Punjab-Haryana High Court
Amit Arora vs State Of Punjab on 22 February, 2023
Neutral Citation No:=2021:PHHC:033226
-1-
CRM-M-46900 of 2021 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-46900 of 2021 (O&M)
Reserved on: 13.02.2023
Pronounced on: 22.02.2023
Amit Arora
...........Petitioner
versus
State of Punjab
.......Respondent
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Argued by: Mr. Sarju Puri, Advocate, for the petitioner.
Mr. Anup Singh, AAG, Punjab.
NAMIT KUMAR, J.
CRM-4806 of 2022 This application has been filed by the applicant-petitioner under Section 482 Cr.P.C. for placing on record copy of challan under Section 173(2) Cr.P.C. along with consent memo as Annexures P-4 and P-5.
In view of the averments made in the application, same is allowed. Annexures P-4 and P-5 are taken on record subject to all just exceptions.
CRM-M-46900 of 2021 This petition has been filed by the petitioner under Section 439 Cr.P.C. seeking regular bail in case FIR No.110 dated 26.07.2021 under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, registered at Police Station Special Task Force, District STF Wing.
Brief facts of the case are that a secret information was received that petitioner-Amit Arora, who is running a chemist shop in the name of For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 1 of 36 ::: Downloaded on - 02-03-2023 09:27:19 ::: Neutral Citation No:=2021:PHHC:033226 -2- CRM-M-46900 of 2021 (O&M) Kashish Medicose alongwith his friend Naveen Saini is involved in dealing with prohibited contraband and intoxicated tablets. Both, petitioner-Amit Arora and Naveen saini were coming on their car Alto bearing no.PB-10- GB-9198 as they are traveling to supply the same to their customers. FIR was accordingly registered. On 25.07.2021 at around 10 PM both petitioner-
Amit Arora and Naveen Saini were apprehended. From their possession 700 tablets of Roldal (containing Tramadol), 100 tablets Clovidol (containing Tramadol) and 570 capsules of SPASMO-A VON PLUS were recovered alongwith Rs.1,40,000/- currency notes and ALTO car bearing no.PB-10- GB-9198 which is in the ownership of petitioner-Amit Arora. Subsequently from the information supplied by them, another accused Sushil Kumar was arrested and from his possession voluminous recovery of 795 strips of SPASMO-A VON PLUS capsules total 6360 capsules, 300 strips of SPASCORE-VON PLUS capsules total 2400 capsules, 218 strips of TAMWEL tablets total 2180 tablets, 90 strips of ALPRASAFE .05 tablets total 900 tablets, 180 strips of ROLDAL 100-SR tablets total 1800 tablets alongwith drug money of Rs.2,48,000/- was made.
Learned counsel for the petitioner submitted that the petitioner is a licenced chemist and is running his shop under the name and style of 'Kashish Medicose' for the last more than 15 years and there is not even a single complaint against him till date. He further submitted that the petitioner has been falsely implicated in the present case and he is in custody since 25.07.2021. He further submitted that mandatory provisions of Section 42 of the NDPS Act have not been complied with by the police as search and seizure are completely vitiated as per Section 42 of the NDPS Act. He further submitted that investigation in the present case is complete;
For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 2 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -3- CRM-M-46900 of 2021 (O&M) challan has been presented; charges have been framed; out of 25 prosecution witnesses, none has been examined as yet; the case is now fixed for prosecution evidence on 24.03.2023 and the trial is likely to take a considerable time to conclude. He further submitted that the petitioner is not involved in any other case. No communication of secret information received by ASI Munish Kumar was sent to the superior officer within 72 hours and no reasons were recorded as to why warrants/authorization could not be obtained prior to conducting the raid.
Learned counsel for the petitioner has placed reliance on the judgments in Rajender Singh Vs. State of Haryana Criminal Appeal No.1051 of 2009 Decided on 08.08.2011, Sukhdev Singh Vs. State of Haryana 2013(2) RCR (Criminal) 232, Darshan Singh Vs. State of Haryana 2016(1) RCR (Criminal) 333, State of Rajasthan Vs. Chhagan Lal 2014(4) RCR (Criminal) 559, State of Rajasthan Vs. Jag Raj Singh @ Hansa 2016(3) RCR (Criminal) 539, Boota Singh & Ors. Vs. State of Haryana 2021(2) RCR (Criminal) 892, Syed Yusuf Syed Noor Vs. State of Maharastra 2000(1) Crimes 193 to contend that there has been violation of Section 42 of the NDPS Act in the instant case.
He contends that violation of the mandatory provisions of the Act would entitle the accused to the grant of bail even if the recovery is of commercial quantity of contraband. Reliance is placed upon the judgments in Sarija Banu(A) Janathani @ Janani & Anr. Vs. State through Inspector of Police 2004(12) SCC 266, Gurjant Singh Vs. The state of Punjab CRM-M-20943-2022 Decided on 20.05.2022, Sarabjit Kaur Vs State of Punjab CRM-M-26248-2021(O&M) Decided on 30.03.2022, Raju Bhavlal Pawar & Ors. Vs. The State of Maharashtra 2021 ALL MR (Cri) For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 3 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -4- CRM-M-46900 of 2021 (O&M) 4651, Basanth Balram Vs. State of Kerala 2019(2) RCR (Criminal) 488 and Sudesh Singh @ Tandu Vs. State of Punjab 2011(9) RCR (Criminal)
922. He also submitted that petitioner was got arrested from his house in connection with enquiry of two other persons and lateron petitioner was implicated in this case.
On the other hand, learned State counsel contended that since the recovery effected falls under the category of 'commercial quantity' and the question whether there is any violation of Section 42 of the NDPS Act would be considered at the time of trial. He contended that a heavy recovery of contraband has been effected from the petitioner and his co-
accused, therefore, he is not entitled for grant of regular bail.
I have heard learned counsel for the parties and perused the record.
Before proceeding further it would be apposite to refer to Section 42 of the NDPS Act and the same is reproduced below:-
"Section 42 in The Narcotic Drugs and Psychotropic Substances Act, 1985 1[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 intellegence 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 For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 4 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -5- CRM-M-46900 of 2021 (O&M) 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;
(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.
For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 5 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -6- CRM-M-46900 of 2021 (O&M) 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.
(2) 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 within seventy-two hours send a copy thereof to his immediate official superior.
The Hon'ble Supreme Court and various High Courts have examined Section 42 of the Act comprehensively and some of the judgments in this regard are reproduced hereinbelow:-
The Hon'ble Supreme Court in Rajender Singh Vs. State of Haryana Criminal Appeal No.1051 of 2009 Decided on 08.08.2011 held as under:-
"1. At about 4 p.m. on the 30th January 1997, PW-6 Inspector Kuldip Singh of the CIA Staff, Hisar sent Ruqa Ex. PG to Police Station Bhuna that while he was present at the Bus Adda of village Bhuna in connection with the investigation of a case, he had received secret information that the appellant Rajinder Singh @ Chhinder, was an opium addict and also dealing in its sale, and that he had kept some opium in the shed used for storing fodder in his farm house, and if raid was organized, the opium could be recovered. On the basis of the aforesaid Ruqa, a formal First Information Report was drawn up for an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the "Act"). A wireless message was also sent to the DSP, Fatehabad PW-5 Charanjit Singh to reach the spot.
2. Mr. Zafar Sadiqui, the learned counsel for the appellant, has made four submissions during the course of the hearing. He For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 6 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -7- CRM-M-46900 of 2021 (O&M) has first submitted that as the provisions of Section 42(2) of the Act had not been complied with, the conviction of the appellant could not be sustained in the light of the judgment of the Constitution Bench of this Court in Karnail Singh vs. State of Haryana 2009 (5) RCR (Criminal) 515 : 2009(4) Recent Apex Judgments (R.A.J.) 638 : (2009)8 SCC 539 8 SCC 539. He has further submitted that no serious effort had been made to associate an independent witness with the search and seizure and that the link evidence in the case was also missing as the Malkhana register pertaining to the recovered opium was deposited had not been produced as evidence. He has finally submitted that as the provisions of Sections 52, 55 and 57 of the Act had not been complied with was an additional reason as to why the conviction could not be sustained. Mr. Manjit Dalal, the learned counsel for the State of Haryana, has however supported the judgments of the courts below and has pointed out that the Ruqa Exhibit PA had been sent to the Police Station for the registration of the FIR and the fact that information had been conveyed on the wireless to DSP Charanjit Singh was sufficient compliance with the provisions of Section 42(2) of the Act. He has also controverted the other submissions made by Mr. Sadiqui.
3. We have heard the learned counsel for the parties and gone through the judgment impugned. To our mind, the entire controversy hinges on Section 42 which is reproduced below: "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 For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 7 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -8- CRM-M-46900 of 2021 (O&M) 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 authorization 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 For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 8 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -9- CRM-M-46900 of 2021 (O&M) the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.
42(2) 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 within seventy-two hours send a copy thereof to his immediate official superior."
4. A reading of the above said provision pre-supposes that if an authorized officer has reason to believe from personal knowledge or information received by him that some person is dealing in a narcotic drug or a psychotropic substance, he should ordinarily take down the information in writing except in cases of urgency which are set out in the Section itself. Section 42(2), however, which calls for interpretation in the matter before us, is however categorical that the information if taken down in writing shall be sent to the superior officer forthwith. In Karnail Singh's case, this Court has held that the provisions of Section 42(2) are mandatory and the essence of the provisions has been set out in the following terms:
"In conclusion, what is to be noticed is that 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 Sections 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 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 For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 9 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -10- CRM-M-46900 of 2021 (O&M) 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.
(d) While total non-compliance with requirements of subsections (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 nonsending of a copy of such information to the official superior forthwith, may not be treated as violation of Section
42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 10 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -11- CRM-M-46900 of 2021 (O&M) 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."
5. It is therefore clear that the total non-compliance with the provisions sub-section (1) and (2) of Section 42 is impermissible but delayed compliance with a satisfactory explanation for the delay can, however, be countenanced.. We have gone through the evidence of PW-6 Kuldip Singh. He clearly admitted in his cross-examination that he had not prepared any record about the secret information received by him in writing and had not sent any such information to the higher authorities. Likewise, PW-5 DSP Charanjit Singh did not utter a single word about the receipt of any written information from his junior officer Inspector Kuldip Singh. It is, therefore, clear that there has been complete non- compliance with the provisions of Section 42(2) of the Act which vitiates the conviction.
6. Mr. Dalal, the learned counsel for the respondent-State has, however, referred to paragraph 34 of the judgment of the Constitution Bench in which general observations have been made with regard to the provisions of Section 41 (1) and 42(2) with respect to the latest electronic technology and the possibility that the said provisions may not be entirely applicable in such a situation. Concededly the present case does not fall in this category. In any case the principles settled by the Constitution Bench are in paragraph 35 and have already been re-produced by us hereinabove. Likewise, the dispatch of a wireless message to PW-6 does not amount to compliance with Section 42(2) of the Act as held by this Court in State of Karnataka vs. Dondusa Namasa Baddi 2010(4) RCR (Criminal) 367: 2010(5) Recent Apex Judgments (R.A.J.) 333 : (2010) 12 SCC 495.
The Hon'ble Supreme Court in Sukhdev Singh Vs. State of For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 11 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -12- CRM-M-46900 of 2021 (O&M) Haryana 2013(2) R.C.R. (Criminal) 232 held as under:-
"21. As per the statement of PW1, no effort was made by him to reduce the information into writing and inform his higher authorities instantaneously or even after a reasonable delay which has to be explained with reasons in writing. On the contrary, in the present case, the Investigating Officer PW 1 had more than sufficient time at his disposal to comply with the provisions of Section 42. Admittedly, he had received the secret information at 11.30 a.m., but he reached the house of the accused at 2 p.m. even when the distance was only 6 kilometers away and he was in a jeep. There is not an iota of evidence, either in the statement of PW 1 or in any other documentary form, to show what the Investigating Officer was doing for these two hours and what prevented him from complying with the provisions of Section 42 of NDPS Act.
22. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non- compliance, thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purpose of the provisions of Section 42 which can broadly be stated are that : (a) it is a mandatory provision which ought to be construed and complied strictly; and (b) compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post- recovery.
23. Once the contraband is recovered, then there are other provisions like Section 57 which the empowered officer is mandatorily required to comply with. That itself to some extent would minimize the purpose and effectiveness of Section 42 of the NDPS Act. It is to provide fairness in the process of recovery and investigation which is one of the basic features of our criminal jurisprudence. It is a kind of prevention of false implication of innocent persons. The legislature in its wisdom had made the provisions of Section 42 of NDPS Act mandatory For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR
12 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -13- CRM-M-46900 of 2021 (O&M) and not optional as stated by this Court in the case of Karnail Singh (supra).
24. Thus, the present appeal merits grant of relief to the accused. We accordingly set aside the judgment of the High Court as well as the Trial Court and acquit the accused of an offence under Section 15 of NDPS Act. We direct the accused to be set at liberty forthwith, if not required in any other case.
25. Before we part with this file, we consider it the duty of the Court to direct the Director General of Police concerned of all the States to issue appropriate instructions directing the investigating officers to duly comply with the provisions of Section 42 of NDPS Act at the appropriate stage to avoid such acquittals. Compliance to the provisions of Section 42 being mandatory, it is the incumbent duty of every investigating officer to comply with the same in true substance and spirit in consonance with the law stated by this Court in the case of Karnail Singh (Supra).
The Hon'ble Supreme Court in Darshan Singh Vs. State of Haryana 2016(1) R.C.R. (Criminal) 333 held as under:-
"5. At the beginning of hearing the instant appeals, learned senior counsel for the appellant informed the Bench, that he would be raising various grounds in his challenge to the order passed by the Additional Sessions Judge, Panipat, as also, the impugned judgment and order passed by the High Court. Having heard the first submission, advanced at the hands of learned senior counsel, premised on section 42 of the NDPS Act, we are satisfied, that it would not be necessary for us to deal with the remaining submissions, and accordingly, we did not hear learned senior counsel for the appellant, on the remaining submissions.
6. Insofar as the contention of learned senior counsel for the appellant under section 42 of the NDPS Act is concerned, he relied on the interpretation placed by a Constitution Bench judgment of this Court on the above provisions in Karnail For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 13 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -14- CRM-M-46900 of 2021 (O&M) Singh v. State of Haryana, 2009(5) RCR (Criminal) 515 :
2009(4) Recent Apex Judgments (R.A.J.) 638 : (2009) 8 SCC 539, wherein, this Court recorded its conclusions in Paragraph 35, which is being extracted hereunder :
"In conclusion, what is to be noticed is that 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 Sections 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 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) 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, For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 14 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -15- CRM-M-46900 of 2021 (O&M) entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance with requirements of subsections (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 nonsending of a copy of such information to the official superior forthwith, may not be treated as violation of section
42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001."
(emphasis is ours)
7. Based on conclusion (d) recorded herein above, it was the vehement contention of the learned senior counsel for the appellant, that the mandate contained in section 42 of the NDPS Act was not at all complied with, by the Station House Officer, Police Station, Shahar, Panipat, who had received the secret information and conducted a raid on the premises of the accused-appellant Darshan Singh. Based on the noncompliance of the provisions of section 42 of the NDPS Act, requiring the officer concerned to record in writing the details For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 15 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -16- CRM-M-46900 of 2021 (O&M) in respect of secret information received by him under section 42(1) of the NDPS Act, and further, to communicate the aforesaid details to the officer superior to him forthwith [under section 42(2) of the NDPS Act], learned senior counsel seeks setting aside of the conviction of the accused-appellant Darshan Singh, at the hands of the Additional Sessions Judge, Panipat, and affirmed at the hands of the High Court.
8. Whilst it was the case of the learned senior counsel for the appellant that the provisions of section 42(1) of the NDPS Act had not been complied with at all, learned counsel for the respondent State vehemently contested the aforesaid assertion. For contesting the submission advanced at the hands of the learned senior counsel for the appellant, reliance was placed on the factual position narrated in Paragraph 26 of the order dated 06.02.2001, passed by the trial court. Paragraph 26 is being extracted hereunder :
"26. In the present case, no doubt the report of the arrest of the accused and the seize has not been sent to the Police Station, but in the present case immediately after effecting the recovery, the ruqa was sent to the Police Station and on the basis of the same formal FIR Ex.PB/1 was recorded at 5.15 p.m. and Ex.PB1 further proves that the copy of the said FIR was sent through special messenger, which was received by the then Chief Judicial Magistrate, Panipat at 8.45 p.m. on the same day and the copy was also sent to the S.P., Panipat. Thus, it stands proved that about the arrest and seizure of the accused, the information was received by the superior officer, as such there is compliance of Section 57 of the Act."
9. A perusal of Paragraph 26 extracted above reveals that immediately after conducting the raid, the concerned Station House Officer, Police Station Shahar, Panipat, registered a first information report, which was subsequently dispatched to the Superintendent of Police, Panipat on the same day, i.e. to the officer superior to the officer, who had conducted the raid For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 16 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -17- CRM-M-46900 of 2021 (O&M) (on receipt of secret information). According to the learned counsel for the respondent-State since first information report was sent to the superior officer, non-compliance of Section 42 had not caused any prejudice to the appellant, and therefore, he could claim no benefit under Section 42.
10. The solitary question that arises for our consideration in the instant appeal, is whether the registration of the first information report, narrating the factual position as has already been described at the beginning of this order, as also, the communication of the first information report to the Superintendent of Police, Panipat would constitute an effective compliance of the provisions contained in section 42 of the NDPS Act.
11. Having given our thoughtful consideration to the submission advanced at the hands of learned counsel for the respondent, we are of the view that the mandate contained in section 42(1) of the NDPS Act, requiring the recording in writing, the details pertaining to the receipt of secret information, as also, the communication of the same to the superior officer are separate and distinct from the procedure stipulated under the provisions of the Criminal Procedure Code. Subsection 1 of section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of Second Class specially empowered by the State Government may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Sub-section (2) of Section 41 refers to issue of authorisation for similar purposes by the officers of the Departments of Central Excise, Narcotics, Customs, Revenue Intelligence, etc. Sub-section (1) of section 42 of the NDPS Act lays down, that the empowered officer, if he has a prior information given by any person, should necessarily take it down in writing, and where he has reason to believe from his personal knowledge, that offences under For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 17 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -18- CRM-M-46900 of 2021 (O&M) Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building, etc. he may carry out the arrest or search, without warrant between sunrise and sunset and he may do so without recording his reasons of belie. The two separate procedures noticed above are exclusive of one another. Compliance of one, would not infer the compliance of the other. In the circumstances contemplated under section 42 of the NDPS Act the mandate of the procedure contemplated therein will have to be followed separately, in the manner interpreted by this Court in Karnail Singh's case (supra) and the same will not be assumed, merely because the Station House Officer concerned had registered a first information report, which was also dispatched to the Superintendent of Police, in compliance with the provisions of the Criminal Procedure Code.
12. In the above view of the matter, it is not possible for us to accept the submission of the learned counsel for the respondent-State, that the registration of the first information report at the hands of the Station House Officer, Police Station Shahar, Panipat and its communication to the Superintendent of Police, Panipat would constitute sufficient compliance of the mandate of section 42 of the NDPS Act.
13. In aforesaid view of the matter, we are satisfied that section 42 of the NDPS Act was not complied with at all, insofar as the present controversy is concerned. Thus viewed, conclusion (d) recorded in Paragraph 35 of the judgment rendered in Karnail Singh's case (supra), would fully apply to the facts and circumstances of the present case, and we are left with no other option, but to set aside the conviction and the sentence of imprisonment of the accused-appellant Darshan Singh. Ordered accordingly. The appeal stands allowed.
The Hon'ble Supreme Court in State of Rajasthan Vs. Chhagan Lal 2014(4) RCR (Criminal) 559 held as under:-
For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 18 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -19- CRM-M-46900 of 2021 (O&M) "6. In this case, the bag was recovered from the well which the respondent claimed belonged to him by the respondent and the independent witness Pappu by entering in the well at 5.00 O'clock in the morning. The High Court has clearly recorded a finding of fact that the bag was taken out from the well after sunset and prior to sunrise. We have no reason to disbelieve this finding.
7. According to the prosecution, the respondent threw the bag in the well. The suspected contraband was, therefore, tried to be concealed in a well. The possibility of its destruction was imminent. In fact, the evidence on record indicates that water entered in the bag and got mixed up with the opium. The opium was liquefied. This was indeed, an emergent situation. The well had to be searched with the help of an independent witness, which was done. In such an emergent situation, if the officer had reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence (which, in this case, would have resulted in destruction of evidence), as per proviso to section 42(1) of the NDPS Act, he could have conducted the search of the well after recording grounds of his belief. Section 42(2) requires that grounds of belief so recorded have to be communicated to the immediate superior official within seventy-two hours. In this case, there is nothing to establish that the officer had followed this procedure. There is nothing to establish that he recorded grounds of his belief and communicated them to his immediate superior. As observed by the Constitution Bench in Karnail Singh (supra), total non-
compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible. However, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. Since in this case, there is total non-compliance of section 42 of the NDPS Act, the High Court has rightly set aside the conviction of the For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 19 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -20- CRM-M-46900 of 2021 (O&M) respondent. The impugned order calls for no interference from this end."
The Hon'ble Supreme Court in State of Rajasthan Vs. Jag Raj Singh @ Hansa 2016(3) RCR (Criminal) 539 held as under:-
"13. What Section 42(2) requires is that where an officer takes down an information in writing under sub-Section (1) he shall sent a copy thereof to his immediate officer senior. The communication Exh. P-15 which was sent to Circle Officer, Nohar was not as per the information recorded in Exh. P 14 and Exh. P 24. Thus, no error was committed by the High Court in coming to the conclusion that there was breach of Section 42(2).
14. Another aspect of non-compliance of Section 42(1) proviso, which has been found by the High Court needs to be adverted. Section 42 (1) indicates that any authorised officer can carry out search between sun rise and sun set without warrant or authorisation. The scheme indicates that in event the search has to be made between sun set and sun rise, the warrant would be necessary unless officer has reasons to believe that a search warrant or authorisation cannot be obtained without affording the opportunity for escape of offender which grounds of his belief has to be recorded. In the present case, there is no case that any ground for belief as contemplated by proviso to sub-section (1) of Section 42 or Sub-section (2) of Section 42 was ever recorded by Station House Officer who proceeded to carry on search. Station House Officer has appeared as PD-11 and in his statement also he has not come with any case that as required by the proviso to Sub-section (1), he recorded his grounds of belief anywhere. The High Court after considering the entire evidence has made following observations:
"Shishupal Singh PD-11 by whom search has been conducted, on reaching at the place of occurrence by him no reasons to believe have been recorded before conducting the search of jeep bearing HR 24 4057 under Section 42(1), nor any reasons For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR
20 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -21- CRM-M-46900 of 2021 (O&M) in regard to not obtaining the search warrant have been recorded. He has also not stated any such facts in his statements that he has conducted any proceedings in regard to compliance of proviso of Section 42(1). Since reasons to believe have not been recorded, therefore, under Section 42(2) it is not found on record that copy thereof has been sent to the senior officials. Shishupal Singh could be the best witness in this regard, who has not stated any fact in his statement regarding compliance of proviso to Section 42(1) and Section 42(2), sending of copy of reasons to believe recorded by him to his senior officials."
18. There is one more aspect which needs to be noted. The present is a case where prosecution himself has come with case that secret information was received from informer which information was recorded in Exh. P-14 and Exh. P-21 Roznamacha and thereafter the Station House Officer with police party proceeded towards the scene. The present is not a case where the Station House Officer suddenly carried out search at a public place. The Station House Officer in his statement has also come up with the facts and case to prove compliance of Section 42. When search is conducted after recording information under Section 42(1), the provisions of Section 42 has to be complied with. This Court in Directorate Of Revenue & Another v. Mohammed Nisar Holia, 2008(1) RCR (Criminal) 241 : (2008) 2 SCC 370, had occasion to consider Sections 41,42 and 43 explanation. Following was stated in paragraph 14:
"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 subsection (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. An interpretation For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 21 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -22- CRM-M-46900 of 2021 (O&M) which strikes a balance between the enforcement of law and protection of the valuable human right of an accused must be resorted to. A declaration to the effect that the minimum requirement, namely, compliance of section 165 of the Code of Criminal Procedure would serve the purpose may not suffice as non-compliance of the said provision would not render the search a nullity. A distinction therefor must be borne in mind that a search conducted on the basis of a prior information and a case where the authority comes across a case of commission of an offence under the Act accidentally or per chance............."
19. Thus the present is not a case where Section 43 can be said to have been attracted, hence, non-compliance of Section 42(1) proviso and Section 42(2) had seriously prejudiced the accused. This Court had occasion in large number of cases to consider the consequence of non-compliance of provisions of Section 42(1) and 42(2), whether the entire trial stand vitiated due to above non compliance or conviction can be set aside. In this context reference is made to the judgment of this Court in State of Punjab v. Balbir Singh 1994(1) RCR (Criminal) 736 :
(1994) 3 SCC 299. In the above batch of cases, the High Court has acquitted accused on the ground that search was conducted without conforming to the provisions of the NDPS Act. Sections 41,42 43 and other relevant provisions came for consideration before this Court, referring to the provisions of Chapter IV following was stated in paragraph 8:
"8. But if on a prior information leading to a reasonable belief that an offence under Chapter IV of the Act has been committed, then in such a case, the Magistrate or the officer empowered have to proceed and act under the provisions of Sections 41 and 42. Under Section 42, the empowered officer even without a warrant issued as provided under Section 41 will have the power to enter, search, seize and arrest between sunrise and sunset if he has reason to believe from personal knowledge or information given by any other person and taken For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 22 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -23- CRM-M-46900 of 2021 (O&M) down in writing that an offence under Chapter IV has been committed or any document or other article which may furnish the evidence of the commission of such offence is kept or concealed in any building or in any place. Under the proviso if such officer has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for the concealment of the evidence or facility for the escape of the offender, he can carry out the arrest or search between sunset and sunrise also after recording the grounds of his belief. Sub-section (2) of 8 1990 Cri LJ 414 (Del) Section 42 further lays down that when such officer takes down any information in writing or records grounds for this belief under the proviso, he shall forthwith send a copy thereof to his immediate official superior."
20. After referring large number of cases, this Court recorded conclusion in paragraph 25 which is to the following effect:
"25. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows :
(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 23 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -24- CRM-M-46900 of 2021 (O&M) (2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorised officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.
(2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.
(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
(3) Under Section 42(2) such empowered officer who takes For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 24 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -25- CRM-M-46900 of 2021 (O&M) down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non- compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. (4-A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions 'of Sections 100 and 165 Cr.P.C. including the requirement to record reasons, such failure would only amount to an irregularity. (4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 Cr.P.C. and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.
(5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 25 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -26- CRM-M-46900 of 2021 (O&M) person opted for such a course or not would be a question of fact.
(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case."
21. A three Judges Bench in Saiyad Mohd. Saiyad Umar Saiyed & others v. The State Of Gujarat (supra) after elaborate consideration of provisions of the NDPS Act including section 50 had endorsed the judgment of this court in Balbir Singh's case (supra).
22. A Constitution Bench of this Court in State of Punjab v. Baldev Singh, 1999(3) RCR (Criminal) 533 : (1999) 6 SCC 172, had occasion to consider the provisions of the NDPS Act and several earlier judgments of this Court. The Constitution Bench noticed that the earlier judgments in Balbir Singh's case has found approval by three Judges Bench in Saiyad Mohd. Saiyad Umar Saiyed & others v. The State Of Gujarat (supra) and a discordant note was struck by two Judges Bench in State of Himachal Pradesh v. Pirthi Chand and another, 1996(2) RCR (Criminal) 759 : (1996) 2 SCC 37. The Constitution Bench approved the view of this Court in Balbir Singh's case that there is an obligation on authorised officer under section 50 to inform the suspect that he has right to be informed in the presence of the Gazetted Officer. It was held by Constitution Bench that if search is conducted in violation of Section 50 it may not vitiate the trial but that would render the recovery of illicit articles suspect and vitiates the conviction and sentence of the accused. What is said about non-compliance of Section 50 is also true with regard to noncompliance of Section 42 of For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 26 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -27- CRM-M-46900 of 2021 (O&M) the Act.
23. In Beckodan Abdul Rahiman v. State Of Kerala, 2002(2) RCR (Criminal) 385 : 2002 (4) SCC 229, this Court had occasion to consider both Section 42 and Section 50. In the above case there was non compliance of Section 42 (2) as well as Section 50. It was also noticed that a Constitution Bench in State of Punjab v. Baldev Singh (supra) has already laid down that provisions of Section 42 and 50 are mandatory and their non-compliance would render the investigation illegal. Following was held in paragraphs 5 and 6:
"5. In this case the violation of the mandatory provisions is writ large as is evident from the statement of K.R. Premchandran (PW1). After recording the information, the witnesses is not shown to have complied with the mandate of sub-section (2) of Section 42 of the Act. Similarly the provisions of Section 50 have not been complied with as the accused has not been given any option as to whether he wanted to be searched in presence of a Gazetted Officer or Magistrate.
6. We are of the firm opinion that the provisions of subsection (2) of Section 42 and the mandate of Section 50 were not complied with by the prosecution which rendered the case as not established. In view of the violation of the mandatory provisions of the Act, the appellant was entitled to be acquitted...."
24. It is also relevant to note another Constitution Bench judgment of this Court in Karnail Singh v. State of Haryana, 2009(5) RCR (Criminal) 515 : 2009(4) Recent Apex Judgments (R.A.J.) 638 : 2009 (8) SCC 539, where this Court had again occasion to consider the provisions of Sections 42 and 50. The Constitution Bench noted the divergence of opinion in two earlier cases which has resulted in placing the matter before the larger Bench. The question was noticed in paragraphs 1 and 2 of the judgment which are to the following effect:
For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 27 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -28- CRM-M-46900 of 2021 (O&M) "(1) In the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000(1) RCR (Criminal) 611 : (2000) 2 SCC 513, a three-Judge Bench of this Court held that compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act") is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused. In the case of Sajan Abraham v. State of Kerala, 2001(3) RCR (Criminal) 808 :
(2001) 6 SCC 692, which was also decided by a three-Judge Bench, it was held that Section 42 was not mandatory and substantial compliance was sufficient.
(2) In view of the conflicting opinions regarding the scope and applicability of Section 42 of the Act in the matter of conducting search, seizure and arrest without warrant or authorization, these appeals were placed before the Constitution Bench to resolve the issue.
(3) The statement of objects and reasons of the NDPS Act makes it clear that to make the scheme of penalties sufficiently deterrent to meet the challenge of well organised gangs of smugglers, and to provide the officers of a number of important Central enforcement agencies like Narcotics, Customs, Central Excise, etc. with the power of investigation of offences with regard to new drugs of addiction which have come to be known as psychotropic substances posing serious problems to national governments, this comprehensive law was enacted by Parliament enabling exercise of control over"
25. After referring to the earlier judgments, the Constitution Bench came to the conclusion that non-compliance of requirement of Sections 42 and 50 is impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance of Section 42. The Constitution Bench noted the effect of the aforesaid two decisions in paragraph 5. The present is not a case where insofar as compliance of For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 28 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -29- CRM-M-46900 of 2021 (O&M) Section 42(1) proviso even an arguments based on substantial compliance is raised there is total non-compliance of Section 42(1) proviso. As observed above, Section 43 being not attracted search was to be conducted after complying the provisions of Section 42. We thus, conclude that the High Court has rightly held that non compliance of Section 42(1) and Section 42(2) were proved on the record and the High Court has not committed any error in setting aside the conviction order.
The Hon'ble Supreme Court in Boota Singh & Ors. Vs. State of Haryana 2021(2) RCR (Criminal) 892 held as under:-
"12. The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression "public place" as explained in Section 43 of the NDPS Act. On the strength of the decision of this Court in Jagraj Singh alias Hansa, the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act.
13. It is an admitted position that there was total non- compliance of the requirements of Section 42 of the NDPS Act.
14. The decision of this Court in Karnail Singh as followed in Jagraj Singh alias Hansa, is absolutely clear. Total non- compliance of Section 42 is impermissible. The rigor of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh but in no case, total non- compliance of Section 42 can be accepted.
The Hon'ble Bombay High Court in Syed Yusuf Syed Noor Vs. State of Maharashtra 2000(1) Crimes 193 held as under:-
"5. Now, we revert to the main challenge based on non- For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR
29 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -30- CRM-M-46900 of 2021 (O&M) compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act. According to the testimony of P.W.6, while he was sitting in the Office of the SDPO, as he was called by him along with other Police Officers, the information, that the appellant is selling brown sugar at his residence, was received. The SDPO told P.W. 6 that he should inform about this information to the SP, and he left. P.W.6 further states that he informed the SP about it on telephone and thereafter the Police Staff, Panch witnesses and Video Cameraman left for the residence of the appellant. At this stage, reference may also be made to the copy of Station Diary Entry No. 25, dated 29th February, 1996 (Exhibit No. 28), recorded at 11.20 hrs. It, inter alia, records that as per the directions of Shri Shekhar, the Sub-Divisional Police Officer (SDPO), Police Inspector V. G. Raut (P.W.6), along with other officers, two Panchas and Video Cameraman left the Police Station at Old City, Akola, District Akola, in order to lay a raid in Khidkipura Locality, on the basis of information that the appellant possessed and sold brown sugar at his house, after giving intimation in writing to Panchas and Video Cameraman as well as to the Superiors. This is the only document on which reliance has been placed by the learned Additional Public Prosecutor to show that Section 42 of the Narcotic Drugs and Psychotropic Substances Act was complied with.
6. Section 42(1) of the Narcotic Drugs and Psychotropic Substances Act, inter alia, postulates that the concerned officer, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, in respect of which an offence punishable under Chapter IV has been committed, he may enter such premises, conduct search and effect seizure and arrest without warrant or authorisation. Section 42(2) stipulates that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 30 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -31- CRM-M-46900 of 2021 (O&M) under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Section 42 has been held to be mandatory (See State of Punjab v. Balbir Singh, (1994) 3 SCC 299 : (1994 Cri LJ 3702).
7. Turning to the facts of the present case, looking from any angle, i.e., whether the officer concerned, for the purposes of Section 42(1) of the Narcotic Drugs and Psychotropic Substances Act, was SDPO, Shri Shekhar, or it was Police Inspector, P.W.6 Raut, clearly there has been total non- compliance of Section 42. It deserves to be noticed that SDPO, Shri Shekhar was not examined as a witness by the prosecution. Further, as already noticed, the information to immediate official superior, namely, SP was given on telephone only. According to P.W.6, no record of any such information was prepared or kept, or if it was so prepared, it was not produced by the prosecution for the reasons best known to it. Exhibit 28 though records that intimation in writing was given to superiors, no such writing has been produced. This very document, in fact, notices that SDPO Shekhar was dealing with the matter. It was at his direction that the police party went to the residence of the appellant. He is stated to have told P.W.6 to inform his immediate superior, namely, SP, who is said to have been informed on telephone, as per the testimony of P.W.6, and in writing, as per Exhibit 28, though none was produced. In fact, there has been non-compliance both of sub- section (2) and sub-section (1) of Section 42 of the Narcotic Drugs and Psychotropic Substances Act. On the facts of the present case, Exhibit 28 cannot be pressed into service to show compliance of Section 42(1) of the Narcotic Drugs and Psychotropic Substances Act. It is only a document recording and showing departure of the police party from the Police Station. It does not record the reason of belief contemplated by Section 42(1) of the Narcotic Drugs and Psychotropic Substances Act. Alternatively, assuming that the officer to For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 31 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -32- CRM-M-46900 of 2021 (O&M) whom the information was given about the appellant selling narcotic drug at his residence was P.W.6, in that eventuality, he was required to record reasons to believe and was required to send a copy thereof to the immediate official superior in terms of Section 42(2) of the Narcotic Drugs and Psychotropic Substances Act. In fact, P.W.6 does not even claim to be an officer to whom such information was given. According to P.W.6, SDPO told him that he should inform about the receipt of information to SP, which he informed to SP on telephone. On these facts, we find no substance in the contention of the learned Additional Public Prosecutor that since information was given to P.W.6 by SDPO Shekhar, on the facts and circumstances of the case, it was neither necessary to comply with Section 42 of the Narcotic Drugs and Psychotropic Substances Act, nor there has been substantial compliance thereof. Section 42 of the Narcotic Drugs and Psychotropic Substances Act is mandatory. The object of the Narcotic Drugs And Psychotropic Substances Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore, these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1), and to that extent, they are mandatory. Consequently, the failure to comply with these requirements affects the prosecution case and, therefore, vitiates the trial. (See Balbir Singh's case (1994 Cri LJ 3702) (supra).
8. Reference may also be made to the two decisions on which reliance has been placed by the learned counsel for the appellant. The first of such decisions is that of Mahinder For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 32 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -33- CRM-M-46900 of 2021 (O&M) Kumar v. State, Panaji, Goa, 1999 SCC (Cri) 79 : (1995 Cri LJ 2074), where the Supreme Court held that since the officer had, admittedly, not recorded the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of Charas and did not forward a copy of the grounds to his superior officer, as required by Section 42(2) of the Narcotic Drugs and Psychotropic Substances Act because he had not made any record under the proviso to Section 42(1), as such the prosecution had to fail. The second is a Division Bench decision of this Court in Lamin Bojang v. State of Maharashtra, 1997 Cri LJ 513, holding that forwarding of the information under Section 42(2) of the Narcotic Drugs and Psychotropic Substances Act was mandatory and the written documentary information is to be forwarded to the superior officer and not oral information and that the provisions had to be strictly complied with, and the question whether the prejudice is caused to the accused or not is entirely extraneous.
9. In view of our aforesaid conclusion about the non- compliance of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, the trial of the appellant stands vitiated and consequently, the conviction and sentence of the appellant is set aside. In this view, we direct forthwith release of the appellant, if not wanted in some other case. In case he has paid fine, the same shall be refunded to him. 12. The Hon'ble Supreme Court and various High Courts have granted the concession of bail where the mandatory provisions of NDPS Act have not been complied with even where the recovery is of commercial quantity of contraband. Some of the judgments in this regard are Sarija Banu (A) Janarthani @ Janani & Anr. Vs. State through Inspector of Police 2004(12) SCC 266; Gurjant Singh Vs. The State of Punjab CRMM- 20943-2022 Decided on 20.05.2022; Sarabjit Kaur Vs. State of Punjab CRM-M26248-2021(O&M) Decided on For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 33 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -34- CRM-M-46900 of 2021 (O&M) 30.03.2022; Raju Bhavlal Pawar & Ors. Vs. The State of Maharashtra 2021 ALL MR (Cri) 4651 (Bombay); Basanth Balram Vs. Stte of Kerala 2019(2) RCR (Criminal) 488 (Kerala) and Sudesh Singh @ Tandu Vs. State of Punjab 2011(9) RCR (Criminal) 922.
A perusal of Section 42 of the NDPS Act along with various judgments on the issue would show that while delayed compliance was acceptable, however, where there was a total non compliance of Section 42 as appears to be the case herein, the accused ought to be granted the concession of regular bail. In the present case, ASI Munish Kumar received Whatsapp call from the special informer and in his statement it has been mentioned that SI had already sent information to the senior officers, whereas ASI himself failed to send the ruqa to get the FIR registered immediately after receiving the information. In terms of Section 42 of the NDPS Act, an empowered officer or an authorised officer has any prior information/secret information given by any person that should necessarily be taken down in writing and should forthwith send a copy thereof to the immediate superior official and that if there is a secret information it is mandatory that the empowered officer will immediately send a ruqa to the concerned police station for registration of FIR. Reliance in this regard is placed upon judgment of this Court in Joginder Singh v. State of Punjab and other connected matters, 2019(3) R.C.R.(Criminal) 291. The statement of ASI Munish was recorded after sending the report under Section 42 of the NDPS Act to police station which itself is in contravention to the mandatory provisions of Section 42 of the NDPS Act.
In aforesaid view of the matter, I am satisfied that Section 42 of the NDPS Act was not complied with at all insofar as the present For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR 34 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -35- CRM-M-46900 of 2021 (O&M) controversy is concerned.
Further, in view of the custody period undergone by the petitioner, it is apposite to refer to a few judgments of Hon'ble Supreme Court in this regard wherein Hon'ble Supreme Court has granted the concession of bail solely on ground of long custody :-
Case Number Date of Title of case Period which the Decision accused had undergone when granted bail by Hon'ble Supreme Court Criminal Appeal 07.02.2020 Chitta Biswas @ 1 year and 7 No.245/2020 Subhas Vs. the State months of West Bengal Criminal Appeal 12.10.2020 Amit Singh Moni Vs. 2 years and 7 No.668/2020 State of Himachal months Pradesh Special Leave to 10.11.2021 Kulwant Singh Vs. More than 2 years Appeal (Crl.) The State of Punjab No.5187 of 2021 Special Leave to 01.08.2022 Nitish Adhikary @ 1 year and 7 Appeal (Crl.) Bapan Vs. the State of months No.5769/2022 West Bengal Special Leave to 04.08.2022 Shariful Islam @ Sarif 1 year and 6 Appeal (Crl.) Vs. the State of West months No.4173 of 2022 Bengal Criminal Appeal 05.08.2022 Gopal Krishna Patra 2 years 1 month No.1169 of 2022 @ Gopalrusma Vs. and 17 days Union of India Special Leave to 22.08.2022 Mohammad Salman About 2 years Appeal (Crl.) Hanif Shaikh Vs. the No.5530-2022 State of Gurjarat Special Leave to 31.10.2022 Shahjad Vs. The State About 2 years Appeal (Crl.) of Uttar Pradesh No.7840 of 2022 Keeping in view the peculiar facts and circumstances of the case, settled proposition of law and custody period of the petitioner, which is 01 year 06 months and 17 days as per custody certificate placed on record; investigation is complete; challan has been presented; charges have For Subsequent orders see CRM-9802-2023 Decided by HON'BLE MR. JUSTICE NAMIT KUMAR
35 of 36 ::: Downloaded on - 02-03-2023 09:27:20 ::: Neutral Citation No:=2021:PHHC:033226 -36- CRM-M-46900 of 2021 (O&M) been framed and out of 25 prosecution witnesses, none has been examined;
petitioner is not involved in any other case and trial is likely to take a considerable time, however, without commenting upon the merits of the case, the petitioner is ordered to be released on regular bail during trial on his furnishing bail bonds/surety bonds to the satisfaction of Illaqa Magistrate/Trial Court.
The petitioner shall appear before the police station concerned on the first Monday of every month till the conclusion of the trial and inform in writing each time that he is not involved in any other crime other than the present case.
If the petitioner commits a similar offence for which he is currently charged while on bail, the State would be at liberty to move an application for cancellation of bail.
The observations made herein are only for the purposes of deciding this bail application and the trial Court shall adjudicate upon the matter uninfluenced by any such observations made.
Petition stands disposed of.
(NAMIT KUMAR)
22.02.2023 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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