Kamalasanan vs State of Kerala

R. Basant, J.—These appeals are preferred by the appellants who are accused 1 to 3 in a prosecution u/s 20(b)(i) of the N.D.P.S. Act. All the three appellants (accused 1 to 3) were found guilty, convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 5,000 and in default, to undergo rigorous imprisonment for a further period of six months each. Accused 2 and 3 together had preferred Crl. A.No. 354/96. Thereafter, their counsel ceased to appear and a counsel on State Brief was requested to render legal assistance to the appellants. The 1st accused preferred Crl.A.No. 371/96 through prison authorities. He remained undefended. The same State Brief Counsel Smt. C.N. Usha was appointed on State Brief Counsel to render assistance for all the accused. She has advanced arguments on behalf of all the three appellants herein.

The prosecution alleged that when P.W. 7 an Excise Inspector and his party were on routine patrol duty at about 4.30 p.m. on 10-10-1991, they received an information that some persons were dealing with ganja in a rented house in the locality. P.W. 7 anticipated that personal search of the accused might have to be held. He made frantic efforts to secure the presence of a Gazetted Officer. But the same proved to be futile. Thereafter, he along with the party and two independent witnesses P.W. 4 and another, went to the premises where he found accused 1 to 3 dealing with a large quantity of ganja. The 3rd accused was inside the house at the door watching whether any one was coming to the premises. The other two accused were allegedly emptying a bag and collecting 4.550 kgs. of ganja which was available inside the room. P.W. 7, before proceeding to search, had prepared Ext. P-3 search memo wherein the gist of the information received by him before he started the search is seen recorded. P. W.7 was authorized by his superior to conduct the investigation. He conducted the investigation and it is on his complaint that cognizance was taken of the offence allegedly committed by the accused. The 4th accused was allegedly the person who was in possession of the premises, he having allegedly taken the same on lease under Ext. P-9 from its owner one Gopakumar.

The accused denied the offence alleged against him and thereupon, the prosecution examined P.Ws. 1 to 7 and proved Exts. P-1 to P-9. P.Ws. 1 to 3 are the Excise Guards and P.W. 6 is the Preventive Officer who accompanied P.W. 7 and helped him in the conduct of search. P.W. 4 is the independent witness who was allegedly present at the time of search and seizure. P.W. 5 is the Chemical Examiner who examined the contraband article and certified the same to be ganja. Ext.P-1 is the seizure mahazar; Ext. P-2 is the certificate issued by the Chemical Examiner, Exts. P-3 and 4 are the search memo and search list respectively; Ext. P-5 is the inventory report; Ext. P-6 is the arrest memo; Ext P-7 is the crime and occurrence report and Ext. P-8 is the test memo submitted by P.W. 7. Ext. P-9, as stated earlier, is the rent deed under which the 4th accused had allegedly come into possession of the building from its owner. M.Os. 1 to 7 were also marked. M.Os.l and 3 are the samples and M.Os. 2 and 4 are the covers used for wrapping the samples which were sent for examination by the Chemical Examiner. M.Os.5 and 6 are the remaining portion of the ganja (4.5 kgs.) and the sack in which it was held. M.O.7 is the brown paper used to cover M.Os. 1 and 2 sample packets.

The accused took up a defence of total denial. According to them, they were not arrested as alleged by the prosecution. No recovery was allegedly effected from their possession. They did not adduce any defence evidence-oral or documentary.

The learned Additional Sessions Judge, ontan anxious consideration of all the relevant inputs, came to the conclusion that it was safe to place reliance on the oral evidence of P.Ws. 1 to 3, 6 and 7. P.W. 4 had turned hostile to the prosecution. He, however, admitted his signature in Ext.P-1. He admitted that Ext.P-1 was written up and he had signed the same after it was written up. He spoke about the presence of accused 2 and 3 when Ext. P-1 seizure mahazar was prepared. He, however, did not subscribe to the version of the prosecution completely. According to him, he had not seen the search and seizure. He was only apprised of the seizure of ganga by the excise officials. The learned Judge, notwithstanding the hostility of P.W. 4, made use of the evidence of P.W. 4 to draw inspiration for the oral evidence of P.W. 7 and his subordinates. Accordingly, the learned Additional Sessions Judge proceeded to pass the impugned judgment.

The learned counsel for the appellants and the learned Public Prosecutor have advanced detailed arguments. The learned counsel for the appellants assails the impugned Judgment on two grounds. She, first of all, contends that no reliance ought to have been placed on the interested testimony of P.Ws. 1 to 3, 6 and 7 who are all Excise officials. The learned counsel for the appellants further contends that, at any rate, there has been infraction of the mandatory provisions of Sections 42(1) and 42(2) of the N.D.P.S. Act. These infractions must have been reckoned as fatal and the appellants must have been acquitted. At any rate, prejudice has resulted from the non-compliance of Sections 42(1) and 42(2) of the N.D.P.S. Act and therefore, the prosecution case must have been rejected and the accused granted, at least, the benefit of doubt.

The first question is whether the evidence of P.Ws. 1 to 3,6 and 7 is worthy of acceptance. I shall initially consider this question without any reference to the alleged infraction of the provisions of Sections 42(1) and 42(2) of the N.D.P.S. Act. I have been taken through the evidence of P.Ws. 1 to 3, 6 and 7. Their testimony do not suffer from any such incongruity or inconsistency which would justify an approach with doubt and distrust against the testimony. The sequence of events have been spoken to by P.Ws. 1 to 3,6 and 7 in a fairly exhaustive and inspiring manner. Their testimony according to me is not shown to suffer any such infirmity as to justify an approach with intrinsic doubt and suspicion.

All of them are Excise officials. They are interested witnesses, it is contended They are, of course, interested in the prosecution. This is the prosecution which relates to detection of a crime by the party led by P.W. 7 Excise Inspector of which P.Ws. 1 to 3-Excise Guards and P.W. 6 the Preventive Officer were members. In that view of the matter, certainly they can be said to be interested witnesses.

But does such interest justify an approach with reservation to their testimony? This is the crucial question to be considered. It is the sublime public duty of every official in the Excise Department that they must detect offences and bring the offenders to book. Every public official like P.Ws. 1 to 3,6 and 7 is bound to and is expected to have this interest. Such a legitimate interest in the successful outcome of the prosecution would not certainly justify their relegation to the category of interested witnesses for whose testimony independent corroboration must be insisted by the Courts as a rule of prudence, though not as a rule of law.

The testimony of the detecting public officials must certainly receive careful scrutiny for it is not impossible or improbable that they may abuse the power vested in them under law for oblique and questionable motives. It is in this view of the matter that their testimony deserves careful and cautious scrutiny though an approach with doubt and distrust will not be justified. I have carefully gone through the oral evidence of P. Ws. 1 to 3,6 and 7. There is not a whisper or an allegation or even the semblance of a suggestion that they, or any other Excise Official is in any way ill-disposed to the accused or have any animosity or oblique motive against them. There is only a blanket suggestion that all the allegations are false. Going through the cross-examination of P.W. 7, even the presence of the appellants at the scene of the crime is not too seriously disputed. There is nothing to show that P. Ws. 1 to 3,6 and 7 had any animus against the appellants which could have prompted them to raise false allegations against the appellants. In this view of the matter, I am of the opinion that the testimony of P.Ws. 1 to 3, 6 and 7 though they were all members of the detecting party, is worthy of acceptance and is not vitiated by any vitiating circumstances.

Of course, we find that a proper and sufficient investigation was not conducted into the culpable role, if any, of the 4th accused. The building in question, according to the prosecution, belonged to one Gopakumar which Gopakumar was not traced or questioned by P.W. 7 at all. Though Ext. P-9 is relied upon the Investigating Officer, P.W. 7 did not take any steps to get Ext. P-9 proved in accordance with law. The learned Additional Sessions Judge frowned upon this inadequate conduct of P. W. 7. But that inadequacy in the conduct of investigation by P. W.7 does not persuade me to entertain any suspicion against the motives of P.Ws. 1 to 3,6 and 7 against the appellants herein. I am in agreement with the learned Sessions Judge that after the detection, more efficient investigation must have been conducted to ascertain the role if any of any other involved in the commission of the crime. But that inadequacy on the Investigator cannot justify the claiming of any benefit or advantage by the appellants herein who were arrested from the scene of the crime,

The Prosecution wanted to prove the seizure by examination of P.W. 4 and C.W. 8 who are attesting witnesses. C.W.8 was not available in India at the time of trial and therefore, he was not examined. P.W. 4 is admittedly a neighbour. His presence at or near the scene of the crime is convincingly indicated by the materials available. P. W. 4 admits that he had affixed his signature in Ext. P-1. He admits that he signed Ext. P-1 only after it was written up. He admits that, at least, accused 2 and 3 were present at the time and place when he signed in Ext. P-1 seizure mahazar. The contents of the contemporaneous seizure mahazar-Ext.P-1 the signature in which unambiguously admitted by P.W. 4. must go a long way, notwithstanding the hostility of P.W. 4, to help the Court to draw inspiration for the oral evidence of P.Ws. 1 to 3, 6 and 7. A reading of the evidence of P.W. 4 must eloquently convey that he is willing to go the whole hog to support the accused. He was constrained to admit his signature in Ext. P-1 as he could not deny Ext. P-1 which was produced and which was staring at him. It does not require the wisdom of Solomon to conclude that P.W. 4 was only attempting to cover up the truth and tender evidence in favour of the accused to the extent possible. The hostility of P.W. 4 does not, in these circumstances, generate any reasonable doubt against the version of the prosecution.

13.I do, in these circumstances, concur completely with the conclusion of the learned Sessions Judge that the evidence of P.Ws. 1 to 3,6 and 7 regarding recovery of ganja from the possession of the appellants can safely be accepted.

The question that arises next is whether there has been infraction of the provisions of the N.D.P.S. Act in the conduct of search and recovery by the Excise officials. Though before the learned Sessions Judge there was an attempt to contend that there is a non-compliance with Section 50 of the N.D.P.S. Act, no such attempt was made before me. Such attempt would be futile also because the prosecution has no case that any personal search and recovery was effected in this case.

We then come to Sections 42(1) and 42(2) of the N.D.P.S. Act. I extract the same below:

Power of entry, search, seizure and arrest without warrantor authorisation.-(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of" the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government including paramilitary 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 belie ve 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 illegal 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 V A 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 V 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 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.

(emphasis supplied)

A plethora of precedents has been cited before me. It appears to me to be well-settled now that Sections 42(1) and 42(2) of the N.D.P.S. Act contain mandatory provisions of law. Such provisions are expected to be complied with scrupulously. Any officer competent to conduct search u/s 42(2) of the N.D.P.S. Act must, if he receives relevant information reduce the same into writing forthwith before he proceeds to conduct the search u/s 42 of the N.D.P.S. Act. If he proceeds to conduct the search on the basis of his personal knowledge from which he concludes that there is reason to believe that search ought to be conducted, that need not be recorded. But if the requisite satisfaction that a search need be considered is induced from the information given by any person to the officer concerned, he must record the same in writing. This is the mandate of Section 42(1) of the N.D.P.S. Act. Section 42(2) of the N.D.P.S. Act further mandates that a copy of such information reduced into writing u/s 42(1) of the N.D.P.S. Act must be sent to the immediate official superior of such officer within a period of 72 hours. The mandate u/s 42(2) of the N.D.P.S. Act would apply both when the information is reduced into writing u/s 42(1) or the reasons to believe entertained by the officer are reduced to in writing under the proviso to Section 42(1) of the N.D.P.S. Act. In both cases, Section 42(2) of the N.D.P.S, Act will have to be complied with.

Has this mandates been "complied with in this case? Has there been literal compliance or at least substantial compliance? Has the non-compliance/ inadequate compliance/insufficient compliance resulted in any prejudice to the accused? These, according to me, are the crucial questions arising for consideration in these appeals.

Heavy reliance is placed by the learned counsel for the appellant on the last reported decision of the Supreme Court on this aspect in The State of West Bengal and Others Vs. Babu Chakraborty, . The learned counsel for the appellants contends that this decision which has considered all the previous decisions on the point is authority for the proposition that any non-compliance with Sections 42(1) and 42(2) of the N.D.P.S. Act must vitiate the prosecution and entitle the accused to an-acquittal. The learned counsel places heavy reliance on the following passage appearing in para 22 of the judgment.

Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment prescribed in the Act. This Court has attached great importance to the recording to the information and the ground of belief since that would be the earliest version that will be available to a court of law and the accused while defending his prosecution. This Court also held that failure to comply with Section 42(1), proviso to S. 42(1) and S. 42(2) would render the entire prosecution case suspect and cause prejudice to the accused.

The learned Public Prosecutor, on the contrary, contends that extraction of the said passage out of context cannot in any way help the court to come to any safe conclusion. Their Lordships were only attempting to summarise the position of law emerging from various previous precedents. The learned Public Prosecutor submits that the cumulative effect of the decisions is undoubtedly that the provisions of Sections 42(1) and 42(2) of the N.D.P.S. Act are mandatory. But the learned Public Prosecutor contends that the mere fact that there was inadequate compliance will not render any prosecution void and vitiate the same. It will have to be seen whether any prejudice has resulted to the accused. Unless a specific finding of prejudice against the accused is entered by the court, the prosecution cannot be held to be vitiated, contends the learned public prosecutor vehemently.

All the decisions have been considered in Babu Chakraborty''s case. But it will be apposite to consider the dictum in State of Punjab Vs. Balbir Singh, . Conclusions (2-C) and (3) in para-25 appear to be the most crucial portions where the dictum on Sections 42(1) and 42(2) of the N.D.P.S. Act is summarised,

(2-C). u/s 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 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 S. 42(2) 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 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.

A two Judge Bench in that case held that the provisions are mandatory. Non-compliance would affect the prosecution and vitiate the triail. But inadequate compliance of Section 42(2) of the N.D.P.S. Act will not by itself vitiate the prosecution. Whether it would vitiate or not will be a question of fact in each case, it was held.

The nature of Sections 42(1) and 42(2) was later considered broadly by the Constitution Bench in paras-9 and 10 of the decision reported in State of Punjab Vs. Baldev Singh, . I do not think it necessary to extract those observations in paras-9 and 10 for the purpose of this case. They only refer broadly to the procedure to be adopted by the officer u/s 42 of the N.D.P.S. Act.

Later in Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, , in para-6 a three Judge Bench of the Supreme Court again considered the effect of non-compliance with Section 42 of the N.D.P.S. Act and summarised the position as follows:

If the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) 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. The action of the officer, who claims to have exercised it on the strength of such unrecorded information, would become suspect, though the trial may not-vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused.

(emphasis supplied)

It is very clear from the above observations that the trial will not be vitiated on that score alone. Later in Koluttumottil Razak Vs. State of Kerala, , the same question fell for consideration of the Supreme Court. The Bench referring to Abdul Rashid Ibrahim Mansuri (supra) reiterated that non-compliance of the requirements of Sections 42(1) and 42(2) of the N.D.P.S. Act would render resultant search and seizure suspect though that itself may not vitiate the proceedings.

The inevitable conclusion flowing from the above discussions referred to in Babu Chakraborty''s case is that mere inadequate compliance with the mandate of Sections 42(1) and 42(2) of the N.D.P.S. Act will not vitiate the trial; but that may render the action taken by the officer to be suspect requiring closer scrutiny of the evidence on record.

What remains to be considered is whether there is non-compliance or insufficient compliance with the mandate of Sections 42(1) and 42(2) of the N.D.P.S. Act in this case. Section 42(1) of the N.D.P.S. Act only states that the information received must be taken down in writing. No particular method or formality is prescribed as to how the information received by the officer is to be taken down in writing. All that is required is that there must be a record of the information. Law does not prescribe any specific manner of recording the information. That leads to the question whether there is any such recorded information in this case. It was not a piece of information which the officer received, while he was at the Police Station. He was on patrol duty and it was in the course of patrol duty that he received such information. The facts appear to be identical with those in Sajan Abraham Vs. State of Kerala, . But as explained in Babu Chakraborty''s case the decision in Sajan Abraham v. State of Kerala may not be helpful in resolving the controversy in the instant case as the apprehension arid recovery in Sajan Abraham''s case was not after search of any premises; but after apprehension of the offender in a public place referable to Section 43 of the N.D.P.S. Act. Sajan Varghese may not hence help the prosecution in this case.

But still the question has to be considered whether the information received had been recorded promptly. We have evidence from P. W. 7 that as soon as he received the information, he decided to proceed to conduct the search and prepared the search memo. The information received was thus recorded in Ext. P-3 search memo. It is not a case where the information is not recorded at all. The information is promptly recorded. On getting the information, P. W.7 realised the need to conduct the search and immediately he had prepared Ext. P-3 search memo. There is, according to me, substantial compliance with the mandate of Section 42(1) of the N.D.P.S. Act that the information must be recorded. Though such information is not recorded separately, it is recorded in a search memo which P. W. 7 was obliged to prepare before he conducted the search as insisted by Section 165 etc. of the Cr.PC. The crucial question is not about the manner in which the information has been recorded. The question is whether the information has been recorded or not. The gist of the information is seen recorded in Ext. P-3 search memo which is seen produced before the learned Magistrate promptly along with the production of the arrested accused on 11 -10-1991.

Thus, we have satisfactory and convincing evidence in this case that as soon as he received information, before he proceeded to conduct the search, the information received by him on the basis of which he decided to conduct the search was recorded promptly in Ext. P-3. Inasmuch as Section 42(1) of the N.D.P.S. Act does not prescribe any particular manner or mode of taking down the information in writing, I am of opinion that there is sufficient and satisfactory compliance with the mandate of Section 42(1) of the N.D.P.S. Act. That P.W. 7 recorded such information in Ext. P-3 is placed. The vice of the officer u/s 42 of the N.D.P.S. Act proceeding to conduct the search without and before recording the information received is not there in this case at all, the information having been recorded in Ext. P-3 promptly.

No precedent has been brought to my notice which indicates that the information u/s 42(1) of the N.D.P.S. Act must be recorded in writing in any particular or specified manner. One has to look at the purpose for which information is to be recorded. It is to prevent abuse of the powers of the officers who exercise duties u/s 42 of the N.D.P.S. Act that the law mandates that the information must be recorded. Vexatious searches with oblique motives must be prevented. This is the reason why the law mandates that the information must be recorded promptly. The sweeping powers which the officers under the N.D.P.S. Act are invested with are likely to be misused, human nature being what it is. The legislature carefully wanted to prevent such abuse. That is why it is insisted that the information leading to a search must be recorded in writing. The record of the information which is available in Ext. P-3 which is taken down in writing immediately after the information is obtained before P.W. 7 proceeded to conduct the search is, according to me, sufficient, full and satisfactory compliance of the mandate u/s 42(1) of the N.D.P.S. Act.

The next question is whether the mandate of Section 42(2) of the N.D.P.S. Act has been complied with. Any interpretation of the scope of the obligation of the officer u/s 42(2) of the N.D.P.S. Act cannot ignore the purpose for which the mandatory stipulation is made. Prevention of the abuse of the power of search u/s 42 of the N.D.P.S. Act is the rationale behind the mandatory stipulation under Sections 42(1) and 42(2) of the N.D.P.S. Act. Persons in authority superior to the officer concerned must have access to information on the basis of which the officer is alleged to have conducted the search. Hence it is mandated that the information recorded in writing u/s 42(1) of the N.D.P.S. Act or under the proviso to Section 42(1) of the N.D.P.S. Act must be forwarded to the "immediate official superior". Such copy is to be furnished within 72 hours to such immediate official superior. Here again, the purpose appears to be very evident. No officer empowered u/s 42 should play foul. The action taken by him must be transparent. Persons in authority superior to him must be kept informed of the information on the basis of which action is taken u/s 42. The precedents which have been extracted above clearly show that substantial compliance with this duty u/s 42(2) of the N.D.P.S. Act will be sufficient. Insufficient compliance by itself will not vitiate the action taken; non-compliance may. Viewed in that angle, it has now got to be decided whether there has been any such non-compliance as distinguished from insufficient or inadequate compliance.

Who is the immediate official superior of P.W. 7? P.W. 7 is an Excise Inspector and there is no dispute that he is an officer duly empowered u/s 42(1) of the N.D.P.S. Act. We have now got to identify the immediate official superior of P.W. 7. The evidence convincingly shows that P.W. 7 had furnished a copy of the recorded information to the learned Magistrate. Ext. P-3 had reached the learned Magistrate on 11-10-1999. That being so, the information had reached the Magistrate who is the superior in authority so far as P.W. 7 is concerned. It is crucial that Section 42(2) of the N.D.P.S. Act only employs the expression "immediate official superior". It is not stipulated that it must be immediate official administrative superior. Of course, it is not specifically stated that it would be sufficient if the information is furnished to the Magistrate. But is not the Magistrate the immediate official superior of P.W. 7? P.W. 7 could have obtained, if time and the circumstances permitted, search warrant from the Magistrate concerned to enable him to conduct the search. He cannot conduct the search himself without a warrant unless he complies with the mandate of Section 42(1) and 42(2) of the N.D.P.S. Act. He could have conveyed information to the Magistrate and got a search warrant issued in his favour. The Magistrate was the immediate superior legally to whom P.W. 7 could have gone and obtained search warrant to effect search u/s 42(1) of the N.D..P.S. Act. So far as the matter of issue of search warrant is concerned, certainly it cannot be held that the Magistrate is not the superior of P.W. 7. Is the Magistrate the immediate superior? Is the Magistrate the official superior? These questions survive for consideration. The learned Public Prosecutor contends that the Magistrate, considering the nature of the function which the Magistrate has to perform in so far as issue of search warrant or consequence of search u/s 42 is concerned must be reckoned as the official superior of P.W. 7.I have already taken the view that the Magistrate is the superior authority. The superiority exists obviously because of the official functional hierarchy though not departmental hierarchy. It can be argued that the Magistrate is not the immediate administrative official superior. It can also be argued that the immediate superior officer in the administrative hierarchy is the immediate official superior. But I am of the view considering the purpose of Sections 42(1) and 42(2) of the N.D.P.S. Act, the mischief which it seeks to prevent and the totality of circumstances that communication of the recorded information u/s 42(1) of the N.D.P.S. Act to the Magistrate must be reckoned as sufficient compliance with the mandate of Section 42(2) of the N.D.P.S. Act. Even assuming the same to be insufficient or inadequate, I have no hesitation to agree that such inadequacy or insufficiency cannot be reckoned as crucial or fatal vitiating the action taken by P.W. 7 and the subsequent trial of the accused.

In these circumstances, I take the view that Section 42(1) of the N.D.P.S. Act has been complied with satisfactorily inasmuch the information is recorded in Ext. P-3 search memo dated 10-10-1991.1 take the view that the fact that Ext. P-3 containing information had reached the learned Magistrate on 11-10-1991 itself must be reckoned as satisfactory compliance with Section 42(2) of the N.D.P.S. Act. At any rate, I am satisfied that the alleged insufficiency or inadequacy cannot be held to vitiate the action taken by P.W. 7 and the consequent trial. The alleged inadequacy does not in any way persuade the court to view the evidence of P.Ws. 1 to 3, 6 and 7 with any amount of doubt or suspicion.

If the evidence of P.Ws. 1 to 3,6 and 7 is believed, the offence alleged against all the appellants stands established without any trace of doubt. No reasonable doubt is aroused in the facts and circumstances of this case. The verdict of guilty, conviction and sentence u/s 20(b)(i) of the N.D.P.S. Act do in these circumstances, appear to be absolutely justified.

A sentence of rigorous imprisonment for a period of two years and fine of Rs. 5,000 and in default, rigorous imprisonment for a further period of six months has been imposed. I am satisfied that the sentence imposed bears a reasonable nexus with the gravity of the culpable conduct proved. The sentence does not warrant interference. It is pointed out by both side fhat the appellants must already have served the sentence.

In the result:

(a) These appeals are dismissed.

(b) The impugned judgment is upheld in all respects.