CR.A/934/1999 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 934 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT - Appellant Versus MAFATBHAI @ MANSING MAGANBHAI PARMAR - Respondent ========================================================= Appearance : MR MAULIK NANAVATI ADDL PUBLIC PROSECUTOR for Appellant: 1, NOTICE SERVED for Respondent : 1, MS CHETNA M. SHAH FOR HL PATEL ADVOCATES for Respondents: 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 07/08/2008 CR.A/934/1999 2/5 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The State of Gujarat has preferred the present appeal against the judgment and order dated 21.07.1999 passed by the Additional Sessions Judge, Kheda at Anand in Special Case No. 246 of 1994 acquitting the accused for the offence punishable under Sections 8 and 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The case of the prosecution is that secret information was received by PI LCB Shri Mirza (PW-5) about present respondent – original accused selling ganja. A raiding party was constituted and a raid was conducted. On search, a bag containing small packets of ganja weighing a total of 1.4 Kg was found from his possession. The contraband was seized under a panchnama and a complaint was registered against the accused. After completion of investigation, the accused was put on trial for commission of offence punishable under Section 20(b) of the Act. 3. The trail Court found that there was breach of mandatory provision contained in Section 42 of the Act and, therefore, acquitted the accused. The trial Court, however, negatived the contention of accused that his possession was not conscious or that there was breach of CR.A/934/1999 3/5 JUDGMENT Section 50. 4. We have heard Mr. Maulik Nanavati, learned APP for the State and have perused the judgment and gone through the record of the case. 5. At the outset, Mr. Nanavati has fairly submitted that the evidence of PI Mirza (PW-5), who received the secret information and PSI Ramesh Patel clearly shows that the secret information received at the police station was not reduced into writing as is required under sub-section (1) of Section 42 nor a copy of the information received under Sub-section (1) was sent to his immediate superior official by PW-5. 6. Here we may aptly quote a paragraph from the judgment of the Supreme Court rendered in the case of STATE OF PUNJAB Vs. BALBIR SINGH reported in 1994(3) SCC 299. “25. (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV has been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and CR.A/934/1999 4/5 JUDGMENT sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1), if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.” 7. To this extent, these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non- compliance of this provision, the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.” 8. Again, in the case of STATE OF WEST BENGAL VS. BABU CHAKRABORTHY reported in (2004) 12 SCC 201, the Supreme Court has observed as follows : “ 23. Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment CR.A/934/1999 5/5 JUDGMENT prescribed in the Act. This Court has attached great importance to the recording of the information and the ground of belief since that would be the earliest version that will be available to a court of law and the accused while defending his prosecution. This Court also held that failure to comply with Section 42(1), proviso to Section 42(1) and Section 42(2) would render the entire prosecution case suspect and cause prejudice to the accused.” 9. In view of the above position of law, we do not find any infirmity with the conclusion recorded by the trial Court. The appeal requires no interference and is accordingly dismissed. Bail bond of the accused is cancelled. [BHAGWATI PRASAD, J.] [S.R.BRAHMBHATT, J.] pallav