TaxTMI 
TaxTMI 
2024 (9) TMI 544
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.... originally convicted under Sections 29 read with 20(b)(ii)(c) and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act, 1985"). The Trial Court had sentenced her to ten years of rigorous imprisonment and fine of INR 30,000/- (Rupees Thirty Thousand only) for the charge under Section 29 read with Section 20(b)(ii)(c) of the NDPS Act, 1985 and in default, she had to undergo one year of simple imprisonment. No separate sentence was imposed under Section 25 of the NDPS Act, 1985. This sentence was subsequently modified by the High Court of Gujarat while partly allowing her appeal to the effect that her fine was enhanced to the minimum prescribed fine of INR 1,00,000/-(Rupees One Lakh only) and reduced the sentence in default of paying the fine from simple imprisonment of one year to simple imprisonment of three months. 2A. Abdul Hamid Chandmiya alias Ladoo Bapu (hereinafter referred to as "Accused No. 4") is the husband of Accused No. 1 who was originally convicted under Sections 29 read with 20(b)(ii)(c) of the NDPS Act, 1985 and sentenced to thirteen years of rigorous imprisonment and fine of INR 1,00,000/- (Rupees One Lakh on....
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....e found one bundle wrapped in newspaper which was fastened with a linen thread inside which a transparent plastic bag contained 2.098 kilograms of substance of which turned out to be charas. Thereafter, the necessary formalities were completed and Accused No. 1 and Accused No. 2 were arrested. Eventually, the panchnama was also recorded with two independent witnesses. 7. The statements of Accused No. 1 and Accused No. 2 were recorded under Section 67 of the NDPS Act, 1985 wherein it was stated that Accused No. 1 aids the business of drug trafficking as conducted by Accused No. 4 - who was absconding. Eventually, Accused No. 4 is also said to have been arrested on 26-6-2000 and per his statement under Section 67 of the NDPS Act, 1985 he had confessed to be transporting and selling the contraband which he sold regularly to Accused No. 5. 8. Eventually, the charges were framed and a total of five prosecution witnesses were examined with PW-01 being one of the panch witnesses, PW-02 to PW-04 being members of the raiding party, and PW-05 being the FSL expert. Per contra, the defence had examined a total of seven witnesses in their favour. 9. The trial of Accus....
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.... the Zonal Officer. Furthermore, it rejected the defence that the prosecution failed to prove documentary evidence as the defence did not raise any objection to the exhibiting of said documents, including arrest reports recorded in compliance of Section 57 of the NDPS Act, arrest memo of Accused No. 4 and Accused No. 1 and intimation given to the next kin of the accused persons. 12. The High Court of Gujarat was of the opinion that except two minor inconsistencies, namely, apropos who called the panchas and the recording of statement of Accused No. 2, there was no reason to question the veracity of the depositions of the members of the raiding party. Those minor fallacies in the statements of the prosecution witnesses do not go to the root of the matter. Thereafter, while acquitting Accused No. 2, the High Court believed that there was no evidence implicating him to the criminality involved. In the same breath, the Court observed that such finding of acquittal does not throw prosecution's case as against other accused persons, inter alia, Accused No. 1 and Accused No. 4, which is established beyond any reasonable doubts. 13. With respect to the objection that no i....
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....t out in Sections 41 to 44 of the NDPS Act, 1985 for the purpose of entry, search, seizure and arrest without warrants and for conducting of only an enquiry and not in the course of investigation. It is for the initiation of an investigation or enquiry under the NDPS Act, 1985 and it does not meet the threshold of a confessional statement. 16. It is submitted that the secret information received by Mrs. Chaube was only related to the auto-rickshaw wherein the Accused No. 4 was to be carrying the contraband - which was eventually seized. However, there existed no secret information apropos the house wherein the subsequent search/raid was conducted by the raiding party. The latter was totally out of the scope of the information received and recorded and thereby the search therein was absolutely illegal and in violation of the provisions of Section 42 of the NDPS Act, 1985. The Learned Counsel has further drawn our attention to the fallacies and inconsistencies in the panchnama recorded by the raiding party in addition to the depositions of the prosecution witnesses. 17. The Learned Counsel further relies on Darshan Singh v. State of Haryana - (2016) 14 SCC 358 which....
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....Singh v. State of Haryana, [2009] 8 SCC 539 : (2009) 3 SCC (Cri) 887] and the same will not be assumed, merely because the Station House Officer concerned had registered a first information report, which was also dispatched to the Superintendent of Police, in compliance with the provisions of the Criminal Procedure Code." 18. The aforesaid reference places its reliance on a judgment of the Constitution Bench of this Court, i.e., Karnail Singh v. State of Haryana - (2009) 8 SCC 539 which is also relied upon by the Learned Counsel for the appellants. It is a well celebrated judgment on the statutory requirement of writing down and conveying information to the superior officer prior to entry, search and seizure as per Section 42(1) and (2) of the NDPS Act, 1985, requiring a literal or substantial compliance. The Learned Counsel has brought our attention to paragraph Number 35 of the judgment at Page 554 which dealt with effect of the decisions in Abdul Rashid Ibrahim Mansuri v. State of Gujarat - (2000) 2 SCC 513 and that in Sajan Abraham v. State of Kerala - (2001) 6 SCC 692. By virtue of this, it was observed that while a total non-compliance of Section 42 of the NDPS Act, ....
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.... 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 writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001." 19. Per contra, the Learned Counsel for the Respo....
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....of the officer. 21. Furthermore, it is submitted that there has been a substantial compliance of Section 42(1) of the NDPS Act, 1985 as during the action being taken against the Accused No. 4 and his absconding therefrom, an emergent situation arose which necessitated the search in his house - which was nearby to the place where auto-rickshaw was abandoned. There was a grave possibility that if the Accused No. 4 was at his house then he might run away and/or if there was any further amount of contraband at his residence, he would have appropriated that as well. Thence, the raiding party had their hands tied down to necessarily carry out the said search at the house of Accused No. 4 in light of the ratio in Karnail Singh (supra) not necessitating literal compliance rather substantial compliance contingent on the facts of each case. 22. The Learned Counsel for the Respondent No. 2 further contends that the scope of Section 50 of the NDPS Act, 1985 is limited to the search on the person of an individual and does not include adherence to the search made on any premise(s). Reliance is placed on State of Himachal Pradesh v. Pawan Kumar - (2005) 4 SCC 350 wherein it was ....
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....he purpose to curtail the drug menace in the republic necessitated the comprehensive control in favour of the authorities. The same is well reflected in the decisions of this Court across the last couple of decades. Accordingly, the key provisions to be contemplated for the purpose of appraising the present factual matrix are Sections 41, 42 and 67 of the NDPS Act, 1985. The same are thereby analysed hereinafter. 26. Having heard the Learned Counsels for both the parties, we deem it appropriate to refer to the jurisprudence of Section 6 of the IEA, 1872. It is to be observed that it deals with relevancy of facts forming part of same transaction and therefore, it is crucial to refer the bare provision which reads as follows : "6. Relevancy of facts forming part of same transaction. - Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places." 27. This Court has laid down the test for "acts forming part of same transaction" in Gentela Vijyvardhan Rao and Anr. v. State of Andhra Pradesh - (1996) 6 SCC 24....
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....sation. - (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 paramilitary 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 VA of this....
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....onveyed to the immediate official superior prior to the said search or raid, in case of any inability to do so, the Section 42(2) of the NDPS Act provides that a copy of the same shall be sent to the concerned immediate official superior along with grounds of his belief as per the proviso hereto. This relaxation contemplated by virtue of Section 42(2) of the NDPS Act, 1985 was brought about through the Amendment Act of 2001 to the NDPS Act of 1985 wherein prior to this position, the Section 42(2) mandated the copy of the said writing to be sent to the immediate official superior "forthwith". 32. The decision in Karnail Singh (supra) has been extensively referred by the Learned Counsel for the appellants and at the cost of repetition, it is observed that absolute non-compliance of the statutory requirements under the Section 42(1) and (2) of the NDPS Act, 1985 is verboten. However, any delay in the said compliance may be allowed considering the same is supported by well-reasoned explanations for such delay. This position adopted by the instant 5-Judges' Bench of this Court is derived from the ratio in the decision in Balbir Singh (supra) which is a decision by a 3-Judges' B....
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....s of which had also been provided, had been received in the evening of 2-7-2007. PW 1 has further stated that on receipt of this information, he had formed a team and had moved to Raxaul from Patna, which place they had reached by 2.00 a.m. in the morning of 3-7-2007. The vehicle in question had been apprehended and the contraband seized at about 6.00 a.m. of 3-7-2007. No explanation has been offered why the statement had not been recorded at any anterior point of time and the same was so done after the seizure was made. 6. Even if we were to assume that the anxiety of the investigating officer was to reach Raxaul which is on the international border and therefore, he did not have the time to record said information as per requirement of Section 42 of the Act, the matter does not rest there. There are other suspicious circumstances affecting the credibility of the prosecution case. Though, the investigating officer has stated that he had moved to Raxaul along with a team and two independent witnesses, the said independent witnesses were not examined. No explanation is forthcoming on this count also. That apart from the materials on record it appears that no memos inc....
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....., while speaking for the Bench in Ramabora alias Ramaboraiah & Anr. v. State of Karnataka - (2022) SCC OnLine SC 996 referred to the mythological Swan, Hamsa and drew an analogy with the following observations made in the decision in Arvind Kumar alias Nemichand & Ors. v. State of Rajasthan - (2021) SCC OnLine SC 1099 : 49. The principle that when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have strict application to the criminal jurisprudence in our country. The principle governing sifting the chaff from the grain has to be applied. However, when the evidence is inseparable and such an attempt would either be impossible or would make the evidence unacceptable, the natural consequence would be one of avoidance. The said principle has not assumed the status of law but continues only as a rule of caution. One has to see the nature of discrepancy in a given case. When the discrepancies are very material shaking the very credibility of the witness leading to a conclusion in the mind of the court that is neither possible to separate it nor to rely upon, it is for the said court to either accept or reject. 39. It becomes d....
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....ken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence 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 place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42." 41. In the instant case, we are primarily affected by virtue of the....
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.... Additionally, such knowledge or information is required to be reduced into writing by virtue of expression "and taken in writing" used therein. 43. The Learned Counsel of the Respondent No. 2 presents an alternate argument that the expressions "personal knowledge" and "and taken in writing" contemplated by Section 41(2) of the NDPS Act, 1985 ought to be read disjunctively, thereby eliminating the requirement of taking down information in writing when it arises out of the personal knowledge of the Gazetted Officer. We are not inclined to accept this interpretation. The position for recording the reasons for conducting search and seizure are well established through the ratio in paragraph Number 25(2C) in Balbir Singh case (supra) as mentioned below : "(2C) 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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....cused No. 4. Mr. Tomar, on one hand in his testimony admits that the officers of raiding party together decided to conduct raid at the house of Accused No. 4 post recovery from the auto-rickshaw, however, on the other hand admits of having knowledge of the residential address of Accused No. 4 from the secret information. However, Mr. Tomar nowhere in his depositions stated that he proceeded to conduct raid at the house on his personal knowledge. 46. From the aforementioned, we are of the view that the raid/search conducted at the house of the Accused No. 1 and Accused No. 4 was not based on the personal knowledge of Mr. Tomar, rather it was an action on the part of raiding party bereft of mandatory statutory compliance of Section 41(2) of the NDPS Act, 1985. 47. Furthermore, even if the Learned Counsel for the Respondent No. 2 would justify the raid at the house on account of "reason to believe from .... information given by any person and taken down in writing" as per Section 41(2) of the NDPS Act, 1985, still the prosecution is not able to establish its case beyond reasonable doubts. Because the secret information, as received by Mrs. Chaube in the present facts....
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.... case of Tofan Singh (supra). As per the majority verdict delivered by 3-Judges' Bench in this case has held that the powers conferred on the empowered officers under Sections 41 and 42 of the NDPS Act, 1985 read with Section 67 of the NDPS Act, 1985 are limited in nature conferred for the purpose of entry, search, seizure and arrest without warrant along with safeguards enlisted thereof. The "enquiry" undertaken under the aforesaid provisions may lead to initiation of an investigation or enquiry by the officers empowered to do so either under Section 53 of the NDPS Act, 1985 or otherwise. Thus, the officers empowered only under the aforesaid provisions neither having power to investigate nor to file a police report meet the test of police officer for the purpose of Section 25 of the IEA, 1872. Consequently, the bar under Section 25 of the IEA, 1872 is not applicable against the admissibility of confessional statement made to the officers empowered under Sections 41 and 42 of the NDPS Act, 1985. 51. Furthermore, it was also held by this Court that Section 67 is at an antecedent stage to the investigation, which occurs after the empowered officer under Section 42 of the NDP....