TaxTMI 
TaxTMI 
2012 (12) TMI 982
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....raided the house of the accused. However, this witness was declared hostile before the Court during his examination. On conducting a search, five bags were found lying concealed under a heap of chaff in the courtyard of the house of the accused. On suspicion of having some intoxicant in his possession, the Investigating Officer served notice upon the accused under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') giving him an offer to be searched before a Gazetted Officer or a Magistrate. Accused is stated to have responded to such notice vide Ext. PC/1 where he expressed his desire to be searched before a Gazetted Officer of the police. Upon having known the desired choice of the accused, it is stated that PW1 had sent an application, Ext. PD, to the Deputy Superintendent of Police, Dabwali, through Constable Amir Singh requesting him to reach the spot. Mr. Jagdish Nagar, DSP, reached the spot after about half an hour and upon his instruction the search of the bags was conducted. From each gunny bag, 100 grams of chura post was separated as sample. The samples as well as the remaining gunny bags weighed 39 kgs. and 900 grams each and we....
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....led to acquittal as the whole case of the prosecution is vitiated in law. 5. To the contra, the contention on behalf of the State is that there is substantial compliance of the provisions of Section 42 of NDPS Act and therefore, the concurrent judgments of conviction and order of sentence do not call for any interference. 6. In order to examine the merit or otherwise of the above contention, it is necessary for us to discuss the entire gamut of the prosecution evidence. 7. At this stage, it will be useful to refer to the relevant statement of ASI Nand Lal, PW1 who is stated to have received a secret information, proceeded to raid the house of the accused and recovered the chura post as noticed above: "On 04.02.1994, I was posted as Incharge of CIA Staff, Dabwali. On that day, I alongwith Hoshiar Singh H.C. Suraj Bhan H.C. and other police officials was present at village Jogewala in connection with patrolling and detection of crimes. Then, I received a secret information that the accused present in the court is in the habit of selling churapost and if a raid is conducted at the once, churapost could be recovered from him. On receipt of this information, I formed a raiding....
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....between the house of the accused and the spot where he was at the time of receiving the secret information was merely 6 kilometers, but he reached the house of the accused only at 2 p.m. He also admitted that the house of the accused was situated in the middle of the village in a busy locality, and yet he did not call anybody from the neighbourhood at the time of effecting recovery. 10. According to the learned counsel appearing for the State, there was substantial compliance inasmuch as after effecting the recovery he had sent a ruqa Ext. PF to his senior officer, on the basis of which the FIR Ext. PF/1 was registered and thus, there was substantial compliance of the provisions of Section 42 of NDPS Act. This aspect has also been considered by the High Court and while accepting the contention of the State as to substantial compliance of the provisions of Section 42 of NDPS Act, the High Court in the judgment impugned herein noticed as under:- "9-A. In the instant case too, a secret information, was received by Nand Lal, ASI on 4.2.1994, when he alongwith Hoshiar Singh, HC, Suraj Bhan and other police officials, was present in village Jogewala, in connection with patrol duty, and....
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....cer. For this purpose, we must refer to Section 42 of the NDPS Act at his stage : "Section 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 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 writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable 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 a....
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.... under the unamended provision, was clarified and resultantly, absolute certainty was brought in by binding the officer concerned to send the intimation to the superior officers within 72 hours from the time of receipt of information. The amendment is suggestive of the legislative intent that information must reach the superior officer not only expeditiously or forthwith but definitely within the time contemplated under the amended sub-section (2) of Section 42. This, in our opinion, provides a greater certainty to the time in which the action should be taken as well as renders the safeguards provided to an accused more meaningful. In the present case, the information was received by the empowered officer on 4th February, 1994 when the unamended provision was in force. The law as it existed at the time of commission of the offence would be the law which will govern the rights and obligations of the parties under the NDPS Act. In the case of Basheer @ N.P. Basheer v. State of Kerala [(2004) 3 SCC 609] wherein this Court was concerned with the Amending Act 9 of 2001 of the NDPS Act, the Court took the view that application of the Amending Act, where the trial had been concluded and a....
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.... the case of Ravinder Singh v. State of Himachal Pradesh [(2009) 14 SCC 201], wherein this Court was dealing with the question as to what would be the law applicable for imposition of a sentence irrespective of when the trial was concluded with reference to Article 21 of the Act and provision of the Punjab Excise Act, 1914 as applicable and amended by H.P. Act 8 of 1995 where punishment was enhanced and minimum sentenced was provided. The Court held that it is trite law that the sentence imposable on the date of commission of the offence has to determine the sentence imposable on completion of trial'. 17. Even in the case of Hari Ram v. State of Rajasthan & Ors. [(2009) 13 SCC 211], this Court stated with reference to the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended by Act of 2006) that the relevant date for applicability of the Act so as the age of the accused, who claims to be a child, is concerned, is the date of occurrence and not the date of trial. 18. In the present case, the occurrence was of 4th February, 1994. The Trial of the accused concluded by judgment of conviction dated 4th July, 1998. Thus, it will be the unamended Sec....
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....erior. (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 escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with suf....