Surmukh Singh vs State Of Punjab on 7 May, 2019

[Cites 50, Cited by 1]

Punjab-Haryana High Court

Surmukh Singh vs State Of Punjab on 7 May, 2019

Bench: Avneesh Jhingan

CRA-D-624-DB-2017                                                               1

       IN THE HIGH COURT OF PUNJAB & HARYANA AT
                     CHANDIGARH

1.                                             CRA-D-624-DB-2017

Surmukh Singh

                                                     ... Appellant

                  Versus

State of Punjab
                                                     ... Respondent

2.                                             CRA-D-715-DB-2017

Rajeef Mohammad and another

                                                     ... Appellants

                  Versus

State of Punjab
                                                     ... Respondent


                                               Reserved on : 01.05.2019
                                               Date of decision : 07 .05.2019

CORAM:      HON'BLE MR. JUSTICE RAJIV SHARMA
            HON'BLE MR.JUSTICE AVNEESH JHINGAN

Present:    Ms.Aparna Singhal, Legal Aid Counsel
            for the appellant in CRA-D-624-DB-2017 &
            for appellant No.2-Mohammad Aakab Khan
            in CRA-D-715-DB-2017.

            Mr. Vipul Jindal, Advocate
            for appellant No.1-Rajeef Mohammad
            in CRA-D-715-DB-2017.

            Mr.S.P.S.Tinna, Addl.A.G. Punjab.

RAJIV SHARMA, J.

Since common questions of law and facts are involved in the aforesaid appeals, therefore, these are taken up together and disposed of by a common judgment.

2. These appeals have been instituted against the judgment and 1 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 2 order dated 17.05.2017 rendered by the Additional Sessions Judge-cum-

Judge, Special Court, Amritsar, in Sessions Case No.387 of 2015. The appellants along with co-accused Sukhdev Singh were charged with and tried for offences punishable under Sections 307 read with Section 34 of the Indian Penal Code (in short 'IPC') and Section 27-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'). All the appellants were charged and tried with for offence punishable under Section 29 of the NDPS Act. Appellant Rajeef Mohammad was also charged under Section 25 of the Arms Act. Co-accused Sukhdev Singh was also charged and tried with offence punihsbale under Sections 21(c) and 25 of the NDPS Act and Section 25 of the Arms Act. The appellants along with co-accused Sukhdev Singh were convicted and sentenced as under:-

Name of the convict Offence       Sentence
                    under Section
Sukhdev Singh      21(c) of the To undergo rigorous imprisonment for a term of
                   NDPS Act     twelve years (12 years) and to pay fine of Rs.One

lac (Rs.1,00,000/-). In default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year.

307/34 of the To undergo rigorous imprisonment for a term of IPC five years (5 years) and to pay fine of Rs.five thousand (Rs.5000/-). In default of payment of fine, he shall further undergo rigorous imprisonment for a period of two months.

27-A of the To undergo rigorous imprisonment for a term of NDPS Act ten years (10 years) and to pay fine of Rs.One lac (Rs.1,00,000/-). In default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year.

25 of the Arms To undergo rigorous imprisonment for a term of Act three years (3 years) and to pay fine of Rs.Three thousand (Rs.3000/-). In default of payment of fine, he shall further undergo rigorous imprisonment for a period of one month.

Surmukh Singh 29 of the To undergo rigorous imprisonment for a term of NDPS Act twelve years (12 years) and to pay fine of Rs.One lac (Rs.1,00,000/-). In default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year.

2 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 3 307/34 of the To undergo rigorous imprisonment for a term of IPC five years (5 years) and to pay fine of Rs.five thousand (Rs.5000/-). In default of payment of fine, he shall further undergo rigorous imprisonment for a period of two months.

Mohammad Aakab 29 of the To undergo rigorous imprisonment for a term of Khan NDPS Act twelve years (12 years) and to pay fine of Rs.One lac (Rs.1,00,000/-). In default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year.

Rajeef Mohammad 307 of the IPC To undergo rigorous imprisonment for a term of five years (5 years) and to pay fine of Rs.five thousand (Rs.5000/-). In default of payment of fine, he shall further undergo rigorous imprisonment for a period of two months.

29 of the To undergo rigorous imprisonment for a term of NDPS Act twelve years (12 years) and to pay fine of Rs.One lac (Rs.1,00,000/-). In default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year.

All the sentences were ordered to run concurrently.

3. The case of the prosecution in a nutshell is that on 01.06.2015 Inspector Gurinder Pal Singh was present in his office of Counter Intelligence, Amritsar. He received a secret information that Sukhdev Singh, Surmukh Singh and Avtar Singh @ Tar were in very close contact 3 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 4 with the Pakistani smugglers. They with the help of Pakistani smugglers, took consignments of the heroin, fake Indian currency notes, arms and ammunition to supply the same in India and in other countries. Two Pakistani smugglers have entered illegally in India along with the consignment of heroin, arms and ammunition. They used to reside in the house of Sukhdev Singh. These Pakistani smugglers were helping Sukhdev Singh, Surmukh Singh and Avtar Singh @ Tar in the smuggling activities.

Informer also disclosed that on that day Sukhdev Singh and Surmukh Singh on the swift car white colour, bearing No.PB-10-DS-4298, Avtar Singh @ Tar on his motor cycle bearing No.PB-02-BG-4252 along with two Pakistani Muslim smugglers with the consignment of the heroin, arms and ammunition along with drug money were present at Amritsar-Jalandhar Road, near New Amritsar, at T-point Housefed Colony, near water tank. If raid was conducted, they could be apprehended. Information being credible, Inspector Guridner Pal Singh informed Sh.Ashwani Kumar, PPS, AIG, Counter Intelligence, Amritsar. After receiving instructions from AIG, Inspector Guridner Pal Singh along with his police party reached at Amritsar-Jalandhar Road, Inside New Amritsar, T-point Housefed Colony, new water tank turning. One white colour swift car was parked there. On seeing the police party, the occupants of the car were alarmed. When the police party tried to apprehend them, the person wearing salwar kameez sitting next to the driver seat, pointed the revolver towards police party with an intention to kill them. However, ASI Inderdeep Singh snatched the revolver from him. The person who was on the motor cycle fled away from the spot. Accused disclosed their identities. Inspector Gurinder Pal Singh apprised them about their legal right to be searched in the presence of a 4 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 5 gazetted officer or a Magistrate. They opted to be searched in the presence of a gazetted officer. Accordingly Inspector Gurinder Pal Singh requested Sh.Ashwani Kumar, PPS, AIG, Counter Intelligence, Amritsar through mobile phone to come to the spot. As per instructions of Sh.Ashwani Kumar, AIG, Inspector Gurinder Pal Singh conducted search of accused Sukhdev Singh. He was sitting on the backside of driver seat. He had kept one bag of black colour on his lap. On checking the bag, one transparent polythene envelope containing heroin was recovered. It weighed 2 kg. 500 grams. Out of the same, two samples of 5 grams each of heroin were drawn.

These were marked as S-IA and S-IB. The bulk quantity, i.e. 2 kg. 490 grams was put in separate plastic container. It was marked as Mark I. Inspector Gurinder Pal Singh affixed his seal 'GPS' on all the parcels.

Ashwani Kumar, AIG also affixed his seal 'AK' on all the parcels. Form M-

29 was filled on the spot. Inspector Gurinder Pal Singh conducted search of the vehicle. One bag of black colour was recovered from the dicky of car. It contained Indian currency. The same was found to be Rs.65 lacs. It was drug money. Separate parcels were prepared. It was marked as Mark II. He also put his seal impression 'GPS'. AIG Ashwani Kumar also put his seal bearing impression 'AK' on the said parcel. One .315 bore rifle along with five live cartridges was recovered from the dicky of car. It was converted into parcel. It was marked as Mark III. Inspector Gurinder Pal Singh and AIG Ashwani Kumar put their respective seals 'GPS' and 'AK' on the same. .

32 bore revolver was also recovered from accused Rajeef Mohammad. Five live cartridges were also recovered from .32 bore revolver. These were converted into parcel. Seal impressions 'GPS' and 'AK' were put. The car was also taken into possession. The seal after its use was handed over to 5 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 6 ASI Inderdeep Singh by Inspector Gurinderpal Singh whereas Ashwani Kumar, AIG, kept his seal with him after using it. Ruqa was sent to SSOC, Amritsar. FIR was registered. Rough site plan of place of recovery was prepared. Inspector Gurinder Pal Singh handed over three parcels containing heroin along with sample seals, Form M-29 to SHO/Inspector Harvinder Pal Singh. He checked the seals of parcels and also affixed his seal bearing impression 'HS'. He also put his seal on Form M-29. On 02.06.2015 SHO Harvinder Pal Singh handed over the custody of accused to Inspector Gurvinder Pal Singh along with three parcels, specimen seals, Form M-29 after taking out from the double lock of Malkhana. He accordingly produced the same before the Illaqa Magistrate. 5 grams heroin was drawn as representative sample from the bulk parcel after breaking the seals. Representative sample was sealed with seal 'SPS' and 'GPS' and bulk parcel was resealed with seal 'SPS' and 'GPS'. The case property was produced before the SHO. He kept the same in the double lock of Malkhana. Seizure report was sent to AIG Ashwani Kumar. On 03.06.2015, bulk parcel marked as Mark I sealed with seal 'SPS'/'GPS' along with one sample parcel marked as S-IB sealed with seal GPS/AK/HS and one representative sample parcel sealed with seal SPS/GPS were deposited in judicial malkhana as per orders of the Illaqa Magistrate. Accused Sukhdev Singh made disclosure statement. Accused Surmukh Singh also made disclosure statement that he had kept money in the drawer of bed. Money was got recovered. Accused Rajeef Mohammad and Mohammad Aakab Khan made disclosure statements. They disclosed that on the intervening night of 20/21.05.2015 they had crossed the Indo-Pak border with the help of waterproof plastic kit. They crossed the border by swimming the river at 6 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 7 village Bal Labhe Darya, Police Station Ramdas. They had kept the said waterproof plastic kit concealed. They got the kit recovered. Rough site plan of recovery was prepared. Sukhdev Singh disclosed that he along with his companion Pargat Singh, Avtar Singh and Surmukh Singh in connivance with each other used to smuggle consignments of heroin from Pakistan to be supplied in different cities in India. He could got the phones recovered.

Thereafter five mobile phones, i.e. 4 of Samsung and 1 of Nokia were got recovered. Rough site plan was prepared. Rajeef Mohammad and Mohammad Aakab Kahn also disclosed that they had kept concealed one mobile phone containing Pakistani SIM in a black polythene. They could get it recovered. They got it recovered by removing soil from the designated place. One mobile phone make Nokia containing Pakistani SIM was taken into possession. Rough site plan was prepared. Surmukh Singh also suffered disclosure statement that he used to take heroin from Sukhdev Singh. He used to sell the same through mobile phone. For weighing the heroin, electronic kanda and mobile phone were kept concealed by him in the kitchen. The same were got recovered from the kitchen. Sukhdev Singh also deposed that he had purchased two laptops. He could get the same recovered. Two laptops make of HP and ASUS of grey and black colour were got recovered. Recovered property was deposited with the MHC.

Investigation was completed. Challan was put up after completing all the codal formalities.

4. The prosecution examined a number witnesses in support of its case. Statements of accused were recorded under Section 313 Cr.P.C. They denied the case of prosecution. The accused also examined four witnesses in their defence. The accused were convicted and sentenced, as noticed 7 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 8 hereinabove. Hence these appeals. Co-accused Sukhdev Singh appears to have not filed any appeal.

5. Learned counsel appearing on behalf of the appellants have vehemently argued that the prosecution has failed to prove the case against the appellants.

6. Learned counsel appearing on behalf of the State has supported the prosecution case.

7. We have heard learned counsel for the parties and have gone through the judgment and record very carefully.

8. PW-1 HC Gurwinder Singh has led his evidence by filing his affidavit Ex.P1. According to him, one sample parcel was handed over to him on 04.06.2015. He deposited the same.

9. PW-4 HC Bikramjit Singh deposed that Inspector Gurinderpal Singh produced before him one parcel of .32 bore revolver along with 5 live cartridges of same bore and one parcel of rifle .315 bore along with 5 live cartridges of same bore vide road certificate No.54/21 in the office. He mechanically checked the .315 bore rifle. He broke the seal GPS/AK Mark IV of parcel of revolver .32 bore. He mechanically checked the same.

10. PW-5 ASI Vishal Rajput deposed that he moved application Ex.PW5/A in the Court of Sh.K.K. Goyal, Addl. Sessions Judge, Amritsar and the learned Court allowed the application vide order Ex.PW5/B. He deposited the sample parcel of heroin in judicial malkhana.

11. PW-7 Nirmal Singh deposed that on 19.10.2015 he was posted at Police Station, SSOC, Amritsar. On that day, he received one parcel which was marked S-1A sealed with FSL Chem Pb. He kept the same in the double lock malkhana. On 20.10.2015 he operated the double lock of 8 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 9 malkhana and took out the parcel in intact condition. He handed over the same to ASI Vishal Rajput for producing the same in the Court of Sh.K.K.Goyal, Addl.Sessions Judge, Amritsar.

12. PW-10 SI Inderdeep Singh deposed the manner in which the appellants were apprehended. The police was informed that Sukhdev Singh and Surmukh Singh were standing with swift car. Avtar Singh alias Tar was on motor cycle. They had brought consignments of heroin along with two Pakistani smugglers. If the raid was conducted, they could be apprehended.

Police reached the spot. Accused were apprehended. Accused disclosed their identities. I.O. told that it was their legal right to get searched by him, any gazetted officer or any Magistrate. The accused did not repose faith in the I.O. I.O informed the gazetted officer. In the meantime I.O. had prepared non consent memo. Inspector Gurinder Pal Singh requested AIG Ashwani Kumar to reach the spot. He came to the spot. He apprised the accused for their right. They reposed faith in him. The consent memos were prepared.

Sukhdev Singh was sitting on the back seat of the driver seat. He had kept a bag black in colour in his lap. It was searched. It contained 2 kg. 500 grams heroin. The samples were drawn in accordance with law. Form M-29 was filled up. The dicky of the car was also searched. A sum of Rs.65,00,000/-

was recovered. .315 bore rifle was also recovered. .32 bore revolver made in Germany was also recovered form the dicky. These were converted into parcels. I.O. and Ashwani Kumar put their seals on them. Accused made disclosure statements on the basis of which recovery of mobile phone, plastic kit, laptop and money was effected.

13. PW-11 (wrongly numbered) Gurinder Pal Singh was the I.O.

According to him, he along with other police officials was present in the 9 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 10 Counter Intelligence Office, Amritsar, on 01.06.2015. He received secret information that Sukhdev Singh, Surmukh Singh and Avtar Singh in connivance with Pakistani smugglers had obtained consignment of heroin;

fake Indian currency notes; arms and ammunition. The senior officer was informed. Accused were nabbed. They were apprised of their legal right.

Inspector Gurinder Pal Singh conducted search of car. Heroin was recovered from the bag carried by Sukhdev Singh. A sum of Rs.65,00,000/-

was recovered from the dicky along with a rifle of .315 bore and a .32 revolver. Accused made disclosure statements on the basis of which money, mobile phone, laptop and plastic kit were got recovered.

14. PW-12 AIG Ashwani Kumar has also given version in the manner in which the search of accused was carried out. All the codal formalities were completed on the spot including search of accused under his supervision.

15. PW-14 ASI Sukhwinder Singh deposed that Inspector Gurinder Pal Singh produced the case property before SHO Harvinder Pal Singh, i.e. two sample parcels of 5 grams each of heroin marked S-IA, S-IB, one bulk parcel of 2 kg 490 grams of heroin marked as Mark I duly sealed with seal AK and GPS along with Form M-29 and sample seal. SHO Harvinder Pal Singh affixed his seal HS on all the parcels including Form M-29. He prepared the sample seal and kept the parcels along with Form M-29 and sample seal in his custody in double lock of the police station. Inspector Gurinder Pal Singh deposited with him in malkhana one parcel of currency notes of Rs.65,00,000/- sealed with seal GPS and AK, one parcel of rifle .

315 bore along with cartridges sealed with seal GPS and AK, one parcel of revolver .32 bore with cartridges sealed with seal GPS and AK along with 10 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 11 sample seals. On the same day, i.e. 02.06.2015 SHO Harvinder Pal Singh again operated the double lock of malkhana with his key and with the key of witness and took out all the parcels of heroin, sample seal and Form M-29.

He handed over the same to Inspector Gurinder Pal Singh for verification from the Illaqa Magistrate. The case property along with accused were produced before the Illaqa Magistrate. One representative sample parcel of 5 grams was drawn which was sealed with seal SPS, GPS and the bulk parcel was resealed with seal SPS, GPS. The order of Illaqa Magistrate is Ex.PW11/F. On return to the police station, Inspector Gurinder Pal Singh handed over all the four parcels of heroin, Form M-29 and sample seal to SHO Harvinder Pal Singh. He kept the same in double lock of malkhana.

On 03.06.2015, SHO Harvinder Pal Singh again operated the double lock with his key and handed over to Inspector Gurinder Pal Singh one sample parcel, bulk parcel and representative sample parcel. These were deposited on the same day by Inspector Gurinder Pal Singh. On 04.06.2015 the case property was handed over to Constable Gurwinder Singh for depositing the same in FSL, SAS Nagar vide road number 30/21. The guns were also taken out for mechanical examination. These were tested and redeposited.

16. PW-16 Inspector Harvinder Pal Singh has deposed that on the basis of ruqa, FIR was registered. After registration of the FIR, special reports were sent to Illaqa Magistrate and senior officers through HC Jhirmal Singh. Inspector Gurinder Pal Singh produced case property before him. He affixed his seal HS on all the parcels and form M-29. He kept the case property in double lock of malkhana. On 02.06.2015 he again operated the double lock of malkhana. He took out the case property and handed over the same to Inspector Gurinder Pal Singh for verification from the Illaqa 11 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 12 Magistrate. Inspector Gurinder Pal Singh produced the arrested persons along with the case property before Illaqa Magistrate. The Illaqa Magistrate verified the correctness of the seals. One representative sample parcel of 5 grams was drawn. Inspector Gurinder Pal Singh deposited the case property with him. He again operated the double lock on 03.06.2015 and handed over the case property to Inspector Gurinder Pal Singh for depositing the same in judicial malkhana. He deposited the same in judicial malkhana. The case property was sent to FSL.

17. DW-1 Sardool Singh deposed that he was elected Sarpanch of the village Fattu Bhila. On 01.06.2015 at about 06.00 A.M., some police officials came to his village. They forcibly entered in the house of Surmukh Singh. He received a mobile call from the house of Surmukh Singh. He along with other panchayat members and Nambardar of village reached the house. Police was present in the house. They searched the house of Surmukh Singh. They passed a resolution. In his cross-examination, he admitted that he never appeared before any higher police official regarding the facts that they were not heard by the Commission of Police. He has not taken any permission from the BDPO to produce the resolution book in the Court. He also admitted that proceeding book was not paginated. There was no stamp or seal of concerned BDPO.

18. DW-2 Swinder Singh deposed that police came to the house of Sukhdev Singh. Police took Sukhdev Singh along with them. In his cross-

examination, he deposed that he had not moved any written complaint before any higher official regarding facts mentioned in his examination-in-

chief.

19. DW-3 Manpreet Singh deposed that Sukhdev Singh was his 12 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 13 paternal uncle. He was present in his house. Police told him that Sukhdev Singh was required for some inquiry. He called Swinder Singh. He came to his house. Nothing was recovered from Sukhdev Singh. Police took away Sukhdev Singh with them. In his cross-examination he admitted that he had not made any written complaint to any higher authorities.

20. The statements of DWs do not inspire confidence and have rightly been discarded by the trial Court. Police reached the spot after seeking permission from Ashwani Kumar, PPS, AIG. The statement of official witnesses can be relied upon. It is not the case of false implication.

Huge quantity of heroin was recovered from the accused. The Court can take judicial notice to the fact that the persons do not join investigation of criminal cases more particularly of NDPS cases. According to FSL report Ex.PX, seals on the parcels were found intact and tallied with the specimen seal impression.

21. It has come on the record the appellant Sukhdev Singh along with his co-accused Surmukh Singh, Rajeef Mohammad and Mohammad Aakab Khan were involved in smuggling of heroin and weapons. They were nabbed by the police. All the codal formalities were completed in accordance with law. The samples were sent to the FSL examination. The samples were found to be of heroin as per the FSL report Ex.PX. All the accused knew about the presence of contraband being carried by Sukhdev Singh. All of them hatched criminal conspiracy to smuggle the heroin in India along with weapons. The samples reached to the FSL intact. Rajeef Mohammad and Mohammad Aakab Khan entered India illegally. They had ventured into Amritsar City. They were carrying weapons and one of the accused aimed gun at police. The gun was snatched by the alert police 13 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 14 official. Recovery of mobile phone, laptop, money and plastic kit is at the instance of accused. Disclosure statements were voluntary in nature.

22. PW-10 Inderdeep Singh has deposed that a secret information was received by Inspector Gurinder Pal Singh. Investigating Officer informed AIG Ashwani Kumar, PPS. He after getting orders from him reached the spot. PW-11 Gurinder Pal Singh has also deposed that he received secret information to the effect that the local smugglers along with Pakistani smugglers took the huge consignment of heroin, fake Indian currency and they should be nabbed immediately. He was also informed that Sukhdev Singh and Surmukh Singh along with two Pakistani smugglers were standing with the swift car at Amritsar Jalandhar road, near New Amritsar at T-Point Housefed Colony, New Water Tank, along with one Avtar Singh on motor cycle. He informed AIG Ashwani Kumar. He along with police party, after obtaining instructions/directions, went to the spot in Scorpio, Tata Sumo and one private vehicle. PW-12 Ashwani Kumar has admitted that he was present in his office. Inspector Gurinder Pal Singh informed him regarding the receipt of secret information to the effect that Sukhdev Singh, Surmukh Singh along with Pakistani smugglers took the consignment of heroin, fake Indian currency and arms and ammunition to supply the same in India and in other countries. Gurinder Pal Singh further informed that two Pakistani smugglers have entered illegally into India along with the consignment of heroin and arms and ammunition. These Pakistani smugglers used to help Sukhdev Singh, Surmukh Singh and Avtar Singh alias Tar. Sukhdev Singh and Surmukh Singh were standing with swift car bearing No.PB10-DS-4298 along with two Pakistani Muslim smugglers. They were standing at Amritsar Jalandhar road near New 14 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 15 Amritsar at T-Point Housefed Colony, Near Water Tank. Informer had told them that they could be apprehended. He had received information on telephone from Gurinder Pal Singh. He gave directions to Inspector Gurinder Pal Singh. He constituted police party and left the Counter Intelligence Office for conducting the raid. In the instant case the recoveries were made from a public place and not a private place. Thus the Section 42 of the NDPS Act is not attracted.

23. The entry qua secret information was recorded in the DDR which has been placed on record. The police had received the information and they had to proceed immediately to the spot failing which the accused could escape. The senior officer was also informed. Section 42 of the NDPS Act has been duly complied with in substance.

24. A Constitution Bench of Supreme Court in Karnail Singh vs. State of Haryana, (2009) 8 Supreme Court Cases 539 has held that in special circumstances and emergent situations when the officer is on the move, and recording of information is not practical prior to search and seizure, and would be detrimental to effectiveness of the search and seizure concerned, the requirement of writing down and conveying information to superior office may be postponed by a reasonable period which may even be after the search, entry and seizure. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. Non-compliance with Section 42 may not vitiate the trial if it does not cause any prejudice to the accused. Their Lordships of the Supreme Court have held as under:-

"35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sectioins 42(1) and 42(2) nor did Sajan 15 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 16 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 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 reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.

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(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.

36) We answer the reference in the manner aforesaid. Let the appeals be now placed for disposal before the appropriate Bench."

25. Their Lordships of the Supreme Court in Bahadur Singh vs. State of Haryana, (2010) 4 Supreme Court Cases 445 section 42 have held that with advancement of technology and availability of high-speed exchange of information, some of the provisions of NDPS Act, including 17 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 18 Section 42, have to be read in the changed context. Delay caused in complying with provisions of Section 42 could result in escape of offender or even removal of the contraband. Hence, substantial compliance is sufficient, if the information received was subsequently sent to the superior office. Their Lordships have held as under:-

"17. It cannot but be noticed that with the advancement of technology and the availability of high speed exchange of information, some of the provisions of the NDPS Act, including Section 42, have to be read in the changed context. Apart from the views expressed in Sajan Abraham's case (supra) that the delay caused in complying with the provisions of Section 42 could result in the escape of the offender or even removal of the contraband, there would be substantial compliance, if the information received were subsequently sent to the superior officer.

18. In the instant case, as soon as the investigating officer reached the spot, he sent a wireless message to the Deputy Superintendent of Police, Kurukshetra, who was his immediate higher officer and subsequent to recovery of the contraband, a Ruqa containing all the facts and circumstances of the case was also sent to the Police Station from the spot from where the recovery was made on the basis whereof the First Information Report was registered and copies thereof were sent to the Ilaqa Magistrate and also to the higher police officers. As was held by the High Court, there was, therefore, substantial compliance with the provisions of Section 42 of the NDPS Act and no prejudice was shown to have been caused to the accused on account of non- reduction of secret information into writing and non- sending of the same to the higher officer immediately thereafter.

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19. Apart from the decision in Sajan Abraham's case (supra), the decision of the Constitution Bench in Karnail Singh's case (supra), has also made it clear that non-compliance with the provisions of Section 42 may not vitiate the trial if it did not cause any prejudice to the accused. Furthermore, whether there is adequate compliance of Section 42 or not is a question of fact to be decided in each case.

20. As far as compliance with the provisions of Section 57 of NDPS Act is concerned, as has been indicated earlier, it has been held by this Court that the same was not mandatory, and, in any event, information of the arrest of the petitioner and seizure of the contraband had been duly reported to the local police station on the basis of which the First Information Report had been drawn up."

In the instant case, information was received. Senior officer was informed immediately. I.O. went to the spot and nabbed the accused. In case of delay, accused would have escaped. Moreover the appellants have not not shown in what manner they were prejudiced.

26. Their Lordships of the Supreme Court in Dalel Singh vs. State of Haryana, (2010) 1 Supreme Court Cases 149 have held that when the officer was on patrol duty and received secret information and conveyed the same to the senior officer through wireless it would amount to substantial compliance with Section 42 in emergent situations. In case he had not moved quickly in right earnest, appellant-accused would have had opportunity to remove contraband charas and escape from arms of police.

Their Lordships have held as under:-

"8. Learned counsel for the appellant very vehemently urged that there was total non-compliance of Section 42 of the NDPS Act. We do not think that the accused can 19 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 20 succeed even on this point in view of the judgment of Constitution Bench of this court rendered in Karnail Singh Vs. State of Haryana 2009(10) SCALE 255 wherein, in paragraph 10, it was held as under:

"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 immediately official superior, before proceeding to take action in terms of clauses (a) to (d) of 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.

20 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 21

(c) In other words, the compliance with the requirements of Section 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 officer 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 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 21 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 22 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."

9. In this backdrop when we see the prosecution case here, it is apparent that the information was received by PW6 Inspector Mahabir Singh when he was not in the police station but was on patrol duty in the town. He immediately, after receipt of the information, informed his superior officer on wireless. There is no doubt that he did not record it in writing but passed on it to his superior ASP Kala Ramachandran by wireless. The fact that the superior officer was informed is deposed to by ASP Kala Ramachandran who appeared as PW5. We have seen her cross-examination which really is totally irrelevant. Similarly, we have gone through the evidence of PW6 Inspector Mahabir Singh. Again, his cross- examination is also redundant cross-examination. Both the witnesses have deposed about the information having been transmitted through wireless and in our opinion would be a substantial compliance of Section 42 of the NDPS Act since the situation was of emergency. Had the police officer not moved right in the earnest, the appellant-accused would have had an opportunity to remove the contraband charas and escaped from the arms of police."

27. Their Lordships of the Supreme Court in Mohan Lal Vs. State of Rajasthan, (2015) 6 Supreme Court Cases 222 have held that since the 22 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 23 recovery was made from public place by empowered officer, Section 43 would be attracted and not Section 42. Their Lordships have further held that term 'possession' is to be construed as functional and flexible manner.

Their Lordships have further held that literal compliance with requirements of sub-sections (1) and (2) of Section 42 is not required. The total non-

compliance with those requirements is impermissible. Their Lordships have also held that delay in sending samples of seized contraband would not be fatal if till the date of receipt of sealed packets of samples by Chemical Examiner, seal is found to be intact. Their Lordships have held as under:-

"24. In the instant case, Article 20(1) would have no application. The actus of possession is not punishable with retrospective affect. No offence is created under Section 18 of the NDPS Act with retrospective effect. What is punishable is possession of the prohibited article on or after a particular date when the statute was enacted, creating the offence or enhancing the punishment. Therefore, if a person is in possession of the banned substance on the date when the NDPS Act was enforced, he would commit the offence, for on the said date he would have both the 'corpus' and 'animus' necessary in law.

xxx xxx xxx

26. The learned counsel for the State has contended that the offence in question is a continuing offence, for the offence is basically a possession of the contraband articles. He has commended us to the authority in State of Bihar v. Deokaran Nenshi & Anr., wherein it has been held that:-

"5. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a

23 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 24 failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-

compliance occurs and reoccurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all."

xxx xxx xxx

29. We have dwelled upon the said submission, as the learned counsel for the State has seriously addressed that it is a continuing offence. We have already opined that on the date the NDPS Act came into force, the accused- appellant was still in possession of the contraband article. Thus, it was possession in continuum and hence, the principle with regard to continuing offence gets attracted.

30. It is submitted by Ms. Aishwarya Bhati, learned counsel for the appellant that there has been non- compliance of Section 42 of the NDPS Act and hence, the conviction is vitiated. It is urged by her that the Investigating Officer has not reduced the information to writing and has also not led any evidence of having made a full report to his immediate official superior. The High Court has taken note of the fact that information given to Bheem Singh, PW-12, and recovery was made 24 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 25 by him who was the Sub-Inspector and SHO at the police station. That apart, in this context, we may refer with profit to the Constitution Bench decision in Karnail Singh v. State of Haryana, wherein the issue emerged for consideration is whether Section 42 of the NDPS Act is mandatory and failure to take down the information in writing and forthwith sending a report to his immediate officer superior would cause prejudice to the accused. The Court was required to reconcile the decisions in Abdul Rashid Ibrahim Mansuri v. State of Gujarat and Sajan Abraham v. State of Kerala. The Constitution Bench explaining the position opined that Abdul Rashid (supra) did not require about literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham (supra) hold that requirement of Section 42(1) and 42(2) need not be fulfilled at all. The larger Bench summarized the effect of two decisions. The summation is reproduced below:-

"(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 register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to

(d) of 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)

25 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 26 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 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 sub-sections (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 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 26 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 27 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."

31. In Rajinder Singh v. State of Haryana, placing reliance on the Constitution Bench, it has been opined that total non-compliance with the provisions of sub- sections (1) and (2) of Section 42 of the Act is impermissible but delayed compliance with satisfactory explanation for the delay can, however, be countenanced.

32. In the present case, the High Court has noted that the information was given to the competent authority. That apart, the High Court has further opined that in the case at hand Section 43 applies. Section 43 of the NDPS Act contemplates seizure made in the public place. There is a distinction between Section 42 and Section 43 of the NDPS Act. If a search is made in a public place, the officer taking the search is not required to comply with sub Sections (1) and (2) of Section 42 of the NDPS Act. As has been stated earlier, the seizure has taken place beneath a bridge of public road accessible to public. The officer, Sub-Inspector is an empowered officer under Section 42 of the Act. As the place is a public place and Section 43 comes into play, the question of non- compliance of Section 42(2) does not arise. The aforesaid view gets support from the decisions in Directorate of Revenue and Anr. v. Mohammed Nisar Holia and State, NCT of Delhi v. Malvinder Singh.

xxx xxx xxx

38. Another submission that has been advanced by the 27 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 28 learned counsel for the appellant is that the seized articles were not sent immediately for chemical examination. The FSL report, Ex. P-14, dated 15.9.1986 states that a letter along with a sealed packet was received with seals intact. The said report further mentions that packet was covered in white cloth and on opening of the packet, the examiner found a cylindrical tin and the substance on examination was found to be an opium having 1.44% morphine. The seal being intact, the description of the case number and the impression of seal having been fixed on memo of recovery, there is no reason or justification to discard the prosecution case on the ground of delay on this score."

28. As far as the plea taken by the appellants that Section 50 of the NDPS Act has not been complied with is concerned, the recovery of heroin was made from the bag carried by Sukhdev Singh in his lap. Section 50 would apply only if the contraband is recovered from the person and not from the bag.

29. Their Lordships of the Supreme Court in Gulsher Mohammed vs. State of Himachal Pradesh, (2015) 17 Supreme Court Cases 682 have held that mandatory requirement prescribed under Section 50 is required to be complied with only when search is carried out on body of person. Their Lordships have held as under:-

"13. We do not find such a legal consequence getting attracted simply because under sub-section (5) of Section 50 a reference has been made to an officer duly authorized under Section 42 in the said sub-section. The said reference has been made to identify such of those officers who were all noted as empowered officers under Section 42(1) solely for the purpose of Section 50 when a search on a person is made and for which purpose due 28 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 29 compliance of all other stipulations contained in Section 50 will have to be carried out. In the alternative, the requirement of compliance under Section 42 for effecting a search of the premises are entirely different from the requirements when a search is to be made on the body of a person under Section 50, though the search to be carried out are to be made by the officers duly authorized and specified in Section 42.

xxx xxx xxx

15. In the light of our above conclusion, we do not find any scope even to invoke Section 100 Cr.P.C. as was canvassed by the learned counsel by the learned counsel on behalf of the appellant by relying upon Section 50 which has no application relating to a search of a premises.

xxx xxx xxx

18. The above statements in the evidence of PW2 were more than sufficient to support the case of the prosecution in having made the recoveries from the premises of the appellant, inasmuch as PW2 was not only an independent witness but he was also very close friend of the appellant but yet he came forward with a very fair statement about the contraband materials found in the premises of the appellant which were recovered in his presence and his statement was also truly recorded, which he signed after going through the same and understanding its correctness. However, when he was cross-examined on behalf of the appellant, he made a contradictory version and thereby virtually withdrawing whatever categoric admission he made in the earlier part of his testimony.

19. Having noted the manner in which PW2 deposed before the Court and the subsequent expressions contained in the document having been admitted to have been made by him without any hesitation including the 29 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 30 correctness of those contents, the documents as well as his attestation on the parcels which contain the samples, the contraband which were duly admitted by him, the contrary statements contained in the latter part of his evidence are all liable to be rejected as containing no truth in it. In fact, when the contents of the documents have been accepted to be true after ascertaining it before the Court, the said part of his evidence alone should carry weight and the latter part of his statement which are made by simply adopting the suggestions put to him at the instance of the appellant will be of no consequence."

In the instant case, some contradictory statements made by official witnesses though minor are to be over looked in view of the contents of documents which were duly proved.

30. Their Lordships of the Supreme Court in Dilbagh Singh vs. State of Punjab, (2017) 11 Supreme Court Cases 290 have held that Section 50 is not applicable when the recovery of contraband is from the car. Their Lordships have held as under:-

"11. As the essence of the impeachment is the non- compliance of the enjoinment of Sections 50 and 57 of the Act, for ready reference, these provisions are extracted herein below:

"50. Conditions under which search of persons shall be conducted -

(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest 30 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 31 Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.

* * *

57. Report of arrest and seizure - Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his

31 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 32 immediate official superior."

12. Whereas the conditions under which, the search as contemplated in Section 50 are limited only to the contingency of search of any person, Section 57 prescribes that whenever any person makes any arrest or seizure under the Act, he would within 48 hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. As it is no longer res integra that the application of Section 50 of the Act is comprehended and called for only in the case of search of a person as distinguished from search of any premises etc. having been authoritatively propounded by the two Constitution Bench rulings of this Court in State of Punjab vs. Baldev Singh - (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja vs. State of Gujarat - (2011) 1 SCC 609, further dilation in this regard, in the attendant facts and circumstances of the case, is considered inessential. This is more so as the contraband in the case in hand had been recovered from inside the car in which the petitioner and the co-accused were travelling at the relevant point of time and not in course of the search of their person. Noticeably, it had also not been the plea of the defence ever that the alleged seizure according to the accused persons had been from their person. In the contextual facts therefore, Section 50 has no application to espouse the cause of the defence."

31. Their Lordships of the Supreme Court in SK.Raju alias Abdul Haque alias Jagga vs. State of West Bengal, (2018) 9 Supreme Court Cases 708 have held that when the contraband was recovered from the bag carried by the accused, compliance of Section 50 is not mandatory in such circumstances. Their Lordships have held as under:-

"7. Section 42 of the Act deals with the power of

32 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 33 entry, search, seizure and arrest without warrant or authorization. It reads thus:

"42. Power of entry, search, seizure and arrest without warrant or authorisation.-- (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 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 VA of this Act 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;

33 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 34

(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 this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; 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 this Act:

Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:

Provided further 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. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto,

34 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 35 he shall within seventy-two hours send a copy thereof to his immediate official superior."

8. Section 43 of the Act confers powers on the empowered officer to seize a substance and arrest a suspect in a public place. It provides thus:

"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 under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.

Explanation.-- For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public."

[Emphasis supplied]

9. We are unable to accept the submission made by 35 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 36 the learned counsel for the appellant that Section 42 is attracted to the facts of the present case. In State of Punjab v Baldev Singh ("Baldev Singh"), Dr A S Anand, C.J. speaking for a Constitution Bench of this Court, held:

"10......The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drug or Psychotropic Substances in a public place where such possession appears to him to be unlawful."

[Emphasis supplied]

10. In Narayanaswamy Ravishankar v Assistant Director of Revenue Intelligence, a three judge Bench of this Court considered whether the empowered officer was bound to comply with the mandatory provisions of Section 42 before recovering heroin from the suitcase of the appellant at the airport and subsequently arresting him. Answering the above question in the negative, the Court held:

"5. In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Further, as Section 42 of the NDPS Act was not applicable in the present 36 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 37 case, the seizure having been effected in a public place, the question of non-compliance, if any, of the provisions of Section 42 of the NDPS Act is wholly irrelevant."

11. In Krishna Kanwar (Smt) Alias Thakuraeen v State of Rajasthan, a two judge Bench of this Court considered whether a police officer who had prior information was required to comply with the provisions of Section 42 before seizing contraband and arresting the appellant who was travelling on a motorcycle on the highway. Answering the above question in the negative, the Court held:

"16.......Section 42 comprises of two components. One relates to the basis of information i.e.: (i) from personal knowledge, and (ii) information given by person and taken down in writing. The second is that the information must relate to commission of offence punishable under Chapter IV and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 has no application. Subsection (2) mandates, as was noted in Baldev Singh case that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Therefore, sub-section (2) only comes into operation where the officer concerned does the enumerated acts, in case any offence under Chapter IV has been committed or documents etc. are concealed in any building, conveyance or enclosed place. Therefore, the commission of the act or concealment of document 37 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 38 etc. must be in any building, conveyance or enclosed place."

[Emphasis supplied]

12. An empowered officer under Section 42(1) is obligated to reduce to writing the information received by him, only when an offence punishable under the Act has been committed in any building, conveyance or an enclosed place, or when a document or an article is concealed in a building, conveyance or an enclosed place. Compliance with Section 42, including recording of information received by the empowered officer, is not mandatory, when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.

13. The appellant was walking along the Picnic Garden Road. He was intercepted and detained immediately by the raiding party in front of Falguni Club, which was not a building, conveyance or an enclosed place. The place of occurrence was accessible to the public and fell within the ambit of the phrase "public place" in the explanation to Section 43. Section 42 had no application.

14. The cases relied on by the learned counsel for the appellant will also not apply in the context of the facts before us. In Mansuri, an auto-rickshaw driver was intercepted by police personnel. Four gunny bags of charas were recovered from the auto-rickshaw. The police officer who had prior information about transportation of some narcotic substance, had neither taken down the information before carrying out the seizure and arrest, nor apprised his superior officer. He 38 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 39 contended that the action taken by him was under

Section 43 and not Section 42. Rejecting the argument of the State, this Court held that compliance with Section 42 was required as the auto-rickshaw was a private vehicle and not a public conveyance as contemplated under Section 43. Similarly, in Jagraj, contraband was recovered from a jeep which was intercepted by police personnel on a public road after receiving prior information. The police officer who had received the information, admitted to not taking it down in writing, contending that Section 43 would be applicable.

Rejecting the argument of the State, this Court held that the jeep which was intercepted, was not a public conveyance within the meaning of Section 43 and compliance with Section 42(1) was therefore mandatory. In Holia, Mandrax tablets were recovered from the hotel room of the respondent. The information was not reduced to writing by the officer who had first received the information. The State claimed that compliance with Section 42 was not required as the hotel was a public place. Rejecting the submission of the State, this Court held that while a hotel is a public place, a hotel room inside it is not a public place. This Court held thus:

"14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under sub-section (1) of Section 42, need not be complied with, only because the place whereat search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with ... It is also possible to contend that where a search is required to be made at a public place which is open to the general public, Section 42 would have no application but it may be

39 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 40 another thing to contend that search is being made on prior information and there would be enough time for compliance of reducing the information to writing, informing the same to the superior officer and obtain his permission as also recording the reasons therefore coupled with the fact that the place which is required to be searched is not open to public although situated in a public place as, for example, room of a hotel, whereas hotel is a public place, a room occupied by a guest may not be. He is entitled to his right of privacy. Nobody, even the staff of the hotel, can walk into his room without his permission. Subject to the ordinary activities in regard to maintenance and/or housekeeping of the room, the guest is entitled to maintain his privacy."

[Emphasis supplied] There is hence no substance in the first submission.

15. Section 50 of the Act deals with conditions under which search of persons shall be conducted. It states:

"50. Conditions under which search of persons shall be conducted.-- (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before 40 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 41 whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."

According to Section 50(1), an empowered officer should necessarily inform the suspect about his legal right, if he so requires, to be searched in the presence of a gazetted officer or a magistrate.

16. In Vijaysinh Chandubha Jadeja v State of Gujarat ("Vijaysinh"), a Constitution Bench of this Court interpreted Section 50 thus:

"20. The mandate of Section 50 is precise and clear, viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted 41 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 42 officer or the Magistrate, as the case may be, directs the authorised officer to do so *** *** ***

29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under Sub- section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision *** *** ***

31. We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez and Prabha Shankar Dubey is neither borne out from the language of Sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case."

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17. The principle which emerges from Vijaysinh is that the concept of "substantial compliance" with the requirement of Section 50 is neither in accordance with the law laid down in Baldev Singh, nor can it be construed from its language. [Reference may also be made to the decision of a two judge Bench of this Court in Venkateswarlu]. Therefore, strict compliance with Section 50(1) by the empowered officer is mandatory. Section 50, however, applies only in the case of a search of a person. In Baldev Singh, the Court held "12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises, etc."

In State of Himachal Pradesh v Pawan Kumar ("Pawan Kumar"), a three judge Bench of this Court held that the search of an article which was being carried by a person in his hand, or on his shoulder or head, etc., would not attract Section 50. It was held thus:

"11....In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act *** *** ***

16....After the decision in Baldev Singh, this Court has consistently held that Section 50 would only apply to search of a person and not to any bag, article or container, etc. being carried by him."

18. In Parmanand, on a search of the person of the respondent, no substance was found. However, subsequently, opium was recovered from the bag of the respondent. A two judge Bench of this Court considered 43 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 44 whether compliance with Section 50(1) was required. This Court held that the empowered officer was required to comply with the requirements of Section 50(1) as the person of the respondent was also searched. [Reference may also be made to the decision of a two judge Bench of this Court in Dilip v State of Madhya Pradesh]. It was held thus:

"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."

19. Moreover, in the above case, the empowered officer at the time of conducting the search informed the respondent that he could be searched before the nearest Magistrate or before the nearest gazetted officer or before the Superintendent, who was also a part of the raiding party. The Court held that the search of the respondent was not in consonance with the requirements of Section 50(1) as the empowered officer erred in giving the respondent an option of being search before the Superintendent, who was not an independent officer. It was held thus:

"19. We also notice that PW 10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before the nearest gazetted officer or before PW 5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW 5 J.S. Negi by PW 10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to the nearest 44 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 45 Magistrate or the nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW 10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW 5 J.S. Negi, the Superintendent, who was part of the raiding party. PW 5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW 5 J.S. Negi, the search would have been vitiated or not. But PW 10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW 10 SI Qureshi is vitiated."

20. The question which arises before us is whether Section 50(1) was required to be complied with when charas was recovered only from the bag of the appellant and no charas was found on his person. Further, if the first question is answered in the affirmative, whether the requirements of Section 50 were strictly complied with by PW-2 and PW-4.

21. As evidenced by Exhibit-3, a first option was given to the appellant. PW2 informed him that it was his legal right to be searched either in the presence of a magistrate or in the presence of a gazetted officer. The appellant was then asked to give his option by indicating whether he wanted to be searched by a magistrate or a gazetted officer. The appellant indicated that he wanted the search to be carried out in the presence of a gazetted 45 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 46 officer. When PW-4 arrived, he was introduced to the detainee as a gazetted officer. As evidenced by Exhibit-4, PW-4 then gave the appellant a second option. He inquired of him again, whether he wanted to be searched in the presence of a gazetted officer or in the presence of a magistrate. The appellant reiterated his desire to be 16 searched in the presence of a gazetted officer. Before the search of the appellant commenced, the gazetted officer asked the appellant whether he wanted to search PW-2 before his own search was carried out by PW-2. The appellant agreed to search PW-2 before the latter carried out his search. On conducting the search, only personal belongings of PW-2 were found by the appellant. On the search of the appellant in the presence of the gazetted officer, a biscuit colour jute bag was recovered from the appellant, and Rs. 2,400/- cash in the denomination of 24 notes of Rs. 100/- each was found in the left pocket of the appellant's trouser. When the bag was opened, a black polythene cover containing nineteen rectangular broken sheets of a blackish / deep brown colour weighing 1.5 kilograms was recovered. The sheets were tested and were found to be charas.

22. PW-2 conducted search of the bag of the appellant as well as of the appellant's trousers. Therefore, the search conducted by PW-2 was not only of the bag which the appellant was carrying, but also of the appellant's person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW-2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in 46 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 47 the presence of either a gazetted officer or a magistrate. 17 From Exhibit-3, it can be discerned that the appellant was informed of his legal right to be searched in the presence of a magistrate or a gazetted officer. The appellant opted for the latter alternative. Exhibit-4 is a record of the events after the arrival of PW-4 on the scene. After the arrival of PW-4, the appellant was once again asked by him, whether he wished to be searched in the presence of a gazetted officer or a magistrate. This was the second option which was presented to him. When he reiterated his desire to be searched before a gazetted officer, PW-4 inquired of the appellant whether he wished to search PW-2 before his own search was conducted by PW-2. The appellant agreed to search PW-

2. Only the personal belongings of PW-2 were found by the appellant. It was only after this that a search of the appellant was conducted and charas recovered. Before the appellant's search was conducted, both PW2 and PW-4 on different occasions apprised the appellant of his legal right to be searched either in the presence of a gazetted officer or a magistrate. The options given by both PW-2 and PW-4 were unambiguous. Merely because the appellant was given an option of searching PW-2 before the latter conducted his search, would not vitiate the search. In Parmanand, in addition to the option of being searched by the gazetted officer or the magistrate, the detainee was given a 'third' alternative by the empowered officer which was to be searched by an officer who was a part of the raiding team. This was found to be contrary to the intent of Section 50(1). The option given to the appellant of searching PW-2 in the case at hand, before the latter searched the appellant, did not vitiate the process in which a search of the appellant was conducted. The search of 18 the appellant was as a matter of fact conducted in the presence of PW-

47 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 48 4, a gazetted officer, in consonance with the voluntary communication made by the appellant to both PW-2 and PW-4. There was strict compliance with the requirements of Section 50(1) as stipulated by this Court in Vijaysinh.

23. As we have already held that Section 50 was attracted in the present case, we do not need to decide on the applicability of Namdi to the facts of the present case. We have held that Section 50 was complied with. Having regard to the above position, we do not find any merit in the appeal."

32. Now as far as Section 307 IPC is concerned, it is intention and not the injury which is relevant. It has come on record that one of the accused namely Rajeef Mohammad in furtherance of common object pointed gun at the police. The accused had hatched criminal conspiracy which is duly proved by the prosecution. Thus they have rightly been convicted under Section 307 IPC. The gun was snatched by ASI Inderdeep Singh. Co-accused Sukhdev Singh and Rajeef Mohammad were also in possession of arms and have rightly been convicted under Section 25 of the Arms Act. A sum of Rs.65,00,000/- was recovered from the dicky of the car.

The only purpose of money was indulging in the activity of financing heroin. Pakistani nationals were being harboured by the local companion by giving them shelter. Thus the appellants have rightly been convicted under Section 27-A of the NDPS Act.

33. It is duly proved on record that two of the appellants had illegally entered into Indian territory. They were harboured by Sukhdev Singh. They had reached Amritsar city. They were instrumental in bringing heroin and fake Indian currency and arms/ammunition. However they were merely challaned for violation of Passport Act, 1967 and the Foreigners Act.

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34. Accordingly there is no merit in the appeals and the same are dismissed.

35. However, before parting with the judgment, we would like to observe that the Narcotic Drugs and Psychotropic Substances Act, 1985, has been enacted to make stringent provisions for the control and regulation of operations relating to the narcotic drugs and psychotropic substances including to provide for the forfeiture of property or use in illicit traffic in narcotic drugs and psychotropic substances.

36. The "narcotic drug" is defined under Section 2 (xiv). It means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods. The "psychotropic substance" is defined under Section 2 (xxiii). It means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule.

37. Section 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 reads as under:-

[27. Punishment for consumption of any narcotic drug or psychotropic substance.- Whoever, consumes any narcotic drug or psychotropic substance shall be punishable,-

(a) where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central Government by notification in the Official Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to twenty thousand rupees; or with both; and

(b) where the narcotic drug or psychotropic substance consumed is other than those specified 49 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 50 in or under cluase (a), with imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees or with both.]

38. The use of narcotic drugs and psychotropic substances has played havoc with the society. The use of the narcotic drugs and psychotropic substances by the consumers has deleterious effects on their health. The use of the narcotic drugs and psychotropic substances has destroyed many families. In case the provisions of the Narcotic Drugs and Psychotropic Substances Act are not implemented in letter and spirit, we may loose one generation.

39. The person entering into India must be in possession of passport as per the provisions of the Passport (Entry into India) Act, 1920.

Section 2 defines "entry" and "passport". The Central Government is empowered to make rules under Section 3 requiring that persons entering India shall be in possession of passports, and for all matters ancillary or incidental to that purpose. Sub section 3 provides that rules made under this section may provide that any contravention thereof or of any order issued under the authority of any such rule shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to fifty thousand rupees, or with both. Section 3-A inserted by Act 47 of 2000 provides that whoever having been convicted of an offence under any rule or order made under this Act is again convicted of an offence under this Act shall be punishable with double the penalty provided for the later offence.

Section 4 empowers to any officer of police, not below the rank of a sub-

inspector, and any officer of the Customs Department empowered by a general or special order of the Central Government in this behalf may arrest 50 of 51 ::: Downloaded on - 09-06-2019 05:28:03 ::: CRA-D-624-DB-2017 51 without warrant any person who has contravened or against whom a reasonable suspicion exists that he has contravened any rule or order made under Section 3.

40. Accordingly we direct the State of Punjab, Haryana and Union Territory, Chandigarh through their respective Home Secretaries to ensure that the persons who consume any "narcotic drugs" and "psychotropic substances", criminal proceedings under Section 27 of the NDPS Act be initiated against them to eradicate the drugs menace. The State of Punjab is also directed to ensure that persons who cross the international border illegally are also booked under the Passport (Entry into India) Act, 1920 and Foreigners Order, 1960 issued under Section 3 of Foreigners Act, 1946.

(RAJIV SHARMA) JUDGE (AVNEESH JHINGAN) JUDGE May 07 , 2019.

Davinder Kumar

                 Whether speaking / reasoned                        Yes/No
                 Whether reportable                                 Yes/No




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