TaxTMI 
TaxTMI 
TaxTMI 
2019 (9) TMI 566
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....with patrolling duty. When the police party reached near bridge canal, village Baje Chack, the Investigating Officer received a secret information that Sukhdev Singh alias Sonu used to sell intoxicant substance in large quantity and he was coming from village Aujla side. Recovery could be effected if Naka was laid. One clean shaven man holding a glazed envelop in his right hand was seen coming from Aujla by pass side. He tried to run away. He was apprehended. The Investigating Officer told him that he suspected that he was in possession of some intoxicant substance. He also apprised him of his legal right to be searched from the gazetted officer. He prepared his non-consent memo. He informed the DSP Sh.Navjot Singh. DSP Navjot Singh reached the spot within 20 minutes. He introduced himself to the accused. He apprised the accused of his legal right to get searched from him or gazetted officer. Accused gave his consent. DSP prepared the consent memo. The Investigating Officer made search of the accused. Intoxicant powder was recovered from the glazed envelope. The Investigating Officer took out two samples of 10/10 grams. Rest was weighed. It came to 2 kg. 100 grams. The Investigatin....
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....SP put their seals on the samples and bulk. He sent ruqa Ex.PF on the basis of which formal FIR Ex.PG was registered. He also prepared rough site plan Ex.PJ. He kept the case property intact in double lock. Accused was put behind the bar. Next day he produced accused before the Illaqa Magistrate. He also moved application for verification of the case property. Illaqa Magistrate passed the order Ex.PN. Inventory list is Ex.PM. He deposited the bulk container and one sample in judicial malkhana. One sample was kept in double lock intact. He took out the sample out of double lock on 01.08.2012. He handed over the same to PHC Tarsem Singh. He deposited the same in the office of Chemical Examiner, Kharar. In his crossexamination, he admitted that whenever the case property was deposited in the police station, entry was required to be made in the DDR register and register no.19. He also admitted that there was no number of the register no.19, i.e. malkhana number on case property, i.e. MO-1 and MO-2. He also admitted that case property MO-1 and MO-2 did not bear the signature of the Judicial Magistrate. He further deposed in the cross-examination that no Magistrate was called on the spot....
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....cused was not apprised of his legal right of nature of search or meaning of gazetted officer of various departments or Magistrate. The Investigating Officer was carrying the weighing machine which was traditional. 11. DW-2 Baljit Singh deposed that he was a Member Panchayat of village Aujla. On 26.07.2012 he was present in his house. The mother of accused sent message with a request to come to her house as two police officials had come to her house. At about 6.00/6.30 A.M. he went to the house of accused Sukhdev Singh. Sarpanch, Member Panchayat and other members of Panchayat were present. Two officials were present in civil dress. They told that SSP, Gurdaspur had called Sukhdev Singh. When they asked them to produce him at their own. In the meantime, two police vehicles came there. The house of Sukhdev Singh was searched. Police party forcibly took away Sukhdev Singh. In his cross-examination, he deposed that house of accused was at a distance of 3 killa from his house. He was on visiting terms with the accused being co-villager. 12. DW-3 Ramesh Lal also deposed that he was Sarpanch of village Aujla. On 26.07.2012 he was present in his house. The mother of accused called him ....
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.... Act. Section 42 of the NDPS Act requires recording of reasons of belief and for taking down of information received in writing and the same is to be sent to the superior officers. There is no evidence that information was reduced into writing and superior officer was informed. 20. Their Lordships of the Hon'ble Supreme Court in State of Punjab vs. Balbir Singh, (1994) 3 Supreme Court Cases 299 have held as under:- "(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or 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 a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect th....
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....ed under sub-section (1) of the said section; second is reporting of the information reduced to writing to a higher officer in consonance with sub-section (2) of that section. Subsection (2) of Section 42 had been a matter of judicial interpretation as well as of legislative concern in the past. Sub-section (2) was amended by the Parliament vide Act 9 of 2001 with effect from 2nd October, 2001. After amendment of this sub-section, the word 'forthwith' stood amended by the words 'within seventy two hours'. In other words, whatever ambiguity or leverage was provided for 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 seventy two 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 ac....
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....in consonance with the law stated by this Court in the case of Karnail Singh." 23. Their Lordships of the Hon'ble Supreme Court in Darshan Singh vs. State of Haryana, (2016) 14 Supreme Court Cases 358 have held that Section 42(1) 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 belief. In the circumstances contemplated under Section 42 of the NDPS Act the mandate of the procedure contemplated under Section 42(1) and Section 42(2) will have to be followed separately,in the manner interpreted by the Supreme Court in Karnail Singh, (2009) 8 SCC 539. Their Lordships have held as under:- "13. Having given our thoughtful consideration to the submission advanced at the hands of learned counsel for the respondent, we are of the vie....
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....ial to support the findings of the High Court regarding non- compliance of Section 42(1) and Section 42 (2) and whether Section 43 was applicable in the present case are the other issues which need to be answered. Whether recovery as claimed by the prosecution is supported from the evidence on record and material and samples were properly sealed are other related issues. 10. The NDPS Act was enacted to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. This Court had occasion to consider the provisions of NDPS Act in large number of cases. This Court has noted that the object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. This Court in State Of Punjab vs Balbir Singh, 1994 (3) SCC 299, in paragraph 15 has made the following observations: "15.....The object of NDPS Act is to m....
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....ny 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 personal 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 V A of this Act is kept or con....
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..... P-21, the information given by the informer which is stated to be recorded in the Rozanamacha, copy whereof has been sent to C.O. Nohar, who was the then Senior Officer, rather, Exh. P-15, the letter which was sent, it is not the copy of Exh. P-14, but it is the separate memo prepared of their own. From the above examination, it is not found in the present case that section 42 (2) of Act, 1985 is complied with." 14. What Section 42(2) requires is that where an officer takes down an information in writing under sub-Section (1) he shall sent a copy thereof to his immediate officer senior . The communication Exh. P-15 which was sent to Circle Officer, Nohar was not as per the information recorded in Exh. P 14 and Exh. P 21. Thus, no error was committed by the High Court in coming to the conclusion that there was breach of Section 42(2). 15. Another aspect of non-compliance of Section 42(1) proviso, which has been found by the High Court needs to be adverted to Section 42 (1) indicates that any authorised officer can carry out search between sun rise and sun set without warrant or authorisation. The scheme indicates that in event the search has to be made between sun set and su....
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....f any warrant or authority to search such a vehicle. The High Court has reversed the above findings of the Special Judge. We thus, proceed to examine as to whether Section 43 was attracted in the present case which obviated the requirement of Section 42(1) proviso. 17. Section 43 of the Act is as follows: "43. Power of seizure and arrest in public place.- Any officer of any of the departments mentioned in section 42 may (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act 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 V A of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable und....
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....also served upon him by the police, he with a view to save himself, can also depose such statement that Kartara used to use the jeep as Public Transport Vehicle , whereas Kartara Ram PD-5 does not affirm this fact. Jeep was personal, it is clear on the record. In this manner, just on this ground that he has given the jeep to his brother-in-law and he used it to carry the passengers, the personal jeep could not be treated as public transport vehicle. However, the fact that jeep is used to carry the passengers has not been affirmed from the statements of Kartara Ram. There is no evidence on record on the basis of which it could be stated that jeep was public transport vehicle and they have the permit for it, rather it was the private vehicle and it is stated that Vira Ram himself is the owner of that vehicle" 21. There is nothing to impeach the aforesaid findings. We have also perused the statement of Vira Ram in which statement he has never even stated that he has any permit for running the vehicle as transport vehicle. He has stated that "..... I had given this jeep to Kartara Ram resident of ...... who is my relative to run it for transporting passengers" Admittedly the jeep....
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....where Section 43 can be said to have been attracted, hence, non-compliance of Section 42(1) proviso and Section 42(2) had seriously prejudiced the accused. This Court had occasion in large number of cases to consider the consequence of non- compliance of provisions of Section 42(1) and 42 (2), whether the entire trial stand vitiated due to above non compliance or conviction can be set aside. In this context reference is made to the judgment of this Court in State of Punjab Vs. Balbir Singh (1994) 3 SCC 299. In the above batch of cases, the High Court has acquitted accused on the ground that search was conducted without conforming to the provisions of the NDPS Act. Sections 41,42, 43 and other relevant provisions came up for consideration before this Court, referring to the provisions of Chapter IV following was stated in paragraph 8: "8. But if on a prior information leading to a reasonable belief that an offence under Chapter IV of the Act has been committed, then in such a case, the Magistrate or the officer empowered have to proceed and act under the provisions of Sections 41 and 42. Under Section 42, the empowered officer even without a warrant issued as provided under Secti....
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....r such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal. (2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or 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 a warrant ....
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....he trial. After being so informed whether such person opted for such a course or not would be a question of fact. (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case." 25. A three Judges Bench in Saiyad Mohd. Saiyad Umar Saiyed vs. The State Of Gujarat(supra) after elaborate consideration of provisions of the NDPS Act including section 50 had endorsed the judgment of this court in Balbir Singh's case (supra). 26. A Constitution Bench of this Court in State of Punjab Vs. Baldev Singh, had occasion to consider the provisions of the NDPS Act and several earlier judgments of this Court. The Constitution Bench noticed that the earlier judgments in Balbir Singh's case has found approval by three Judges Bench in Saiyad Mohd. Saiyad Umar Saiyed vs. The State Of....
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.... 1 to 3 of the judgment which are to the following effect: "1) In the case of Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, (2000) 2 SCC 513, a three- Judge Bench of this Court held that compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act") is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused. In the case of Sajan Abraham vs. State of Kerala, (2001) 6 SCC 692, which was also decided by a three-Judge Bench, it was held that Section 42 was not mandatory and substantial compliance was sufficient. 2) In view of the conflicting opinions regarding the scope and applicability of Section 42 of the Act in the matter of conducting search, seizure and arrest without warrant or authorization, these appeals were placed before the Constitution Bench to resolve the issue. 3) The statement of objects and reasons of the NDPS Act makes it clear that to make the scheme of penalties sufficiently deterrent to meet the challenge of well organized gangs of smugglers, and to provide the officers of a number of i....
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....ection 50 of the NDPS Act is mandatory. 26. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan v. Parmanand and another, (2014) 5 SCC 345, have held that there is a need for individual communication to each accused and independent consent by each accused under Section 50 of the Act. Their Lordships have also held that Section 50 does not provide for third option. Their Lordships have also held that if a bag carried by the accused is searched and his personal search is also started, Section 50 would be applicable. Their Lordships have held as under: "15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have applicatio....