IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.135 of 1995 Date of decision: 2.4.2009. State of H.P. ... Appellant Versus Bhangi Ram … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr.Suneet Goel, Advocate. ____________________________________________________________ Deepak Gupta, J. This appeal is directed against the judgment dated 22.4.1994 passed by the learned Additional Sessions Judge, Sirmaur District at Nahan, camp at Solan in Sessions Trial No.5-NS/7 of 1993, whereby he acquitted the accused of having committed an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( hereinafter referred to as the Act). 1Whether reporters of Local Papers may be allowed to see the judgment? 2 The prosecution case, in brief, is that on 8.2.1993 a police party headed by PW-5, SI Jagan Nath was present in village Kalu-Jhanda on patrolling duty. At about 5 p.m. PW-5 received information that the accused deals in the sale of opium. He thereafter constituted a raiding party and associated some independent witnesses. They then raided the residence of the accused and allegedly recovered 5 k.g. of opium during the search of the house. The said opium was taken into possession and samples were taken out of each of the packets. The formalities were completed and the samples were sent to the Chemical Examiner and were received back with the report that the samples contained opium. Thereafter, the challan was filed and the accused was charged with having committed an offence punishable under Section 18 of the Act. After trial the accused has been acquitted. Hence the present appeal. Though as many as three independent witnesses were associated with the search, the prosecution only examined PW-1 Sh.Mohan Dutt Sharma. According to this witness, a Head Constable carried out the search of the Room in which fodder was kept in the house of the accused, then one bag was recovered. On opening this 3 bag another bag wrapped in a towel was found. This bag contained five polythene packets weighing 1 k.g. opium each. Thereafter, the police took samples of 10 gms. from each of the packets. In cross examination this witness states that the seal used to seal the samples was not handed over to him. He further stated that the alleged contraband was recovered from a room adjoining the veranda and the same was open at that time. The learned trial Court acquitted the accused mainly on the ground that the prosecution had failed to prove that it was the accused alone who had possession of the room. According to him the wife and son of the accused also had access to the said room. The learned trial Court also held that this was a case covered under Section 42 of the Act and the Investigating Officer had not complied with the provisions of Section 42(2) of the Act and as such also the accused deserves to be acquitted. There is no evidence to show that the provisions of Section 42(2) of the Act were complied with in this case. The Investigating Officer appeared as PW-5. In his entire 4 statement he has not stated a word in respect of the compliance with Section 42 of the Act. Section 42 of the Act read as under: “42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military 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 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 subset,- (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 5 (d) Detail and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief (2) Where an officer takes down any information in writing under sub- section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” The Apex Court in State of Punjab vs. Balbir singh, (1994) 3 SCC 299, Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, (2000) 2 SCC 513, Karnail Singh vs. State of Rajasthan (2000) 7 SCC 632 and in many other cases has held that the provisions of Section 42 are mandatory in nature and non-compliance thereof renders the search illegal. The NDPS Act is a penal statute. It invades the rights of an accused to a large extent. It raises a presumption of a culpable mental state. Ordinarily, even an accused may not be released on bail having regard to Section 37 of the Act. The Court has the power to publish names, address and business etc. of the offenders. Any document produced in evidence becomes admissible. A vast power 6 of calling for information upon the authorities has been conferred by reason of Section 67 of the Act. Power to make search and seizure as also to arrest an accused is founded upon and subject to satisfaction of the officer as the term "reason to believe" has been used in Section 42. Such belief may be founded upon secret information that may be orally conveyed by the informant. This must then be recorded in writing. Draconian provision which may lead to a harsh sentence having regard to the doctrine of 'due process' as adumbrated under Article 21 of the Constitution of India require striking of balance between the need of law and enforcement thereof, on the one hand, and protection of citizen from oppression and injustice on the other. The Apex Court in Balbir Singh (supra) referring to Miranda v. Arizona [(1966) 384 US 436] while interpreting the provisions of the Act held that not only the provisions of Section 165 of the Code of Criminal Procedure would be attracted in the matter of search and seizure but the same must comply with the right of the accused to be informed about the requirement to comply with the statutory provisions. 7 The Apex Court times without number has laid great emphasis on recording of reasons before search is conducted on the premise that the same would reflect the earliest version which would be available to a court of law and the accused while defending his prosecution. The provisions contained in Chapter-V of the Act are a group of sections providing for certain checks on exercise of the powers of the concerned authority which otherwise would have been arbitrarily or indiscriminately exercised. The statute mandates that the prosecution must prove compliance of the said provisions. If no evidence is led by the prosecution, the Court will be entitled to draw the presumption that the procedure had not been complied with. Section 42 of the Act clearly lays down that the authorized officer is entitled to enter into or search any building if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance liable for seizure or forfeiture under the Act is kept or concealed in such building. The Investigating Officer has not stated that he recorded the information received by him in writing. This is a mandatory provision of 8 law and non-compliance of the same makes the search illegal. Proviso to Section 42 provides that if the Officer receiving such information has reason to believe that a search warrant cannot be obtained without affording opportunity for the concealment of the evidence or facility for the escape of an offender, he may enter and search the building after recording the grounds of his belief. In the present case the Investigating Officer did not make any attempt to obtain search warrants and he also did not record the grounds for making the search without obtaining the search warrant. This also amounts to non-compliance of the provisions of Section 42. Section 42(2) of the Act provides that the Officer taking down any information in writing under sub-section (1) or recording the grounds for his belief under the proviso thereto shall within 72 hours send a copy thereof to his immediate official superior. This provision has also not been complied with at all. Therefore, there is total non-compliance with the provisions of Section 42 of the Act. On these grounds alone the accused is required to be acquitted. 9 In the present case, we also find that though PW-1, the only independent witness examined, has supported the prosecution case on other grounds he has clearly stated that the seal has not been given to him. From the material on record it is also clear that the son of the accused was also charged with having committed another offence under the NDPS Act on the same date itself. Therefore, when the son also had access to the room which was not locked but only bolted there is a doubt as to who had placed the contraband substance in the room. It cannot be said with certainty that this contraband substance was placed by the accused alone. In view of the aforesaid discussion, we find no merit in the appeal and the same is accordingly dismissed. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ), J. April 2, 2009 ( V.K.Ahuja ), J. PV