^l^ :®tgP-;'TSSS Haitsraj s/o Hariram State of Madhya Pradesh(Now CG) Post for jydgm.eBt on Q. 09 Sd/- R.L. Jhanwar Judge •• / •**?- 4 ..a'S""SI /^-^ 'i,^^-.' 'l'atEa-!.<i Hansraj son of Hariram., aged about 23 years, resident of Dani Tola, Near Bilai Mata Dharatari, •.Distdct Raipur M.P.(Now C,G.) State of Madhya Pradesh (Now CG) ShriSunfl Sahu, counsel for tlie appeUant. Shri Pradeep^Suigh, Paiiel Lawyer for the State. (DeUvered on&,g.09.2009) This CrmiiD.al Appeal is directed against the judgaient of conviction aad order of-sentence dated 20.2.1995, delivered ia Special Sessions Trial No. 229/94, whereby, the leamed Additional Sessions Judge, Dham.tari, Distiict Raipur has convicted ftie appeUaat under Section 20-B(i) of the N.D.P.S. Act, 1985 (herein.after referred to as 'the Act^ aad senteuced him. to undcrgo R.I. for tavo years aad to pay a fine of Rs.2,000/-, ia default of payuieut offine to further undergo R.I. for six raonfhs. Brief facts are that on 12.12.94, Assistaut Sub- Inspector- V. Tirkey/PoUce Statioii, Dhamtari upon receiviug iufonuation tiiat th6 a^peUant-Haiisraj has kept Ganja, pi-oceeded along wifh soine Head Constables aa^. reached to Old Bus Staiid Chaudu Lodge. He foiuid the appellaat ia room. No.8. The appeUaat was iG.terrogated iu front of witaesses Mahesh and Vijay Choubey aud •;"'"'i;,fe S Cr.AppealNo. 329/95 fhereafter, was asked for search vide Ex. P/7 aad after getting his acceptan.ee, ganja in. fhe quantity of 5 kg was seized vide Ex. P/3 from. fhe possession of the appellant. The appeUaat was taken iato custody aiid after reachiag to the PoUce Statiou F.I.R. was registered. The seized- gaiija was seut for cheniical examuiation. The report of Vidhi Vigyan, Prayogshala, Raipur is Ex.P/5, ia which, it Iias been clearly stqted that fh.e laaterial sent for exainiaation was gauja. Thereafter, uivestigation took place. After coinpletion of the iavestigation, charge was filed before fhe Special Judge, Raipur under Section 20-B of the N.D.P.S. Act against fhe appeUaat, who niade over fhe case to the Additional Sessions Judge, Dham.teri, Distaict Raipur. Charge under Section 20-B offhe N.D.P.S. Actwas framed again.st fhe appeUaat and was read over aud explanied to him, who abjured fhe guflt and his defence was fhat he h£is"5eenfalsely iniplicated iu the case. The Additional Special Judge, Dham.tari, after appreciation of the evideu.ee available on record and heariug the counsel for both the parties, convicted aad senteuced ftie appeUant as above. I have heard learued counsel for fhe parties at lengfh and have perused fhe record. Prosecution witness, Investigatiiig Ofiicer, V. Tirkey (PW-1) Iias stated tiiat he upon receiviag infomiation, went along with som.e Head Constables to Chandu Lodge ta rooni No.8 aud iiiten-ogated the 'appeUaiit ivifh regard to Ganja iu front of witaesses- Mahesh(PW-2) aad Vijay Choubey, who has not been examiaed. After receiviag'acceptauce of the appeUaut, searched 'fhe appellant vide Ex.P/7 a&d seized a cream. colour au? bag and a red colour bag, tu which, 3 Vt kg aiid 1 l/2 kg of ganjawas kept, seizure ftievio is Ex.P/3 aad appeUant was taken into custody. •After reaching to ths^ PoUce Station, F.I.R. was registered. Accprditig to him iaformation was seut to fhe S.D.O.(Police) vide Ex. P/^t aiid has also sent the copy ofF.I.R. to fhe Magistrate. He ^ Cr.Appeal No. 329/95 stated that he had not written fhe Rooin nuiiiber and had not seized fhe entry register of fhe Lodge. He had prepared Panchanmna of fhe goods ia the room. of ttie appeUaat, Dehati Nalid has not been recorded by hixu. He further stated that at fhe tinie of seizure, Second Manager of fhe Lodge was present, but he has not been m.ade witaess. Mahesh (PV/-2) has stated that V. Tirkey (PW-1) came in Hotel Chandu Lodge aad, searched rooiu No.8 of the Lodge, in wbich, appeUant was present. He also stated fhat Gaxija was seized vide Ex.P/2. He accepted fhat he had signed on that docuiueiit. Anoftier witness of seizure Vijay Choubey, has not been exauiiaed. It is evident from. fhe stateinent of V.Tirkey (PW-1) fhat he went to Chaiidu Lodge and found fhe appellant ia rooni No.8 and also found the substas.ce(gaiija) ui two bags, one bag (cream. colour air bag) contamiug 3 l/2 kg'ofgauja aad anofher bag (red colour) contaming 1 V2 kg of gauja, which was seized vide Ex.P/2. He stated that he prepared seizure m.erao Ex.P/2, but h.e has not writteu ili Uie seizure m.erao, the place of seizure and rooni nuiuber. He stated that he has inade personal search of th.e appeUaiit aad not of the rooin. Hoyever, accordiag to his stateiaent vide para 6"of cross-exarp.ination, the seized articles were found in room. No.8. He also stated tfaat iu Talashi Panchaaama, he Is.as not written about personal search. In this way, his stateinent is contradictory whether he seized fhe article from the possession of Uie appeUaut or froiu the room.. He has stated that the appeUant had stayed ia rooni No.8 »of Chandu Lodge, byt aecorduug to his stateiaent, he has not seized fhe entry registei/of fhe lodge,iD.wluch, entries ofpassengers are niade, who stay fhere. Therefore,^t caunot be said that the appeUaiit was stayiug m. rooni No.8 by his name. + ST Cr.Appeal No. 329/95 1:!;' It is also clear froia fhe stateinent of V.Tirkey(PW-1) that he has no kiiowledge fhat how uiaay persons were staying at that time with fhe appeUaut in rooin No.8. The appellant is a resident of Daiiitola, Dharutari, so it becoiiies doubtful that why appeUaiit wffl stay.iu a Hotel ia the same vfflage- Dhanitari. tliese stateruents, makes the seizure doubtful, In this way, the stateinent given by fhe witaess-V.Tirkey (PW-1) does inspire coDfiderice. It leads to an mference that tlie prosecution has failed to.estabUsh that the gaaja was seized froni the conscious possession of the appeUant. V.Tirkey(PW-1) went to Chandu Lodge on receiviug iafonnation from. aD. uifomiailt fh.at tlie appeUaat was haviag ganja with him aad had stayed ia a Lodge. He had not taken tliis in writuig aad had also not sent the infonnation to his superior of&cials. Therefore, it is clear cut violatioa of Sub-Secfion (1) of Section 42 whereunder before enteriiig ia a buUdmg or-place for afFectiag his search upon prior infomiation of contraband ganja being kept thereia the of&cer concemed has to record infol-m.ation so received in writing fhat coutraband ardcle was stored in fhe preniises. Section 42 (2) of fhe Act lays down that where an. officer takes down aiiy information iu writilig under sub-sectioa (l) or records grounds for his belief under fbe-proviso fhereto, he shall witbia seventy-t-tvo faours send a copy thereof to his iirimediate official siiperior. In the case of Stafe of Puryab Vs. Balbir Singh, fhe apex Court held fhat: "Under Section 42(1), fhe eiapowered officer if has a prior iaforiuation given by aay person, fhat should necessdrily be taken down ui wxiting. But if. he lias reason to believe froin personal knoyl^Sge fhat offences uader Chapter IV have been conimitted or iiiateaais which niax. fumish evidence of coraiuission of such oQences STS concealed in aay building ete., he inay carry out fhe aiTest or search without a warrant between sunrise aad sunsct ji: ;: -.-iSS"? Cr.Appeal No. 329/95 aad this provision does not inaudate that he should record his reasous ofbelieF. "Under Sectiou 42(2), such einpowered officer who takes down aay uifomiation in. writing or records fhe grounds under proviso to Section 42 (1) should forthwith send a copy thereof to his imiaediate ofiicial superior. If ttiere is total non-coinpliance of ftlis provision, fhe sanie affects' fhe prosecution case. To th.at extent it is inaadatory". V. Tirkey(PW-l) stated fhat upon receiving uifonaation he had proceeded to affect fhe search. Therefore, it was incuinbent upon Shri Tirkey to record in writing fhe substance of such in.fonnation given by any person, but, it was not done by Shri Ttrkey. Sectioa 42 ofthe N.D.P.S. Act reads as uiider : 42. Power of entay, search, seizure aad arrest without warrant or aufhorization.- (1) Any such of&cer (beiug au ofHcer superior ia rauk to a peon, sepoy or constable) of the depai-tiuents of Central excise, narcotics, custouis, revenue inteUigence or aay other departineat of fhe Central Govemuient or of fhe Border Security Force as is einpowered ia fhis behalf by general or special order by fhe Central Goveruinent, or any such officer (being an ofiicer superior in rarik to a peon, -sepoy or constable) of fhe revenue, drugs control, excise, police or any other department of a State Goveminent as is eiupowered ta this behatf by general or» special order of fhe State Goveminent, if lie has reason to believe froin personal knowledge or inform.ation given by aay person and taken down ni writiug, that aay narcotic drug, or psychotropic substance ia respect of which an offeiice puiiishable under has beeu coiainitteii or aay docuinent or other article which inay fumish evid^ce of fhe couujiission of such offence is kept 6r concealed ia: any building conveyance or enclosed place inay, between sunrise and sunset- litlBffi^ 1: ""J?^>-'^ Cr.Appeal No. 329/95 tS!w gftjj, K.H liis (a) eater iato aad search any such buildiiig, conveyance or place; (b) m. case of resistance, toreak open any door aad rexuove any obstacle to such entay; (c) seize such drug or siibstaace and aU inaterials used m. fhe inan.ufacture thereof and aay other article and aay animal or conveyauce wbich he has reason to believe to be Uable to confiscation iinder fhis Act aad aay docvunent or otlier article which. Iie bas reason to. beUeve m.ay fumisli evidence of fhe conunission of aiiy offence punisbable under Chapter IV relatiiig to sucb drug or substaace; and (d) detain aad search, and, ifhe tbiiiks proper, arrest any person whom. he has reason to believe to have coininitted. any offence puxiishable under Chapter IV relating to such drug or substaace; Provided_ fhg.t if s-acli officer has reason to believe fhat a search-warrant or aufb.orization cannot be obtained wifhout affordilig opportunity for fhe conceahnent of evidence or facflity for the escape of an. offender, he may enter aad search such builditig, conveyao.ee or enclosed -place at aay tirae between sunset axid sunrise after recording fbe grounds ofhis belief. (2) Where aff officer takes down aay infonnation in. writing under sub-section (1) or records groiinds for his beUef iinder the proviso thereto, he shaU forfhwifh send a copy fherefore to his imruediate official superior. Section 42 is inandatoiy. It was incuiubent on ttie of&cer uiakiug seai-ch to send forfhwifh a copy of iD&rniatipn taken down by fhe ofBcer under sub-section (1) of Section 42 of fhe Act. From. fhe/evidence of V.TiTkey(PW-l), "nothiag has been brought to support fhat •the p^ovisions of Section 42 of the Act have been complied wifh. Therefore, violation of the provision is fatal. '-•!1^ •^. '"•^.\ ^'- 's- Cr.AppealNo. 329/95 aaa Considering tlie facts and circuiustaaces of the case, I am. of fhe view that niaiidatory provision of Sections 42 (2) of the Act has not been coiapUed witb, fherefore, tlie conviction of fhe appeUaat under Section 20-B(i) offhe Act caanotbe sustained. In the result, the appeal is aUowed. The conviction aad sentence uaposed against tlie appeUaiit under Section 20-B(i) of the N.D.P.S. Act are set aside..The appellaut is acquitted of fhe charge. He be set at Ubert)7, forthwifli^ if not required in. auy ofher —Sd/- -, R.L. Jhanwar Judge A- w •• / •i»s>