IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cri. Appeal No. 379 of 1996 Date of Decision: 16th March, 2010 State of H.P. Appellant Versus Des Raj Respondent Coram The Hon’ble Mr. Justice Deepak Gupta,J. The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Vivek Singh Thakur, Addl. Advocate General and Mr. R.M.Bisht, Dy. A.G. For the respondent: Nemo Deepak Gupta, J. (Oral) This appeal by the State is directed against the judgment dated 27.11.1995 delivered by Additional Sessions Judge, Shimla, acquitting the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The prosecution case is that on 19.6.1993 Varinder Singh (PW-5), SHO, Police Station Dhalli, was on patrol duty at Sanjauli Chowk alongwith other police officials. He received secret information that accused Des Raj, owner of Himachal Kala Whether the reporters of Local Papers are allowed to see the Judgment? Yes. 2 Furniture House is dealing with the contraband. On receipt of the said information, the SHO formed a raiding party consisting of ASI Parshotam Dass, Head Constable Shyam Lal, Constable Shyam Lal and ASI Keshav Ram and two independent witnesses PW-1 Mahant Ram and PW-4 Amar Singh. Thereafter they entered the shop of the accused and on search of the shop recovered one packet containing 500 gms. of charas. Samples of Charas were taken and sent for chemical examination. The other codal formalities were also completed. On receipt of the report of the Chemical Examiner the sample was found to be that of Charas. Therefore, challan was filed and case put for trial. The accused has been acquitted and hence the present appeal. At the outset, it may be stated that provisions of Section 42 of the Act are applicable in this case since admittedly the police party had prior information that the accused was dealing with contraband from his shop. This shop is private premises within the meaning of Section 42 of the Act. Section 42 of the Act as it stood at the relevant time 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 3 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 4 liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (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 immediately 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 5 power to publish names, address and business etc. of the offenders. Any document produced in evidence becomes admissible. A vast power 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 provisions 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. 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 6 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. 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 as it stood at the relevant times provided 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 immediately 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 this ground alone the accused is entitled to be acquitted. 7 We also find in this case that the independent witnesses turned hostile did not support the prosecution. None of the police officials other than the Investigating Officer, who were associated with the raid, were examined. Therefore, the recovery itself is also doubtful. In view of the above discussion, there is no merit in this appeal, which is accordingly dismissed. (Deepak Gupta) Judge. 16th March, 2010 (Sanjay Karol) (C) Judge.