the vehicle was apprehended and contraband was seized in non-compliance of the Section 42 of the NDPS Act, 1985 - conviction and sentence of the appellant therein was set aside. Apart from the said reasons there were various suspicious circumstances that inspired the confidence of the Court to set aside the conviction affirmed by the High Court therein. Paragraph Numbers 5 and 6 are reiterated below for reference : 5. In the present case PW 1, who is the investigating officer, in his deposition has stated that the information i.e. the contraband was being carried from the Indo-Nepal border identified in a vehicle, details of which had also been provided, had been received in the evening of 2-7-2007. PW 1 has further stated that on receipt of this information, he had formed a team and had moved to Raxaul from Patna, which place they had reached by 2.00 a.m. in the morning of 3-7-2007. The vehicle in question had been apprehended and the contraband seized at about 6.00 a.m. of 3-7-2007. No explanation has been offered why the statement had not been recorded at any anterior point of time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the incident. However, the testimony of Mrs. Chaube reveals that the PW-01 and the other panch were present in the NCB office after the incident and even deposes to the effect that they, being present in the said office, ended up inscribing their signatures on the statements taken by them. 37. It does not transpire from the material on record as to exactly how the Accused No. 4 came into the fiasco here except for the claim by Mr. Tomar of having identified him as the auto-rickshaw per the secret information fled the scene. It creates a doubt in the mind of the Court apropos the case presented by the prosecution. 38. Adopting the words of V. Ramasubramanian, J., while speaking for the Bench in Ramabora alias Ramaboraiah Anr. v. State of Karnataka - (2022) SCC OnLine SC 996 referred to the mythological Swan, Hamsa and drew an analogy with the following observations made in the decision in Arvind Kumar alias Nemichand Ors. v. State of Rajasthan - (2021) SCC OnLine SC 1099 : 49. The principle that when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have strict application to the criminal jurisprudence in our country. The principle governing s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (2) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer 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 knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or place, may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, to arrest or conduct a search or authorize an officer subordinate to him to do so, provided that such subordinate officer is superior to the rank of a peon, sepoy or constable. It is pertinent to note that the empowered Gazetted Officer must have reason to believe that an offence has been committed under Chapter IV of the NDPS Act, 1985, which necessitated the arrest or search. As per Section 41(2) of the NDPS Act, 1985, such reason to believe must arise from either personal knowledge of the said Gazetted Officer or information given by any person to him. Additionally, such knowledge or information is required to be reduced into writing by virtue of expression and taken in writing used therein. 43. The Learned Counsel of the Respondent No. 2 presents an alternate argument that the expressions personal knowledge and and taken in writing contemplated by Section 41(2) of the NDPS Act, 1985 ought to be read disjunctively, thereby eliminating the requirement of taking down information in writing when it arises out of the personal knowledge of the Gazetted Officer. We are not inclined to accept this interpretation. The position for recording the reasons for conducting search and seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a written authorization from her superior officer - which was Mr. Tomar in this case. She omitted seeking the said authorization on the premise that there was an emergent need to conduct search at the house. Such major inconsistency as to the source of information of existence of contraband at the house of Accused No. 4 weakens the case of the prosecution. Furthermore, the testimony of Mr. Tomar has some glaring irregularities apropos his personal knowledge of having contraband at the house of Accused No. 4. Mr. Tomar, on one hand in his testimony admits that the officers of raiding party together decided to conduct raid at the house of Accused No. 4 post recovery from the auto-rickshaw, however, on the other hand admits of having knowledge of the residential address of Accused No. 4 from the secret information. However, Mr. Tomar nowhere in his depositions stated that he proceeded to conduct raid at the house on his personal knowledge. 46. From the aforementioned, we are of the view that the raid/search conducted at the house of the Accused No. 1 and Accused No. 4 was not based on the personal knowledge of Mr. Tomar, rather it was an action on the part of raiding party bereft o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case. 50. The evidentiary value of confessional statements recorded under Section 67 of the NDPS Act, 1985 was dealt with by this Court in the case of Tofan Singh (supra). As per the majority verdict delivered by 3-Judges Bench in this case has held that the powers conferred on the empowered officers under Sections 41 and 42 of the NDPS Act, 1985 read with Section 67 of the NDPS Act, 1985 are limited in nature conferred for the purpose of entry, search, seizure and arrest without warrant along with safeguards enlisted thereof. The enquiry undertaken under the aforesaid provisions may lead to initiation of an investigation or enquiry by the officers empowered to do so either under Section 53 of the NDPS Act, 1985 or otherwise. Thus, the officers empowered only under the aforesaid provisions neither having power to investigate nor to file a police report meet the test of police officer for the purpose of Section 25 of the IEA, 1872. Consequently, the bar under Section 25 of the IEA, 1872 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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