TaxTMI 
TaxTMI 
2005 (10) TMI 534
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.... 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 kg. It was opened. It had white powder like substance. The two persons present in the house said that the substance was Diazepam. They were informed that the officer, P. Sivarama Sastry, was a gazetted officer. The officer took around one gram of chemical in a clean dish and made a spot verification about what it was by using some chemical which he was carrying with him and found that the substance contained in the bag was Diazepam. The occupants of the room did not have permit or licence for possessing the substance. The officers were informed tha....
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.... 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) of Section 42 of the Act to immediate official superior. The first point is answered by a reference to memo of search proceeding, Exhibit P.W.1 which shows that the officer noted "I have received a reliable information regarding storage and possession of Diazepam in a house bearing No. ....." The officer has further noted that there was no time to obtain a search warrant from the court and delay is likely to cause material to disappear. He believed the information to be correct and, therefore, decided to raid the premises. In our view, this is sufficient compl....
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....ub-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 gazetted rank. It does not make any distinction between a gazetted and a non-gazetted officer and, therefore, all empowered officers must comply with sub-section (2) of Section 42. It will be seen from Section 41(2) that it refers to only officers of gazetted rank and it is such officers who can authorise their subordinates, not below the rank of peon, sepoy or constable, to carry out arrest, search or seizure. The function of arrest, search and seizure carried out under Section 42(1) is by officers who do not have warrants or authorization in their hands before pr....
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....ves. 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 Government or the State Government. Such empowered officer can either himself make an arrest or conduct a search or authorise an officer subordinate to him to do so but that subordinate officer has to be superior in rank to a peon, a sepoy or a constable. Sub-section (3) of Section 41 vests all the powers of an officer acting under Section 42 on three types of officers (i) to whom a warrant under sub-section (1) is addressed, (ii) the officer who authorized the arrest or search under sub-section (2) of Section 41, and (iii) the officer who is so authorised under sub-sect....