STATE OF RAJASTHAN Vs. JAG RAJ SINGH @ HANSA

Tags NDPS Sentence

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1233 of 2006, Judgment Date: Jun 29, 2016

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1233 OF 2006

STATE OF RAJASTHAN ... APPELLANT

VERSUS

JAG RAJ SINGH @ HANSA ... RESPONDNET

J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed by the State of Rajasthan against the
judgment of the High Court of Judicature of Rajasthan at Jodhpur in S.B.
Criminal Appeal No.98 of 2001 dated 24.11.2003 acquitting the accused from
the charges under Section 8/15 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as 'NDPS Act') after setting
aside the judgment and conviction order of Special Judge, (NDPS Cases),
Hanumangarh, Rajasthan dated 31.5.2000 by which judgment accused were
sentenced to undergo 12 years rigorous imprisonment with fine of Rs.
1,20,000/- each. Accused were to go further rigorous imprisonment of one
year each in case of not depositing the fine. Accused Kishan Lal had filed
Single Bench Criminal Appeal No. 397 of 2000 and accused Jagraj Singh alias
Hansa had filed Single Bench Criminal Appeal No. 98 of 2001. Both the
appeals having been allowed by the High Court of Rajasthan, this appeal
being Criminal Appeal No. 1233 of 2006 has been filed by the State of
Rajasthan against the acquittal of Jagraj Singh alias Hansa. The Criminal
Appeal No. 1232 of 2006 has already been dismissed by this court.
2. The prosecution case in the nutshell is: Shishupal Singh, Station
House Officer, Bhadra received a secret information on 9th August, 1998 at
8 P.M. that a blue jeep car No. HR 24-4057 would come and pass through
Haryana via Sirsa. A memo was prepared regarding the above information
which was also entered into Roznamacha and information was also conveyed to
the Circle Officer, Nohar at 8:05 p.m. on the same day through a constable.
Station House Officer along with certain other police personnel proceeded
after taking two independent witnesses namely Hawa Singh and Karam Singh.
At 10:15 p.m. Jeep HR 24-4057 was seen coming from Sahaba. It was stated
that one driver and two other persons were sitting who told their names as
Jagraj Singh and Kishan Lal. Bags were lying in the jeep. Station House
Officer gave notice to Jagraj and Krishan Lal and thereafter search was
conducted. Nine bags containing opium powder were recovered from the jeep
for which the accused were having no licence. Opium powder was weighed and
two samples of 200 grams each were taken from each bag. Seizure memo was
prepared on the spot. Both the persons were arrested. Material was sealed
and after reaching the police station first information report being FIR
No. 291/98 was registered. Samples were sent to Forensic Science
Laboratory, Jaipur and on receiving a positive report, chargesheet was
filed against both the accused under section 8/15 of the Act. The
prosecution produced 12 witnesses including Station House Officer,
Shishupal Singh as PD-11. Two independent witnesses PD-2 Hawa singh and PD-
3 Karam Singh were declared hostile. Prosecution also produced documents
Exh. P1 to P40. Statements of accused were recorded under Section 313 of
Cr. P.C. Sri Ram Meena the then Circle Officer, Nohar was examined as
defence witness-1.
3. Before the learned Sessions Judge, accused contended that the
mandatory provisions of Section 42(1) and 42 (2) as well as Section 50 of
the NDPS Act have not been complied with; both the independent witnesses
have not supported the status of recovery and that entire action had taken
place at police station; the chain of event is not present so as to convict
the accused. The test report is not admissible and readable. The
contentions of accused were refuted by the learned Special Public
Prosecutor. Learned Sessions Judge held that information received by
Station House Officer was recorded as Exh. P-14 and the same was sent to
Circle Officer, Nohar by Exhibit P-15. Hence, the Station House Officer has
fully complied with the provisions of Sections 42(1) and 42(2). Sessions
Judge further held that the vehicle was being used to transport passengers
as has been clearly stated by PW-4 Veera Ram, hence, as per explanation to
Section 43 of the NDPS Act, vehicle was covered within the ambit of
public place. Therefore, there was no need of any warrant or authority to
search. Learned Sessions Judge also found that Section 50 was complied
since notices were issued to both the accused before search. Sessions Judge
noted that although both the independent witnesses have turned hostile but
the police officers and officials have been examined on behalf of the
prosecution with whom the fact of enmity has not been proved. Chain of
event was complete. After coming to the aforesaid conclusion, learned
Sessions Judge convicted both the accused.
4. Both the Criminal Appeals filed by Kishan Lal and Jagraj Singh were
decided by a common judgment of the High Court dated 24.11.2003. The High
Court while allowing the appeal gave following reasons and findings:
(i) The secret information which was recorded as Exh. P-14 and in Exh. P-21
Roznamacha it was not mentioned that “two persons will come from Jhunjhnu
who are carrying powder of opium”, whereas Exh.P-15, the information sent
to the Circle Officer, Nohar which was also received by Circle Officer,
Nohar the above fact was mentioned which was missing in the Exh. P-14 and
P-21. In view of the above, Section 42(2) was not complied with.
(ii) The proviso to sub-section (1) of Section 42 provides that if such
officer has reasons to believe, he may carry the search after recording the
grounds of belief whereas no ground of belief as contemplated by the
proviso was recorded in the present case and search took place after sun
set which violates the provisions of Section 42(2) proviso.

(iii) The jeep which was the personal jeep of Viraram could not be treated
as public transport vehicle. No evidence was brought on the record that
there was any permit for public transport vehicle. The brother in law of
Viraram i.e. Kartararam do not support the case that the vehicle was a
public transport vehicle. Section 43 of the Act was not applicable; hence,
the view of the court below that compliance of Section 42 was not
necessary, is incorrect.
(iv) Further, the secret information from informer was received and
recorded and search was conducted thereafter. The present was not a case of
conducting the search at public place suddenly.
(v) The sealing of the material sample was not proper nor the sample of
seal was deposited in the stock house. The seal vide which material has
been sealed has not been kept safe any where, it remained in the possession
of the officer who conducted the search.
(vi) The independent witnesses have not supported the case of prosecution
at all.

5. The State of Rajasthan feeling aggrieved against the judgment of the
High Court has come up in this appeal. Learned counsel for the appellant
has contended that there was compliance of provisions of Section 42(1) and
(2) of Section 42 and moreover, the vehicle being used to carry passengers
as has come in the statement of the owner of the vehicle Vira Ram PW-4 and
the search being at public place, by virtue of Section 43 there was no
necessity of compliance of Section 42. It is further contended that minor
discrepancy in Exh. P-14 and that of Exh. P-15 was inadvertent mistake due
to which it cannot be said that provisions of Section 42(1) was not
complied with. It is contended that Station House Officer and other police
personnel accompanying the team have been examined and they have proved the
recovery and chain of events. The High Court has committed error in
acquitting the accused whereas there was sufficient ground and material to
support the conviction order recorded by the Special Judge.
6. The learned counsel appearing for the accused have supported the
judgment of the High Court and submits that compliance of provisions of
Section 42(1) and 42(2) have been held to be mandatory by this Court and
due to non compliance of the said provisions, the conviction has rightly
been set aside by the High Court. It is submitted that Section 43 of the
Act is not attracted since the search was conducted after recording
information from informer and Station House Officer himself in his
statement had stated the facts for proving compliance of Section 42, hence,
it cannot be said that compliance of Section 42 was not required more so
the jeep was personal jeep of Vira Ram and High Court has rightly held that
there was no material to prove that jeep was a public transport vehicle. No
permit from transport authority to ply the vehicle as a public transport
vehicle had been filed or even pleaded.
7. We have considered the submissions of learned counsel for the parties
and have perused the record.
8. Whether the High Court committed error in acquitting the accused is
the issue which needs to be considered in this appeal. Whether there were
sufficient material to support the findings of the High Court regarding non-
compliance of Section 42(1) and Section 42 (2) and whether Section 43 was
applicable in the present case are the other issues which need to be
answered. Whether recovery as claimed by the prosecution is supported from
the evidence on record and material and samples were properly sealed are
other related issues.
9. The NDPS Act was enacted to consolidate and amend the law relating to
narcotic drugs, to make stringent provisions for the control and regulation
of operations relating to narcotic drugs and psychotropic substances. This
Court had occasion to consider the provisions of NDPS Act in large number
of cases. This Court has noted that the object of NDPS 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.
This Court in State Of Punjab vs Balbir Singh, 1994 (3) SCC 299, in
paragraph 15 has made the following observations:
“15.The object of NDPS 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). To that extent they are mandatory. Consequently
the failure to comply with these requirements thus affects the prosecution
case and therefore vitiates the trial.”

10. To the similar effect are the observations of this Court in Saiyad
Mohd. Saiyad Umar Saiyed & others vs. The State Of Gujarat, (1995) 3 SCC
610. Following was stated in paragraph 6 of the said judgment:
“6. It is to be noted that under the NDPS Act punishment for contravention
of its provisions can extend to rigorous imprisonment for a term which
shall not be less than IO years but which May extend to 20 years and also
to fine which shall not be less than Rupees one lakh but which may extend
to Rupees two lakhs, and the court is empowered to impose a fine exceeding
Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of
the NDPS Act shifts the onus of proving his innocence upon the accused; it
states that in trials under the NDPS Act it may be presumed, unless and
until the contrary is Proved, that an accused has committed an offence
under it in respect of the articles covered by it "for the possession of
which he fails to account satisfactorily". Having regard to the grave
consequences that may entail the possession of illicit ar- ticles under the
NDPS Act, namely, the shifting of the onus to the accused and the severe
punishment to which he becomes liable, the legislature has enacted the
safeguard contained in Section 50. To obviate any doubt as to the
possession by the accused of illicit articles under the NDPS Act, the
accused is authorised to require the search for such possession to be
conducted in the presence of a Gazetted Officer or a Magistrate.”

11. In the present case, Section 42 is relevant which is extracted as
below:
“ 42. Power of entry, search, seizure and arrest without warrant or
authorisation.-(l) 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 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 in this behalf by general
or special order of the State Government, if he has reason to believe from
persons 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 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 subsection
(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.”

12. The High Court has come to the conclusion that there is breach of
mandatory provisions of Section 42(1) and Section 42(2) and further Section
43 which was relied by the Special Judge for holding that there was no
necessity to comply Section 42 is not applicable. We thus proceed to first
examine the question as to whether there is breach of provisions of Section
42(1) and Section 42(2). The breach of Section 42 has been found in two
parts. The first part is that there is difference between the secret
information recorded in Exh. P-14 and Exh. P-21 and the information sent to
Circle Officer, Nohar by Exh. P-15. It is useful to refer to the findings
of the High Court in the above context, which is quoted below:

“ From the above examination, it is not found that Exh. P-14 the
information which is stated to be received from the informer under Section
42(2) of Act or Exh. P-21, the information given by the informer which is
stated to be recorded in the Rozanamacha, copy whereof has been sent to
C.O. Nohar, who was the then Senior Officer, Rather, Exh. P-15, the letter
which was sent, it is not the copy of Exh. P-14, but it is the separate
memo prepared of their own. From the above examination, it is not found in
the present case that section 42 (2) of Act, 1985 is complied with.”

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 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.”

15. In this context, it is relevant to note that before the Special Judge
also the breach of Section 42(1) and 42(2) was contended on behalf of the
defence. In paragraph 12 of the judgment Special Judge noted the above
arguments of defence. However, the arguments based on non-compliance of
Section 42 (2) were brushed aside by observing that discrepancy in Exh. P-
14 and Exh. P-15 is totally due to clerical mistake and there was
compliance of Section 42(2). Special Judge coming to compliance of proviso
to Section 42(1) held that vehicle searched was being used to transport
passengers as has been clearly sated by its owner Veera Ram, hence, as per
the explanation to Section 43 of the Act, the vehicle was a public
transport vehicle and there was no need of any warrant or authority to
search such a vehicle. The High Court has reversed the above findings of
the Special Judge. We thus, proceed to examine as to whether Section 43 was
attracted in the present case which obviated the requirement of Section
42(1) proviso. Section 43 of the Act is as follows:

“43. Power of seizure and arrest in public place.-Any officer of any of
the departments mentioned in section 42 may

(a) seize in any public place or in transit, any narcotic drug or
psychotropic substance or controlled substance in respect of which he has
reason to believe an offence punishable under this Act has been committed,
and, along with such drug or substance, any animal or conveyance or article
liable to confiscation under this Act, any document or other article which
he has reason to believe may furnish evidence of the commission of an
offence punishable under this Act 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;

(b) detain and search any person whom he has reason to believe to have
committed an offence punishable under this Act, and if such person has any
narcotic drug or psychotropic substance or controlled substance in his
possession and such possession appears to him to be unlawful, arrest him
and any other person in his company.

Explanation.- For the purposes of this section, the expression "public
place" includes any public conveyance, hotel, shop, or other place intended
for use by, or accessible to, the public”

16. Explanation to Section 43 defines expression “public place” which
includes any public conveyance. The word “public conveyance” as used in the
Act has to be understood as a conveyance which can be used by public in
general. The Motor Vehicles Act, 1939 and thereafter the Motor Vehicles
Act, 1988 were enacted to regulate the law relating to motor vehicles. The
vehicles which can be used for public are public Motor Vehicles for which
necessary permits have to be obtained. Without obtaining a permit in
accordance with the Motor Vehicles Act, 1988, no vehicle can be used for
transporting passengers. In the present case, it is not the case of the
prosecution that the jeep HR-24 4057 had any permit for transporting the
passengers. The High Court has looked into the evidence and come to the
conclusion that there was no material to indicate that there was any permit
for running the jeep as public transport vehicle. The High Court has
further held that even Kartara Ram who as per owner of the vehicle Veera
Ram was using the vehicle, do not support that the jeep was used as public
transport vehicle. The High Court held that personal jeep could not be
treated as public transport vehicle. Following observations were made by
the High Court:

“Kartara Ram is produced as PD-5,who has deposed the statement that Vira
Ram is his brother-in-law (Saala), on whose name jeep bearing No.HR 24 4057
is lying registered. He had employed Inderjit singh as driver for that
jeep. Person namely Krishan has never been employed as driver. This witness
has been declared hostile and he has been examined too, who does not
support the prosecution case. In this manner, Viraram is the owner of the
jeep. According to him he had given the jeep to Kartara Ram, but Kartara
Ram has not stated anywhere in is statement that this jeep was given to him
and he used the same as Public Transport Vehicle. Since powder of opium was
caught in this jeep and even Notice Exh. P-6 was also served upon him by
the police, he with a view to save himself, can also depose such statement
that Kartara used to use the jeep as Public Transport Vehicle , whereas
Kartara Ram PD-5 does not affirm this fact. Jeep was personal, it is clear
on the record. In this manner, just on this ground that he has given the
jeep to his brother-in-law and he used it to carry the passengers, the
personal jeep could not be treated as public transport vehicle. However,
the fact that jeep is used to carry the passengers has not been affirmed
from the statements of Kartara Ram. There is no evidence on record on the
basis of which it could be stated that jeep was public transport vehicle
and they have the permit for it, rather it was the private vehicle and it
is stated that Vira Ram himself is the owner of that vehicle”

17. There is nothing to impeach the aforesaid findings. We have also
perused the statement of Vira Ram in which statement he has never even
stated that he has any permit for running the vehicle as transport vehicle.
He has stated that “..... I had given this jeep to Kartara Ram resident of
…... who is my relative to run it for transporting passengers” Admittedly
the jeep was intercepted and was seized by the police. In view of the
above, the jeep cannot be said to be a public conveyance within the meaning
of Explanation to Section 43. Hence, Section 43 was clearly not attracted
and provisions of Section 42(1) proviso were required to be complied with
and the aforesaid statutory mandatory provisions having not been complied
with, the High Court did not commit any error in setting aside the
conviction.

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 vs
Mohammed Nisar Holia, (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 sub-section (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
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 Vs. Balbir Singh (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 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.

(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
authorized 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 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 CrPC 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 CrPC 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 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 vs.
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 Vs. Baldev
Singh, (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
vs. The State Of Gujarat (supra) and a discordant note was struck by two
Judges Bench in State of Himachal Pradesh Vs. Pirthi Chand and another,
(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 non-compliance of
Section 42 of the Act.

23. In Beckodan Abdul Rahiman vs State Of Kerala, 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 Vs. 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 sub-section (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 Vs. State of Haryana, 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:

“1) In the case of Abdul Rashid Ibrahim Mansuri vs. State of Gujarat,
(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 vs. State of Kerala, (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 organized 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 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.
26. In view of what has been stated above, it is not necessary for us to
enter into the other reasons given by the High Court for setting aside the
conviction order. The High Court has given the sufficient reasons and
grounds for setting aside the conviction order in which we do not find any
infirmity so as to interfere in this appeal.

27. In the result the appeal is dismissed.

………………………………….J.
( ABHAY MANOHAR SAPRE )

………………………………….J.
( ASHOK BHUSHAN )
NEW DELHI,
JUNE 29, 2016.

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STATE OF RAJASTHAN Vs. JAG RAJ SINGH @ HANSA - NDPS

Supreme Court of India (Division Bench (DB)- Two Judge)