Ms. Daphira Wallang vs Inspector Of Customs

This Criminal Appeal filed under Section 374(2) of the code of Criminal Procedure, 1973, by the advocate for the appellant/accused No.2 praying to set aside the judgment and order dated 30.03.2013 passed by the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS) Bangalore in Spl.C.C.No.165/2009 (O.R.No.23/2008-09) convicting the appellant/accused for the offence punishable under Section 21(c), 23(c) read with 28 of N.D.P.S. Act and etc;

IN CRL.A.No.463 OF 2013

BETWEEN:

Betrand Tochukwu Ikwuka, Son of Elijah Ikwuka, Holder of Passport A2919586, Aged 34 years, 3

Residing at Block 'A', No.26 A Block Market, Vasanth Vihar, New Delhi - 110 036. (Now in judicial custody Central Prison, Bangalore) ...APPELLANT (By Shri. K.S.Vishwanath, Advocate)

AND:

Inspector of Customs HPU, Bangalore. (represented by learned Special Public Prosecutor) ...RESPONDENT

(By Shri. K.N.Mohan, Advocate) *****

This Criminal Appeal filed under Section 374(2) of the code of Criminal Procedure, 1973, by the advocate for the appellant praying to set aside the judgment and order dated 30.03.2013 passed by the XXXIII Additional City Civil and Sessions Judge and Special Judge (NDPS) Bangalore in Spl.C.C.No.165/2009 (O.R.No.23/2008-09) convicting the appellant/accused for the offence punishable under Section 21(c), 23(c) read with 28 of N.D.P.S. Act and etc;

IN CRL.A.No.951 OF 2013

BETWEEN:

Inspector of Customs HPU, Bangalore. ...APPELLANT 4

(By Shri. K.N.Mohan, Advocate)

AND:

1. Betrand Tochukwu Ikwuka, Son of Elijah Ikwuka, Holder of Passport A2919586, Aged about 38 years, Residing at Block 'A', No.26 A Block Market, Vasanth Vihar, New Delhi - 110 036.

2. Ms.Daphira Wallang, Daughter of Mr. P.Marbaniang, Aged 34 years, Residing at Forest Colony, Short Round Road, Polo, Shillong, Meghalaya.

...RESPONDENTS

(By Shri. K.S. Vishwanath, Advocate for Respondent No.1) ***** This Criminal Appeal filed under Section 378(4) of the code of Criminal Procedure, 1973, by the advocate for the appellant praying to modify the judgment dated 30.03.2013 passed by the XXXIII Additional City Civil and Sessions Judge and Special Judge (N.D.P.S.) Bangalore in Spl.C.C.No.165/2009 (O.R.No.23/2008-09) by convicting the respondents for the offence committed by them under Section 5

8(c) read with Section 21(c), 23(c) of N.D.P.S. Act, in respect of seizure made at M/s. Blue Dart Express.

These Criminal Appeals having been heard and reserved on 15.09.2014 and coming on for pronouncement of Judgment this day, the Court delivered the following:-

JUDGMENT

These appeals are heard and disposed of together as they

arise out of the same judgment. The appeal in Criminal appeal

463/2013 is filed by accused no.1 and the appeal in Criminal

Appeal no.383/2013 is filed by Accused no.2 and the appeal in

Criminal Appeal No.951/2013 is filed by the complainant.

2. The facts of the case, as alleged by the prosecution,

are that on 20.2.2009, the Inspector of Customs HPU,

Bangalore, the complainant, is said to have gathered

intelligence that an African black male and a woman were

proceeding to book courier parcels containing concealed

narcotic drugs to other countries, through M/s Blue Dart

Express, at its branch at Koramangala, Bangalore. It is stated

that the complainant, along with his staff and panch witnesses, 6

is said to have immediately proceeded to the courier agent's

office at Koramangala and reached there in time, to see the

African and the woman in conversation with a person at the

counter in the said office. The complainant had immediately

approached them and on enquiry, he was told by the woman

that her name was, Daffy and by the African man, that his

name was Bertrand Tochukwu and he was also told that they

were booking shipments to Netherlands, Spain and the United

Kingdom. The representative of the courier agent attending to

them was one Kashi, an Operation Executive. He, in turn, had

stated that there were four shipments and that he had prepared

airway bills and cash memos in respect of the same. It was

further learnt by the complainant that the shipments contained

garments and sports items.

The complainant had then informed the two suspects that

he had reason to believe that the shipments contained narcotic

drugs and that he would examine the same by virtue of power 7

vested in him. The complainant and his men then commenced

the inspection of each of the concerned parcels.

According to the complainant, the first shipment under

bill No.1414397681 was packed in a green coloured cloth

backed paper cover addressed to one, "Luis Lopez Mantines,

Calle Lebon 9 Apt, Valencia - 46023, Spain" and the senders

address was shown as "Daffy Pereira, St.John Church Street,

Cleveland Road, Bangalore - 560 025, Telephone

9742491856". On opening the said parcel, it was found to

contain two yellow and one blue ladies nightwear, which had

large sized buttons. The yellow garment had 23 buttons and

18 buttons respectively, while the blue coloured garment had 17

buttons. Suspecting concealment of drugs in the buttons, and

on opening of the said buttons, it was found to contain an ivory

coloured powder concealed within and on weighing the same, it

was found to weigh 70 grams.

Likewise, the buttons of the other two garments were

also opened and were found to contain 54 grams and 47 grams, 8

respectively, of an ivory coloured powder. Thereafter, the

second parcel was opened and it was found to contain two pairs

of shin guards, one pair was red and black coloured and

another pair was blue and black coloured bearing marking

"Sterling Hitech Surjeet Sports Products SSMJ". On opening

the stitches of the said four shin guards, they were each found

to contain a packet covered with carbon paper and each packet

contained brown coloured powder. The said powder was

weighed and it weighed 261 grams.

Thereafter the third parcel was opened and it was found

to contain four numbers of ladies nightwear, of which, two

were orange coloured, one was pink and another was blue. Each

had large sized buttons consisting of 46 buttons and 22 buttons

each. On breaking open the said buttons, it was found to

contain totally 278 grams of an ivory coloured powder.

The fourth parcel was said to have contained five ladies

nightwear, of which two were blue having 22 buttons each and

two were pink having 22 buttons each and one was yellow 9

having 23 buttons. On cutting open the said buttons, They

were found to contain ivory coloured powder totally weighing

346 grams.

From all the said parcels a total of 694 grams of ivory

coloured power and 362 grams of brown coloured powder was

recovered. A pinch of powder was taken and tested with a test

kit by the complainant and it is said to have responded for

Heroin. Thereafter, three sets of each sample of 5 grams,

obtained from the ivory coloured powder as well as the brown

coloured powder, were identified as Ivory-1, Ivory-2, Ivory-3

and Brown-1, Brown-2 and Brown-3, respectively, and were

kept in a transparent polythene Cover and then packed in a

brown coloured cover, which was embossed on top with the

legend 'Government of India' and packed and wax sealed with

the Ashoka Emblem.

Thereafter, the remaining quantity of 679 grams of ivory

coloured powder and 347 grams of brown coloured powder

were put into two polythene covers and the same were again 10

put into a green coloured cloth packed paper cover, and wax

sealed with the Ashoka Emblem and the said covers were

superscribed as "Blue Dart Heroine seizure dated 20.2.2009".

The complainant had then found five airway bills issued

by another courier service agent, Fedex, in the possession of

Tochukwu. The said airway bills had been issued by the said

agency from its branch at Shivajinagar. The complainant had

immediately deputed a team of his colleagues headed by one

Vijay Bellary. It transpires that the consignments

corresponding to the airway bills were still available at the said

office and on the request made by the officers the parcels were

produced and the same were inspected. There were said to be

five corrugated boxes of Fedex Express, which were of medium

size, with airway bill pouch pasted on them and all the said

shipments were addressed from Daffy, No.28, Cleveland Road,

Bangalore - 560 025 Ph.9742491856. The airway bill

No.976174371174 dated 20.2.2009 consigned to one Betty Xie,

No.6/F, Shen Yi Industry, Nansham Road, Nanshan District, 11

Shenzhen Owl Co.L., Shenzhen - 518 054, China,

Ph.13717001204, containing ladies night suit weighing 1.5

Kilograms; 976174371152 consigned to one Smith Tery, No.7,

Elizabeth Court, Voortre KKRV Street, Kampton Park, Code

1619, Johannesburg, South Africa, Ph.0782838639 containing

knee cap, sports item weighing 1 Kilogram; 976174371141

dated 20.2.2009 consigned to Peter Ntuli, No.42, Dooran

Street, Observatory Code 2198, Burma, Johannesburg, South

Africa Ph.2772973080, containing ladies night dress weighing

1.5 kilograms; 976174371130 dated 20.2.2009 consigned to

NDMAXBIS Block - C No.12, Old Flat 7455, Washington

Street, Langa, Cape Town, South Africa, Ph.0786561848,

containing ladies night suit weighing 2.5 kilograms and

976174371663 dated 20.2.2009 consigned to Mrs.Relebogie V

Segoane, No.3244, Block B, Mabopane, Pretoria 0790, South

Africa Ph.0720753892, containing ladies dress weighing 2.5

kilograms. Thereafter, on enquiry by the Inspector K.P.Sunil,

is said to have informed that the said consignments were 12

booked at their office around 13-00 hours on 20.2.2009 by the

said shipper and was to be sent for further despatch through

their network and he had no objection for examination of the

said shipments and accordingly, the Inspector of Customs along

with his colleagues opened the said five boxes. It was found

that the same modus operandi was adopted and what was

apparently found was heroin concealed in the buttons of

garments and shin guards - billed as sports items. In all, the

boxes contained totally 1024 grams of ivory coloured powder

and 485 grams of brown coloured powder. The Inspector took

a pinch of the powder from each colour and tested it with a

test kit, which responded for Heroin. After following the same

procedure, as in the first instance, the items were seized and

sealed. The said covers were superscribed as "Fedex Heroine

Seizure dated 20.2.2009". The entire proceedings of

panchnama was concluded at about 21-30 hours on 20.2.2009.

The statements of the concerned representative of Fedex,

to acknowledge that the two persons had booked the parcels 13

was said to have been recorded and further on 24.2.2009, the

complainant is said to have produced the above material before

the court, for being dispatched for chemical analysis at

Chennai. Reports were eventually received certifying that the

samples examined were heroin.

3. On the basis of the material placed before the court, it

was presumed that the accused were found in the possession of

heroin. The burden was hence held to be on them to prove that

they were innocent. The complaint was hence filed for offences

punishable under Section 8 (c), 21, 23, 27A, 28 and 29 of the

Narcotic Drugs and Psychotropic Substances Act, 1985

(Hereinafter referred to as the 'NDPS Act', for brevity).

The presence of the above accused persons was secured

before the court immediately after registration of the case. The

accused had entered appearance through counsel. The parties

were heard before framing of charges and the Court had framed

the charges, to which the accused had pleaded not guilty and

claimed to be tried. The prosecution had then tendered 14

evidence and examined 13 witnesses, apart from producing

several exhibits and material objects. The statements of the

accused were recorded under Section 313 of the Criminal

Procedure Code, 1973 (Hereinafter referred to as the 'CrPC',

for brevity). Thereafter, the prosecution and the accused having

been heard, the court had framed the following points for

consideration:-

"1. Whether the prosecution has proved beyond reasonable doubt that:

a) On 20.2.2009 at about 5-30 p.m. at M/s Blue Dart Express Office accused No.1 and accused No.2 have booked Heroin to be exported to Netherland, Spain, U.K. and they further attempted to export Heroin through M/s.Federal Express India Ltd. Office, Shivajinagar, Bangalore and thereby committed the offence under Section 8(c) read with Section 21(C) of NDPS Act?

b) On the said date, time and place accused No.1 and accused No.2 were making attempts to illegally export from India to Netherland, Spain, UK, narcotic drug namely, Heroin and thereby committed 15

the offence punishable under Section 23(C) of NDPS Act?

c) That on the said date, time and place accused No.1 and accused No.2 carried Heroin of totally 2565 grams and attempted to export the same to other countries and thereby committed the offence punishable under Section 28 of the NDPS Act?".

Point no.1(a) was answered partly in the affirmative and

the other points in the affirmative and the accused were

convicted and sentenced to undergo rigorous imprisonment for

10 years each and to pay a fine of Rs.1,00,000/- each for the

offence punishable under Section 21(c) of the NDPS Act and

further sentenced to undergo simple imprisonment for 10 years

and to pay a fine of Rs.1,00,000/- each for the offence

punishable under Section 23(c) read with Section 28 of the

NDPS Act. And both the sentences were ordered to run

concurrently. It is that which is under challenge, on various

grounds in these appeals.

16

4. The learned counsel Shri Hasmath Pasha, appearing

for accused no.2, would urge a preliminary contention, on

which ground alone, the entire proceedings are vitiated,

according to him.

It is pointed out that according to the complainant, PW-2,

upon receiving credible information of two persons having

proceeded to book consignments containing concealed narcotic

drugs, through a courier service agent, M/s Blue Dart Express,

Koramangala, he had immediately proceeded to the said place

along with other personnel. It is admitted that he had not

reduced into writing the information so received. It is pointed

out that in terms of Section 42 of the NDPS Act, an officer who

is duly empowered, if he receives such information, shall

reduce the same into writing and then proceed to conduct search

and seizure. Compliance with the said procedure is held to be

mandatory and failure to do so, vitiates the entire search and

seizure proceedings - even if possession of any narcotic drugs

is proved.

17

It is pointed out that the trial court has, in fact, accepted

the circumstance that there was a clear violation of the

mandatory requirement under Section 42 of the NDPS Act, in

so far as the search and seizure proceedings conducted at the

premises of M/s Blue Dart Express, Koramangala, is concerned.

But it is the further reasoning of the trial court to the effect, that

in so far as the search and seizure proceedings conducted at the

premises of M/s Federal Express, Shivaji Nagar, is concerned,

the rigour of Section 42 of the NDPS was not attracted, as it

was to be construed as one covered under Section 43 of the

NDPS Act and therefore would not be bad in law. It is that

which is sought to be questioned. It is contended that if the

reasoning of the trial court on the said question, if is held to be

erroneous, there is no need to examine the matter further on

merits and the appeal could be summarily allowed.

The learned counsel would contend that the prosecution

has misled the court into the belief that there were two

independent search and seizure proceedings; one, pursuant to 18

credible information received, which required compliance with

Section 42 of the Act and the other, which was not carried out

on the basis of any credible information received, but on the

basis of chance discovery of air way bill receipts, evidencing

the shipment of other consignments from the office of M/s

Fedex, Shivaji Nagar. The search and seizure effected at that

place, which was a public place, did not require compliance

with Section 42 as Section 43 did empower the concerned

officer to carry out such a procedure. This, the learned counsel

would contend, is not tenable. For if not for the search and

seizure conducted at Kormangala, no clue would have been

available for the concerned officer to visit Shivaji Nagar and

conduct a search and seizure. The alleged search, seizure and

recovery of the entire quantity of material - was only pursuant

to the credible information said to have been received in the

first instance and the proceedings cannot be broken up into two

independent events - when the vital link to enable the search at 19

the second place was said to have been discovered at the first

search, which was admittedly vitiated.

The learned counsel would contend that in actual fact,

even the discovery of five air way bills pertaining to other

consignments from M/s Fedex, Shivaji nagar, was in effect,

information discovered or received and required the competent

officer to reduce into writing the intention to proceed to conduct

a search and seizure. The seizure effected at the Fedex office at

Shivaji nagar was not by accident or chance or because the

officer, who conducted the search, had reason to believe that

there were consignments containing narcotic drugs. It was on

the basis of definite information as to which particular

consignments out of innumerable consignments, the agency

may process at any given time, possibly contained such

substance, that a search was carried out.

It is further pointed out that both PW-2 and PW-3, who

conducted the respective search and seizure proceedings in the

aforesaid two places, were officers of the rank of inspectors and 20

were not of a gazetted rank. This circumstance again made it

mandatory that Section 42 of the NDPS Act was complied with.

In the appeal filed by Accused no.1, these very contentions are

also urged.

5. While in the appeal filed by the complainant, it is

sought to be canvassed that there is no legal infirmity in so far

as the search and seizure conducted at the premises of M/s Blue

Dart Express and that the trial court was in error in holding that

the mandatory requirement contemplated under Section 42 of

the NDPS Act was attracted, when it was clearly a circumstance

covered under Section 43 of the NDPS Act. And it is sought to

be justified that there is no error committed otherwise in the

court having found that the accused were guilty.

In addressing the aspect of the matter, namely, whether

the search and seizure proceedings carried out on the basis of

information received on the one hand and on information

discovered on the other, could be a distinguishing feature in 21

deciding whether the rigour of Section 42 of the NDPS Act was

or was not attracted - we may take into account the reasoning

of the trial court which runs as follows :

"In the instant case, it is the case of the prosecution that search and seizure has been conducted both in M/s. Blue Dart Express and M/s Federal Express India Ltd. Now let me take up the matter pertaining to alleged search and seizure conducted in Federal Express India Ltd. It is the case of the prosecution that while conducting search and seizure proceedings in M/s Blue Dart Express Office certain documents were in the hands of accused No.1 and it was taken by PW.2 and on verification, it found to be five airway bills pertaining to the consignment booked in Federal Express India Ltd. by accused No.1. Therefore, it is the case of the prosecution that in M/s.Blue Dart Express Office, PW.12 has formed a team headed by Vijay Bellary - PW.3 to proceed to Federal Express India Ltd. and then conduct search and seizure proceedings. To prove this aspect prosecution has relied upon the evidence of PW.3 - Vijay Bellary, PW.8 - K.P.Sunil and PW.9 Mahadeva and documentary evidence namely Ex.P.21 - mahazar. I have referred to their examination-in-chief in the 22

earlier paragraph. So far as search and seizure proceedings in Federal Express India Ltd. is concerned, it is pursuant to coming to know of airway bills in the hands of accused No.1. Therefore, PW.3 who is the officer mentioned in Section 42 has proceeded to Federal Express India Ltd. and recovered the contraband. Therefore, without going further into the evidence of these witnesses, we may conclude that the recovery effected in Federal Express India Ltd. would come within the purview of Section 43 of the NDPS Act. In fact neither PW.2 nor PW.3 had any prior information that any contraband is booked in FedEx office. It has come to the knowledge of PW.2 and PW.3 only while conducting search and seizure proceedings in M/s Blue Dart Express Office. Whereas to proceed to M/s Blue Dart Express Office PW.2 had prior intimation. Therefore, this is the distinction that could be made in respect of Section 42 and Section 43 of the NDPS Act in respect of the recovery made in M/s Blue Dart Express Office and Federal Express India Ltd. Office respectively."

It is to be noticed that in so far as the compliance with the

requirement of Sections 42(1) and 42(2) of the NDPS Act is 23

concerned, the question is no longer res integra. In the case of

Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, (2000)2

SCC 513, a three-Judge Bench of this Court held that

compliance of Section 42 of the Narcotic Drugs and

Psychotropic Substances Act, 1985, is mandatory and failure to

take down the information in writing and forthwith send a

report to his immediate official superior would cause prejudice

to the accused. In the case of Sajan Abraham vs. State of

Kerala, (2001)6 SCC 692, which was also decided by a three-

Judge Bench, it was held that Section 42 was not mandatory

and substantial compliance was sufficient. In view of the

conflicting opinions regarding the scope and applicability of

Section 42 of the Act in the matter of conducting search, seizure

and arrest without warrant or authorization, the appeals were

placed before a Constitution Bench to resolve the issue, in the

case of Karnal Singh v. State of Haryana, 2009 Crl.L.J. 4299. The constitution bench while considering the ratio of the earlier

decisions in State of Punjab v.Baldev Singh,(1999) 6 SCC 172, 24

Abdul Rashid v. State of Gujurat, (2000 )2 SCC 513 and Sajan

Abraham v. State of Kerala, (2001)6 SCC 692 - has expressed

thus :

"It is to be noted that Baldev Singh's case (supra) has dealt with Section 50 of the Act and the effect of non- compliance of the same. It was held that the same provisions of Section 50 containing certain protection and safeguards implicitly make it imperative and obligatory and cast a duty on the investigating officer to ensure that search and seizure of the person concerned is conducted in a manner prescribed by Section 50. The unamended Section 50 as existed during that period is as follows:

"Section 50 - Conditions under which search of persons shall be conducted (1) When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female."

25 The safeguard or protection to be searched in the presence of a gazetted officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain the veracity of evidence derived from such search. But this strict procedural requirement has been diluted by the insertion of subsection (5) and (6) to the Section by Act 9 of 2001, by which the following subsections were inserted accordingly:

"(5) When an officer duly authorized under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."

Through this amendment the strict procedural requirement as mandated by Baldev Singh's case was avoided as relaxation and fixing of the reasonable time to send the record to superior official as well as exercise of Section 100 of CrPC was included by the legislature. The effect conferred upon the previously mandated strict compliance 26

of Section 50 by Baldev Singh's case was that the procedural requirements which may have handicapped an emergency requirement of search and seizure and give the suspect a chance to escape were made directory based on the reasonableness of such emergency situation. Though it cannot be said that the protection or safeguard given to the suspects have been taken away completely but certain flexibility in the procedural norms were adopted only to balance an urgent situation. As a consequence the mandate given in Baldev Singh's case is diluted.

15) Under Section 42(2) as it stood prior to amendment 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 would adversely affect the prosecution case and 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, it is to be concluded that the mandatory enforcement of the provisions of Section 42 of the Act non-compliance of which may vitiate a trial has been restricted only to the provision of sending a copy of the information written down by the empowered officer to immediate official superior and not to any other condition of the Section. Abdul Rashid (supra) has been decided on 01.02.2000 but thereafter Section 42 has been amended 27

with effect from 02.10.2001 and the time of sending such report of the required information has been specified to be within 72 hours of writing down the same. The relaxation by the legislature is evidently only to uphold the object of the Act. The question of mandatory application of the provision can be answered in the light of the said amendment. The non-compliance of the said provision may not vitiate the trial if it does not cause any prejudice to the accused.

16) The advent of cellular phones and wireless services in India has assured certain expectation regarding the quality, reliability and usefulness of the instantaneous messages. This technology has taken part in the system of police administration and investigation while growing consensus among the policy makers about it. Now for the last two decades police investigation has gone through a sea-change. Law enforcement officials can easily access any information anywhere even when they are on the move and not physically present in the police station or their respective offices. For this change of circumstances, it may not be possible all the time to record the information which is collected through mobile phone communication in the Register/Records kept for those purposes in the police station or the respective offices of the authorized officials in the Act if the emergency of the situation so requires. As a result, if the statutory provisions under Section 41(2) and 42(2) of the Act of writing down the information is 28

interpreted as a mandatory provision, it will disable the haste of an emergency situation and may turn out to be in vain with regard to the criminal search and seizure. These provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal.

Consequently, these provisions should be taken as discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug- peddlers.

17. In conclusion, what is to be noticed is 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 was as follows :

(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or 29

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 clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior .

(c) In other words, the 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. The question is one of urgency and expediency.

(d) While total non-compliance of requirements of sub-

sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the 30

police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001. "

6. In a more recent judgment of the apex court in the

case of Sukhdev Singh v. State of Haryana, AIR 2013 SC 953, it

is reiterated that the provisions of Section 42 are intended to

provide protection as well as lay down a procedure which is

mandatory and should be followed positively by the

Investigating Officer. He is obliged to furnish the information

to his superior officer forthwith. That obviously means without

any delay. But there could be cases where the Investigating

officer instantaneously, for special reasons to be explained in

writing, is not able to reduce the information into writing and 31

send the said information to his superior officer, but could do it

later and preferably prior to recovery. Compliance of Section

42 is mandatory and there cannot be an escape from its strict

compliance.

In the instant case on hand, PW-2 had admittedly

received the information when he was in his office chamber. It

would have required a few minutes of his time to reduce the

same into writing. Assuming there was a pressing urgency to

rush to the spot where the seizure was successfully made, he

then had sufficient time to record not only the fact of such

seizure, the reason for not having recorded the information

received and his intention to conduct the search and seizure

could also have been given. Further, there was no reason

forthcoming to also have recorded the discovery of five other

air way bills, requiring PW.3 to immediately proceed to

conduct a further search and seizure at Shivaji Nagar. To

compound the glaring lapse, the requirement is not complied

with at all entirely, even though sub-section (2) of Section 42 of 32

the NDPS Act, provides that such information could be

recorded and conveyed with appropriate reasons atleast within

72 hours of the search and seizure being affected. This was a

mandatory requirement to have been complied with both by

PW-2 and PW-3 in the respective search and seizure said to

have been conducted by them. The Apex Court in SuKdhev

Singh, supra, has held thus :

"22. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non-compliance, thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purpose of the provisions of Section 42 which can broadly be stated are that: (a) it is a mandatory provision which ought to be construed and complied strictly; and (b) compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post-recovery.

23. Once the contraband is recovered, then there are other provisions like Section 57 which the empowered officer is mandatorily required to comply with. That itself to some extent would minimize the purpose and effectiveness of Section 42 of the NDPS Act. It is to provide fairness in the 33

process of recovery and investigation which is one of the basic features of our criminal jurisprudence. It is a kind of prevention of false implication of innocent persons. The legislature in its wisdom had made the provisions of Section 42 of NDPS Act mandatory and not optional as stated by this Court in the case of Karnail Singh (2009 AIR SCW 5265) (supra)."

In the light of the above, the reasoning of the trial court

(which is extracted earlier above), in its endeavour to interpret

and distinguish the circumstance of non - compliance with the

mandatory provisions of law, is not tenable.

The entire proceedings would come to naught, by virtue

of the search and seizure conducted being vitiated, as the

material gathered at such proceedings form the very basis of the

prosecution.

Consequently, the appeals filed by the accused are

allowed. The judgment of the trial court convicting them is set

aside. The accused are acquitted .

34

The appeal filed by the State is dismissed.

Sd/-

JUDGE

nv*