TaxTMI 
TaxTMI 
TaxTMI 
2015 (9) TMI 342
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.... to be in possession of four bags containing a total of 61.49 kg ganja. 5. The prosecution case is that, while HC Som Pal Singh (PW.1), Ct. Gurvinder Singh (PW.3), SI Shivraj Bisht (PW.4) and Ct. Prakash (PW.6) were on patrolling duty on 6/8/2009, they were informed at about 5:30 PM by a Secret Informer that one person is sitting near ISBT, Sarai Kale Khan, with contraband and if raid is conducted immediately, he could be apprehended. The aforesaid information was communicated by SI Shivraj Bisht (PW.4) to the ACP, Operation Cell, where after direction was given to undertake the raid. The further case of the prosecution is that a request was made to 4 passersby to join the raid but they refused and disappeared without disclosing their identities and particulars. 6. The appellant was found sitting on two red coloured bags. He was holding the strings of other two bags in his hands. He was apprehended and was told about the information which the Police party had about him. He was made aware of his legal rights to be search in the presence of a Gazetted Officers or a Magistrate by way of a written notice under Section 50 of the NDPS Act (Ex.PW.1/A; Carbon copy Ex. PW.3/A), but the ap....
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....s stand and in case raid is conducted immediately, he could be apprehended. The aforesaid information was given to the ACP, Operation Cell, South East District where upon he was given instructions to conduct the raid. His request to four public persons to become witnesses in the search and seizure proceedings was refused. After complying with the provisions of under Section 50 of the NDPS Act, the appellant was searched. The four bags, of which the appellant was in possession of, contained ganja. The contraband recovered weighed 61.49 kg. Random sampling was done and separate pullandas were prepared which were sealed with the seal of SSB. The FSL form was also filled up, sealed and the seal was handed over to HC Som Pal Singh (PW.1). 14. In his cross examination, PW.4 as stated that he had not reduced the secret information into writing separately. On the day when the raid was made, the IGL CNG pump was closed. However, there was normal traffic on the road. PW4 admits that he did not request any person from near Sarai Kale Khan bus stand to join the raiding party, as there was no public available at that time. 15. PWs. 1, 3 and 6 who were the members of the raiding team have supp....
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....s, 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 of 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 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 enclosed place, may between sunrise and sunset,- (a) Enter into and search any such buildin....
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....s 42(1) and 42(2) nor did Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC (Cri) 1217] hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have 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 c....
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....ich could only be relaxed in special circumstances involving emergent situations, when compliance of such requirement could be postponed by a reasonable period, i.e. after the search and seizure. Total non compliance with requirement of Section 42 of NDPS Act has been held to be impermissible. It has been reiterated a number of times by the Supreme Court that the consequences of non compliance of Section 42 of NDPS Act are grave. The stringent provisions of the NDPS Act cast a duty upon the prosecution to strictly follow the procedure and comply with all its safe guards. 25. The Supreme Court in Sukhdev Singh vs. State of Haryana:(2013) 2 SCC 212; has observed : "The provisions of Section 42 of NDPS Act are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the Investigating Officer. He is obliged to furnish the information to his superior officer forthwith. That obviously means without any delay. But there could be cases where the investigating officer instantaneously, for special reasons to be explained in writing, is not able to reduce the information in the writing and send the said information to his superio....