IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 685 of 1996 Date of decision: 6.5.2010 State of H.P. Appellant. Versus Gian Chand Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. Ashwani Kumar Sharma, Advocate. Per Deepak Gupta, J, (oral) 1. This appeal by the State is directed against the judgement dated 24.7.1996 delivered by the learned Sessions Judge, Mandi, Kullu and Lahaul Spiti Districts at Mandi, in Sessions Trial No. 11/96 whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here-in-after referred to as the NDPS Act). 2. The prosecution story, in brief, is that on 28.11.1995 PW-7 S.I. Bishambar Dutt, who at the relevant time was posted as SHO Jogindernagar was on patrolling duty alongwith other police officials in Jogindernagar Bazar. 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 He received secret information that accused Gian Chand, who is running a Biri/Cigarette shop (Khokha) is indulging in the sale of charas. PW-7 formed a raiding party and associated Pyar Singh and Amar Chand as the independent witnesses and thereafter the shop of the accused was searched. On search of the shop 900 grams charas was recovered hidden by the accused under his seat. A sample was drawn from the said charas. The same was sealed. The sample was sent for chemical examination and on analysis the Chemical Examiner reported that the sample was of charas vide his report Ext.PW-7/B. On the basis of this evidence challan was filed and the accused was charged with having committed an offence punishable under Section 20 of the Act. 3. The learned trail Court acquitted the accused mainly on the ground that the provisions of Section 42 had not been complied with. Section-42 as it read at the relevant time reads as follows:- “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 or of the Border Security Force 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 3 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 personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence 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 Chapter IV relating to such drug or substance; 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 Chapter IV relating to such drug or substance. 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 4 under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.” 4. 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. 5. 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. 6. The Apex Court in Balbir Singh’s case (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 5 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. 8. 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 6 Investigating Officer has not stated that he recorded the information received by him in writing. This is a mandatory provision of law and non-compliance of the same makes the search illegal. 9. 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 PW-7 S.I.Bishamber Dutt 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. 10. Section 42(2) of the Act provides that the Officer taking down any information in writing under subsection (1) or recording the grounds for his belief under the proviso thereto shall forthwith 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. 7 11. There is no evidence whatsoever to show that any of the provisions of Section 42 of the Act were complied with. Whenever any secret information is received by any person, the same should be taken down in writing. This is provided under Section 42(1) itself. This was admittedly not done. Section 42(2) starts with the words ‘where an officer takes down any information in writing under sub section (1), he is forthwith required to send a copy thereof to his immediate official superior’. This provision has been held to be mandatory in a number of decisions cited here-in-above. This has also not been complied with in the present case. Thus the search and seizure operation is illegal as the same has not taken down in writing. 12. Since there is non-compliance of Section 42 the appeal of the prosecution must fail and it is not necessary to go into the other details. Accordingly, the appeal is dismissed. The bail bonds furnished by the accused are discharged. ( Deepak Gupta ) Judge 6th May, 2010. ( Rajiv Sharma) ™ Judge.