Chattisgarh High Court
Bholaram & Ors vs State Of Chhattisgarh on 7 June, 2017
Bench: Manindra Mohan Shrivastava, Sanjay Agrawal
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 123 of 2011
1. Bholaram S/o Chamar Singh Barla, aged 24 years, R/o Vil. Dhebakhar, P.S.
Kasdol, District Raipur (CG)
2. Kamal Singh Diwan S/o Nankiram Kanvar, Aged 30 years, R/o Vil. Dheba,
P.S. Kasdol, Distt.-Raipur, (C.G.)
3. Sufal Kolta S/o Nishamani Kolta, aged 27 years, R/o Vil. Gajradih, P.S. Kasdol,
Distt.-Raipur, (C.G.)
4. Rajesh Kumar Pandey S/o Bachcha Pandey, aged 35 years, R/o Vil. Jhalap,
P.S.-Pithoura, Distt.-Mahasamund, (C.G.)
---- Appellants
Versus
State Of Chhattisgarh, through P.S. Baghbehra, Dist. Mahasamund
---- Respondent
For Appellants : Shri Vikas Pradhan, Advocate
For State : Shri Adil Minhaj, Panel Lawyer
Hon'ble Shri Manindra Mohan Shrivastava, J.
Hon'ble Shri Sanjay Agrawal, J.
Order On Board Per Manindra Mohan Shrivastava, J.
07/06/2017
1. This appeal is directed against the judgment of conviction and order of sentence dated 15.11.2010 passed by the Special Judge, Narcotic Drugs and Psychotropic Substances Act, Mahasamund in Special Criminal Case No. 5 of 2010, whereby and whereunder the appellants have been held guilty for commission of the offences and sentenced as described below: -2-
CONVICTION SENTENCE U/S 20(b)(ii)(c) of the NDPS Act, Rigorous imprisonment for 12 years and 1985 fine of Rs. 1,20,000/-. In default of payment of fine, to further undergo rigorous imprisonment for one year to each of the appellants.
2. The prosecution story revealed from the impugned judgment and the records of the case before us is that on 20.06.2010, an information was received at 6:30 am in the Police Station, Bagbahara from the secret informant that contraband Ganja is being transported from Odisha border to Jhalap in a vehicle of make Bolero, bearing registration No. CG-04-H-0538. Upon receipt of the said information, the same was recorded in the Rojnamchasanha of the police station, telephonic information was sent to the Sub Divisional Officer (Police) Mahasamund, witnesses namely Sikandar Siddique and Ashok Kumar were summoned by notice, information in writing was sent at 7:30am to the SDO(P), Mahasamund at 7:30 am through Constable No. 162, vide Exhibit P-22 and thereafter with the accompanying staff, witnesses, weighing machine, Sub Inspector, Kumar Singh Usendi (PW-3) proceeded towards forest barrier where the vehicle was likely to be intercepted. Further case of the prosecution is that at the barrier, the said vehicle was found, intercepted and upon suspicion that the vehicle was carrying contraband Ganja, four accused including driver were informed of their rights to be searched by a gazetted officer or a Magistrate under Section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter called 'the Act') and after obtaining their consent for being searched by the the Sub Inspector (PW-3), in the presence of the witnesses, the vehicle and the persons were searched. It -3- is the case of th prosecution that from the vehicle, a total quantity of 207 Kgs of Ganja kept in 16 bags was found. According to the case of the prosecution, weighment was done at the spot and a Panchnama was prepared in the presence of the witnesses. From each of the bags, samples were drawn. The samples, as well as the entire quantity of contraband was sealed. After completion of the proceedings of search and seizure at the spot, PW-3 had taken the accused appellants to the police station where formal FIR (Ex. P-23) was registered by him. The statements under Section 161 CrPC were recorded. Ganja was kept in the Malkhana of the Police Station and samples were sent to the FSL. Further case of the prosecution is that upon examination, the FSL confirmed presence of Ganja. Charge sheet was filed before the Special Judge on the basis of materials contained in the charge sheet. The appellants were charged of having committed an offence under Section 20(b)(ii)(c) of the Act. They abjured guilt and demanded trial. The appellants having abjured guilt, were subjected to trial.
3. In order to prove its case, the prosecution examined as many as 6 witnesses. The appellants were separately examined under Section 313 CrPC in respect of incriminating evidence and circumstances appearing against them led by the prosecution. The appellant denied having committed any offence and stated that they have been falsely implicated. No defence witness was examined. On the basis of oral an documentary evidence led by the prosecution, the learned Special Judge held the charges proved against the appellants of having been possessed of 207 Kgs of Ganja. It being more than 20 Kgs, thus commercial quantity, sentence of 12 years rigorous imprisonment with fine as described above has been imposed.
4. Assailing the correctness and validity of the impugned judgment of conviction -4- and order of sentence, learned counsel for the appellants raised the following submissions:
(a) The vehicle of the accused are alleged to have been intercepted, searched and Ganja alleged to be seized by Kumar Singh Usendi (PW-3) at the spot and then brought to the police station where he as the first informant registered the FIR (Ex.P-23). The first informant, police officer himself assumed the role of the Investigating Officer by drawing further proceedings of investigation after registration of FIR, therefore, the entire investigation and the consequential trial and conviction are vitiated. Reliance has been placed upon the decision of the Supreme Court in the case of State v. Rajangam {(2010) 15 SCC 369}.
(b) The two independent seizure witnesses Ashok Kumar (PW-1) and Sikandar Siddique (PW-4) have not supported the case of the prosecution in respect of any of the proceedings including search, seizure etc. This clearly shows that the entire case of the prosecution is a concocted story and is a case of false implication.
(c) The conviction of the appellants is vitiated on account of violation of the mandatory provisions contained in Section 50 of the Act inasmuch as the notice was not proper as it was a joint communication which is not permissible under the law. Each of the appellant was entitled to individual notice of his right to be searched by a gazetted officer or by a Magistrate. Therefore, Section 50 of the Act has been violated and consequently, the conviction of the appellants. Reliance has been placed on the decision of the Supreme Court in case of State of Rajasthan v. Parmanand {(2014) 5 SCC 345}.-5-
(d) There is serious violation of mandatory provisions contained in Section 42 of the Act inasmuch as the information as required under Section 42(2) of the Act was not sent in the manner prescribed under the law. A copy of Rojnamchasanha which contained the Mukhbir information was not sent but instead a separate letter of information as contained in Ex. P-22 was sent which cannot be said to be substantial compliance of the legal requirements of sending a copy of the information under the law. Reliance has been placed upon the decision of the Supreme Court in State of Rajasthan v. Jag Raj Singh @ Hansa {(2016) 11 SCC 687}.
(e) There is utter violation of the mandatory provisions contained in Section 57 of the Act inasmuch as the information, as required under the law, was not sent for 18 days whereas according to law, full and complete information/report of the case prepared against the appellants was required to be sent within a period of 72 hours. This having not been done, the entire case of the prosecution becomes highly doubtful.
5. Per contra, learned State counsel supports the judgment of conviction and order of sentence and submits that upon receipt of the information from the Mukhbir, the same was duly recorded in the Rojnamchasanha in the police station and a telephonic information was given to the SDO(P), Mahasamund, followed immediately by a written communication sent to the SDO(P) through constable Resham Rai Choudhary, vide Ex. P-22. Therefore, this fulfills the requirement of Section 42(2) of the Act. It is next submitted that the police officer (PW-3), upon receipt of the information, reached the spot alongwith the witnesses and other police officials and the vehicle as well as the person of the -6- appellants were duly searched only after full compliance of provisions of Section 50 of the Act and upon search, huge quantity i.e. 207 Kgs of Ganja was found in the vehicle in which the appellants were travelling. He submits that there is no requirement that the information of the right under Section 50 of the Act has to be in writing , but it could be orally informed also which was duly done. He submits that merely because one single Panchnama of information was prepared and their consent were recorded and signatures obtained, it cannot be said that the appellants were not informed individually and separately but jointly. The further contention of the learned State counsel is that in any case, violation of Section 50 of the Act, even if it is assumed for the sake of argument that Section 50 of the Act was violated, it will not invalidate the search and seizure of contraband which was actually found kept in the vehicle as for such search and seizure, Section 50 of the Act was not required to be followed. According to the State counsel, the rigour of Section 50 of the Act would be applicable only when a person is required to be personally searched in his body and not when some other bag or container kept elsewhere is to be searched. Therefore, as a necessary corollary, in the absence of there being any case of narcotic found in the person searched, violation of Section 50 of the Act would not vitiate the investigation.
6. Next submission of the learned State counsel is that in the presence of witnesses, complete proceedings of search and seizure were prepared and the officer (PW-3) had taken the accused to the police station and then formally registered the FIR. All subsequent proceedings of investigation were very formal in nature and that would not vitiate the proceedings because the proceedings of search and seizure had already been taken. Therefore, to that extent, the decision of the Supreme Court cited above, would be -7- distinguishable. Learned State counsel further argued that even though the seizure witnesses have not supported the case of the prosecution, the evidence of the Investigating Officer (PW-3) being reliable, coherent, not suffering from any material contradiction and omission, could validly be made basis to convict the appellants on the basis of seizure of contraband from the vehicle in which the appellants were traveling. Lastly, it is submitted that the provisions contained in Section 57 of the Act are only directory in nature and it is not a case of total non-compliance. Though, belatedly, complete information, as required under Section 57 of the Act, was sent to the higher officer and in absence of any prejudice caused to the appellants, it cannot be said that the trial is vitiated only on this count.
7. We have heard learned counsel for the parties and perused the record.
8. Kumar Singh Usendi (PW-3) Sub Inspector has deposed in his examination before the Court that while he was posted and working as such in Police Station, Bagbahara, he received a Mukhbir information at 06.30 morning on 20.06.2010 regarding transportation of ganja in a vehicle, Bolero C.G. 04 H 0538, moving from Odisha to Jhalap. He further states that upon receipt of this information, he informed the SDO(P) Mahasamund on telephone and called two witnesses and thereafter, prepared a report in Ex.P-22, which was forwarded through a constable to the Superintendent of Police, Mahasamund and then he proceeded to spot where, according to the Mukhbir information, ganja was likely to be found. This very witness of the Police who has been examined as Investigating Officer in this case has stated that at the spot, he intercepted the vehicle, carried out search, seized ganja and thereafter, he brought the accused, seized ganja and other documents prepared at the spot, to the Police Station. In paras 1 to 8 of his examination-in-chief, this witness -8- has stated regarding complete proceedings of search and seizure drawn by him. In para 9 of his deposition, this witness has further deposed that he brought the accused persons, seized vehicle, contraband to the police Station, Bagbahara and registered FIR under crime No. 186 of 2010 for alleged commission of the alleged offence under Section 20(b)(ii)(c) of the Act on 20.06.2010 at 10:30 hours. Thus, according to this witness, he was the first informant. Till this stage, he acted as an informant by submitting necessary information as also submitting the accused persons for being arrested for the alleged commission of the offence.
9. Later on, this very witness assumed the role of the Investigating Officer which is clearly manifest from what he has deposed in his evidence from para 10 onwards. This witness sent information to the Magistrate, effected arrest of the accused persons, prepared arrest memo, examined the accused making necessary entries in the case diary, recorded case diary statement under Section 161 CrPC of all the witnesses, prepared spot map, sent seized articles to the Malkhana and samples drawn to the FSL and after completion of usual investigation he proceeded to file charge sheet also. The detailed examination and cross-examination of this witness leaves no manner of doubt that having lodged the FIR, he then assumed the role of the Investigating Officer of the present case and the entire investigation was done by PW-3 only. There is no material on record nor it is the case of the prosecution that the investigation was conducted by an officer of the same police station other than the one who submitted the information. If this overwhelming evidence is taken into consideration, it is clear that the police officer who submitted the information leading to recording of a formal FIR in the police station himself became the Investigating Officer and carried out the entire investigation. If that be so, we -9- have no hesitation to hold that in view of the decision of the Supreme Court in the case of Rajangam (supra), the investigation and the consequential trial and conviction, both are vitiated. In the decision of the Supreme Court referred to above, it was found that the Inspector of Police, having received information regarding transportation of the contraband articles, proceeded in the same manner as was done by PW-3 in the present case. He was one of those officers who had gone to the spot to apprehend the accused and carry out search and seizure of contraband which was found in a bag alleged to be in possession of the accused. He was the officer who brought the accused to the police station and then conducted investigation. He was the officer who questioned the witnesses and recorded their statements. He was also the officer who had sent the report to the superior officer under Section 57 of the Act. In this factual background, challenge to the legality and validity of the trial and conviction was examined by the Supreme Court as below:
"6. The accused preferred an appeal before the High Court. It was submitted on behalf of the accused before the High Court that the officer who had registered the crime in the case, also investigated the said crime. It was also submitted that the crime was registered by P.W.6 and that the case was also investigated by him. According to the submission advanced on behalf of the accused, the crime ought to have been investigated by another independent officer and not by P.W.6. The High Court found substance in this submission made on behalf of the accused and acquitted the accused.
7. Aggrieved by the said judgment of the High Court, the State, through Inspector of Police, NIB, Madurai, Tamil Nadu, preferred a special leave petition under Article 136 of the Constitution before this Court. This Court granted leave on 29.8.2002.
8. The short question which falls for consideration of this Court is whether P.W.6 who registered the crime could have investigated the case or an independent officer ought to have investigated the case.
9. The learned counsel appearing for the accused submitted that the controversy involved in this case is no longer res -10- integra. In Megna Singh v. State of Haryana (1996) 11 SCC 709, this Court has taken a categorical view that the officer who arrested the accused should not have proceeded with the investigation of the case. The relevant paragraph reads as under:
"4. ........ We have also noted another disturbing feature in this case. P.W.3, Sri Chand, Head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."
10. The ratio of Megna's case has been followed by other cases.
11. In another case in Balasundaran v. State 1999 (113) ELT 785 (Mad), in para 16, the Madras High Court took the same view. The relevant portion reads as under:
"16. Learned Counsel for the appellants also stated that P.W. 5 being the Inspector of Police who was present at the time of search and he was the investigating officer and as such it is fatal to the case of the prosecution. P.W. 5, according to the prosecution, was present with PWs 3 and 4 at the time of search. In fact, P.W. 5 alone took up investigation in the case and he had examined the witnesses. No doubt the successor to P.W. 5 alone had filed the charge sheet. But there is no material to show that he had examined any other witness. It therefore follows that P.W. 5 was the person who really investigated the case. P.W. 5 was the person who had searched the appellants in question and he being the investigation officer, certainly it is not proper and correct. The investigation ought to have been done by any other investigating agency. On this score also, the investigation is bound to suffer and as such the entire proceedings will be vitiated."
12. In this view of the legal position, as crystallized in Megna Singh's case (supra), the High Court was justified in acquitting the accused. We see no infirmity in the view which has been taken by the High Court in the impugned judgment. In our considered view, no interference is called for. The appeal, being devoid of any merit, is accordingly dismissed."
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10. The aforesaid decision of the Supreme Court which was rendered in almost identical circumstances taking into consideration that the officer who in the beginning acted as the informant, assumed the role of the Investigating Officer, conviction was held illegal. Therefore, in the present case, where on facts, it has been found that the officer (PW-3) who was the first informant assumed the role of the Investigating Officer, it certainly vitiated investigation, trial and consequently, the conviction of appellants.
11. There is yet another argument raised by learned counsel for the appellants which also has vitiating effect and that is relating to violation of Section 50 of the Act. The evidence of PW-3, read alongwith consent letter (Sahmati Patra) (Ex. P-3) shows that the memorandum of consent was prepared in respect of all the accused persons which on being read as it is, only reveals that the exercise undertaken by the officer was a joint communication of the right of each of the accused to be searched by a gazetted officer or a Magistrate communicated orally and thereafter a joint consent of all of them alongwith their signatures endorsed in the consent letter. The evidence of PW-3 does not show that the communication of right to be searched was made individually and separately followed by preparation of document being memorandum of communication of such right and consent. The evidence read with this document only leads to the conclusion that it is the case where even according to the prosecution, the accused persons were jointly communicated of their right and their consent obtained therein.
The vitiating effect of such a joint communication was considered by the Supreme Court in the case of Parmanand (supra). It was held in para 14 as under:
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"14. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated."
12. The observations made by the Supreme Court in the aforesaid decision clearly underlines the statutory purpose behind the communication of right available to the accused under Section 50(1) of the Act. It has been held that as offence under the Act carry stringent punishment, the prescribed procedure has to be meticulously followed. The Supreme Court emphasized that these are minimum safeguards available to an accused against the possibility of false involvement. Therefore, the communication of this right guaranteed under Section 50(1) of the Act has to be clear, unambiguous and individual. The -13- aforesaid decision clearly applies to the facts and circumstances of the present case and for that reason also, we hold that the impugned judgment cannot be sustained.
13. Learned counsel for the State strenuously urged to convince us by submitting that in the present situation where the case of the prosecution is not based on recovery from bodily search of the accused but only from the vehicle in which they were travelling, violation of Section 50 of the Act by itself, would not invalidate the proceedings of seizure of Ganja from the vehicle. According to him, Section 50 of the Act has no application when the search is not on the person of the accused. Therefore, as a corollary to it, where the case of the prosecution is not based on recovery from the search of the person, but from the vehicle, the violation will not vitiate the seizure and ultimately the conviction once such seizure is proved by reliable evidence. We are afraid, we can not accept submission of the learned State counsel in view of authoritative pronouncement by the Supreme Court dealing with exactly similar situations as in the present case in the case of Parmanand (supra). That was a case where opium was seized from a bag which was alleged to have been carried by accused-Parmanand (Respondent No. 1 therein). Parmanand was bodily searched but nothing was recovered from his bodily search though opium was found in a bag which was being carried by him. However, the Supreme Court was of the view that even though nothing was found in the personal search, since the accused was searched bodily without compliance of Section 50(1) of the Act, the recovery and seizure of contraband (opium) would be vitiated. We come to the said conclusion as Their Lordships in the Supreme Court relied on their earlier decision in the case of Dilip v. State of Madhya Pradesh {(2007) 1 SCC 450} and Union of India v. Shah Alam {(2009) 16 SCC 644}. -14-
14. The discussion which preceded the conclusion is found contained in para 9, 10 and 11 of the judgment of the Supreme Court which is being abstracted hereinbelow:
"9. In this case, the conviction is solely based on recovery of opium from the bag of respondent No.1 - Parmanand. No opium was found on his person. In Kalema Tumba v. State of Maharashtra, 1998 8 SCC 257, this Court held that if a person is carrying a bag or some other article with him and narcotic drug is recovered from it, it cannot be said that it was found from his person and, therefore, it is not necessary to make an offer for search in the presence of a gazetted officer or a Magistrate in compliance of Section 50 of the NDPS Act. In State of Himachal Pradesh v. Pawan Kumar[2005 (4) SCC 350], three- Judge Bench of this Court held that a person would mean a human being with appropriate coverings and clothing and also footwear. A bag, briefcase or any such article or container etc. can under no circumstances be treated as a body of a human being. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the NDPS Act. The question is, therefore, whether Section 50 would be applicable to this case because opium was recovered only from the bag carried by respondent No.1 - Parmanand.
10. In Dilip & Anr. v. State of Madhya Pradesh[2007 (1) SCC 450], on the basis of information, search of the person of the accused was conducted. Nothing was found on their person. But on search of the scooter they were riding, opium contained in plastic bag was recovered. This Court held that provisions of HYPERLINK "https://indiankanoon.org/doc/961083/"Section 50 might not have been required to be complied with so far as the search of the scooter is concerned, but keeping in view the fact that the person of the accused was also searched, it was obligatory on the part of the officers to comply with the said provisions, which was not done. This Court confirmed the acquittal of the accused.
11. In Union of India v. Shah Alam[2009 (16) SCC 644], heroin was first recovered from the bags carried by the respondents therein. Thereafter, their personal search was taken but nothing was recovered from their person. It was urged that since personal search did not lead to any recovery, there was no need to comply with the provisions of Section 50 of the NDPS Act. Following Dilip, it was held that since the provisions of Section 50 of the NDPS Act were not complied with, the High Court was right in acquitting the respondents on that ground."-15-
15. Having so considered, the matter on facts and earlier decisions, it was then held "12. 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 application.
13. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before a nearest gazetted officer or a nearest Magistrate or before PW-5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in Baldev Singh, it is not necessary to inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally communicated to him.
But, in this case, there was no individual communication of right. A common notice was given on which only respondent No.2 - Surajmal is stated to have signed for himself and for respondent No.1 - Parmanand.
Respondent No.1 Parmanand did not sign."
16. It would thus be clear that even in a case where nothing is found in a bodily search, if the provisions of Section 50 of the Act have been found to be violated, it will have vitiating effect on the entire proceedings which may incidentally include seizure from the bag alleged to have been carried by the accused. We therefore unhesitatingly reach to the conclusion that in the present case also, entire seizure is vitiated due to violation of the mandatory provisions of Section 50 of the Act.
17. Insofar as alleged violation of Section 42 of the Act is concerned, we do not think that there is any such material violation or deviation from the mandate of -16- law as embodied under Section 42 of the Act. The requirement of law as manifest from reading of Section 42 of the Act is that where an officer takes down any information under sub-section (1) of Section 42 of the Act, or records grounds for his believe under the proviso, he is required to send a copy thereof to his immediate official superior within 72 hours. The aforesaid provision came up for consideration before a Constitution Bench of the Supreme Court in the case of Karnail Singh v. State of Haryana {(2009) 8 SCC 539} . The conclusion arrived at after survey of earlier decisions was as below:
"35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 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 concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of HYPERLINK "https://indiankanoon.org/doc/855593/"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 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 -17- reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-
sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of 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 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."
18. The aforesaid decision has set at rest the legal position and it is no longer res integra that though non-compliance of provisos of sub-section(1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory reasons would be acceptable compliance of Section 42 of the Act. In the present case, non-compliance is alleged not on the ground of any unexceptional delay but the ground that the copy of the Rojnamchasanha which contained the information received was not forwarded but instead a communication separately incorporating the information received was communicated vide communication dated 20.06.2010 (Exhibit P-22). The stress is on the submission that the information as it was recorded should have been sent with a copy of the information as recorded. After having giver our anxious consideration to the scope, object and purpose of Section 42(2) of the Act, as considered by the Supreme Court in the case of Karnail Singh (supra), and -18- after having gone through the contents of the information contained in communication dated 20.06.2010 (Ex. P-22), we are of the opinion that the provisions of legal requirement of sending information has been duly complied with. The object of the provision is to ensure that the information which is taken down by the officer in writing under sub-section (1) of Section 42 of the Act or the grounds for his belief under the provision to sub-section (1) of Section 42 of the Act must be communicated to the higher officer within a stipulated time. This is intended to obliterate false implication. The essence of the requirement is that the information received and taken down in writing must be communicated. In the case in hand, the other part, i.e. the belief as required under the provisions of sub-section (1) of Section 42 of the Act is not the issue. What has to be seen is whether the information received and taken down in writing was actually communicated to the higher authority or not. For this purpose, we may compare the information taken down in writing in the Rojnamchasanha of the police station on 20.06.2010. With the relevant part of the information sent to the higher officer recorded as below:
^udy jks0lk0 780@20-06-10] 781@20-06-10] Fkkuk ckxckgjk izfo"V izfo"V ds izdkj le; fooj.k dzekad % 780 feyus lwpuk eq[kfcj }kjk 6%30 cts esa lwpuk gS fd tfj, eq[kfcj dh voS/k xkatk ifjogu dh nsus lwpuk izkIr gqbZ fd ,d cksysjks okgu tkudkjh ofj"V vf/kdkfj;ksadks dz0 lh-th-04&,p@0539 esa voS/k :i tkjh leal /kkjk 91 tk-QkS- ls xkatk Hkjdj mM+hlk ls >yi dh vksj ryc xokgku tkus okyh gS fd lpwuk feyus ij Jheku~ vuqfoHkkxh; vf/kdkjh iqfyl ,oa ofj"V vf/kdkfj;ksa dh tfj, nwjHkk"k lwpuk fd;k vfxze dk;Zokgh gsrq fn'kk funsZ'k izkIr dj lwpuk dh iapukek rS;kj fd;k ckn xokg ryc djus gsrq /kkjk 91 tk0QkS0 ds rgr uksfVl xokgu fladnj flf}dh ,oa v'kksd dqekj HkV~V dks rkfey gsrq vkj0 161 -19- t;ar ckjhd dks jokuk fd;kA 781 egk0 jokuk lS0 162 ,l Mh vks ih 7-10 cts esa lwpuk gS fd lSfud 162 js'ke caxyk Mkd nsus pkS/kjh dks M~;wVh lfVZ0 nsdj jokuk fd;k x;k dh vHkh jokuk gksdj ,l Mh vks ih caxyk tkosa voS/k xkatk ifjogu laca/kh eq[kfcj dh lwpuk ckcr~ izfrosnu nsus ckn dk;Z ds okil vkosA 782 okil vkj0 161 uksfVl 7-20 cts esa lwpuk gS fd lkUgs gkfl;k esa rkfey dj xokgksa ds lkFk vkj0 161 t;ar ckjhd dks xokgksa dks ryc djus jokuk fd;k x;k Fkk tks uksfVl rkfey dj xokgksa ds lkFk ysdj bl le; okil vk;kA
19. The contents of the communication which was sent by PW-3 to the higher officer towards fulfillment of requirement of sub-section (2) of Section 42 of the Act as contained in Ex. P-22 is as below:
^^fuosnu gS fd eq> mi0fujh0 dqekj flag mlsaMh Fkkuk ckxckgjk dks eq[kfcj ls feyh lpwuk fd cksysjks dz0 lh0th04&538 esa voS/k :i ls Hkkjh ek=k esa xkatk fcdzh gsrq yk, tkus dh lwpuk ij ukdkcanh esa mijksDr okgu idM+k x;k gSA rkRdkfyd l{ke eftLVªsV egksn; miyC/k ugha gksus ls fcuk ryk'kh okjaV ds okgu dh ryk'kh laHko ugha gSA vfHk0 Qjkj gksus dh laHkkouk gSA vr% /kkjk 41 uk0,0 ds varxZr ryk'kh okjaV izkIr djus dh dk;ZZokgh dh tkrh gSA"
20. It is relevant to note that on the same day, another communication was also sent vide Ex. P-36. The contents of the same are also reproduced hereinbelow:
^^fuosnu gS fd eq> mi0fujh0 dqekj flag mlsaMh Fkkuk ckxckgjk dks eq[kfcj ds }kjk lwpuk feyh gS fd ,d LysVh dyj ds cksysjks dzekad lh0th04&,p@0538 esa dqN yksx voS/k :i ls fcdzh djus ds fy, xkatk mM+hlk ls NRrhlx<+ ysdj tk jgk gSA vr% mijksDr okgu dks ukdkcanh dj idM+us gsrq vko';d fn;k funsZ'k gsrq lwpuk lknj izsf"kr gSA**
21. If what has been recorded in the police station and what was communicated to the authority are compared, it would be revealed that the information which was received in the police station and taken down in writing, was communicated to the senior police officer. It cannot be said that certain -20- materials which were contained in the information which was taken down in writing in the police station was withheld and suppressed and not forwarded to the higher authority or something which was new and not recorded earlier, was added and sent. The officer sought permission by one communication and by another communication, sought issuance of necessary instruction for apprehending the vehicle. But the substantial part of the information contained in Ex. P-20 i.e. Rojnamchasanha was definitely forwarded to the higher authority, therefore, we are inclined to hold that the provisions of Section 42(2) of the Act was duly complied with.
22. We also find that there is no explanation offered by the prosecution as to why the information required under Section 57 of the Act instead of being sent within 48 hours was forwarded after as many as 18 days. The prosecution has not come out with any explanation whatsoever for any such violation. The independent witnesses of seizure namely Ashok Kumar (PW-1) and Sikandar Siddique (PW-4) have also not supported the case of the prosecution and their court statement goes to show that they were not present at the spot where the proceedings are said to have been drawn and their signatures on the statements were obtained in the police station. Both the witnesses have been declared hostile by the prosecution. Where it has been found that there is violation of mandatory provisions contained in Section 50 as also violation of Section 57 of the Act and the independent seizure witnesses have not supported the case of the prosecution and particularly when the officer who lodged the first information himself became the Investigating Officer, it would be unsafe to convict the accused for commission of the alleged offence. They are entitled to be acquitted.
23. For the reasons stated hereinabove, the impugned judgment of conviction and -21- order of sentence is set aside. The appellants are in jail since 20.06.2010. They be set at liberty forthwith.
24. The appeal is allowed.
Sd/- Sd/-
(Manindra Mohan Shrivastava) (Sanjay Agrawal)
Vacation Judge Vacation Judge
Kamde