IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE NINTH (9TH) APRIL, TWO THOUSAND AND TEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.679 of 2003 Between: Syed Habeeb & 2 others …Appellants And: The State of A.P., rep. by its P.P., High Court of A.P., Hyderabad … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.679 of 2003 JUDGMENT: This appeal is directed against the judgment dated 08.07.2003 in SC No.256 of 1999 on the file of the Special Sessions Judge for ND & PS Act-cum-I Additional Sessions Judge, Ongole, wherein, the appellants 1 to 3 were found guilty of the offence under Section 8(c) read with Section 20(b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’] and convicted for the same under Section 235(2) Cr.P.C. and sentenced to undergo rigorous imprisonment for three years each and to pay a fine of Rs.5,000/- each and in default, to undergo simple imprisonment for six months each. 2. Heard the learned counsel for the appellants and the learned Additional Public Prosecutor for the respondent-State. Perused the record. 3. The case of the prosecution in brief is as follows: On 05.06.1999 on reliable information, PW.5-Assistant Superintendent of Prohibition & Excise, Enforcement Wing, Ongole, along with his staff, reached K. Bitragunta and picked up two mediators and proceeded to Anupama Hotel situated on the eastern side of NH-5 and that at about 5 p.m., a lorry bearing No.CAM 3625 came there and it was stopped and searched in the presence of the mediators. Three persons, including the driver and cleaner were found sitting in the cabin and on search of the body of the lorry, after removal of tarpaulin covering, it was found loaded with surf packets and in the middle of the said bags, six gunny bags and two yellow colour polythene bags containing ganja were found. On the instructions of PW.5, the Inspector of Police, Prohibition & Excise-PW.4 unloaded the gunny bags and found all of them contained ganja in the form of leaves, seeds, stems and flowers etc. PW.4-Inspector of Police, Prohibition & Excise, afforded an opportunity to the accused for being searched before a Gazetted Officer or a Magistrate, for which the accused replied that there was no necessity for personal search and the accused did not possess any prohibitory articles on their person. Hence, no personal search was made on A.1 to A.3. On enquiry, it was revealed that the accused secured ganja in the surrounding forest areas of Rajahmundry and Rajanagaram and it was being transported to Palamaneru for sale. The total quantity of ganja on weighment was found to be 192 Kgs. in six bags and each of two polythene bags was found to contain 5 Kgs of ganja. Samples were drawn from each of the bags and sealed by following due procedure. C. Book Ex.P.2 of the vehicle was seized and the mediator’s report Ex.P.1 was prepared for the seizure of contraband and arrest of the accused. The vehicle was also seized. The accused, along with contraband and seized vehicle, were produced before PW.6-Inspector, Prohibition & Excise, who registered the case in Cr.No.121/98-99 of Singarayakonda PS under Ex.P.3 for the offence under Section 8(c) read with Section 20(b)(i) of the Act. A.1 to A.3 were produced before the Court and were remanded to judicial custody. PW.6 submitted a preliminary report to his immediate higher officials regarding the commission of offence and produced the case property before the Court. Samples MOs. 1 to 8 were sent for analysis along with the letter of request Ex.P.4 and letter of advice Ex.P.5. On analysis, the Chemical Examiner opined that the samples are ganja as per report Ex.P.6. MOs. 9 to 16 are gunny bags and MO.17 is the lorry. 4. The accused pleaded not guilty to the charge framed against them under Section 8(c) read with Section 20(b)(i) of the Act. During trial, PWs.1 to 7 were examined and Exs.P.1 to P.6 and MOs.1 to 17 were marked on behalf of the prosecution. PWs.1 and 2 are mediators, PW.3 is the Head constable, PWs.4 and 3 are the Inspectors of Prohibition & Excise, who accompanied PW.5-Assistant Superintendent of Prohibition & Excise at the time of apprehension of the accused and seizure of the contraband and PW.6 is the Sub Inspector of Police, Prohibition & Excise of the concerned police station, where case was registered. 5. On a consideration of the evidence available on record, the learned Sessions Judge found the accused guilty of the offence and convicted them for the same and imposed sentence as stated above. Aggrieved by the same, the present appeal is filed. 6. The only contention raised by the learned counsel for the appellants is that the information received by PW.5 is not reduced into writing and no copy of the said information was forwarded to his immediate superior officer and therefore, the trial is vitiated for non- compliance with the mandatory requirement under Section 42(1) of the Act. He also contended that the testimony of the official witnesses have not been corroborated by the independent mediators-PWs.1 and 2. PW.1 one of the mediators and resident of K. Bitragunta, deposed that he accompanied the excise officials and was present at the time of search of the lorry and the seizure of the contraband and also preparation of mediators report Ex.P.1 signed by him, but he stated that he cannot say that the accused were the same persons, who were found in the lorry and arrested by the excise officials. He could not even identify the lorry. PW.2 other mediator, who is resident of K.Bitragunta, identified only A.1 as the driver and did not identify A.2 and A.3 as the persons present in the lorry and arrested by the excise officials. The other aspects pertaining to the interception of the lorry, search of the lorry, arrest of three persons found in the lorry, seizure of contraband ganja bags found mixed with load of surf packets, and preparation of mediator’s report Ex.P.1, are all spoken to by PWs.1 and 2 in due corroboration to the testimony of the official witnesses PWs.5, 4 and 7. 7. The crucial aspect of identification of the accused as the persons found in the lorry is not established in the evidence of PW.1, and PW.2 identified only A.1 but not A.2 and A.3. However, in view of the un-discredited testimony of PWs.4, 5 and 7, which is cogent, consistent, and mutually corroborative on all aspects, including identity of the accused, the failure on the part of PWs.1 and 2 to identify the accused due to efflux of time between commission of offence and giving evidence before the Court, is not of much consequence. The trial Court on proper appreciation of the evidence of PWs.1 to 7 rightly rejected the contention of the accused that they do not have knowledge about the presence of ganja in the body of the lorry. The fact that ganja bags were found in the midst of surf bags in the body of the lorry has duly been established. A.1 driver, A.2 cleaner and A.3 the person accompanying goods, failed to explain as to how ganja bags came to be carried along with other load in the lorry. By virtue of presumption under Section 54 of the Act, in the absence of any satisfactory explanation on the part of the accused regarding possession of contraband, it can be presumed, unless and until the contrary is proved that the accused has committed the offence. There is no contra evidence adduced by the accused to rebut the said presumption. The contention of the learned counsel for the appellants- accused, that the prosecution failed to establish the identity of the accused, as the persons who were transporting the contraband ganja, is therefore, untenable. 8. The next contention of the learned counsel for the appellants is regarding non-compliance of the mandatory requirements under Section 42(2) of the Act. The trial Court held that as the lorry was searched in a public place, the provisions of Section 42(2) of the Act have no application and in view of Section 43 of the Act, there is no necessity to record information received by PW.5. 9. Section 42 of the Act deals with the power of entry, search, seizure and arrest without warrant or authorization. The proviso to Section 42(1) inter-alia states that if the 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. Sub-Section (2) of Section 42 lays down that 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 72 hours send a copy thereof to his immediate official superior. It can, therefore, be seen from the reading of the above provision contained under Section 42 of the Act that the source of information to the Officer, which prompted him to conduct search and seizure, can be two fold. Firstly, belief from personal knowledge and secondly, information received from any person. The proviso enables the Officer to conduct search and seizure without obtaining a search warrant or authorization under certain circumstances, but after recording grounds of his belief. Thus, whatever be the source of the information, whether it was based on personal knowledge or information given by any person, the grounds for believing that any narcotic drug, or psychotropic substance, or controlled substance is kept or concealed in any building, conveyance or enclosed place proposed to be searched has to be recorded, when the officer intends to carry out the search and seizure without obtaining a warrant or authorization. Sub-Section (2) mandates by using the word ‘shall’ that 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 72 hours send a copy thereof to his immediate official superior. Thus, whether it is a case of information received from any person and reduced to writing under sub-Section (1) or it is a case of recording of grounds for the belief while acting under the proviso to sub-Section (1), a copy thereof shall be sent to the immediate superior within 72 hours under sub-Section (2) of Section 42 of the Act. 10. In ‘Karnail Singh Vs. State of Haryana[1]’, the Constitutional Bench of the Apex Court while dealing with the nature and scope of compliance with the statutory checks and safeguards provided in the NDPS Act, especially Section 42, by referring to Abdul Rashid Ibrahim Mansuri’s [(2000) 2 SCC 513] case and Sajan Abraham’s [(2001) 6 SCC 692] case, held as follows: “Abdul Rashid and Sajan Abraham revolved on the facts and do not really lay down different propositions of law. In Abdul Rashid, there was total non-compliance with the provision of Section 42. Whereas, in Sajan Abraham, the Sub Inspector of Police on patrol duty acted on the information immediately so that the accused could not escape and therefore, omitted to record in writing the information received”. It was further held as follows: “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 is that 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.” It was further held as follows: “Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. While total non-compliance with requirements of Sections 42(1) and (2) is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. Where the police officer does not record the information at all, and does not inform the official superior at all, then it will be a clear violation of Section 42. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.” It was further held as follows: “Thus if such information is not received in the police station but while the officer is on the move, 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 Sections 42(1)(1) to (d) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.” 11. From the above decision, it is clear that total non- compliance with the requirements under Sections 42(1) and (2) is impermissible, though the delayed compliance with satisfactory explanation regarding the delay will be acceptable. In the present case, PW.5-Assistant Superintendent of Prohibition & Excise, who is said to have received information, based on which, the lorry was intercepted, testified that on 05.06.1999 at 4.00 p.m. on information, he proceeded to the spot near Anupama Hotel on NH-5. His evidence in chief is silent about reducing the said information into writing. Admittedly, it is not the case of PW.5 acting on personal knowledge and according to him he proceeded on the basis of information received. Section 42(1) contemplates that such information given by any person shall be taken down in writing. In the cross-examination PW.5 stated that the sentry by name Narayana received information at the first instance about the offence and the said Narayana conveyed the same to him and to his colleague Assistant Excise Superintendent, orally. PW.5 categorically admitted that the sentry did not note down the information and PW.5 or his colleague also did not note down the same. He further deposed that they have no habit of noting down the information because they are not provided with any registers and there is no necessity to record the information. He admitted that he has not obtained any search warrant because he immediately proceeded to the scene after receiving information. He also admitted that he has not written anywhere the reasons for not obtaining the search warrant. Thus, PW.5 has admittedly no personal knowledge and he received information from one Narayana, a sentry constable, who received information from un-known source. The said information received has not been noted down in writing by any one. It is, therefore, a case of total non-compliance with the provisions of Section 42(1) of the Act. 12. PW.5 has also not recorded the grounds for his believing that search warrant or authorization cannot be obtained except saying that he did not obtain a search warrant because, he was immediately proceeding to the scene after receiving information. The testimony of PW.5 is also silent as to the reasons for believing that obtaining search warrant or authorization was not feasible. Thus, there has been non- compliance with the requirements contained in the proviso to Section 42(1) of the Act. Admittedly, no such information was conveyed to his immediate superior by PW.5 within 72 hours as contemplated under sub-Section (2) of Section 42 of the Act. In fact, there was no occasion to convey the same to the immediate official superior as the said information was not reduced to writing at all. Thus, there has been a total non-compliance with the provisions of sub-Section (2) of Section 42 also. 13. In view of the proposition laid down by the Constitutional Bench of the Apex Court in the above decision, the total non- compliance with Section 42, and that too without any reason or explanation for such non-compliance is certainly impermissible, as otherwise, it would be difficult to check the mis-use of the stringent provisions of the Act. There is absolutely no reason or explanation as to why PW.5 could not note down the information received by him in writing and send the same to his immediate superior officer, if not immediately, at lest within the time of 72 hours allowed under Section 42(2) of the Act. The failure on the part of PW.5 to comply with the requirements of Section 42, in the facts and circumstances of the present case and the failure to send the report within 72 hours, would certainly vitiate the trial and causes serious prejudice to the defence of the accused. 14. The finding of the trial Court that because the vehicle was searched in a public place in exercise of the powers under Section 43 of the Act, there is no necessity to record information received by PW.5, is unsustainable. Section 43 enables the Officer to effect seizure in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance, detain and search any person whom he has reason to believe to have committed an offence and arrest the said person, if any such contraband is found in his possession. Section 43, which enables the Officer to effect search and seizure in a public place, does not in any way interfere with the operation of the procedural safeguards and checks, enshrined in Section 42 for the purpose of preventing misuse of the provisions of the Act. The compliance with the procedural safeguards as contemplated under Section 42 of the Act, does not become redundant, simply because, the vehicle is searched in a public place. 15. In the facts and circumstances of the present case, total non-compliance with the requirements under Section 42 of the Act is held to vitiate the trial itself and prove fatal to the prosecution. The impugned judgment of the trial Court finding the accused guilty and convicting them for the offence under Section 8(c) read with Section 20(b)(i) of the Act, is held unsustainable. The conviction recorded and sentence imposed on the appellants/accused are held liable to be set aside and they are accordingly set aside. Consequently, the appellants/accused 1 to 3 are found not guilty of the above said offence and they are acquitted thereof. The bail bonds of the accused shall stand cancelled. 16. In the result, the criminal appeal is allowed accordingly. _____________________ G.V.SEETHAPATHY, J Date: 09.04.2010 bss [1] (2009) 3 SCC (Cri) 887