Bhola Vijayprasad Gupta vs State Of Maharashtra

V.M. Deshpande, J

By the present appeal, the appellant is challenging the judgment and order of conviction passed by learned Additional Sessions Judge, Washim dated

27.01.2006 in Sessions Trial 4/2003. By the said, learned Judge of the Court below convicted the appellant for an offence punishable under Section

20(b) (ii) of the Narcotic Drugs and Psychotropic Substances Act (For short “NDPS Actâ€) and on this count, the Court below imposed sentence

of rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/Â, in default of payment of fine, further simple imprisonment of six months.

Appellant was also convicted for the offence punishable under Section 27 (b) of the NDPS Act and on that count, he was sentenced to undergo

rigorous imprisonment for six months and to pay a fine of Rs.5,000/Â​, in default of payment of fine, further simple imprisonment for two months.

This appeal was admitted on 14.02.2006 and on 18.3.2006 the appellant was released on bail. Heard Mr. Anil Mardikar, learned Senior Advocate

with Mr. A. M. Joshi, learned counsel for appellant and Mr. S. S. Doifode, learned A.P.P. for the respondentÂState. Both the learned counsel very

elaborately detailed their submissions. From the submissions made before this Court in this appeal, the only question that this Court is required to

address is; whether there was compliance of the provisions of SubÂ​Section (2) of Section 42 of the NDPS Act.

According to the learned counsel for the appellant, the said provision being mandatory in nature, its total nonÂcompliance would render the trial

vitiated and consequently the appeal will be required to be allowed.

To buttress his submissions, the learned Senior counsel relied on various authoritative pronouncements of the Hon'ble Apex Court.

Per contra, it is the submission of learned A.P.P. for the State that in view of the fact that there was sanha entry no.40 (Exh.10), to show that

telephonically a secret information was received and it was transmitted to the Superintendent of Police and Sub Divisional Police Officer (SDPO) and

on that there was no crossÂexamination on the part of the accused person. Therefore, in view of the authoritative pronouncement of the Hon'ble

Apex Court in Gidhari and another .Vs. State of Rajasthan reported in (2010) 15 SCC 576, there is compliance of the said mandatory provision. He,

therefore, urged that appeal be dismissed.

The facts giving rise to the present appeal are in very short compass and those are detailed as under:

Mahadeo Todsam (PW2), on 04.09.2003, was working as Police Sub Inspector and was attached to Police Station, Washim. On the said day, at 14.00

hours, PI Patil and other staff members were present in the Police Station and received a confidential information. The said secret information was

that appellantÂBhola Gupta stacked GanjaÂa prohibited article, in his house at Washim. The said information (Exh.10) was noted in the station diary

and it was communicated to the superiors.

Thereafter, pancha witness was called and gazetted officer was also called by giving letters (Exhs.11, 11ÂA and 12). Photographer and person to

weigh the articles were also called by issuing letters (Exhs.13 and 14). In response to this, all these persons came to the Police Station and therefore

the raiding party proceeded in pursuance to the secret information.

On 14.35 hours, they proceeded by a Government jeep at the house of the appellant who was present in the house. The raiding party clarified their

purpose for their visit and disclosed that they wish to take search of house by giving communication (Exh.15) to the appellant. Thereafter, search was

made and in the kitchen, two small bags were found containing 17.600 Kg. and 16.300 Kg. of Ganja. Thus, total 33.900 Kg. Ganja was found to be

stacked in the house of appellant. The Measurer given a receipt which is on also record (Exh.16).

Four samples of 50 Gms. each were collected from each bag. The samples were seized on the spot in the presence of panchas and those were

seized at the spot itself and they bear seal of PSI Todsam (PW2) and panchas. AppellantÂaccused also put his signature. Rest of Ganja was also

seized. Thereafter, PSI Todsam (PW2) lodged a complaint (Exh.19), on the basis of which Police Inspector Patil registered an offence. Printed FIR is

at Exh.20. PSI Todsam (PW2) also sent letters to Chemical Analyser (CA) and sent the samples. Invoice challans are at Exhs.21 to 23. Remaining

samples along with seized muddemal were deposited with Police Station moharir. He issued receipt (Exh.Â24) and after registration of crime, the

accused was arrested under arrest panchanama (Exh.Â​25). CA report (Exh.26) is also filed on record.

Appellant denied charge. The prosecution examined in all three witnesses. They are Shrikant Kondaji (PW1) a panch witness, who did not support

the prosecution and was declared as hostile. PSI Todsam (PW2), the Investigating Officer who seized the contraband and Sudalkar (PW3), Naib

Tahsildar, the Gazetted Officer were present during the course of raid. The Court below, after appreciating evidence, has passed the impugned

judgment.

The only question, that is raised before this Court, is whether there is compliance of SubÂ​Section (2) to Section 42 of the NDPS Act?

Section 42 of the NDPS Act reads as under:

“42. Power of entry, search, seizure and arrest without warrant or authorisation.Â​

(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 paraÂmilitary 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 VÂA of

this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,Â​

(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 VÂ​A 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 subÂ​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, he shall

within seventyÂ​ two hours send a copy thereof to his immediate official superior.â€​

Here, in the present case, nonÂcompliance, according to the appellant, is in respect of SubÂSection (2) of Section 42. Plain reading of SubÂ‐

Section (2) shows 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, within 72 hours, send a copy thereof to his immediate official superior. After amendment, the period of 72 hours was inserted.

In the present case, admittedly there is nothing placed on record by the prosecution to show that the information received was transmitted in

writing to the official superior.

It would be useful to refer to various decisions of the Hon'ble Apex Court on the subject. In Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat

reported in (2000) 2 SCC 513, the Hon'ble Apex Court has observed that, if an officer has a reason to believe from personal knowledge or prior

information received from any persons that any narcotic drug and psychotropic substance is kept or concealed in any building, conveyance or enclosed

place, it is imperative that the officer should take it down in writing and he shall, forthwith, send a copy thereof to his immediate official superior. In

the said case, it was observed by the Hon'ble Apex Court that non recording of vital information collected by the police at the first instance can be

counted as a circumstance in favour of the appellant. Consequently, the Hon'ble Apex Court allowed the appeal and set aside the judgment and order

of conviction imposed by the Gujarat High Court.

In Sajan Abraham Vs. State of Kerala reported in (2001) 6 SCC 692, Hon'ble Apex Court, in paragraph no.6, though found that non recording of

information constitutes violation of Section 42 of the NDPS Act, took a different view than the view taken in the case of Abdul Rashid Ibrahim

Mansuri (supra).

In view of the conflicting opinions expressed by the Three Judge Bench in the aforesaid two cases, the matter was referred to the Constitution

Bench. The Constitution Bench of Apex Court resolved the issue inK arnail Singh Vs. State of Haryana reported in (2009) 8 SCC 53.9 After taking

survey of various decisions, in paragraph no.35, the Hon'ble Apex Court has ruled as under:

“35. 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 subÂSection (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, entry and seizure. The question is one of urgency and expediency.

(d) While total nonÂcompliance with requirements of subÂsections (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 nonÂsending 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.â€​

Thus, from the decision of Karnail Singh, it is clear that whether there is an adequate or substantial compliance of Section 42, has to be decided in

each case. The Hon'ble Apex Court also found that while total nonÂcompliance with the requirement of Sub Sections (1) and (2) of Section 42 is

impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable as compliance with Section 42.

Entry no.1 in Station Sanha (Exh.Â​10) i.e. Serial no.40, was taken on 14.01 hours. It reads as under:

“At this time, when Police Inspector and officer were present at the Police Station, reliable information was received that Bhola Vijayprasad

Gupta, resident of Washim possesses and sells ganja at his house and presently there is ganja kept in his house. On receiving such reliable information,

report has been registered.â€​

Sanha entry no.41 taken at 14.03 hrs. shows that the said fact was telephonically informed to S.P. and S.D.P.O. The learned A.P.P. urged before

this Court that this Sanha entry no.41, which is part Sanha entry (Exh.10), is compliance to Sub Section (2) of Section 42. It is also his submission that

on this fact there is no crossÂexamination and therefore he relied on Gidhari and anr. (supra). In Gidhari's case, Mahendra Pal Singh (PW7), who

was Deputy Superintendent of Police, received information from mukhbir that appellant Gidhari was carrying contraband. The said information was

reduced into writing at Exh.Â15 and said information was also sent to the Superintendent of Police. It was argued before Hon'ble Apex Court that

there was nonÂcompliance of Sections 42 and 50 of the NDPS Act. The Hon'ble Apex Court found that evidence of Mahendrapal Singh (PW7),

Deputy Superintendent of Police, shows that after receiving information, he reduced the same into writing and transmitted the report to the

Superintendent of Police, as required under Section 42 of the NDPS Act and since there was no crossÂexamination on this factual aspect, the

Hon'ble Apex Court observed that argument of learned counsel that there nonÂ​compliance of Section 42, must fail.

Thus, from the aforesaid decision, it is clear that after receiving the information, the Deputy Superintendent of Police reduced it into writing and

dispatched the compliance report. In view of this, and in view of the fact that admittedly in the present case there is no written communication to the

official superior at any point of time, reliance of the learned A.P.P. on Gidhari's case is not helpful.

Except Sanha entry (Exh.10), there is nothing on record as to who has received the information. In the cross examination PSI Todsam (PW2)

did state as under :

“Myself did not take note of Sana entry No.40. But, I was with police inspector Patil, who took it.â€​

Thus, the author of Sanha entry no.40 is not PSI Todsam (PW2) but PI Patil. PI Patil, though was cited as witness in this prosecution case, as it could

be seen from the record, he was not examined by the prosecution, for the reasons best known to it. From the evidence of PSI Todsam (PW2), it is

clear that it was for PI Patil to enter into the witness box and to state about the factum of transmitting the information on telephone to his superior.

However, the prosecution has failed to examine PI Patil. Therefore, it is not at all proved that even through telephonic message, the information that

was received was transmitted to the superior officer of PI Patil.

In this case, perusal of FIR (Exh.Â20) shows that the house of appellant was situated about 1 Km. away from the Police Station. There is nothing

on record to show that there was any information to the raiding party that if immediate raid is not effected then in that event there is a possibility of

disappearing the evidence or disposal of contraband illegally by the appellant or the appellant running away from the course of law. In other words,

there is nothing on record to show that there was emergent situation for dispensing with the compliance of mandatory provision of section 42 of the

NDPS Act. Be that as it may, even Karnail Singh (supra) laid down the law that it is open for the prosecuting agency to comply the mandatory

provisions at later stage, by offering plausible explanation as to why the mandatory provision was not complied with. The Section gives 72 hours time

for compliance. By implication, the said is further extended by the judgment in Karnail Singh (supra). In spite of that, in the present case, the

prosecution neither offered any explanation nor complied with the mandatory provisions of Sub Section (2) of Section 42 of the NDPS Act. Had there

been subsequent compliance with the explanation, it was always open for the Court to take it into the consideration.

Since in the present case, before effecting raid, there was nonÂcompliance of SubÂSection (2) of Section 42 and even thereafter also there is no

compliance on the part of the prosecution, in my view, appeal will have to be allowed for non compliance of the mandatory provision of SubÂSection

(2) of Section 42 of the NDPS Act. Hence, I pass following order.

ORDER

(i) The appeal is allowed.

(ii) Judgment and order dated 27.01.2006 passed by Additional Sessions Judge, Washim in Sessions Trial No.4/2003, is quashed and set aside. The

appellant is acquitted of the offence punishable under Sections 20 (b) (ii) and 27 (b) of the Narcotic Drugs and Psychotropic Substances Act.

(iv) The appellant, who is on bail, his bail bonds shall stand cancelled.