Supreme Court of India
State Of Orissa vs P. Simanchal Patra on 13 March, 2002
Equivalent citations: 2002(2)ALD(CRI)472, 2002(83)ECC1, JT2002(SUPPL1)SC27, 2002(2)UJ1238(SC), AIRONLINE 2002 SC 604
Bench: U.C. Banerjee, B.N. Agrawal
ORDER
1. This appeal arising out of the judgment of the Orissa High Court relates to the conviction and sentence passed by the learned second additional sessions judge, Ganjam, Berhampur in sessions case No. 26 of 1993.
2. The contextual facts denotes that one P. Simanchal Patra faced trial on the accusation of committing an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for being in possession of 1 kg. 400 gms. of opium poppy capsules without any authority and in contravention of Section 8 of the Act.
3. The learned trial judge, as it appears from the records, came to a conclusion in support of the prosecution and sentenced the respondent herein to ten years rigorous imprisonment with a fine of Rs. 1,00,000/-. The matter, however, subsequently came up before the High Court wherein the High Court upon hearing the submissions made on behalf of the parties, allowed the appeal and set aside the order of conviction and sentence. Incidentally, the High Court had not discussed the evidence in detail and proceeded mainly on two counts, namely infraction of Section 42(1) and that of Section 50 of the NDPS Act and came to a definite conclusion that the acquisition of non-compliance of Section 50 cannot be sustained. But as regards Section 42(1), the (High Court noted its noncompliance and as such, set aside the order of conviction. Hence, the state is in appeal against the said order.
4. The appeal is thus restricted to the question of infraction of Section 42(1). While dealing with the matter under Section 42(1), the High Court observed the following:
"Coming to the plea relating to noncompliance of requirement of Section 42(1) of the Act, I find that there is nothing on the record to show that reasons of belief were recorded. The explanation offered that if the empowered officer 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, has no application to the facts of this case. This is a case where the officer claims to have got prior information. Therefore, there is clear non-compliance of the provisions of Section 42(1) of the Act thereby affecting the prosecution case and vitiating the trial."
5. Mrs. Kirti Mishra, learned counsel appearing in support of the state-appellant, submitted that there is an erroneous reading of the provisions of Section 42(1) by the High Court which has resulted in total miscarriage of justice. For the convenience sake, Section 42(1) is set out hereinbelow:
Section 42. Power of entry, search, seizure and arrest without warrant or authorization- (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 or of the Border Security Force 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, in respect of which an offence punishable under chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset-(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under chapter IV relating to such drug or substance; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under chapter IV relating to such drug or substance;
provided that if such officer has reason to. believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
6. We find some justification in the submissions made by the learned counsel by reason of the fact that the requirement of the statute is not in regard to the recording of reasons but to the recording of information only. The statute does not mandate such a requirement. The information has to be recorded and in this case, there is no infraction thereto. As such, the question of infraction of Section 42(1) would not arise. In our view, the matter in issue stand, covered in terms of the decision of this Court in the case of State of Punjab v. Balbir Singh , and we do record our very respectful concurrence therewith.
7. On the wake of the aforesaid, the order under appeal, thus, cannot be sustained. The appeal is allowed. The impugned order stands set aside and that of the learned trial judge stand restored. The respondent be taken into custody to serve out the sentence forthwith.