Intelligence Officer, Directorate of Revenue Intelligence vs Bharat Singh Chandravath

Anand Byrareddy, J.—Heard the learned Counsel for the appellant and the learned Counsel for the respondents.

The facts of the case are that the complainant is the Intelligence Officer, Directorate of Revenue Intelligence, Bangalore. It transpires that while he was working as a Senior Intelligence Officer, which is a gazetted post, he is said to have received credible information of accused no. 1 having checked into room no. 109 of Vardhaman Paradise and that he was in possession of heroin. On the basis of the said information, PW. 1 is said to have proceeded to the place along with the panch witnesses and after having found that accused no. 1 was present in the room along with other accused, had immediately conducted search. The names of the accused were noted and the bag of accused no. 1 was examined and it was found to contain clothes and bed sheets apart from a yellow coloured polythene carry bag with the marking ''Pankaj Garments, Opposite Gandhi Park, Bhavani Mandi, Rajasthan and when it was opened, it contained two stitched white cloth bags, with handwritten marks in Hindi as ''Fairoz'' Bangalore, 1.720 and Fairoz, Bangalore 1.57 and when they were opened, the same were found to have contained the sealed polythene packets of white coloured powder. Whey they were tested with a test kit, it answered to the description of heroin and it is in that fashion that further proceedings were taken to seize the said material and collect samples, apart from taking the accused into custody and registering a case against them for offences punishable under Section 8(c) read with Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the ''NDPS Act'', for brevity).

The charges having been framed and the trial having been conducted, the court below had ultimately acquitted the accused on several grounds, primarily on the ground that there was non-compliance with Sections 41 and 42 of the NDPS Act. In this regard, the prosecution had sought to rely upon Exhibit P.1, to indicate that there was due compliance of Sections 41 and 42 of the NDPS Act. But on a close examination of Exhibit P.1, the court below has concluded that it did not satisfy the requirement of Sections 41 and 42, which mandated that when information is received of the commission of any offence under the NDPS Act, it is necessary that the Intelligence officer who is competent to conduct search and seizure, must record the information and inform his superior of the same, before proceeding to conduct search and seizure. In the event that there is no time available for the exercise to be carried and if the officer has to proceed to the place to conduct search and seizure, he could do so at least within 72 hours from the time of receipt of such information. In this regard, the court below has found that Exhibit P.1 does not satisfy this requirement nor has it been established that there has been compliance with the mandatory provisions of the NDPS Act and has accordingly held that the proceedings were vitiated.

Therefore, the question that would arise for consideration is if the prosecution should fail on this ground alone, namely, that there was non-compliance with Sections 41 and 42 of the NDPS Act, whether it would be necessary for this court to examine other grounds raised in the appeal.

It is evident that apart from Exhibit P.1, there is no other material produced by the prosecution, to indicate that there has been due compliance with Sections 41 and 42 of the NDPS Act. Insofar as Exhibit P.1 is concerned, as noted by the court below, the said document is a cryptic document and is a computer print out, which does not indicate the source from which it is originated. The requirement under Sections 41 and 42 would indicate that the complainant, namely, the Intelligence Officer, who has received the information of the narcotic drug being smuggled, ought to have recorded such information and intimated his superior of proceeding to the spot for search and seizure. On the other hand, the said document indicates that one Bharath Singh had come from Rajasthan and the said Bharath Singh was staying at Room No. 109 of Vardhaman Paradise and that he had brought brown sugar weighing 3 kilograms from Rajasthan to Bangalore for smuggling. Therefore, it is possible that it could be considered as knowledge regarding the information that has been received, but without the indication of the date or time and the intention of the Intelligence officer of proceeding to conduct search and seizure, it cannot be said that it would satisfy the requirements of Sections 41 and 42 of the NDPS Act.

Insofar as the mandatory requirement of law and the non-compliance with the said provisions vitiating the proceeding has been settled. A three-judge bench of the supreme Court in the case of Karnail Singh Vs. State of Haryana, , while reconciling the opinion expressed in other judgments of the Supreme Court, has laid down thus:

"It is to be noted that Baldev Singh''s case (supra) has dealt with Section 50 of the Act and the effect of non-compliance of the same. It was held that the same provisions of Section 50 containing certain protection and safeguards implicitly make it imperative and obligatory and cast a duty on the investigating officer to ensure that search and seizure of the person concerned is conducted in a manner prescribed by Section 50. The unamended Section 50 as existed during that period is as follow:

"Section 50-Conditions under which search of persons shall be conducted (1) When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

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

The safeguard or protection to be searched in the presence of a gazetted officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain the veracity of evidence derived from such search. But this strict procedural requirement has been diluted by the insertion of subsection (5) and (6) to the Section by Act 9 of 2001, by which the following subsections were inserted accordingly:

"(5) When an officer duly authorized under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under subsection (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."

Through this amendment the strict procedural requirement as mandated by Baldev Singh''s case was avoided as relaxation and fixing of the reasonable time to send the record to superior official as well as exercise of Section 100 of Cr. P.C. was included by the legislature. The effect conferred upon the previously mandated strict compliance of Section 50 by Baldev Singh''s case was that the procedural requirements which may have handicapped an emergency requirement of search and seizure and give the suspect a chance to escape were made directory based on the reasonableness of such emergency situation. Though it cannot be said that the protection or safeguard given to the suspects have been taken away completely but certain flexibility in the procedural norms were adopted only to balance an urgent situation. As a consequence the mandate given in Baldev Singh''s case is diluted.

15) Under Section 42(2) as it stood prior to amendment such empowered officer who takes 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 would adversely affect the prosecution case and 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, it is to be concluded that the mandatory enforcement of the provisions of Section 42 of the Act non-compliance of which may vitiate a trial has been restricted only to the provision of sending a copy of the information written down by the empowered officer to immediate official superior and not to any other condition of the Section. Abdul Rashid (supra) has been decided on 01.02.2000 but thereafter Section 42 has been amended with effect from 02.10.2001 and the time of sending such report of the required information has been specified to be within 72 hours of writing down the same. The relaxation by the legislature is evidently only to uphold the object of the Act. The question of mandatory application of the provision can be answered in the light of the said amendment. The non-compliance of the said provision may not vitiate the trial if it does not cause any prejudice to the accused.

16) The advent of cellular phones and wireless services in India has assured certain expectation regarding the quality, reliability and usefulness of the instantaneous messages. This technology has taken part in the system of police administration and investigation while growing consensus among the policy makers about it. Now for the last two decades police investigation has gone through a sea-change. Law enforcement officials can easily access any information anywhere even when they are on the move and not physically present in the police station or their respective offices. For this change of circumstances, it may not be possible all the time to record the information which is collected through mobile phone communication in the Register/Records kept for those purposes in the police station or the respective offices of the authorized officials in the Act if the emergency of the situation so requires. As a result, if the statutory provisions under Section 41(2) and 42(2) of the Act of writing down the information is interpreted as a mandatory provision, it will disable the haste of an emergency situation and may turn out to be in vain with regard to the criminal search and seizure. These provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal.

Consequently, these provisions should be taken as discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug-peddlers. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of 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 non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001. "

It has been followed and applied in a later judgment of the Supreme Court in the case of Sukhdev Singh Vs. State of Haryana, . In the light of which., given the circumstances of the present case on hand, the accused having been acquitted, cannot be held to be illegal or irregular. For there is clearly violation in the complainant not having complied with the provisions of Sections 41 and 42 of the NDPS Act.

Consequently, the proceedings are vitiated and it would be unnecessary to examine the other aspects of the matter or other grounds raised in this appeal. Accordingly, the appeal fails and is dismissed.