Patna High Court
Raju Mistri @ Riyazuddin vs State Of Bihar on 25 April, 2013
Author: Mihir Kumar Jha
      IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Criminal Appeal (DB) No.196 of 2008
===========================================================
Raju Mistri @ Riyazuddin, son of Wafati Mian, resident of Nayee Bazar, P.S. Bhagwan Bazar, Distt-
Saran at Chapra .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s
=========================================================== Appearance :
For the Appellant/s :     Mr. Ashutosh Kumar, Adv.
For the Respondent/s :    Ms. Shashi Bala Verma, APP
=========================================================== CORAM:
HONOURABLE MR. JUSTICE MIHIR KUMAR JHA and HONOURABLE MR. JUSTICE ADITYA
KUMAR TRIVEDI CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR
TRIVEDI) Date: 25-04-2013 Sole appellant Raju Mistri @ Riyazuddin who has been found guilty for
an offence punishable under Sections 20 (b) 2 (c) of the NDPS Act vide judgment dated 07.02.2008
and sentenced to undergo R.I. for 20 years and fine of Rs. 2 Lacs in default to undergo R.I. for two
years vide order dated 08.02.2008 passed by 1st Additional Sessions Judge, Saran at Chapra in
NDPS Case No. 15/2000 filed the instant appeal.
2. PW-2, Parasnath Singh recorded his own Fardbeyan (Ext-
3) on 26.10.2000 alleging inter alia that on the same day at about 10.45 a.m. he had received
confidential information with regard to transportation of Charas in a huge quantity by the
smugglers. On the aforesaid confidential information a raiding party was constituted and as soon as
they came at village Bhadpa, they found a jeep bearing Registration No. WBC 4049 proceeding
towards western direction. On suspicion, the raiding party intercepted the vehicle. The driver, on
query, disclosed his identity as Raju Mistri @ Riyazuddin and further failed to produce documents
with regard to the vehicle. In presence of seizure list witnesses namely, Kashinath Singh and Musafir
Sharma the vehicle was searched and from a box which was constructed in between the back seat, 29
packets of 2 Kgs, four packets of 1 Kg. and 66 packets of 500 Gms totaling 95 Kilograms of Charas
was found for which no explanation was offered by the aforesaid driver. On query, the driver further
disclosed that the vehicle belonged to Nanhe Mistri who used him as a carrier and further he was on
his way to Kanpur. Accordingly, the driver was apprehended and the contraband articles were
seized. After registration of case bearing Ravilganj P.S. Case No. 137 of 2000 investigation
commenced and charge-sheet was submitted against the appellant while remained pending against
co-accused Nanhe Mistri.
3. While the matter was pending for investigation against co- accused, Nanhe Mistri, after taking
cognizance of the offence the trial commenced before 8th Additional Sessions Judge, Saran at
Chapra, wherefrom the appellant, Raju Mistri @ Riyazuddin got acquittal in the background of the
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fact that prosecution had failed to examine material witnesses save and except the seizure list
witnesses, Kashinath Singh and Musafir Sharma which was taken into consideration suo motu by
this Court and on the basis thereof there has been registration of Cr. Revision No. 183 of 2003 and
subsequently vide order dated 20.08.2004 after setting aside the judgment of acquittal dated
18.07.2002 passed by the 8th Additional Sessions Judge, Saran at Chapra the matter was remitted
to the trial court to proceed afresh. During continuance of the proceeding before the trial court
charge-sheet against Nanhe Mistri was also filed and on account thereof both the proceedings were
amalgamated which culminated in conviction of the appellant as well as acquittal of co-accused,
Nanhe Mistri.
4. The defence as is evident from the mode of cross- examination as well as from statement of
appellant under Section 313 of the Cr.P.C. is of complete innocence as well as denial of the
occurrence.
5. While assailing the judgment of conviction and sentence recorded by the trial court it has been
submitted on behalf of the appellant that even after remand, the case of the prosecution did not
improve to the extent of justifying the finding of the trial court. It has further been submitted that
apart from having inconsistency amongst the PWs on material aspect as well as having their
evidence at variance, there has been gross negligence, laches on the part of the prosecution in
proceeding with the investigation. To support the same, it has further been submitted that there has
been utter violation of mandate of relevant provisions of law which make the investigation illegal as
well as perfunctory and on account thereof, the judgment of conviction and sentence so recorded by
the trial court loses its sanctity and identity. Last but not the least, it has been submitted that from
the narration of the written report, it is evident that appellant is a carrier and in the aforesaid
background the quantum of punishment inflicted upon him appears to be excessive one.
6. On the other hand, refuting the submission raised on behalf of appellant, it has been submitted by
learned APP that finding of guilt recorded by the trial court is based upon materials available on the
record. All the material witnesses have supported the factum of recovery of Charas in such huge
quantity from a jeep which was being driven by the appellant at the time of search and seizure. It
has further been submitted that FSL report is on the record which proves the contraband to be
Charas and that being the position, one should not raise question over validity of judgment in
question. As such, instant appeal is fit to be dismissed.
7. In order to substantiate its case, the prosecution had examined altogether 9 PWs out of whom
PW-1 is Ram Narayan Pandit a member of raiding party, PW-2 is Paras Nath Singh (informant) as
well as I.O, PW-3 is Raj Kishore Tiwari, member of raiding pary, PW-4 Mosafir Sharma, seizure list
witness, PW-5, Kashi Nath Singh, seizure list witness, PW-6 is Arjun Yadav who investigated the
case of Nanhe Mistri and had filed supplementary Charge sheet, PW-7 is Akhilesh Baitha, a
Constable (member of raiding party), PW-8 is Ram Janam Pathak who is Malkhana Incharge and
had produced material exhibit and PW-9 is Dudh Nath Singh, another member of raiding party. The
prosecution had also exhibited Ext-1- seizure list, Ext-2 series- signature of respective witnesses
over respective documents, Ext-3, written report, Ext-4- Formal First Information Report, Ext-5,
serial no. 95, 30/2000 relating to case no. 137/2000 and Ext-6 is FSL report. 98 packets of Charas
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have been exhibited as material exhibit-(i).
8. It is also evident from the lower court record that two witnesses namely, Md. Jalaluddin and Md.
Ibrahim have been examined on behalf of defence but without any exhibit.
9. Before proceeding to scrutinize the evidence placed on the record on behalf of prosecution, it
looks appropriate to refer Section 51 of the NDPS Act which lays down as follows:-
51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrest,
searches and seizures.--The provisions of the Code of Criminal Procedure, 1973 shall
apply, in so far as they are not inconsistent with the provisions of this Act, to all
warrants issued and arrests, searches and seizures made under this Act.
That means to say by virtue of Section 51 of the NDPS Act, the provisions of the Cr.P.C. will apply to
the extent they are not inconsistent with the provisions of the Act. At the present moment, one
should not lost sight of Section-4 of the Cr.P.C. which reads as follows:-
4. Trial of offences under the Indian Penal Code and other laws (1) All offences under
the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and
otherwise dealt with according to the provisions hereinafter contained (2) All
offences under any other law shall be investigated, inquired into, tried, and otherwise
dealt with according to the same provisions, but subject to any enactment for the
time being in force regulating the manner or place of investigating, inquiring into,
trying or otherwise dealing with such offences Section-5 of the Cr.P.C. also appears to
be relevant and for that purpose is quoted hereinbelow:-
5. Saving Nothing contained in this Code shall, in the absence of a specific provision
to the contrary, affect any special or local law for the time being in force, or any
special jurisdiction or power conferred, or any special form of procedure prescribed,
by any other law for the time being in force.
10. Therefore, having the conjoint reading of the aforesaid relevant provisions of law,
it is evident that the application of Cr.P.C. is only permissible to the extent of search,
seizure, arrest of an accused, in case, the matter in hand appears to be guided by
Special Act, In the aforesaid event, the procedure for proceeding with the case falling
under NDPS Act the case in hand has to be carried out in accordance with law so
formulated under the NDPS Act and more particularly is to be governed according to
the procedure incorporated under Chapter-V of the NDPS Act.
11. Because of the fact that the Act prescribes harsh punishment in its normal phenomena, therefore,
it is expected to have proper compliance of the requirement as envisaged under relevant Sections of
the NDPS Act falling under Chapter-V dealing with procedure to be followed right from its inception
to conclusion. There happens to be authorization under the act to different machineries such as
Central Excise, Narcotics, Customs, Revenue, Intelligence or any other Department of the Central
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Government including Para Military Forces or the Armed Forces and in likewise manner of the State
Government which includes the police and further there happens to be procedure, apart from
others, to make search and seizure at different counts in different way however contains a safeguard
to be followed right from seizure as is evident from Section 42 of the Act which deals with an
obligation upon the part of the authority concerned to inform in writing to the immediate superior
officer regarding search and seizure within 72 hours (as amended). For better appreciation
Section-42 of the NDPS Act is incorporated hereinafter:-
42. Power of entry, search, seizure and arrest without warrant or authorization.- (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 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 VA 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 VA
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 authorization 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.
42 (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
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thereof to his immediate official superior.
12. Whether its non compliance will vitiate the trial, the same has been taken into consideration
times without number moreover, settled at rest by the Constitution Bench in the case of Kernal
Singh v. State of Haryana as reported in 2009 Cri.L.J. 4299 .
13. Before coming to the principle decided in the case (supra) it looks pertinent to incorporate facts
of the case because of the fact that date of occurrence of instant case also happens to be before
amendment of Section 42(2) of the Act by amending Act 9 of 2001. On getting information on
12.01.1988 that one Iqbal Syed Hussain was trying to transport Charas upto Shahpur in an
auto-rickshaw at about 4:00 P.M., police party intercepted and searched and found four gunny bags
having ten packets of Charas found concealed therein.
14. The amendment in Section 42(2) of the NDPS Act was brought by amending Act 9 of 2001
whereby the word "should forthwith send a copy thereof to his immediate official superior" was
substituted with "within 72 hours". As held in Basheer @ N.P. Basheer v. State of Kerala (2004) 3
SCC 609, the law as it existed at the time of commission of the offence would be the law which will
govern the rights and obligations of the parties under the NDPS Act. Hence, it could safely be said
that on account of apprehension of appellant on 26.10.2000, the then requirement prevailing under
Section 42 of the Act was to be complied with.
15. While dealing with the ambit & scope of Section 42, and its subsequent amendment, the Hon€ble
Apex Court in Kernal Singh (supra) case dealt with the same in following manner:-
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 ************ Then under para 17, the principles have been laid down in following terms:-
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17. 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: 2000 A
(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.
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16. In Sukhdev Singh v. State of Haryana reported in 2013 (1) BLJ SC 158 again the issue in hand
has been dealt with holding that non-compliance of requirement of Section 42 of the NDPS Act will
vitiate the trial.
18. In the present case, the occurrence was of 4th February, 1994. The Trial of the accused
concluded by judgment of conviction dated 4th July, 1998. Thus, it will be the unamended Section
42(2) of the NDPS Act that would govern the present case. The provisions of Section 42 are intended
to provide protection as well as lay down a procedure which is mandatory and should be followed
positively by the Investigating Officer. He is obliged to furnish the information to his superior officer
forthwith. That obviously means without any delay. But there could be cases where the Investigating
Officer instantaneously, for special reasons to be explained in writing, is not able to reduce the
information into writing and send the said information to his superior officers but could do it later
and preferably prior to recovery. Compliance of Section 42 is mandatory and there cannot be an
escape from its strict compliance.
*********** ***********
21. As per the statement of PW1, no effort was made by him to reduce the information into writing
and inform his higher authorities instantaneously or even after a reasonable delay which has to be
explained with reasons in writing. On the contrary, in the present case, the Investigating Officer PW
1 had more than sufficient time at his disposal to comply with the provisions of Section 42.
Admittedly, he had received the secret information at 11.30 a.m., but he reached the house of the
accused at 2 p.m. even when the distance was only 6 kilometers away and he was in a jeep. There is
not an iota of evidence, either in the statement of PW 1 or in any other documentary form, to show
what the Investigating Officer was doing for these two hours and what prevented him from
complying with the provisions of Section 42 of NDPS Act.
22. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a
case of total non-compliance, thus the question of substantial compliance would not even arise for
consideration of the Court in the present case. The twin purpose of the provisions of Section 42
which can broadly be stated are that : (a) it is a mandatory provision which ought to be construed
and complied strictly; and (b) compliance of furnishing information to the superior officer should be
forthwith or within a very short time thereafter and preferably post-recovery.
23. Once the contraband is recovered, then there are other provisions like Section 57 which the
empowered officer is mandatorily required to comply with. That itself to some extent would
minimize the purpose and effectiveness of Section 42 of the NDPS Act. It is to provide fairness in the
process of recovery and investigation which is one of the basic features of our criminal
jurisprudence. It is a kind of prevention of false implication of innocent persons. The legislature in
its wisdom had made the provisions of Section 42 of NDPS Act mandatory and not optional as
stated by this Court in the case of Karnail Singh (supra).
************
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25. Before we part with this file, we consider it the duty of the Court to direct the Director General of
Police concerned of all the States to issue appropriate instructions directing the investigating
officers to duly comply with the provisions of Section 42 of NDPS Act at the appropriate stage to
avoid such acquittals. Compliance to the provisions of Section 42 being mandatory, it is the
incumbent duty of every investigating officer to comply with the same in true substance and spirit in
consonance with the law stated by this Court in the case of Karnail Singh (supra).
17. In Kishan Chand v. State of Haryan reported in AIR 2013 SC 357, again this issue has been
subject matter of adjudication and the same has been answered in following manner:-
16. We are unable to contribute to this interpretation and approach of the Trial Court
and the High Court in relation to the provisions of sub- Section (1) and (2) of Section
42 of the Act. The language of Section 42 does not admit any ambiguity. These are
penal provisions and prescribe very harsh punishments for the offender. The
question of substantial compliance of these provisions would amount to
misconstruction of these relevant provisions. It is a settled canon of interpretation
that the penal provisions, particularly with harsher punishments and with clear
intendment of the legislature for definite compliance, ought to be construed strictly.
The doctrine of substantial compliance cannot be called in aid to answer such
interpretations. The principle of substantial compliance would be applicable in the
cases where the language of the provision strictly or by necessary implication admits
of such compliance.
17. In our considered view, this controversy is no more res integra and stands
answered by a Constitution Bench judgment of this Court in the case of Karnail Singh
(supra). In that judgment, the Court in the very opening paragraph noticed that in
the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat [(2000) 2 SCC 513], a
three Judge Bench of the Court had held that compliance of Section 42 of the Act is
mandatory and failure to take down the information in writing and sending the
report forthwith to the immediate officer superior may cause prejudice to the
accused. However, in the case of Sajan Abraham (supra), again a Bench of three
Judges, held that this provision is not mandatory and substantial compliance was
sufficient. The Court noticed, if there is total non-compliance of the provisions of
Section 42 of the Act, it 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 was explained or not, will be a question of fact in each case. The Court in
paragraph 35 of the judgment held as under:-
35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal
compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan
Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled
at all. The effect of the two decisions was as follows:
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(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 register concerned and forthwith send a copy
to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of
Section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he
was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the
information calls for immediate action and any delay would have resulted in the goods or evidence
being removed or destroyed, it would not be feasible or practical to take down in writing the
information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section
42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith
inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to
writing down the information received and sending a copy thereof to the superior officer, should
normally precede the entry, search and seizure by the officer. But in special circumstances involving
emergent situations, the recording of the information in writing and sending a copy thereof to the
official superior may get postponed by a reasonable period, that is, after the search, entry and
seizure. The question is one of urgency and expediency.
(d) While total 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 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 of a copy of such information to the official superior
forthwith, may not be treated as violation of Section 42. But if the information was received when
the police officer was in the police station with sufficient time to take action, and if the police officer
fails to record in writing the information received, or fails to send a copy thereof, to the official
superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act.
Similarly, where the police officer does not record the information at all, and does not inform the
official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is
adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each
case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.
18. Following the above judgment, a Bench of this Court in the case of Rajinder Singh (supra) took
the view that total non-compliance of the provisions of sub-Sections (1) and (2) of Section 42 of the
Act is impermissible but delayed compliance with a satisfactory explanation for delay can, however,
be countenanced.
19. The provisions like Section 42 or 50 of the Act are the provisions which require exact and
definite compliance as opposed to the principle of substantial compliance. The Constitution Bench
in the case of Karnail Singh (supra) carved out an exception which is not founded on substantial
compliance but is based upon delayed compliance duly explained by definite and reliable grounds.
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18. Now coming to the facts of the case in hand, admittedly, PW-2 is Officer In-Charge of the
Ravilganj P.S. who also happens to be the informant as well as I.O. After going through his evidence
it is abundantly clear that there is total lacking of compliance of Section-42 (2) of the NDPS Act
because of the fact that no Sanha entry has been brought on record to support that it was ever
reduced into writing nor there happens to be other supporting document to infer that the
information to that context was ever communicated to superior authority. Virtually, for want of
relevant document it looks unsafe to rely upon the oral evidence of PW-2 when there happens to be
absence of the fact of recording of Sanha in the written report and therefore found to be
development in the prosecution case to plug the loopholes. In like wise manner, the written report
also lacks the averment whether information was given to superior officer.
19. PW-2 himself also stood as an Investigating Officer. That means to say, his status happens to be
that of informant as well as of I.O.. Even while discharging function as Investigating Officer, he did
not adventure towards station diary entry followed with informing the superior officer. From his
examination-in-chief covering under para 1 to 7, there is also absence of disclosure that he had ever
intended to comply with the requirement of Section 42 (2) of the NDPS Act by having the
information conveyed to his superior officer in terms of obligation cast upon him "forthwith".
Hence, there is absolutely non compliance of Section 42 of the NDPS Act.
20. Because of the fact that due to non compliance of mandate of Section-42 the judgment
impugned has become illegal, as such there is no necessity to proceed with other points so canvassed
at bar.
21. Hence, the judgment of conviction and sentence rendered by the trial court is set aside. The
appeal is allowed. The appellant is in custody. He is directed to be released forthwith if not wanted
in any other case.
(Aditya Kumar Trivedi,J.) (Per: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA)
22. I have perused the aforesaid judgment prepared by my learned brother but with great respect to
him, I am not in a position to persuade myself to agree with his reasonings and conclusions in
allowing the appeal by way of acquittal of the sole appellant only on account of alleged
non-compliance of the provisions of Section 42 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (hereinafter referred to as „the NDPS Act€). The reasons for recording my difference of
opinion are as follows:
23. As noted above, this appeal is directed against the judgment of conviction dated 7th February,
2008 passed by the 1st Addl. Sessions Judge, Saran in N.D.P.S.Case No. 15/2000, whereby and
whereunder the sole appellant Raju Mistri @ Riyazuddin has been convicted for offence under
section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter
referred to as „the NDPS Act€) for having been in possession and transporting 90 kgs. of Charas
without licence by Jeep No. WBC 4049 as also the order of sentence dated 8.2.2008 convicting the
aforesaid sole appellant for undergoing Rigorous Imprisonment for 20 years as also payment of fine
of Rs. 2 lacs.
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24. The prosecution case is based on a written report of one Paras Nath Singh, Officer In-charge of
Revilganj Police Station at 11.45 A.M. on 26.10.2000 at village Bhadpa on Chhapra Manjhi highway
wherein he had stated that on receiving a confidential information at 10.45 a.m. at Revilganj Police
Station that a gang of international smuggler was carrying huge amount of Charas in a Jeep and on
receiving this information he having made Station Diary Entry had immediately rushed in search of
Jeep alongwith R.N.Pandit, Sub Inspector of Police, Kishun Das, Sub Inspector of Police,
R.K.Tiwary, Assistant Sub Inspector of Police, S.Paswan, Assistant Sub Inspector of Police as well as
members of the Reserved Force, namely, Umesh Pandit, Contable, Sanjay Thakur, Constable,
Akhilesh Baitha, Contable, Verma Yadav, Constable as well as the driver of Police Jeep BHD 7854,
namely, Dudhnath Singh and had intercepted the jeep of a black colour bearing registration No.
WBC- 4049 at 11:00 a.m. which was being driven and take away towards western side. The
informant Police Officer has further stated that he alongwith his members of the raiding party had
got the aforesaid jeep WBC 4049 stopped and apprehended the jeep driver has disclosed his name
as Raju Mistri @ Riyazuddin describing himself to be the resident of Nai Bazar, Police Station
Bhagwan Bazar, District Saran and when the papers regarding jeep was demanded by him from the
jeep driver he could not produce any such document. It is said that thereafter in presence of two
independent witnesses, namely, Kashi Nath Singh and Musafir Sharma the jeep was searched, and
from the back portion of the jeep huge quantity of Charas kept inside the iron safe in built box
between the two seats of the jeep, weighing in all 90 kgs in 20 packets of 2 kgs. 4 packets of 1 kg and
66 packets of ½ kg. were recovered for which a seizure list was prepared at 11:15 a.m. at the spot.
25. The informant Police Officer has also stated that on further enquiry made from the appellant,
the jeep driver, he had stated that the jeep belonged to one Nanhe Mistry who was the owner of a
motor garrage. According to the informant Police Officer the appellant had also stated that on
22.10.2000 he had gone to Kathmandu (Nepal) alongwith Nanhe Mistry and Charas was purchased
and was stored in the iron safe in built box between the two seats of the jeep. The informant Police
Officer in his written report had further stated that the appellant, jeep driver, had also stated that on
25.10.2000 they had returned to the jeep garrage of Nanhe Mistry and he had kept the jeep over
there in the night and on the next morning i.e. 26.10.2000, Nanhe Mistry had asked the appellant to
drive the jeep to Kanpur while Nanhe Mistry was separately moving in another vehicle by keeping a
watch surveillance on the jeep of the appellant. According to the informant it was appellant, jeep
driver, who had accepted that when the jeep was intercepted by the police party Nanhe Mistry
alongwith his three associates who were in another vehicle had fled away while he (appellant) was
caught hold of and the Charas was recovered in his presence from the jeep.
26. It is on the basis of the aforementioned written report of the Officer In-charge of Revilganj
Police Station that Revilganj P.S.Case No. 137/2000 dated 26.10.2000 was instituted under sections
22/23/24 of the NDPS Act wherein the police after investigation had submitted the charge sheet
both against the appellant as also Nanhe Mistry.
27. It is significant to note here that the trial of this case was initially taken up and by a judgment
dated 18.7.2002 Sri Krishna Prasad Verma, 8th Addl. District and Sessions Judge, Chapra had
acquitted the appellant for offence under sections 22/23/24 of the NDPS Act but when this
judgment came to the notice of this Court in course of application for anticipatory bail filed by the
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co-accused Nanhe Mistry this Court by an order dated 26.2.2003 in Cr.Misc.No. 24907/2002 had
not only rejected such prayer of anticipatory bail of the co-accused Nanhe Mistry but it had also
issued notice to the appellant as to why such judgment of his acquittal should be set aside and a
re-trial be held because the trial had been conducted in a perverse manner and as such the judgment
of his acquittal both on fact and in law. It is also not in dispute that upon service of notice to the
appellant in the suo moto revision application, Cr.Revision No. 183/2003 and after hearing the
parties an order dated 20.8.2004 was passed setting aside the judgment of acquittal of the appellant
dated 18.7.2002, which reads as follows:
" Heard.
This revision petition is directed against the judgment of acquittal dated 18.7.2002 by
which Sri Krishna Verma, 8th Addl. District and Sessions Judge, Chapra has
acquitted the opposite party Raju Mistry for the offence under sections 22, 23 and 24
of the Narcotic Drugs and Psychotropic Substances Act, 1985. The allegation is that
95 kgs. Charas was recovered from his conscious possession.
While hearing the anticipatory bail application of one Nanhe Mistry who is accused
along with Rajy Mistry, the learned Single Judge of this Court has noticed that Raju
Mistry has been wrongly acquitted. Accordingly, notice was issued to Raju Mistry and
he has appeared in the case. From perusal of the entire order sheet of the Court it
appears that when the witnesses did not turn up non-bailable warrants of arrest was
issued against them by the court below, however, without waiting for the execution
report the court below closed the prosecution case and acquitted Raju Mistry from
the charges levelled against him. Law is well settled that when the court issues
process then it is duty to see that the process are executed otherwise there will be
mis-trial. The trial court was in hurry to close the case as it appears from the perusal
of the entire records. Thus, on this ground alone, order of acquittal is vitiated in law
and as such, the judgment of acquittal is set aside and the matter is remitted back to
the trial court to proceed afresh in accordance with law.
In the result, the judgment of acquittal is set aside. Let the records be sent
immediately to the court below."
28. It is thereafter that the trial of the appellant was once again conducted after charges were framed
against him afresh on 8.3.2006 for offence under section 20(b)(ii)(C) of the NDPS Act.
29. The prosecution in support of its case had examined in all nine witnesses, out of whom P.W.1
Ram Narayan Pandit, P.W.2 Paras Nath Singh (informant), P.W.3 Raj Kishore Tiwari (ASI), P.W.4
Mosafir Sharma, P.W.5 Kashi Nath Singh, two search witnesses, P.W.6 Arjun Yadav (SI), P.W.7
Akhilesh Baitha (constable), P.W.8 Ram Janam Pathak (ASI) and P.W.9 Dudh Nath Singh, the
driver of the police jeep. Additionally, the prosecution had also produced the documentary evidence
in form of seizure list (Ext.1), signature on seizure list (Exts. 2, 2/1 and 2/2), self statement of the
informant (Ext.3), formal F.I.R. (Ext.4), Malkhana entry (Ext.5), report of Forensic Science
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Laboratory (Ext.6). In addition to it the prosecution had also produced the material Ext.I being 98
packets of Charas.
30. The appellant and co-accused Nanhe Mistry, who were put on trial together in course of their
defence, had also examined two defence witnesses, namely, D.W.1 Md. Jalaluddin and D.W.2 Md.
Ibrahim. The main plank of the defence of the appellant and the other co-accused being one of
complete denial of the occurrence in question and their being falsely implicated in this case was,
however, not sought to be explained with the help of any documentary evidence.
31. The trial court after conducting the trial had acquitted co- accused Nanhe Mistry on the ground
that there was no oral or documentary evidence to establish his complicity but the appellant on the
basis of evidence on record was held guilty for offence under section 20(b)(ii)(C) of the NDPS Act
and sentenced to both undergo Rigorous Imprisonment for a period of 20 years and also pay a fine
of Rs. 2 lacs.
32. Mr. Ashutosh Kumar, learned counsel appearing on behalf of the appellant, while assailing the
impugned judgment has submitted that there is complete dearth of any reliable evidence for
connecting the appellant in the alleged occurrence, inasmuch as the two independent witnesses have
been declared hostile by the prosecution and rest of them being police personnel, their evidence
could not be treated to be trust-worthy, especially when it is found that the informant (P.W.2) is also
the Investigating Officer. In this regard he has submitted that there is complete violation of the
provisions of Section 42 of the NDPS Act, inasmuch as no information was recorded by the
informant Police Officer prior to taking steps for search and seizure nor any information was sent by
the informant to his superior Police Officer. He has further submitted that there is also violation of
the provision of Section 52A(2), inasmuch as the recovered alleged charas were not sampled under
the orders of the court. Reliance in this connection has been placed by him on the judgment of this
Court in the case of Kallu Seikh v. the State of Bihar, reported in 2010(2) PLJR 228 and in the case
of Ram Singh v. the State of Bihar, reported in 2011(1) PLJR 195. He has also submitted that in view
of above non-compliance of Section 52A(2) of the NDPS Act the report of the Forensic Science
Laboratory should not be relied, especially when such Forensic Science Laboratory report is delayed
for a period over six years and the maker of the report has also not been examined. He has also
submitted that in any event when co-accused Nanhe Mistry has been acquitted who according to the
prosecution was the actual person not only owning the charas and the jeep but also main brain
behind smuggling of the alleged Charas, the appellant being merely a jeep driver was definitely
entitled for being given the benefit of doubt.
33. Per contra, learned counsel for the State, has submitted that first of all acquittal of co-accused
Nanhe Mistry in no way would be detrimental to conviction and sentence of the appellant who was
not only apprehended at the spot but he being the driver of the jeep from which 90 kgs. of Charas
was recovered, cannot escape his liability under section 20(b)(ii)(C) of the NDPS Act. In this regard
she has also submitted that the information being a confidential, cryptic and vague information
received by the Officer In-charge (P.W.2) of the Police Station there was no requirement of its being
recorded in terms of section 42(1) of the NDPS Act. Alternatively she has submitted that there is no
denial to the fact that the Officer In-charge before leaving the Police Station on receiving
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confidential information had made Station Diary Entry, a fact which was proven by him in course of
trial and when the First Information Report was immediately also recorded and not only
information was given to the court about recovery of contraband (charas) but also about arrest of
the appellant to both the superior authority, namely, Deputy Superintendent of Police and the
Superintendent of Police but also to the court, it cannot be said that the provision of Section 42(2) of
the NDPS Act was also not followed. As with regard to non-compliance of the provision of section
52A(2) of the NDPS Act it has been submitted that not only the sample of the seized Charas was
taken and was retained which was sent to the Forensic Science Laboratory after the retrial was
directed by this Court but the Forensic Science Laboratory report also had conclusively proven the
sample of contraband being Charas, a fact which could not be challenged by the appellant. She has
further submitted that in the present case when retrial was ordered by this Court, a few of the
handicap created on account of earlier uncanny hurry shown by the trial court which had led to
strong disciplinary action against the Presiding Judge, should be balanced by examining the aspect
relating to prejudice cause to the appellant on account of alleged violation of the provision of section
42 and 52A(2) of the NDPS Act.
34. There would be no difficulty in rejecting the first submission of the learned counsel for the
appellant that the case of the appellant and that of co-accused, who has been acquitted by the trial
court, stands on an altogether different footing. It was the appellant who had been apprehended at
the spot alongwith Jeep with 90 kilograms of Charas whereas the name of the co-accused had only
surfaced on the statement given by the appellant himself. In that view of the matter, if there was no
connecting material in the evidence of the raiding party which could have brought home the charge
against the co-accused within the fold of the prosecution case, his acquittal in no way would enure to
the benefit of the appellant whose case, as noted above, is absolutely on a different footing.
35. That would bring me to the second submission of the learned counsel for the appellant question
of compliance of Section 42(1) and (2) of the Act. In this regard it has to be noted that Section 42 of
the Act on the date of occurrence, being 26.10.2000, was slightly different, inasmuch as the same,
prior to its amendment in view of Amendment Act 9 of 2001 brought in force with effect from
2.10.2001, had provided for power of entry search, seizure and arrest without warrant or
authorization as contemplated under Section Sub-Section(1) of the said Section and reporting of the
information reduced in writing to a higher officer forthwith in consonance with Sub-section (2) of
that Section. Infact on 02.10.2001, when amendment was made in Section 42(2) of the Act the word
"forthwith" was substituted by the words "within seventy two hours" binding the officer concerned
to send the information to the superior officers within seventy two hours from the time of receipt of
information. The amendment in Section 42(2) of the Act was made a view that information to the
superior officer must reach not only expeditiously or forthwith but definitely within seventy two
hours, the time contemplated under ammended sub-section (2) of Section 42.
36. Thus having regard to the provisions of Section 42 as it existed on the date of occurrence i.e.
26.10.2000, prior to amendment on 02.10.2001, the requirement was two fold namely (1) recording
of the information in writing and (2) sending such information forthwith to his immediate superior
officer.
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37. From the reading of the section 42 of the NDPS Act it is also quite clear that if there is specific
information about the commission of offence under Chapter IV of the NDPS Act it is required to be
reduced in writing and the said information of such commission of crime which has been reduced in
writing is further required to be sent to the superior officer forthwith. As a natural consequence it
would also follow that it does not mean that any or every vague or unspecific information in
connection with NDPS Act and about likelihood of commission of offence under the NDPS Act is
required to be reduced in writing. A vague information in connection with NDPS Act cannot be
equated with the information of commission of offence under Chapter IV of the NDPS Act as
contemplated under the NDPS Act. Such vague information in connection with NDPS Act may at
best provide a basis for suspicion about the commission of crime but does not furnish a positive
information that crime has been committed or that the said information was with regard to the
commission of offence under Chapter V of the NDPS Act. This aspect of the matter has been
explained by the Apex Court in the case of Surajmal Kania Lal Soni v. State of Gujarat, reported in
1994 SCC (Cri) 1229, wherein it was held as follows:
"4. In this appeal the main submission is that the Police Inspector did not reduce the
information into writing and therefore the mandatory provision has been violated. It
must be noted that according to the Police Inspector, only some vague information
was passed on to him. No information as such came and gave the information which
as per the relevant section was to be reduced into writing."
38. This Court is also not unmindful of the subsequent Constitution Bench judgment in the case of
Karnail Singh v. State of Haryana, reported in (2009) 8 SCC 539, wherein only complete non-
compliance of the provision of Section 42 of the NDPS Act has been held to be fatal and the
Constitution Bench itself had explained the law in this regard in the following words:-
"(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 office. 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
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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 here is adequate or substantial compliance with
section 42 or not 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."
(underlining by me for emphasis)
39. Thus in the light of the law laid down by the Apex Court in its Constitution Bench judgment in
the case of Karnail Singh (supra) failure to record even a vague information cannot be held to fatal
in all circumstances. In the present case also only a vague information was received by the
informant police officer at 10:45 a.m. on 26.11.2000 while he was in Police Station that an
international gang of smugglers had been trafficking huge quantity of Charas in a jeep and after
recording this fact in Station diary, he with police force had rushed and had intercepted the jeep
with the appellant carrying huge quantity of Charas at 11:15 a.m. on 26.10.2000.
40. Thus, recording of Sanha entry prior to the informant police officer leaving the police station
upon receiving the confidential, cryptic and a vague information at 10:45 a.m. and also reaching
village Bhadwa at Chhapra Manjhi Road at a distance four and half kilometer from police station
within 15 minutes at 11:00 a.m. leading to apprehending of the appellant with 90 kilograms of
Charas within next fifteen minutes inasmuch as the seizure list with the thumb impression of
appellant was prepared at 11:15 a.m. at the spot and the fardbayan was also recorded there itself
11:45 a.m. reading as follows:-
^^eSa v0 fu0 ih0 ,u0 flag Fkkuk izHkkjh fjfoyxat Fkkuk vkt fnukad 26-10-200 dks le;
11-45 cts xzke&Hkknik esa Nijk eka>h eq[; lM+d ij viuk Lofyf[kr c;ku vafdr djrk gwW
fd vkt fnukad 26-10-2000 dks le; djhc 10-45 cts Fkkuk ij xqIr lwp uk izkIr gqvk fd
vUrjkZ"Vzh; rLdj fxjksg ds yksx ,d thi ls Hkkjh ek=k esa pjl ysdj if'pe dh vksj tk jgs
gSa lwpuk ij eSa v0 fu0 ih0 ,u0 flag Fkkuk izHkkjh fjfoyxat lkFk v0 fu0 vkj0 ,u0
iafMr] v0 fu0 fd'kqu nkl0 l0 v0 fu0 vkj0 ds0 frokjh] l0 v0 fu0 ,l0 iklokuA lHkh
fjfoyxat Fkkuk lqjf{kr cy ds vk0 931 mes'k ikaM;
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s vk0 917 ds Bkdqj] vk0 891 vf[kys'k cSBk vk0 906 oekZ ;kno dslj dkVh thi la0 BHD
7854 ds pkyd nq/kukFk flag ds lkFk tc le;
djhc 11-00 cts xzke Hkknik ds ikl vk;s rks ,d dkyh jax dh thi ua0 WBC 4049 ftls ,d pkyd pykdj if'pe
dh vksj ys tk jgk gSa lansg ds vk/kkj ij vius lkFk vk;s lg;ksfx;ksa ds lg;ksx ls mDr thi ua 0 WBC 4049
dks jksds rcrd vklikl ds ykx Hkh tek gks x;s thi pkyd ls uke irk iwNus ij mlus viuk uke jktw feL=h
mQZ js;ktqn~nhu is0 cQkrh dqjSHkh lk0 ubZ Fkkuk&Hkxoku cktkj ftyk&lkj.k crk;kA xkM+h dkxtkr
ekaxus ij bUgksua s dksbZ dkxtkr ugha izLrqr fd;k mifLFkr yksxksa esa ls nks Lora= xokg 0¼1½
dnehukfk is0 Lo0 ckcwjke nfgu flag] lk0&ea>uiqjk Fkkuk eka>h ¼2½ eqlkQhj 'kekZ is0 Jh
jkeuxhuk 'kekZ lk0 lsefj;k Fkkuk&fjfoyxat nksuksa ftyk lkj.k ds le{k thi ua0 WBC 4049 dh ryk'kh
ysus ij thi ds ihNs okyk nksuks lhV ds chp es cus yksgs ds rg[kkuk ls iksfyfFku esa fd;k gqvk pjl dk
djhc nks fdykss otu okyk 2 iksfyfFku esa iSd fd;k gqvk pjl djhc ,d fdyks otu okyk 4 iSdsV rFkk
iksfyfFku esa iSd fd;k gqvk djhc vk/kk fdyksa otu okyk pjl dk 66 iSdsV dqy otu djhc 90 fdyks xzke
cjken gqvkA** being not in doubt I will have no hesitation in holding that there was substantial
compliance of the first part of Section 42(1) of the NDPS Act because there is at least an entry in the
Station Diary of the police station with regard to the confidential vague information.
41. In this regard I have also carefully analyzed the aspect relating to genuineness of such fardbayan
because after preparation of seizure list (Exhibit-1) recording of ferdbayan (Exhibit-3) at 11:45 a.m.,
the formal F.I.R. (Exhibit-4) was also recorded at 1:00 p.m. leading to Institution of Rivilganj P.S.
Case no. 137 of 2000 for offence under Section 22/23/24 N.D.P.S. Act and was also received in the
concerned court within twenty fours as in apparent from the endorsement made thereon by special
Judge not only on the F.I.R (Exhibit-4) but also on the Seizure List (Exhibit-1) in the date of
27.10.2000. In view of my aforesaid findings I am of the firm opinion that there was substantial
compliance of the first part of Section 42(1) of N.D.P.S. case by the informant police officer by way
of making entry and recording of his receipt of confidential information in station diary of police
station of trafficking of huge quantity of Charas by an unknown international gang of smugglers in a
Jeep.
42. From the evidence on record it is also established that on a confidential information received by
the informant Police Officer, PW2, he had made Station Diary Entry as has been stated by him in his
paragraph no.1 of his deposition which reads as follows:
^^vkt fnukad 26-10-2000 dks eSa fjfoyxat Fkkuk izHkkjh ds in ij inLFkkfir FkkA ml
fnu 10-15 cts gesa lwpuk feyh fd ,d dkyk thi ls vUrjk"Vzh; fxjksg ds yksx pjl ysdj tk jgs
gSa eSa lugk ntZ dj vius lg;ksxh ,oa Fkkuk eas inLFkkfir inkf/kdkjh v0 fu0 jke ukjk;.k
iafMr] v0 fu0 fd'kqu nkl] A.S.I. lqja sUnz ikloku Ist A.S.I. jktfd'kksj frokjh ,oa Fkkuk
iqfyl cy ds lkFk ljdkjh thi ls ihNk dj xzke Hkknik ds ikl iDdh lM+d ij mijksDr dkyh thi
ua0 W.B.C. 4049 dks :dok;sA iqfyl dks ns[kdj vkl ikl ds cgqr yksx bdV~Bk gks x;s
pkyd ds uke irk iwNus ij viuk uke jktw mQZ fj;ktqfn~nu lkfdu u;h cktkj Fkkuk
Hkxoku cktkj ftyk lkj.k crk;kA ogka tqVs xzkeh.k esa ls nks Lora= xokgksa ds le{k thi
dh ryk'kh yh x;h rks ihNys nksuksa lhV ds uhps cuk;s txg ls iksyhFkhu esa packed
fd;k gqvk djhc 2 kg otu okyk 29 iSdsV] djhc ,d (1kg) fdyks otu okyk pkj iSdsV rFkk
djhc 500 gm otu okyk 66 iSdsV pjl cjken fd;k x;kA^^
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43. In the cross-examination, in paragraph no.8 the informant PW2 had clarified that
the information received by him was a confidential information:
^^8- xqIr lwpuk feyh Fkh bldk lugk ntZ fd;k xqIr lwpuk feyh Fkh fd dkyh jax ds thi ls
pjl ys tk jgs gSa izLFkku dk vyx ls entry ugha fd;kA lHkh yksx dk uke fy[kk;s yksx esjs
lkFk Fkkuk nkSM+ jgs gSaA Hknik xka esa ml xkao ls gksdj nwljs xko tkus gsrq x;k
gwAW ^^
44. This fact with regard to receipt of confidential information has also been fully
supported by PW1, the author of the written report, who in paragraph no.4 had stated
as follows:
^^lwpuk xqIr FkhA lwpuk nsus okyk dk uke dgha vafdr ugha gSa lwpuk 10-45 cts fnu
esa feyhA lwpuk dk LVs'ku Mk;jh esa vafdr fd;k x;kA thi fjohyxat Fkkuk ls fudy vkxs
fudy x;h Fkh vkSj Hkknik xzke esa feyhA ml ij bl le; dsoy pkyd jktw FkkA ogh xkM+h
pyk jgk FkkA^^
45. Now coming to the question of compliance of second part of requirement of
sending information to the superior officer is also substantiated in the evidence of
PW1, the police officer who was present at the time of search and seizure and had also
scripted the ferdbayan (Exhibit-3) of informant PW2 at the spot. in paragraph no.7
and 8 of his cross-examination had himself stated that the D.S.P. and S.P. of the
Department were immediately given information of the seizure and the
Superintendent of Police had also come at the spot. In paragraph no.6 of his evidence
PW2 has stated that on an information given by him the Superintendent of Police had
given orders that the case should be entrusted to the authorities of the Central Excise
Department. The order sheet of the trial court dated 14.11.2000 would also bear it out
that an application was immediately filed before the court for handing over the case
to the officials of Central Excise Department and in fact an order was also passed to
this effect by the court below on 14.11.2000 and only when the authorities of the
Central Excise Department had filed an application on 3.1.2001 for recall of the order
dated 14.11.2000 asking the authorities of the Police Department to continue with the
investigation, that the investigation case had remained with the Police Department
which submitted the charge sheet on 23.1.2001.
46. In the light of my aforesaid finding it cannot be said that there was a complete non-compliance
of the provision of Section 41(1) and (2) of the NDPS Act and on the facts of this case it can be safely
held that when such information was recorded in the Station Diary by PW2 prior to leaving the
police station and he had also sent the information to the Superintendent of Police, of the recovery
of the Charas as such, it cannot be said that there was total non-compliance of Section 42 of the
NDPS Act, even if it be assumed that such information received by PW2 was an information as
contemplated under section 42 of the NDPS Act. So looking from either of the angles it cannot be
said that there was any breach of provision under section 42 of the NDPS Act. In coming to my such
conclusion, I also find support from the division bench judgment of Bombay High Court in the case
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of Babulal Hiralal Sainy & anor. v. State of Maharashtra, reported in 1995 Cri.L.J. 4105, wherein it
was held as follows:
"It would be thus seen that firstly by the information which was received by P.W.14
Sunil Paraskar that some persons from neighbouring State had arrived at Nagpur
with large quantity of brown sugar and that they were in search of customer was not
specific information relating to specific commission of an offence under Chapter IV of
N.D.P.S.Act and, therefore, was not an information as contemplated under section 41
or 42 of the N.D.P.S.Act and, therefore, non- compliance of the said provisions would
not vitiate the trial and affect the prosecution case. Alternatively, even if it be
assumed that the information received by P.W.14 Shri Suni Paraskar was an
information as contemplated under sectins 41 and 42 of the N.D.P.S.Act the said
information has been reduced to writing, which is revealed from station diary sanha
(Exh. 138) and the said information was recorded prior to the search and seizure and,
therefore, it cannot be said that the said information has not been reduced to writing.
That information is also reported by P.W.14 Sunil Paraskar to his superior officer
Deputy Commissioner of Police Shri Mathur, which is apparent from the deposition
of P.W.14 Sunil Paraskar. Therefore, there is no merit in the contention of the learned
counsel for the appellants/ accused that there was breach of mandatory provisions of
Section 41 or 42 of the N.D.P.S.Act and we do not find any substance in the
submission of Mr. Rizwy that there was total non-complaince of Sections 41 and 42 of
the N.D.P.S.Act."
47. This aspect of the matter has been also considered by the Apex Court, after the Constitution
Bench Judgment in the case of Karnail Singh (supra) and reference in this connection may be
usefully made in the case of Bahadur Singh vs. State of Haryana, reported in (2010)4 SCC 445,
wherein it was held as follows:
"18.In the instant case, as soon as the investigating officer reached the spot, he sent a
wireless message to the Deputy Superintendent of Police, Kurukshetra, who was his
immediate higher officer and subsequent to recovery of the contraband, a ruqa
containing all the facts and circumstances of the case was also sent to the police
station from the spot from where the recovery was made on the basis whereof the
first information report was registered and copies thereof were sent to the Ilaqa
Magistrate and also to the higher police officers. As was held by the High Court, there
was, therefore, substantial compliance with the provisions of section 42 of the NDPS
Act and no prejudice was shown to have been caused to the accused on account of
non-reduction of secret information into writing and non-sending of the same to the
higher officer immediately thereafter.
19. Apart form the decision in Sajan Abraham Case, the decision of the Constitution
Bench in Karnail Singh case, has also made it clear that non-compliance with the
provisions of section 42 may not vitiate the trial if it did not cause any prejudice to
the accused. Furthermore, whether there is adequate compliance with section 42 or
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not is a question of fact to be decided in each case."
48. The same view was taken by the Apex Court also in the case of Dalel Singh vs. State of Haryana,
reported in 2010(1) SCC 149, wherein it was held as follows:
"9. In this backdrop when we see the prosecution case here, it is apparent that the
information was received by PW6 Inspector Mahabir Singh when he was not in the
police station but was on patrol duty in the town. He immediately, after the receipt of
the information, informed his superior officer on wireless. There is no doubt that he
did not record it in writing but passed it on to his superior ASP Kala Ramachandran
by wireless. The fact that the superior officer was informed is deposed to by ASP Kala
Ramachandran who appeared as PW5. We have seen her cross-examination which
really is totally irrelevant. Similarly, we have gone through the evidence of P.W.6
Inspector Mahabir Singh. Again, his cross-examination is also redundant cross-
examination. Both the witnesses have deposed about the information having been
transmitted through wireless and in our opinion would be a substantial compliance
with section 42 of the NDPS Act since the situation was of an emergency. Had the
police officer not moved in the right earnest, the appellant- accused would have had
an opportunity to remove the contraband charas and escape from the arms of police."
49. Thus in the facts of the present case also it has to be held that there was substantial compliance
of Section 42 of the Act because had the informant police officer on 26.10.2000 having received the
confidential information at the police station at 10:45 a.m. not saving into immediate action by
reaching in Village-Bhadpa at a distance of 4.5 kilometers from police station in next fifteen minutes
(i.e. 11:00 a.m.) and not intercepted the moving Jeep of the appellant with Charas on Chhapra
Manjhi Road, the recovery of huge amount of Charas by 11:15 a.m. could not have been made. In
that view of the matter the subsequent information given by him to the Superintendent of Police
after recovery cannot be held to have vitiated the trial. This therefore is not a case of complete not
compliance of Section 42 of the Act rather there has been substantial compliance as has also been
explained in a recent judgment of the Apex Court in the case of Sukhdev Singh Vs. State of Haryana
reported in 2013(2) SCC 212.
"In the present case, the occurrence was of 4.2.1994. The trial of the accused
concluded by judgment of conviction dated 4.7.1998. Thus, it will be the unamended
Section 42(2) of the NDPS Act that would govern the present case. The provisions of
Section 42 are intended to provide protection as well as lay down a procedure which
is mandatory and should be followed positively by the investigating officer. He is
obliged to furnish the information to his superior officer forthwith. That obviously
means without any delay. But there could be cases where the investigating officer
instantaneously, for special reasons to be explained in writing, is not able to reduce
the information into writing and send the said information to his superior officers but
could do it later and preferably prior to recovery. Compliance with Section 42 is
mandatory and there cannot be an escape from its strict compliance."
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50. It has to be however borne in mind that in the case of Sukhdev Singh (supra) the Apex Court had
come to the conclusion that there was noncompliance of the provisions of Section 42 of the Act and
thus while reversing the judgment of conviction of Punjab and Haryana High court, the facts of that
case was taken into account in the following words:-
"24. As per the statement of PW1, no effort was made by him to reduce the
information into writing and inform his higher authorities instantaneously or even
after a reasonable delay which has to be explained with reasons in writing. On the
contrary, in the present case, the investigating officer, PW1 had more than sufficient
time at his disposal of comply with the provisions of Section 42. Admittedly, he had
received the secret information at 11:30 a.m. but he reached the house of the accused
at 2 p.m. even when the distance was only 6 km. away and he was in a jeep. There is
not an iota of evidence, either in the statement of PW1 or in any other documentary
form, to show what the investigating officer was doing for these two hours and what
prevented him from complying with the provisions of Section 42 of the NDPS Act.
25. There is patent illegality in the case of the prosecution and such illegality is
incurable. This is a case of total non-compliance, thus the question of substantial
compliance would not even arise for consideration of the Court in the present case.
The twin purposes of the provisions of Section 42 which can broadly be stated are
that: (a) it is a mandatory provision which ought to be construed and complied with
strictly; and (b) compliance of furnishing information to the superior officer should
be forthwith or within a very short time thereafter and preferably post- recovery (sic
prior to recovery)."
51. Thus in my view, when in the present case the informant police officer having received and
recorded the confidential information in station diary of the police station at 10:45 a.m. on
26.11.2000 rushed, chased and had intercepted the moving jeep of appellant and also recorded huge
amount of Charas within half an hour on a highway it cannot be said that non-compliance of
furnishing information, prior to recovery, to his immediate controlling officer in terms of Section
42(2) of the Act as it existed prior to 2.10.2001 would vitiate the trial and the consequential
conviction of the appellant. The ammended provision of outer time limit of seventy two hours in
Section 42(2) of the Act being in force only w.e.f. 2.10.2001, for giving such information to the
immediate controlling authority, being not applicable to the present case on account of the date of
occurrence being 26.11.2000 as explained by the Apex Court in Sukhdev Singh (supra) I have no
hesitation in holding that the subsequent information after recovery admittedly given by the
informant to the Superintendent of Police Saran would in the facts of present case would amount to
adequate or substantiated compliance as held in paragraph no. 35(c) and (d) in the Constitution
Bench judgment of the Apex Court in Karnail Singh (supra).
52. On the basis of my aforementioned analysis of facts and law I am of the view that the alleged
non-compliance of the provision of Section 42(1) and (2) of the N.D.P.S.Act in the present case has
not in any manner prejudiced the appellant or has vitiated the trial.
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53. That would bring me to the last submission as with regard to violation of the provision of Section
52A(2) of the NDPS Act. Learned counsel for the appellant has submitted that in absence of a
preparation of inventory of the seized Charas as required under section 52A(2) of the NDPS Act the
whole trial has stood vitiated. In this regard strong reliance has been placed by him on the judgment
of this Court in the case of Kallu Seikh (supra).
54. In the considered opinion of this Court the facts of the case of Kallu Seikh (supra) where seizure
was made by the railway authorities and the seizure was made by the R.P.F. personnel would not
apply to the facts of the present case in view of Section 55 of the NDPS Act authorizing the police to
take charge of the article and seize and delivered. In the present the police itself had seized the
articles and as such, there would be no question of applicability of the ratio laid down in the
judgment of Kallu Seikh (supra). Similarly reliance placed on another Division Bench judgment in
the case of Ram Singh (supra) does not seem to be apt and appropriate and the ratio laid therein will
also not be applicable for a simple reason that the said search and seizure in that case was made by
the Inspector, Customs and therefore, whatever was observed in paragraphs no 14 and 15 relied on
by Mr. Ashutosh Kumar learned counsel will have to be read in the context of paragraph no.12,
wherein it was held :-
"12. Section 55 of the NDPS Act mandates that as soon as any article which is
suspected to be a narcotic substance of drug is seized, it has to be put into the charge
of the Officer Incharge of a Police Station and that police officer incharge shall allow
the sampling of the seized article by the officer who had brought the substance or had
accompanied the substance up to the police station for putting it into the charge of
such an officer incharge. It is further directed by the provision that while sampling
the article, the Officer Incharge of the police station has to put his own seal over the
sampled article along with that of the officer who had been deputed for sampling the
article. We do not have any evidence coming from any of the witnesses including
P.W.3, the Superintendent of Police who was heading the preventive team that the
article was, after its seizure, made over to the Officer Incharge of the police station in
whose jurisdiction the seizure was made and that the said police officer was present
and allowed the sample to be taken in his presence and in token thereof, he had put
his own seal over the sampled article, which might be contained in any container.
We do not have any evidence coming from any of the witnesses as to what happened of the article
after it was recovered and seized. As per Section 52-A of the NDPS Act, it has to be produced before
the Officer Incharge of the police station who is required to prepare an inventory of such substance
containing such details relating to their description, quality, quantity, mode of packing, marks,
numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or
the packing in which they are packed, place of origin and other particulars as the officer may
consider relevant for the identification of the narcotic substance. In case, the above formalities have
been fulfilled, then the Officer Incharge of the police station has to make an application to a
Magistrate for certifying the preparation of the inventory with above details and the Magistrate
shall, as may appear from Section 55 of the NDPS Act, further certify the same. These are legal
mechanism developed to check the tampering of any sort in the storage as also in sampling of the
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seized article."
55. As noted above, the seizure of 90 kgs. of Charas was made by the Officer In-charge of the Police
Station who had reported the matter to the Magistrate on that very day by forwarding copy of the
F.I.R. and the seizure list (Exhibit-1) and it was unfortunate that the trial court had acquitted the
appellant by a perfunctory judgment dated 18.7.2002 without adducing of any evidence and only
after retrial was ordered by this Court, as noted above, that by the order dated 4.4.2006 the Sessions
Judge on an application filed by the Officer In-charge of Revilganj Police Station had sent the seized
Charas to Forensic Science Laboratory for its report and the report of the Forensic Science
Laboratory clearly stating of receipt of wooden box enclosed with a cloth duly bearing seal and
impression of the corresponding seal in the report of F.S.L. dated 21.1.2007 (Ext.6) was found to be
Charas also known as Hasis. The aforesaid report of F.S.L. coupled with the fact that the Material
Ext.1 being consignment of the seized Charas in 98 packets was also produced in the court on
10.10.2007 would leave nothing for speculation that the provision of section 52A(2) of NDPS Act
was complied in letter and spirit. PW2 the informant in paragraphs 4, 9 and 10 of this evidence had
specifically stated that the recovered Charas was kept in a box with seal in a Malkhana and the jeep
inside the Police Station premises. P.W.3 also in paragraph 6 of his deposition had also supported
the story of seizure and its being kept in Malkhana under seal. Thus, if the Forensic Science
Laboratory had found the sealed box containing sample of Charas to be intact, much cannot be
made out on account of delayed submission of the Forensice Science Laboratory report.
56. In coming to this conclusion I also find support from the Division Bench judgment of Gujarat
High Court in the case of Aslambhai Ibrahimbhai Memon and anor. v. the State of Gujarat, reported
in 1990 Cri.L.J. 1787, wherein apart from other things it was held as follows:
"3.1. The first point that Mr. Saiyad has raised is that the seal of D.C.B. which was
affixed on the forwarding letter to the Forensic Science Laboratory is not legible. We
have perused the same today. Since it is handled in the trial court by number of
hands, the seal is in the broken condition. However, the question is whether at the
time when the samples of muddamal were sent to the Chemical Analyser of the
Forensic Science Laboratory, the seal was intact or not. On perusal of the report of
the Chemical Analyser, which is at Ext.12, it is clearly stated that they had received
two parcels in the sealed condition and the said seal was similar to the specimen seal.
This clearly disclosed that the said seal of D.C.B. which was affixed on the forwarding
letter was intact and legible and, therefore, we do not find any substance in this
contention."
57. In this regard it has to be kept in mind that the earlier prosecution case was closed on account of
an inept handling by the trial court and ultimately such erroneous approach of the trial court was
corrected by this Court by directing holding of retrial by an order dated 20.8.2004 in Cr.Revision
No. 183/2003. If, therefore, the prosecution had suffered on account of the vitiated trial conducted
by the court below leading to an erroneous judgment of acquittal dated 18.7.2002, the delayed
action taken on the part of the trial court in sending the specimen in question to the Forensic
Science Laboratory cannot be to the disadvantage of the prosecution, especially when the defence
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has not been able to establish that the sealed box containing sample of Charas presented before the
court had in any manner been tampered or that the quality of Charas on account of passage of time
had deteriorated and it was not possible for the Forensic Science Laboratory to opine that the
sample was that of Charas. As a matter of fact when the prosecution witnesses were also not
cross-examined on this aspect, and the learned counsel for the appellant also has not questioned the
correctness of the report of the Forensic Science Laboratory, much cannot be made out only on
account of delayed dispatch of the Charas in course of retrial and the consequential report received
from the Forensic Science Laboratory.
58. Thus, for the reasons indicated above, I am of the view that the prosecution has successfully
proved its case against the appellant beyond reasonable doubt and consequently his conviction and
sentence as awarded by the trial court is upheld.
59. In the result, this appeal fails and is, accordingly, dismissed.
(Mihir Kumar Jha, J)
60. In view of our difference of opinion let the records of this appeal be placed before the Hon€ble
the Chief Justice for its being placed before an appropriate Bench.
(Mihir Kumar Jha, J) (Aditya Kumar Trivedi, J) Patna High Court The 25th of April, 2013.
Md Perwez Alam/ Surendra/NAFR
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