IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 387 of 1999 with CRIMINAL APPEAL No 819 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE N.G.NANDI and Hon'ble MR.JUSTICE RAVI R.TRIPATHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- BABUBHAI DALAJI MALI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 387 of 1999 MR BB NAIK WITH MEHUL H RATHOD for Petitioner No. 1 MR ND GOHIL Ld. APP for Respondent No. 1 2. Criminal Appeal No. 819 of 2000 MR PM VYAS for Petitioner No. 1 MR ND GOHIL Ld. APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE N.G.NANDI and MR.JUSTICE RAVI R.TRIPATHI Date of decision: 31/07/2003 C.A.V. JUDGEMENT (Per : MR.JUSTICE N.G.NANDI) 1. These two appeals under section 374 (2) of Criminal Procedure Code have been directed against the judgment & order dated 22-3-1999 rendered in Special Case No. 73 of 1998 by Learned Addl. Sessions Judge, District Banaskantha at Palanpur, convicting the Bhairavji Manaji Mali (original accused No.1 and appellant in Criminal Appeal No. 819 of 2000); AND Babubhai Dalaji Mali (original accused No.2 and appellant in Criminal Appeal No. 387 of 1999) for the offence under section 18 and section 29 respectively of Narcotic Drugs & Psychotropic Substance Act (herein after referred to the'Act'); AND sentenced both the appellants-accused to suffer 10 years R.I. and fine of Rs. One lakh, and in default 2 years S.I. It is this conviction and sentence under section 18 and 29 of the Act which have been assailed by both the accused by the present appeals. 2. The prosecution case shortly stated is that, on 23-6-1998 at 2-10 A.M. an information was received by Palanpur LCB P.I., A.D. Chauhan at his residence to the effect that, at about 6.00 A.M. in the morning on the road leading from Bhildi to Deesa near Bhildi Railway Crossing, two persons (1) Bhairavji Manaji Mali and (2) Babubhai Dalaji Mali are to come for giving delivery of narcotic substance i.e. opium. P.I. Chauhan came to the police station and called the other police persons and appraised them of the information received, and also told them that, they have to go for the raid; that the information received was reduced into writing on a paper, the same was noted down in the Station Diary and through a confidential letter same was conveyed to the superior official; that PSI S.K. Trivedi and police constable Narsibhai Devabhai of Bhildi Police Station were also called and appraised of the information received; thereafter at about 3.30 O' clock, P.I. Chauhan along with other police persons left the LCB office and reached Bhildi railway crossing at about 4.30 hours; that two panchas Bhikaji Kaluji Thakore and Mafaji Kuvarji Thakore were called through police constable Narsibhai and they were also appraised of the information received; that the vehicles were concealed behind the bushes and panchas and the members of the raiding party remained in watch. In the meantime at about 6.00 a.m. two persons came walking from Bhildi side. One person was holding heavy cotton bag; that, after crossing the railway crossing they were standing on the side of the road towards Deesa. At that time the person holding the cotton bag handed over the cotton bag to the other person who was with him and went to answer call of nature and after returning, he took back the cotton bag which was given to the other person; that both of them were talking with each other. In the meantime both of them were cordoned. On asking one of them gave his name as Bhairavji Manaji Mali and the other person gave his name as Babubhai Dalaji Mali. The indentity of panchas and police persons were also given to them and they were told whether they wanted to take search of the panchas and police persons, to which they declined. They were also told that inquiry is to be made for their possessing narcotic substance opium, and whether they want themselves to be searched through a gazetted officer or Magistrate, to which both of them declined; that the police persons and panchas took search of each other but nothing objectionable was found; that thereafter personal search of accused No.1 Bhairavji Manaji Mali was taken and during the search the cotton bag which he was holding was opened from which one plastic bag was found and on opening the plastic bag, black substance liquid was found and the same smelt like opium. Both the accused persons were asked whether they were possessing any license, permit or authorisation for keeping opium, to which both of them replied in the negative; that thereafter from Bhildi village one trader Kanji Laxmanbhai Joshi was called with scale / weights & measures for weighing the opium; that nothing was found on the person; that Kanjibahi weighed the substance recovered from the accused and the same weighed 1950 grams valuing Rs.48,750/-, from which two samples of 50 grams each were separated and packed separately in a cotton bag and then remaining opium was put in the plastic bag which was tied with the thread and again put in the plastic bag from which it was discovered. The plastic bag was put in the cotton bag with the remaining opium and two samples were packed and sealed with the slip containing signature of the panchas and P.I. with seal of P.I., LCB- BK. Palanpur. A detailed panchnama was drawn for recovery of opium and taking of the samples, the accused were thereafter arrested; that the complaint was filed with Bhildi police station, the offence was registered and thereafter the investigation commenced; that on completion of the investigation chargesheet was filed against both the accused persons for offence under section 18 and 29 of the Act. 3. Charge was framed against the accused persons. Accused denied the charges levelled against them and claimed to be tried. The prosecution in order to bring home the guilt to the accused adduced oral as well as documentary evidence. Learned trial judge appreciating the evidence on record found accused No.1 Bhairavji Manaji Mali guilty for the offence under section 18 of the Act, whereas found accused no.2 Babu Dalaji Mali guilty for the offence under section 29 of the Act, and sentenced both the accused persons to suffer R.I. for ten years and fine of Rs. One lakh, in default, S.I. for two years. It is this conviction & sentence by the trial court which have been assailed by both the accused persons by the present appeals as pointed out above. 4. We have heard the submissions advanced by Mr. B.B. Naik, learned advocate for the appellant - original accused No.2 in Criminal Appeal No. 387 of 1999 and Mr. P.M. Vyas, learned advocate for the appellant - original accused No.1 in Criminal Appeal No. 819 of 2000, and also the submissions advanced by Mr. N.D. Gohil, Learned Addl. Public Prosecutor in both these appeals. We have also reappreciated the evidence adduced in the trial court. 5. One of the arguments advanced on behalf of the appellants is that, in the instant case Section 42 of the Act would be applicable and that, there is no compliance with the mandatory requirements of Section 42 (2) of the Act. It is further contended that, when the police officer acts on the prior information then the said information is required to be reduced into writing and communicated to the superior officer, irrespective of whether search & seizure is to be in a public place or otherwise. As against this, it is submitted by Mr. N.D. Gohil, learned APP that, in the instant case section 43 of the Act would be applicable and not the provisions of section 42 of the Act, in as much as the contraband opium is recovered from the accused persons in a public place, namely a public road. 6. It is the prosecution case that on 23-6-1998 at about 2.10 a.m. (night) an information was received by Palanpur LCB P.I. Chauhan (P.W-9) at his residence to the effect that at about 6.00 0' clock on the road from Bhildi to Deesa at Bhildi railway crossing two persons Bhairavji Manaji Mali and Babubhai Dalaji Mali are coming for delivering opium. According to the prosecution, P.W-9 came to the police station and reduced the said information into writing vide exhibit-27, which translated into English reads as follows :- " Palanpur Date: 23-6-98 Time: 2/30 Today on 23-6-98 I was present at my residence in the Police Headquarters. At that time informant gave an information that today in the early morning around 6.00 0' clock on the road from Bhildi to Deesa near Bhildi railway crossing two persons (1) Bhairavji Manaji Mali and (2) Babu Dalaji Mali are to come for giving delivery of intoxicant substance opium. Said information has been reduced into writing. The name of the informant is not mentioned for secrecy purpose. On the basis of the said information arrangements were made for going in raid/cordoning. " It will be seen from the above information exh. 27 that two accused persons named therein were to come on Bhildi - Deesa road near Bhildi railway crossing. According to the prosecution, contraband opium was recovered from the cotton bag which accused no.1 was holding, and accused no.2 came along with accused no.1 and had held the cotton bag for some time to enable accused no.1 to answer the call of nature. Thus the information exh. 27 pertained to a public place, namely on Bhildi-Deesa road near Bhildi railway crossing and the recovery also at the aforesaid place. 7. Section 43 of the Act deals with power of seizure and arrest in public place - provides that any officer of any of the departments mentioned in section 42 may-- (a) Seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act 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 V-A of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation- For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. " 8. Section 42 deals with Power of entry, search, seizure and arrest without warrant or authorisation - Sub section (1) thereof reads as follows :- (1) "Sub section (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 forces 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 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, 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 V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, - (a) ................. (b) ................. (c) ................. (d) ................. 9. In the case of STATE OF PUBJAB Vs. BALBIRSINGH, AIR 1994 S.C. pg. 1872, the Apex Court was dealing with a case of arrest & search of a person or search of a place conforming to the provisions of the Act. In para-9 it has been observed that, "but if on a prior information leading to a reasonable belief that an offence under Chapter IV of the Act has been committed, then in such a case, the Magistrate or the Officer empowered have to proceed and act under the provisions of Ss. 41 and 42..." In para-10 it has been observed that, "...The Magistrate or Officers especially empowered under the Act can proceed under Ss. 41 and 42 on the prior information and/or having reason to believe thereupon that an offence under the Act has been committed. We may mention here that S. 43 which deals with the power of seizure and arrest in public places is slightly different from S.42 in certain respects. Under the provision any empowered officer under S. 42 has the power to seize, detain, search or arrest in public place or in transit if he has reason to believe that an offence punishable under Chapter IV relating to such drug or substance has been committed and seize any document or other article which may furnish evidence of the commission of such offence....... The empowered officer while acting under S. 43 need not record any reasons of his belief. This Section also does not mention anything about the empowered officer having prior information given by any person or about recording the same, as compared to S. 42." In para-16 it has been observed " the object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to S. 42(1). " 10. In the case of ABDUL RASHID IBRAHIM MANSURI Vs. STATE OF GUJARAT, AIR 2000, S.C. pg. 821, PW-2 Premsingh M Vishen, Inspector of Police at Dariapur police station, got information on 12-1-1988 that one Iqbal Syed Husen was trying to transport Charas to Shahpur in an auto-rickshaw bearing No. GTH-3003. Thereafter PW-2 proceeded to the main road in quest for the contraband movement. At about 4.00 p.m. they sighted the auto-rickshaw which was then driven by the appellant. They stopped it and checked it and found four gunny bags placed inside the vehicle...... In para-14 it has been observed that, "in this case PW-2 admitted that he proceeded to the spot only on getting the information that somebody was trying to transport narcotic substance...... However, learned counsel for the respondent - State of Gujarat - contended that the action was taken by him not under Section 42 of the Act but it was under Section 43 as per which he was not obliged to take down the information." The Apex Court observed that, "it was unable to appreciate the argument because, in this case PW-2 admitted that he proceeded to the spot only on getting the information from a constable and the information was precisely one falling within the purview of Section 42(1) of the Act. Hence PW-2 cannot wriggle out of the conditions stipulated in the said sub section. We, therefore, unhesitatingly hold that there was noncompliance with Section 42 of the Act. " In the case of KOLUTTUMOTTIL RAZAK Vs. STATE OF KERALA, 2000 SCC (Cri) pg. 829, the PW a Sub-Inspector of Police got information on 31-3-1991 that one man was selling brown sugar near Sarada Mandir bus stop. PW-1 admitted in his cross-examination that he did not reduce the information into writing nor did he inform his superior officer about it and instead he opted to proceed to the place without doing the aforesaid duty. In para-6 it has been observed that." it is a mandate of Section 42 of the Act that when an officer referred to in sub-section (1) thereof "has reason to believe from personal knowledge or information given by any person and taken down in writing (emphasis supplied) that any narcotic drug or psychotropic substance is kept or concealed he may detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence under the Act. The other requirement of law is that the officer who takes down the information in writing or records grounds for his belief shall forthwith send a copy thereof to his immediate superior official." In the case of BECKODAN ABDUL REHIMAN Vs. STATE OF KERALA, (2002) 4 SCC 229, the Inspector of Police received telephonic message on 6-10-1990 at about 8.30 a.m. that narcotic drugs were being sold at T.C. Junction and he acted on the said telephonic information and on reaching T.C. Junction found that inside the fold of dhoti, which the appellant was wearing, opium had been concealed in a polythene bag. In para-6 the Apex Court has held that in absence of compliance with the mandatory provisions contained in Section 42(2) and Section 50, conviction of the accused appellant is liable to be set aside. In the case of HIMMAT PETHABHAI VANKAR Vs. STATE OF GUJARAT, 1996(2) GLR pg. 832, the Division Bench while dealing with the case of search made in public place in light of the provisions contained in Section 42 & 43 of the Act, held that, Section 43 and not Section 42 would be attracted and the officer is not required in such cases to reduce the information in writing and send copy thereof to his superior. It cannot be said even for a moment that when an empowered officer acting without prior information under section 43 of the Act the provisions of Section 42 will be attracted. In the case before the Division Bench, PSI with other staff members was petrolling in Bhulabhai Park area, Ahmedabad on 22-1-1989 and at 14-00 hrs. when he reached near Karnavati Chowk, the informant informed him that one person was to pass riding over a scooter with narcotic drug, viz. charas or ganja. Hence he called panchas and deployed the panchas as well as the members of the staff at different places. Thus it was a case of receipt of sudden/ abrupt information while on petrolling duty about the commission of offence under the Act and not a case of empowered officer acting on prior information. In our opinion Himmat Pethabhai Vankar (supra) is not applicable to the facts of the present case. Thus when the police officer acts on prior information as regards the commission of offence under the Act in a public place, then, the requirement of Section 42(2) has to be complied with, as the information received would fall within the purview of section 42 (2) of the Act. The ratio of all the above judgments is, when the appointed/ empowered officer acts on prior information, then, irrespective of the fact whether the search & seizure is to be carried out in a public place or not, the information received is required to be reduced in to writing and communication of the same to the superior official as required in Section 42(2) of the Act. 11. Mr. N.D. Gohil, learned APP inorder to show applicability of Section 43 of the Act as the contraband opium recovered is from a public place, namely on a road from Bhildi to Deesa, near Bhildi railway crossing, has placed reliance on the decision in the case of NARAYANASWAMY RAVISHANKAR Vs. ASSTT. DIRECTOR, DIRECTORATE OF REVENUE INTELLIGENCE, (2002) 8 SCC Pg. 7, 5940 gm of heroin concealed in the bottom of a suit case was recovered when the accused was attempting to transport the same from International Airport, Chennai to Singapore. In this case the Apex Court while dealing with the question of applicability of Section 42 of the Act when the search & seizure was conducted in a public place viz. Airport, held that, it is Section 43 of the Act which is applicable and not Section 42 and hence the question of noncompliance, if any, of the provisions of Section 42 of the Act was wholly irrelevant. Thus in the routine checking the contraband heroin was seized and recovered at the Airport by the concerned authority. This was not a case of acting on prior information. The principle enuntiated in Narayanaswamy Ravishankar (supra) is not attracted to the present case. Mr. Gohil has also placed reliance on the decision rendered in Criminal Appeal No. 12 of 2000 by the Division Bench of this High Court in the case of RAGHUBHAI GANDABHAI BHARWAD Vs. STATE OF GUJARAT, and contended that in the instant case as the search & seizure has been in a public place, namely near Bhildi railway crossing on Bhildi - Deesa road, Section 42 of the Act will not be applicable, but Section 43 of the Act is attracted. In the case of Raghubhai Gandabhai Bharwad (supra) the appellant was found in possession of opium while he was passing on a public road. The empowered officer was informed by an informant that one Raghubhai Bharwad was to pass through Thaltej cross roads on June 10, 2001 between 13.00 - 14.30 hrs and was to come from Sarkhej side for going towards Ghatlodia. According to the prosecution, on receiving this information police constable Himatsinh Lalubha Gohil had conveyed the information to Mr. R.C. Pathak, who was then Police Inspector of Crime Branch. Thereafter panchas were called, necessary entry was also made in the Station Diary maintained in the police station and informed the higher officers about the information received. Referring to the case of Koluttumottil Razak (supra), the Division Bench in para-10 (2) observed that the Sub Inspector of Police had got information that one man was selling brown sugar near Sarada Mandiram Bus-stop and the Sub Inspector admitted in his cross examination that he had not reduced the information in writing nor had informed his superior officer about it and instead he had opted to proceed to the place without doing the aforesaid duty. After referring to the decision in the case of Abdul Rashid Ibrahim Mansuri (supra), the Division Bench observed, " we find that the question whether the provisions of section 42(2) would also apply when an offending article is found from a public place, is not specifically considered by the Supreme Court, but the Supreme Court has given the decision on the assumption that section 42(2) would also apply when an offending article is found from a public place. The said observations made by the Supreme Court cannot be treated as a binding precedent, as the question which is posed for our consideration in this appeal, was