Following of procedure and complying with safeguards must be strictly adhered to: Bombay High Court

 on 31 05 2021 on 22 03 1 18 apeal.351.2015w.apeal.426.2015(J).docnsc.IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.351 OF 2015 Gurmeet Singh s o Harjinder SinghAge 28 years Indian National R o.: House No.540 Sector II Nanak Nagar Jammu(At present lodged at Nashik Central...Appellant Prison Nashik Road.)Org. Accd. No.1 Versus1.Davinder Singh Intelligence Officer Narcotic Control Bureau Exchange Building Ballard Pier Mumbai.(NCB BZU CR 04 2010)2.State of Maharashtra ...Respondents WITHCRIMINAL APPEAL NO. 426 OF 2015Pyarelal Shridhar Keer @ PahalwanAge 54 years Indian National R o.: Room No.7 Shiv Ram Sadan Veer Savarkar Marg Prabhadevi Mumbai 400 025.20(b)(ii)(c) r w 29 ofthe Narcotic Drugs and Psychotropic Substances Act 1985 to sufferrigorous imprisonment for 15 years and to pay fine of Rs.1 lakheach in default of payment of fine to undergo rigorousimprisonment for 1 year on 31 05 2021 on 22 03 3 18 apeal.351.2015w.apeal.426.2015(J).doc for the offence punishable under Sections 28 r w 8(c) and 29 of theNarcotic Drugs and Psychotropic Substances Act 1985 to sufferrigorous imprisonment for 15 years and to pay fine of Rs.1 lakheach in default of payment of fine to undergo rigorousimprisonment for 1 year. Both the aforesaid sentences were directed to run concurrently andsentence in default of fine was directed to run consecutively.2.A few facts as are necessary to decide the aforesaid appeals are as under: On 8th May 2010 specific information was received by PW 1 Sanjay Kumar Sinha Intelligence Officer that ‘one Gurmeet Singh aged24 years resident of Jammu is to deliver a substantial quantity of Hashish aNarcotic Drug under the Narcotic Drugs and Psychotropic Substances Act 1985to a person by the name Pyarelal Shridhar Keer @Pahalwan aged 50 years a resident of Room No.7 Shiv Ram Sadan VeerSavarkar Marg Prabhadevi Mumbai and that Gurmeet Singh would becoming in a white Maruti Car in front of ICICI Prudential Bank Building atVeer Savarkar Marg Prabhadevi Mumbai at around 11:00 p.m.’ On receipt of the said informationPW 1 Sanjay Kumar Sinha forwarded the same at around 7:00 p.m. to PW 6 Claudius Fernandes as well as to the Zonal Director Yashodhan Wanage. on 31 05 2021 on 22 03 4 18 apeal.351.2015w.apeal.426.2015(J).docAccordingly the Zonal Director gave permission to PW 2 Davinder Singhto proceed with the raid.Thereafter the officers of the Narcotic Control Bureau(‘NCB’) organised a raid and maintained surveillance at the spot alongwithtwo independent panch witnesses from 10:30 p.m. onwards. It appears thatshortly thereafter a vehicle mentioned in the informationarrived near the said vehiclecarrying a white polythene bag. It is alleged that after a brief talk with thedriverof the said car the said person(Gurmeet Singh) sat on the rear seat of the car. Immediately thereafter theofficers of NCB encircled the car and asked the occupants to come out ofthe car. The officers introduced themselves and asked the persons in the cartheir names. The said persons gave their names as Gurmeet Singh andPyarelal Shridhar Keer @ Pahalwan.The officers disclosed the information so received to both theappellants. On enquiry the appellant Gurmeet Singh allegedly disclosedthat a total of 40 packets of Hashish were concealed in the gas cylinder andin the cavity made in the rear seat and rear door panels. Accordingly theofficers of the NCB took the car to the NCB office at Ballard Pier Fort on 31 05 2021 on 22 03 5 18 apeal.351.2015w.apeal.426.2015(J).docMumbai for conducting inspection. Thereafter a detailed search andexamination of the car was undertaken and the said examination resulted inrecovery of 40 packets of 1 kg Hashish from the cavity of the said car. Allthe packets were opened. They tested positive for Hashish when examinedby the field testing kit. Thereafter samples were taken and necessaryformalities with respect to sealing were completed. The bulk as well as thesamples were deposited in the godown on 9th May 2010 at 10:45 a.m.Thereafter the statements of the appellants were recorded under Section 67of the NDPS Act and the appellants were placed under arrest on 9th May2010 in the evening. After completion of investigation a complaint wasfiled in the Special Court and the same was numbered as NDPS SpecialCase No.1410. Charge was framed as against the appellants to which theypleaded not guilty and claimed to be tried. The prosecution in support of his case examined 10 witnesses.PW 1 Sanjay Kumar Sinha Intelligence Officer who received the secretinformationPW 2 Davinder Singh Intelligence Officer who conducted the investigation prepared the panchanama and filed acomplaint as against the appellants PW 3 Kiran Prakash Sable Intelligence Officer who recorded the statements of appellant PyarelalShridhar Keer @ Pahalwan and arrested him. The said officer also on 31 05 2021 on 22 03 6 18 apeal.351.2015w.apeal.426.2015(J).docdeposited the samples with the DYCC PW 4 B. S. Bisht AssistantChemical Examiner DYCC PW 5 Babu Lal Yadav Intelligence Officer who recorded the statements of appellant Gurmeet Singh and arrested thesaid appellant PW 6 Claudius Fernandes Superintendent NCB whoreceived a copy of the informationPW 7 BalkrishnaNarayan More panch to the seizure of contraband PW 8 MohammedShafi Ahmed Khan Intelligence Officer who participated in the seizurepanchanama and house search of the appellant Pyarelal Shridhar Keer @Pahalwan PW 9 Prakash P.A. Antony Intelligence Officer whoparticipated in the seizure of the contraband and who took photographs ofthe seized contraband and PW 10 Shriram Gajanan Dole IntelligenceOfficer who recorded the statement of the appellant Pyarelal’s wife. Afterthe prosecution closed its evidence the learned Judge recorded thestatements of the appellants under Section 313 of the Criminal ProcedureCode. The defence of the appellants was that of denial and falseimplication. Each of the appellants examined one defence witness each ontheir behalf. DW 1 Yogesh Bhoite Administration Manager of ICICIPrudential Life Insurance Company and DW 2 Vikram Jain a moneylender.The learned Special Judge after considering the evidence on on 31 05 2021 on 22 03 7 18 apeal.351.2015w.apeal.426.2015(J).docrecord was pleased to convict and sentence the appellants as aforesaid inparagraph 1 of this Judgment.3.Several grounds were raised by both the appellants whilstimpugning the judgment and order passed by the learned NDPS SpecialJudge City Civil and Sessions Court Greater Bombay. Learned Counselfor the appellant Gurmeet Singh also submitted written submissions. 4.However having heard the first submission advanced by thelearned counsel for the appellants essentially on non compliance of theproviso to sub sectionof Section 42 of the NDPS Act and having beingsatisfied that there is non compliance of the same it is not necessary toconsider or delve into the other submissions grounds. Learned Counsel forthe appellants relied on several judgments in support of the said submissionto show that the trial of the appellants had vitiated on the ground of non compliance of the proviso to sub sectionof Section 42 of the NDPSAct thus entitling their acquittal from the said case. Learned Counselrelied on Mazzanti Esposto Gian Carlo v State of Goa1 Sukhdev Singh vState of Haryana2 State of Rajasthan v Jagraj Singh Alias Hansa3 1 1996(3) Bom.C.R. 185 2(2013) 2 SCC 2123 11 SCC 687 on 31 05 2021 on 22 03 8 18 apeal.351.2015w.apeal.426.2015(J).docState Of Punjab v Balbir Singh4 and State of Orissa v Laxman Jena5 insupport of the said submission.5.Learned Special Public Prosecutor for the respondent No.1 although supported the impugned judgment and order of conviction andsentence was unable to show that there was compliance of the proviso tosub sectionof Section 42 of the NDPS Act having regard to the law laiddown by the Apex Court in this regard.6.Perused the evidence both oral and documentary with theassistance of the learned counsel for the parties. As noted above it is notnecessary to consider or go into the other submissions canvassed by thelearned counsel for the appellants inasmuch as the aforesaid appeals oughtto succeed only on the ground of non compliance of the mandate of theproviso to sub sectionof Section 42 of the NDPS Act.7.Section 42 of the NDPS Act deals with the Power of entry search seizure and arrest without warrant or authorisation. The relevantpart of Section 42 of which non compliance is alleged reads as under “42. Power of entry search seizure and arrest without4 3 SCC 299 5 JT 2002SC 1 on 31 05 2021 on 22 03 9 18 apeal.351.2015w.apeal.426.2015(J).docwarrant or authorisation. (1) Any such officerof the departments ofcentral excise narcotics customs revenue intellegence or any otherdepartment of the Central Government including para military forcesor armed forces as is empowered in this behalf by general or specialorder by the Central Government or any such officerof the revenue drugs control excise police or any other department of a StateGovernment as is empowered in this behalf by general or specialorder of the State Government if he has reason to believe frompersons knowledge or information given by any person and takendown in writing that any narcotic drug or psychotropic substance orcontrolled substance in respect of which an offence punishable underthis Act has been committed or any document or other article whichmay furnish evidence of the commission of such offence or anyillegally acquired property or any document or other article whichmay furnish evidence of holding any illegally acquired propertywhich is liable for seizure or freezing or forfeiture under Chapter VAof this Act is kept or concealed in any building conveyance orenclosed place may between sunrise and sunset (a) enter into and search any such building conveyance or placein case of resistance break open any door and remove anyobstacle to such entryseize such drug or substance and all materials used in themanufacture thereof and any other article and any animal orconveyance which he has reason to believe to be liable toconfiscation under this Act and any document or other article on 31 05 2021 on 22 03 10 18 apeal.351.2015w.apeal.426.2015(J).docwhich he has reason to believe may furnish evidence of thecommission of any offence punishable under this Act or furnishevidence of holding any illegally acquired property which isliable for seizure or freezing or forfeiture under Chapter VA ofthis Act and(d) detain and search and if he thinks proper arrest any personwhom he has reason to believe to have committed any offencepunishable under this Act: Provided that in respect of holder of a licence formanufacture of manufactured drugs or psychotropic substances orcontrolled substances granted under this Act or any rule or ordermade thereunder such power shall be exercised by an officer notbelow the rank of sub inspector: Provided further that if such officer has reason tobelieve that a search warrant or authorisation cannot beobtained without affording opportunity for the concealment ofevidence or facility for the escape of an offender he may enterand search such building conveyance or enclosed place at anytime between sunset and sunrise after recording the grounds ofhis belief.” (Emphasis supplied) As far as the second proviso to sub sectionof Section 42 ofthe NDPS Act is concerned it clearly stipulates that if an officer has reason on 31 05 2021 on 22 03 11 18 apeal.351.2015w.apeal.426.2015(J).docto believe that a search warrant or authorisation cannot be obtained withoutaffording opportunity for the concealment of evidence or facility for theescape of an offender he may enter and search such building conveyanceor enclosed place at any time between sunset and sunrise after recordingthe grounds of his belief. 8.In the present case PW 1 Sanjay Kumar Sinha receivedsecret informationto the effect that appellant GurmeetSingh was to deliver a substantial quantity of Hashish a Narcotic Drugunder the NDPS Act to appellant Pyarelal Shridhar Keer @ Pahalwan. Itwas also informed that appellant Gurmeet Singh would be coming in awhite Maruti Car in front of ICICI Prudential Bank Building at VeerSavarkar Marg Prabhadevi Mumbai at around 11:00 p.m. on 8th May 2010to give delivery of the said contraband. According to the prosecution thesaid information was received on 8th May 2010 at 7:00 p.m. The said secretinformation was reduced into writing by PW 1 Sanjay Kumar Sinha andforwarded to PW 6 Claudius Fernandes as well as to the Zonal Director Yashodhan Wanage who in turn authorised PW 2 Davinder Singh toconduct the raid. Accordingly the raid was conducted at 11:00 p.m. on 31 05 2021 on 22 03 12 18 apeal.351.2015w.apeal.426.2015(J).doc9.Admittedly the search and seizure of the contraband was aftersunset and before sunrise. Admittedly no authorisation was taken from anyofficer as mandated by the said proviso nor has the reason to believe beenrecorded as mandated to show why such authorisation or search warrantcould not be obtained. The evidence on record in particular the evidence ofPW 1 Sanjay Kumar Sinha clearly shows that he had prepared theinformationand that he was aware of the fact that the vehiclewas to be intercepted after sunset. Infact the secret information note itselfreflects that the car was to come at the spot at about 11:00 p.m. It is not theprosecution case that PW 1 Sanjay Kumar Sinha asked for any searchwarrant or authorisation. Infact PW 1 Sanjay Kumar Sinha in his cross examination has admitted that he was aware when he prepared theinformation notethat the said vehicle was to be interceptedafter sunset that search warrant was required for searching houses aftersunset and that he did not apply for any search warrant. He has alsoadmitted that he was aware that the person who wants to go and search thehouse after sunset has to obtain permission to search from a GazettedOfficer. He has also admitted that there were 2 Gazetted Officers at thattime in the office when the said information was received. He has alsoadmitted that he did not ask for authorisation nor did the Gazetted Officertell that such proforma was available with him. It is thus evident that on 31 05 2021 on 22 03 13 18 apeal.351.2015w.apeal.426.2015(J).docthough the Gazetted Officers were present in the office at the time whenPW 1 Sanjay Kumar Sinha received the information their authorisationfor conducting the search was not taken. Neither does the information note(Exhibit 31) record any reason to believe why such authorisation couldnot be taken as mandated. PW 1 Sanjay Kumar Sinha has clearlyadmitted that there were 2 Gazetted Officers who were present in the officewhen the information was received. In these circumstances no reason isforthcoming why the authorisation search warrant was not taken fromthem.10.PW 2 Davinder Singh the seizing officer has also admittedthat the vehicle was searched after sunset and before sunrise and that noGazetted Officer was present during the search of the said vehicle. He hasalso admitted that the proforma was available in the office for house searchand that neither he nor any officer applied for any search warrant orauthorisation though he was aware that the vehicle was to be interceptedand searched after sunset and before sunrise.11.Learned Special Public Prosecutor for the respondent No.1fairly conceded that although the raid was to be conducted after sunset andbefore sunrise no authorisation search warrant was taken from a Gazetted on 31 05 2021 on 22 03 14 18 apeal.351.2015w.apeal.426.2015(J).docOfficer to conduct the raid nor does the information note reflect the reasonfor not obtaining the said authorisation as contemplated under the provisoto sub sectionof Section 42 of the NDPS Act. Learned Special PublicProsecutor could not also from the record or evidence show that themandate of the proviso to sub sectionof Section 42 of the NDPS Actwas followed by the officer concerned. 12.From the aforesaid discussion it is clearly evident that noofficer had applied for any search warrant or authorisation nor reasonsrecorded for not obtaining the said authorisation search warrant asmandated by the proviso to sub sectionof Section 42 of the NDPS Act. 13.The Apex Court in the case of State of Orissa v LaxmanJenahas in paras 5 and 6 held as under: “5. There is no dispute that section 42 has two parts. The firstpart deals with the recording of the information and the secondwith the conduct of the search. Again first part of the section hastwo limbs first dealing with the recording of the informationreceived and the other relating to the belief of the officer basedupon his personal knowledge. Any information recorded in termsof sub sectionof section 42 is required to be sent to thesuperior officer of the person recording the information asmandated by sub sectionof section 42. Second part of thesection 42(1) deals with the power of the officer regarding entry search seizure and arrest without warrant of authorisation. Theauthorised officer has the power to enter into and search anybuilding conveyance or place and in case of resistance break on 31 05 2021 on 22 03 15 18 apeal.351.2015w.apeal.426.2015(J).docopen any door and remove any obstacle to such entry. He haspower to seize the drug or substance and all materials used in themanufacture thereof and any other article and any animal orconveyance which he has reason to believe to be liable toconfiscation under the Act and to detain and search if he thinksproper and arrest any person whom he has reason to believe tohave committed any offence punishable under chapter IV relatingto such drug or substance.6. However in exercising a power under the second part ofsection 42(1) the designated officer is under a legal obligation tocomply with the mandate of the proviso to sub sectionofthe Act.”The Apex Court in para 7 of the said judgment further held thatthe mandate of law as incorporated under the Act is required to be strictlycomplied in view of the grave consequences which are likely to be followedon proof of illicit article under the Act that the legislature had enacted andprovided certain safeguards in various provisions of the Act includingsections 42 and 50 in all cases which must be proved to have been strictlyfollowed and that the harsh provisions of the Act cast a duty upon theprosecution to strictly follow the procedure and comply with the safeguards. on 31 05 2021 on 22 03 16 18 apeal.351.2015w.apeal.426.2015(J).doc14.Infact the Apex Court in State Of Punjab v Balbir Singh(Supra) after referring to a large number of cases recorded its conclusionin para 25 as under: “25. The questions considered above arise frequently before thetrial courts. Therefore we find it necessary to set out our conclusionswhich are as follows : ... (2 B) . Under Section 42(1) the empowered officer if has aprior information given by any person that shouldnecessarily be taken down in writing. But if he has reasonto believe from personal knowledge that offences underChapter IV have been committed or materials which mayfurnish evidence of commission of such offences areconcealed in any building etc. he may carry out the arrestor search without a warrant between sunrise and sunsetand this provision does not mandate that he should recordhis reasons of belief. But under the proviso to Section 42(1)if such officer has to carry out such search between sunsetand sunrise he must record the grounds of his belief.To this extent these provisions are mandatory andcontravention of the same would affect the prosecution caseand vitiate the trial.(3) ….. …. …. . …. on 31 05 2021 on 22 03 17 18 apeal.351.2015w.apeal.426.2015(J).doc15.Similarly in the case of State of Rajasthan v JagrajSingh Alias Hansathe Apex Court held that non compliancewith Section 42(1) proviso and Section 42(2) had seriously prejudicedthe accused therein and that non compliance of the said provisions hadvitiated the trial and as such confirmed the acquittal of the accused.16.Having regard to the legal position as stated aforesaid andthe evidence on record in the present case it is clear that there is totalnon compliance of the proviso to sub sectionof Section 42 of theNDPS Act. The non compliance of the said provision vitiates the trialand as such both the appeals ought to succeed only on the aforesaidpremise.17.Accordingly the following order is passed:ORDERi)The Appeals are allowed ii)The Judgment and Order dated 30th December 2014 passedby learned NDPS Special Judge City Civil and Sessions Court GreaterBombay in NDPS Special Case No.1410 convicting and sentencingthe Appellants is quashed and set aside on 31 05 2021 on 22 03 18 18 apeal.351.2015w.apeal.426.2015(J).dociii)The appellants are acquitted of the offences with which theyare charged. The appellants are set at liberty forthwith if not required inany other case. Fine amounts if paid be refunded to the appellants. REVATI MOHITE DERE J. 

Summary: Mandate of law is required to be strictly complied in view of the grave consequences which are likely to be followed on proof of illicit article under the Act. A bench of Revati Mohete Dere J; while adjudicating the matter in Gurmeet Singh v. State of Maharashtra; [CRIMINAL APPEAL NO.351 OF 2015], dealt with the issue of following the procedure of Section 42(1) of NDPS Act. An individual was accused on the ground that he is engaging in the sale of drugs. Thereafter, the officers of the Narcotic Control Bureau (‘NCB’), organised a raid and maintained surveillance at the spot. It appears that shortly thereafter, a vehicle was parked in front of the ICICI Prudential Bank Building. After some time, a middle-aged person of wheatish complexion arrived near the said vehicle carrying a white polythene bag. It is alleged that after a brief talk with the driver of the said car, the said person sat on the rear seat of the car. Immediately, thereafter, the officers of NCB encircled the car and asked the occupants to come out of the car. The officers introduced themselves and asked the persons in the car their names. The officers disclosed the information so received to both the appellants. On enquiry, the appellant allegedly disclosed that a total of 40 packets of Hashish were concealed in the gas cylinder and in the cavity made in the rear seat and rear door panels. Accordingly, the officers of the NCB took the car to the NCB office for conducting inspection. Thereafter, a detailed search and examination of the car was undertaken and the said examination resulted in recovery of 40 packets of 1 kg Hashish from the cavity of the said car. All the packets were opened. They tested positive for Hashish when examined by the field-testing kit. Thereafter, samples were taken and necessary formalities with respect to sealing were completed. Charge was framed as against the appellants, to which they pleaded not guilty and claimed to be tried. The question for consideration was whether it was legally valid that no officer had applied for any search warrant or authorisation nor reasons recorded for not obtaining the said authorisation/search warrant as mandated by the proviso to sub-section (1) of Section 42 of the NDPS Act.