TaxTMI 
TaxTMI 
2017 (12) TMI 777
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....rented a Flat No. 11 in Karnavati Avenue, Near CTM Cross-roads possesses huge quantity of 'Charas'. On the basis of this tip-off, the Superintendent of Police summoned Dy. SP-Shri Pandey of Narcotic Drugs & Psychotropic Substances Cell for arranging a raid. Accordingly, Dy. SP raided the said premises with his subordinate officers and recovered 26 kgs & 400 grams of 'Charas' packed in different packets from the said flat. The police party also seized currency notes worth Rs. 1 lac. On inquiry, accused-Abdulgani Gulamrasul Bhatt informed that 10 kilograms of 'Charas' had already been sold off to one Allarakha Uasmanbhai Shaikh, resident of Chandola Lake, Ahmedabad. On the basis of this information revealed from the accused, the police personnels carried out raid at the premises of Allarakha Shaikh from where, 1 kg and 600 grams of 'Charas' was recovered. After following the due procedure as laid down under the law, the said contraband was seized and sealed by the raiding party, and thereafter, they had also raided premises of one Yasinkhan Anwarkhan Patan from where 130 grams of 'Charas' contained in 48 small packets was recovered. 3. After due investigation into the matter, all ....
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....hat the trial Court has gone deep into the matter and weighed each and every piece of evidence led before it. He drew attention of this Court to the fact that CID Crime Intelligence is not a Zone Police Station. He read over Rules 459 & 461 of the Gujarat Police Manual [Vol. III] to contend that there is no notification produced by the State declaring CID Crime Intelligence as a Police Station, and therefore, the registration of the complaint itself was illegal and bad in law. He emphasized that as to who is the Officer In-charge of the Police under Section 154 of the Code of Criminal Procedure was totally lacking, and that being the mandatory provision, the procedure adopted was rightly deprecated by the trial Court, as the secret information which was received first in point of time, ought to have been construed as FIR, and whereas, investigation started moment Mr. Pandey, Dy. SP left the place, and therefore, the complaint given by Police Inspector Shri Rana ought not to have been exhibited. As regard provisions of "search & seizure" enunciated under Sections 41 and 42 of the NDPS Act, learned advocate Shri Gupta urged that Section 42 (2) of the Act when makes it mandatory for a....
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.... under section 41 (2) of the Act, then the said Officer namely Gazetted Officer is said to be acting under section 41 (2), and therefore, compliance under Section 42 is not necessary at all. In the above decision, therefore, the Apex Court relied on earlier two decisions - in case of M. Prabhulal [Supra] and Union of India v. Satrohan [Supra]. However, the fact remains that information was received by PW-8 who happen to be District Superintendent of Police and was dealing with Narcotic Control Bureau of the State of Gujarat and deputed PW-3 namely Mr. Pandey holding the rank of Dy.SP - a Gazetted Officer to carry out search and seizure and under the circumstances, the record reveals that substantial compliance was made of Section 42 but even if it is noticed that there was no compliance of Section 42, it would not be fatal and accordingly, no error is committed by the learned trial Judge. 15. Further, reliance is also placed on the decision of Apex Court in case of State of Rajasthan v. Chhagan Lal dated 4th February 2014 rendered in Criminal Appeal No. 592 of 2005, where the Deputy Superintendent of Police recorded information received by him through an informer and on receipt ....
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....25th May 2001 Daljit Singh informed DW-3 at Jammu that about 100 kilogram of Charas is lying at Karnavati Flats at Ahmedabad. That information was given to PW-8 who was in-charge of Narcotic Cell of the State of Gujarat and holding the rank of District Superintendent of Police. The information was given to PW-8 on telephone at his office but for more clarity, DW-3 was called to reach at Ahmedabad and, after three days, one Sardar by appearance was leaving his flat with green colour bag and boarded a Sumo vehicle which was intercepted by the police party, where DW-3 was present and two bags of Charas were found. Sardar Jaswant Singh was taken to a hotel at Saraspur area, behind Railway Station where certain dubious transactions had taken place and a deal was struck again with Shri Polra, Police Inspector and Rs. 15 lacs, according to DW-3 were given to Mr. Polra with further understanding that 60 kilograms of Charas lying in twenty different packets of three kilogram each to be handed over to Mr. Polra and Jaswant Singh to be allowed to go scot-free and by making some arrangement in his place servant of Jaswant Singh is to be brought in as an offender. Accordingly, further course of....
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....rds are provided in the NDPS Act and failure to exercise mandatory requirement while entry, search, seizure or arrest in breach thereof held to be affecting case of the prosecution and vitiating the trial. 21.2 In para 25 of the above decision, the Apex Court set out conclusions about frequently arising questions to be considered by the trial courts in the context of Sections 41, 42, 50, 52 and 57 of the NDPS Act, which reads as under:- "25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows: (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act, makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. P.C. and when such search is completed at that stage section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance of recovery of any narcotic drug or psychotropic substance then the police officer, who i....
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....or whether the same has been explained or not, will be a question of fact in each case. (4-A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr. P.C. fails to strictly comply with the provisions of sections 100 and 165, Cr. P.C. including the requirement to record reasons, such failure would only amount to an irregularity. (4-B) If an empowered officer or an authorised officer under section 41(2) of the Act, carries out a search, he would be doing so under the provisions of Cr. P.C., namely, sections 100 and 165, Cr. P.C. and if there is no strict compliance with the provisions of Cr. P.C. then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case. (5) On prior information, the empowered officer or authorised officer while acting under section 41(2) or 42 should comply with the provisions of section 50 before the search of the person is made and such person sho....
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....ght of an accused were considered and in para 57 has concluded as under:- "57. On the basis of the reasoning and discussion above, the following conclusions arise : (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an ac....
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....overy of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act. (9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawf....
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....ot by the grace of the officer the choice has to be given but more by way of a right in the "suspect" at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it." However, while gauging whether or not the stated requirements of Section 50 had been met on facts of that case, finding similarity in the nature of evidence on this aspect between the case at hand and Joseph Fernandez (supra), the Court chose to follow the views echoed in the latter case, wherein it was held that searching officer's information to the suspect to the effect that "if you wish you may be searched in the presence of a gazetted officer or a Magistrate" was in substantial compliance with the requirement of Section 50 of the NDPS Act. Nevertheless, the Court indicated the reason for use of expression "substantial compliance" in the following words: "12. The use of the expression "substantial compliance" was made in the background that the searching officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh case. A line or a word 2 in a judgment cannot be read in isolation....
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....en followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. 32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of 14 (1974) 2 SCC 33 2 the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. (Emphasis supplied)" 21.7 In the case of Karnail Singh v. State of Haryana (2009) 8 SCC 539 again a Constitution Bench of the Apex Court considered Sections 42 and 50 of the NDPS Act. In view of divergent opinions in earlier two cases which has resulted in placing of the matter before the Larger Bench. In paras 1 and 2 of the above judgment, the apex court referred the issues for which the matter was referred to Constitution ....
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....ns 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 subsections (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 sufficient time to take action, and if the police officer fails to record in....
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....earest Magistrate or gazetted officer [it seems that a government communication that the accused has the right of the presence of a Magistrate or gazetted officer at the location where the person has been accosted for th search would not be enough; it has to be communicated that the said accosted person has the right to be taken to the location where the Magistrate or gazetted officer is; such an interpretation seems consistent with the safeguard that Section 50(1) seeks to provide i.e. that people do not have narcotics planted on them by the police or others; and [3] That the right under Section 50(1) pertains to being taken to either the nearest Magistrate or gazetted officer other than the searching officer, and that there must a clear communication of this choice i.e. there must be a mention of the nearest [I] Magistrate, and [ii] gazetted officer, and [iii] that the accosted person has a choice to be taken to either of them". 21.11 The above judgment also referred to decision in the case of Baldev Singh [supra]. 21.12 In the case of Union of India v. Shah Alam & Anr. (2009)16 SCC 644, where recovery of heroin was made from bags being carried out by accused and n....
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....roper form and samples sent to the chemical analyst related to the seized articles. 21.18 In the cases of State of Rajasthan v. Chhaganlal, (2009)8 SCC 539 and Sukhdev Singh v. State of Haryana, AIR 2013 SC 953, the Apex court followed decision in the cases of [i] Karnail Singh [supra]; [ii] Darshan Singh v. State of Haryana in Criminal Appeal Nos.216 with 217 of 2009 decided on 02.09.2015 by the Apex Court; and [iii] Rajendra Singh v. State of Haryana in Criminal Appeal No.1051 of 2009 decided on 08.08.2011 and held that total non-compliance of the requirements of Section 42 was impermissible. However, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42 of NDPS Act. 21.19 Vijaysinh Chandubhai Jadeja [supra] considered in length, provisions of Section 50 of the NDPS Act by referring to decision of constitution Bench in the case of Baldev Singh [supra] and also Karnail Singh [supra] and paras 20, 21, and 22 conclusions are given by reiterating law laid down in the case of Baldev Singh [supra] and even concept of 'substantial compliance' with the requirement of Section 50 of the NDPS Act is held to be neither born....
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....eof to his immediate official superior. This was the statutory provision at the relevant time. By the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 which came into force on 2-10-2001, Section 42(2) was amended whereunder the information taken down in writing under sub-section (1) or grounds of belief recorded under the proviso thereto are required to be sent within seventy-two hours to officers' immediate official superior. The contention is that the officer who searched and seized the contraband did so on information received by him as per Ext. PW 1 but the said information was not forwarded to his superior officer as contemplated in Section 42(2) of the NDPS Act, thus vitiating the entire prosecution. Further argues the counsel that the respondent after grant of bail to the appellants by the High Court taking into consideration the non-compliance with Section 42(2) has tried to fill in the lacuna with a view to show the compliance of this mandatory provision. 9. The officer who conducted the arrest, search and seizure was an empowered Gazetted Officer of the Department. This fact is not in dispute. According to Mr Vasdev, learned Senior Counsel for the....
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.... can only empower an officer of a gazetted rank who can either himself act or authorize his subordinate on the terms stated in the section. Under sub-section (1) of Section 42, however, there is no restriction on the Central Government or the State Government to empower only a Gazetted Officer. But on an officer empowered under sub- section (1) of Section 42, there are additional checks and balances as provided in the proviso and also provided in sub-section (2) of Section 42. It is clear from the language of sub-section (2) of Section 42 that it applies to an officer contemplated by sub-section (1) thereof and not to a Gazetted Officer contemplated by subsection (2) of Section 41, when such a Gazetted Officer himself makes an arrest or conducts search and seizure. It would be useful to also notice Section 43 which relates to power of seizure and arrest in a public place. Any officer of any of the departments mentioned in Section 42 is empowered to seize contraband etc. and detain and search a person in any public place or in transit on existence of ingredient stated in Section 43. It can, thus, be seen that Sections 42 and 43 do not require an officer to be a Gazetted Officer wher....
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....are yet other vital aspects that need consideration and the first amongst those is that there is a major flow in the case of prosecution of non- compliance of s.42 of the NDPS Act. Admittedly, the raid was to be carried out in the closed premises as the information is very clear on this aspect and therefore, the case of Rajendra Babu (Supra) would not apply to the instant case and instead the Court shall have to consider the judgment of the Apex Court in case of Mohinder Kumar v. State (AIR 1995 S.C. Pg.1157) and that of the Gujarat High Court in 2005 Cri. L.J. Pg. where it has been specifically ruled that, the information received by the police officer in respect of the contraband article kept in private premises which is not accessible to the people sending the said information in writing to the superior is a must and this being a mandatory provision, its breach would be fatal to the prosecution's case. This provision can be well appreciated especially under the facts and circumstances of the instant case where there is a specific allegation by the informant himself that the information given to SP Mr.Bhati was in respect of the contraband article possessed by Jaswantsingh Pu....
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....hat, muddamal needs to be handed over to the PSO in a sealed condition and who in turn should hand it over to the Crime Writer Head and their statements shall have to be recorded and they shall be cited as witnesses. Weight of the muddamal also is directed to be done from an outsider and a certificate to that effect needs to be obtained from the man. The person carrying the muddamal to the FSL and who bring it back also needs to be cited as witnesses. There appears to be serious lapse as there is nothing to suggest that, muddamal had been handed over to the PSO as PW4 who was a part of the raiding party team himself had prepared the muddamal receipt and he had registered the offence in the station diary. He continued to retain the muddamal and the samples prepared from it till the same were handed over to Mr.Polra on dt.12-06-2001 in the morning. He is not sure as to from whom he had taken the charge and to whom he had handed over. The said register, according to him is in the custody of Dy.S.P. Gandhinagar. This officer has not noted it down in any register. There is no muddamal register kept at Meghaninagar which according to him is kept at Gandhinagar but, he has not deposited t....
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....cers risking his own life. The Court also cannot be oblivious of the fact that, he was called as a witness from Vadodara Central Jail but, this line of defence is from two years before when the evidence of PW1 began. Moreover, it is about 3 to 4 times the Court was reported his presence and as the schedule of his examination quoted by the LA for the defence was for about 2 to 3 hours, his deposition needed to be postponed and only after his interview had been published, that he is alleged to have been involved in abetting the transaction of drug trafficking by NCB at Vadodara. As what essentially was the matter before the concerned Court within whose jurisdiction the alleged offence had been committed, this Court cannot regard those facts and as the informant has died during the pendency of this trial, his alleged confession u/s.67 of NDPS Act would hardly be of any use as he himself is not being tried in for the trial before learned Judge at Vadodara. Again his arrest was not by either SP Mr.Bhati or P.I. Mr.Polra of CID Crime so as to drive him to start the kind of crusade against them. The Court also cannot disregard the fact that there had been no criminal antecedent of the sai....
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....to his immediate superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But, if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. Likewise, Division Bench in case of Liming Bojang v. State of Maharashtra reported in 1996 (4) Crimes Pg.212 which is sought to be relied on by the defence where noncompliance of mandatory provisions of S.42 of the Act where prior information reduced in writing was not sent to the immediate superior official. The Bombay High Court held that the oral information sent to the superior officer could not be said a compliance of the provision. The Court held that the trial vitiated and conviction unsustainable. It is also held that the provisions of S.42 of the Act is mandatory and question whether any prejudice was caused to the accused on account of strict non-compliance of the provision was immaterial. In another decision relied upon by the defence reported in 1994 (3) Crimes Pg.1048 (H.P.) in cases of Tawarsu @ Kancho Baba v. State of H.P. the secret information which was received by the police was ....
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....se of Mohd. Alam Khan v. Narcotics Control Bureau the ownership and possession of premises by accused from which contraband articles were seized was not established and accused was acquitted on that ground. Here in the instant case also the ownership or the possession of the place from where the contraband article has been found is not proved to be that of the accused. Admittedly, it is said to be of one Punjabi who had been rented the said premises. Supreme Court has held s.42 to be mandatory and categorized the officers in three types i.e. as the Gazetted Officer who has received the information is not the same who had conducted the search and seizure and make an arrest and as s.42 (2) is held to be a mandatory provision. This takes this Court to another vital issue which is much debated of an offer s.50 of the Act. Firstly taking the legal aspect on this point, in the authority reported in 2003 SCC (Cri.) P.14 in the case of Vinod v. State of Maharashtra, it is held by the Apex Court that, police officer concerned cannot merely ask the accused whether he would like to be produced before an Executive Magistrate or Gazetted Officer. In absence of specifi....
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.... Court in 2000 Cri.L.J. Pg.817 Kalayath Nasar v. State of Kerala found that there is a non- compliance with s.50 as accused was not informed of his right to be searched before the Gazetted Officer or the Magistrate. Likewise, in 2000 Cri.L.J. 3181 - C. Ali v. State of Kerala there was no evidence before the Supreme Court that, the detenu was informed of his right to be searched in presence of Gazetted Officer or Magistrate and since, there was noncompliance of s.50. Bombay High Court in 2003 Cri.L.J. 1324 - Mohammed Ismail v. State of Maharashtra also held on the same line. In the instant case, he had been made an offer whether he wants to be examined by another Gazetted Officer or the Executive Magistrate. However, there has been no mention either in the panchnama or in the separate offer made in writing that it is his right to be examined by either of them and that is also one of the grounds. Of course, the witnesses have stated that they had been particularly communicated that it was their right but, substantiating documents are not there. Seizure of charas when was not reported to Magistrate, provision of S.102 & 103 was held directory, but substantial compliance there....