State Of Maharashtra vs Ramsingasan Jamunaprasad Mourya

N.R. Borkar,J

1] This appeal takes an exception to the judgment and order dated 18.2.2003 passed by the Special Judge, N.D.P.S., Thane, in Special Sessions Case

No.5 of 2002. By the impugned judgment and order, the respondent, who was accused before the trial Court, has been acquitted of the ofence

punishable under Sections 20 and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Actâ€​).

2] It is the case of the prosecution that on 9.10.2001 at about 2.00 p.m., PW-5 Rajendra Tambat, who at the relevant time was working as Sr.Police

Inspector at Wagale Estate, Police Station, had received an information that the accused would be coming near Hotel Vikrant, Wagale Estate, Thane

for sale of charas. The description of the accused was also informed to him. The information was reduced into writing. The entry of information was

taken in Station dairy. The panch witnesses were then called. PW-5 along with other police personnel and panch witnesses then reached to the spot at

about 3.20 p.m. The trap was arranged. At about 4.00 p.m., the accused came there and stood in front of Hotel Vikrant. According to the prosecution

at that time accused was carrying a suitcase.

3] The accused was intercepted. PW-5 disclosed his identity to him. The reason for his search was apprised to him. He was then given option to be

searched before a Gazetted Ofcer, however, according to the prosecution the same was declined. Thereafter search of the accused was taken.

4] According to the prosecution, during search 2 Kgs charas was found in the suit case. The samples were collected. All the incriminating articles

were seized and accordingly, panchanama was prepared.

5] The complaint was then fled by PW-2 PSI Harishchandra M. Sawant against the accused for the ofences punishable under Sections 20 and 22 of

the NDPS Act. On completion of investigation, charge-sheet was fled.

6] The accused was charged and tried for the abovesaid ofences. The trial Court by the impugned judgement and order acquitted the accused inter

alia on the ground of non-complaince of sub-section (2) of section 42 of NDPS Act.

7] We have heard the learned APP for the appellant / State. The learned APP for the appellant/ State submits that the trial Court had erred in

acquitting the accused for non-compliance of sub-section (2) of Section 42 of the NDPS Act. It is submitted that PW-5 has stated in his evidence that

he had submitted report to Assistant Commissioner of Police. It is submitted that the trial Court was therefore, not justifed in acquitting the accused

for non-compliance of sub-section (2) of Section 42 of the NDPS Act. It is thus submitted that the order of acquittal needs to be set aside and the

accused needs to be convicted for the ofences for which he was charged.

8] The Hon’ble Supreme Court, in the case of Karnail Singh vs. State of Haryana (2009) 8 SCC 539, has observed :

“35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and

42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulflled at all. The efect of the two

decisions was as follows :

(a) The ofcer 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 ofcial 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 ofcer 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 ofcial 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 ofcer, should normally precede the entry, search and seizure by the ofcer. But in special

circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the ofcial superior

may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance with requirements of sub- sections (1) and (2) of Section 42 is impermissible, delayed compliance with

satisfactory explanation about the delay will be acceptable compliance with S ection 42 . To illustrate, if any delay may result in the accused

escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action,

or non-sending of a copy of such information to the ofcial superior forthwith, may not be treated as violation of Section 42. But if the

information was received when the police ofcer was in the police station with sufcient time to take action, and if the police ofcer fails to

record in writing the information received, or fails to send a copy thereof, to the ofcial superior, then it will be a suspicious circumstance

being a clear violation of Section 42 of the Act. Similarly, where the police ofcer does not record the information at all, and does not inform

the ofcial 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.

We answer the reference in the manner aforesaid. Let the appeals be now placed for disposal before the appropriate Bench.â€​

9] According to PW-5, on 9.10.2002 he was working as Senior Police Inspector at Wagale Estate Police Station. At about 2.00 p.m., when he was in

police station, he was informed that accused would be coming near Hotel Vikrant for sale of Charas. According to PW-5, he had reduced that

information into writing. Necessary entry was taken in station diary. PW-5 has stated that, thereafter he had submitted the report to Assistant

Commissioner of Police. PW-5 has, however, not spelled out in his evidence as to what sort of report was submitted to Assistant Commissioner of

Police. PW-5 has also not stated in his evidence that copy of information was sent to the Assistant Commissioner of Police. The prosecution has not

examined the concerned Assistant Commissioner of Police to prove that copy of information was sent to him. Thus, there is a total non-compliance of

sub-section (2) of Section 42 of the NDPS Act. The trial Court was therefore, justifed in acquitting the accused for non-compliance of sub-section (2)

of Section 42 of the NDPS Act.

10] No interference is thus called for in the impugned judgment and order of acquittal. In the result, the following order is passed.

ORDER

Criminal Appeal stands dismissed.