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1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1233 OF 2006

STATE OF RAJASTHAN ... APPELLANT

VERSUS

JAG RAJ SINGH @ HANSA       ... RESPONDNET

J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed by the State of Rajasthan against

the judgment of the High Court of Judicature of Rajasthan at

Jodhpur  in  S.B.  Criminal  Appeal  No.98  of  2001  dated

24.11.2003  acquitting  the  accused  from the  charges  under

Section  8/15  of  the  Narcotic  Drugs  and  Psychotropic

Substances Act, 1985 (hereinafter referred to as 'NDPS Act')

after   setting  aside  the  judgment  and  conviction  order  of

Special Judge, (NDPS Cases), Hanumangarh, Rajasthan dated

31.5.2000  by  which  judgment  accused  were  sentenced  to

undergo  12  years  rigorous  imprisonment  with  fine  of  Rs.

1,20,000/-  each.  Accused  were  to  go  further  rigorous

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2 imprisonment of one year each in case of not depositing the

fine.  Accused  Kishan  Lal  had  filed  Single  Bench  Criminal

Appeal No. 397 of 2000 and accused Jagraj Singh alias Hansa

had filed Single Bench Criminal Appeal No. 98 of 2001. Both

the  appeals  having  been  allowed  by  the  High  Court  of

Rajasthan,  this  appeal  being  Criminal  Appeal  No.  1233  of

2006 has  been  filed  by  the  State  of  Rajasthan against  the

acquittal of Jagraj Singh alias Hansa. The Criminal Appeal No.

1232 of 2006 has already been dismissed by this court.  

2. The prosecution case in the nutshell is: Shishupal Singh,

Station House Officer, Bhadra received a secret information on

9th  August,  1998 at  8  P.M.  that  a  blue  jeep car   No.  HR

24-4057 would come and pass through Haryana via Sirsa. A

memo was  prepared regarding  the  above  information which

was also entered into Roznamacha and information was also

conveyed to the Circle Officer, Nohar at 8:05 p.m. on the same

day  through  a  constable.  Station  House  Officer  along  with

certain  other  police  personnel  proceeded  after  taking  two

independent witnesses namely Hawa Singh and Karam Singh.

At  10:15  p.m.  Jeep  HR  24-4057  was  seen  coming  from

Sahaba. It was stated that one driver and two other persons

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3 were sitting who told their names as Jagraj Singh and Kishan

Lal. Bags were lying in the jeep.  Station House Officer gave

notice to Jagraj  and Krishan Lal  and thereafter  search was

conducted. Nine bags containing opium powder were recovered

from the jeep for which the accused were having no licence.

Opium powder was weighed and two samples of  200 grams

each were taken from each bag. Seizure memo was prepared

on the  spot.  Both  the  persons  were  arrested.  Material  was

sealed and after reaching the police station first information

report  being  FIR  No.  291/98  was  registered.  Samples  were

sent to Forensic Science Laboratory, Jaipur and on receiving a

positive report, chargesheet was filed against both the accused

under section 8/15 of the Act. The prosecution produced 12

witnesses including Station House Officer, Shishupal Singh as

PD-11.  Two  independent  witnesses  PD-2  Hawa  singh  and

PD-3  Karam  Singh  were  declared  hostile.  Prosecution  also

produced documents Exh. P1 to P40. Statements of accused

were recorded under Section 313 of Cr. P.C.  Sri Ram Meena

the  then  Circle  Officer,  Nohar  was  examined  as  defence

witness-1.  

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4 3. Before the learned Sessions Judge, accused contended that

the mandatory provisions of Section 42(1) and 42 (2) as well as

Section 50 of the NDPS Act have not been complied with; both

the independent witnesses have not supported the status of

recovery  and  that  entire  action  had  taken  place  at  police

station; the chain of event is not present so as to convict the

accused.  The test report is not admissible and readable.  The

contentions  of  accused were  refuted by  the  learned  Special

Public  Prosecutor.  Learned  Sessions  Judge  held  that

information received by Station House Officer was recorded as

Exh. P-14 and the same was sent to Circle Officer, Nohar by

Exhibit  P-15.  Hence,  the  Station  House  Officer  has  fully

complied  with  the  provisions  of  Sections  42(1)  and  42(2).

Sessions Judge further held that the vehicle was being used to

transport passengers as has been clearly stated by PW-4 Veera

Ram, hence, as per explanation to Section  43 of the NDPS

Act,  vehicle  was covered within  the   ambit  of  public  place.

Therefore, there was no need of any warrant or authority to

search.  Learned Sessions Judge also found that Section 50

was complied since notices were issued to both the accused

before search. Sessions Judge noted that although both the

independent  witnesses  have  turned  hostile  but  the  police

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5 officers  and  officials  have  been  examined  on  behalf  of  the

prosecution  with  whom  the  fact  of  enmity  has  not  been

proved.   Chain  of  event  was  complete.  After  coming  to  the

aforesaid conclusion, learned Sessions Judge convicted both

the accused.  

4. Both the Criminal Appeals filed by Kishan Lal and Jagraj

Singh were decided by a common judgment of the High Court

dated 24.11.2003. The High Court while allowing the appeal

gave following reasons and findings:  

(i)  The secret information which was recorded as Exh. P-14

and in Exh. P-21 Roznamacha it was not mentioned that “two

persons will come from Jhunjhnu who are carrying powder of

opium”, whereas Exh.P-15, the information sent to  the Circle

Officer, Nohar which was also received by Circle Officer, Nohar

the above fact was mentioned which was missing in the Exh.

P-14 and P-21.  In view of the above,  Section 42(2) was not

complied with.

(ii) The proviso to sub-section (1) of Section 42 provides that if

such officer has reasons to believe, he may carry the search

after  recording  the  grounds  of  belief  whereas  no  ground  of

belief  as  contemplated  by  the  proviso  was  recorded  in  the

present  case  and  search  took  place  after  sun  set  which

violates the provisions of Section 42(2) proviso.

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6 (iii) The jeep which was the personal jeep of Viraram could not

be  treated  as  public  transport  vehicle.  No  evidence  was

brought on the record that there was any permit for public

transport  vehicle.  The  brother  in  law  of  Viraram  i.e.

Kartararam do not support the case that the vehicle was a

public  transport  vehicle.  Section  43  of  the  Act  was  not

applicable; hence, the view of the court below that compliance

of Section 42 was not necessary,  is incorrect.

(iv) Further, the secret information from informer was received

and  recorded  and  search  was  conducted  thereafter.  The

present  was  not  a  case  of  conducting  the  search at  public

place suddenly.  

(v)  The sealing of the material sample was not proper nor the

sample of seal was deposited in the stock house. The seal vide

which material  has been sealed has not been kept safe any

where,  it  remained  in  the  possession  of  the  officer  who

conducted the search.

(vi) The independent witnesses have not supported the case of

prosecution at all.

5. The  State  of  Rajasthan  feeling  aggrieved  against  the

judgment  of  the  High  Court  has  come  up  in  this  appeal.

Learned counsel for the appellant has contended that there

was  compliance  of  provisions  of  Section  42(1)  and  (2)  of

Section  42  and  moreover,  the  vehicle  being  used  to  carry

passengers as has come in the statement of the owner of the

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7 vehicle Vira Ram PW-4 and the search being at public place,

by virtue of Section 43 there was no necessity of compliance of

Section 42. It is further contended that minor discrepancy in

Exh. P-14 and that of Exh. P-15 was inadvertent mistake due

to which it cannot be said that provisions of Section 42(1) was

not complied with. It is contended that Station House Officer

and other police personnel accompanying the team have been

examined  and  they  have  proved  the  recovery  and  chain  of

events. The High Court has committed error in acquitting the

accused whereas there was sufficient ground and material to

support the conviction order recorded by the Special Judge.  

6. The  learned  counsel  appearing  for  the  accused  have

supported the judgment of the High Court and submits that

compliance of provisions of Section 42(1) and 42(2) have been

held to be mandatory by this Court and due to non compliance

of the said provisions, the conviction has rightly been set aside

by the High Court. It is submitted that Section 43 of the Act is

not attracted since the search was conducted after recording

information from informer and Station House Officer himself

in his statement had stated the facts for proving compliance of

Section 42, hence, it cannot be said that compliance of Section

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8 42 was not required more so the jeep was personal jeep of Vira

Ram  and  High  Court  has  rightly  held  that  there  was  no

material to prove that jeep was a public transport vehicle. No

permit from transport authority to ply the vehicle as a public

transport vehicle had been filed or even pleaded.  

7. We have considered the submissions of learned counsel for

the parties and have perused the record.  

8. Whether the High Court committed error in acquitting the

accused  is  the  issue  which  needs  to  be  considered  in  this

appeal. Whether there were sufficient material to support the

findings  of  the  High  Court  regarding  non-compliance  of

Section 42(1) and Section 42 (2) and whether Section 43 was

applicable in the present case are the other issues which need

to  be  answered.  Whether  recovery  as  claimed  by  the

prosecution  is  supported  from  the  evidence  on  record  and

material and samples were properly sealed are other related

issues.  

9. The NDPS Act was enacted  to consolidate and amend the

law relating to narcotic drugs, to make stringent provisions for

the control  and regulation of  operations relating to narcotic

drugs and psychotropic substances. This Court had occasion

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9 to consider the provisions of  NDPS Act  in large number of

cases. This Court has noted that 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.

This Court  in  State Of Punjab vs Balbir Singh,  1994 (3)

SCC  299,  in  paragraph  15  has  made  the  following

observations:

“15.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 Section 42(1). To that extent they are mandatory. Consequently  the  failure  to  comply  with  these requirements thus affects the prosecution case and therefore vitiates the trial.”

10. To the similar effect are the observations of this Court

in  Saiyad Mohd. Saiyad Umar Saiyed & others vs. The

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10 State Of Gujarat, (1995) 3 SCC 610. Following was stated in

paragraph 6 of the said judgment:

“6.  It  is  to  be  noted  that  under  the  NDPS  Act punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall  not  be  less  than  IO  years  but  which  May extend to 20 years and also to fine which shall not be  less  than  Rupees  one  lakh  but  which  may extend  to  Rupees  two  lakhs,  and  the  court  is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section  54  of  the  NDPS  Act  shifts  the  onus  of proving his innocence upon the accused; it  states that  in  trials  under  the  NDPS  Act  it  may  be presumed, unless and until the contrary is Proved, that an accused has committed an offence under it in  respect  of  the  articles  covered  by  it  "for  the possession  of  which  he  fails  to  account satisfactorily".  Having  regard  to  the  grave consequences  that  may  entail  the  possession  of illicit  ar-  ticles  under  the  NDPS  Act,  namely,  the shifting of the onus to the accused and the severe punishment  to  which  he  becomes  liable,  the legislature has enacted the safeguard contained in Section  50.  To  obviate  any  doubt  as  to  the possession by the accused of illicit  articles under the NDPS Act, the accused is authorised to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate.”

11. In the present case,  Section 42 is  relevant which is

extracted as below:

“  42. Power  of  entry,  search,  seizure  and arrest without  warrant  or  authorisation.-(l)  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

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11 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 persons 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)  enter  into  and  search  any  such  building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used  in  the  manufacture  thereof  and  any  other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of  any offence punishable  under  this Act  or  furnish  evidence  of  holding  any  illegally acquired  property  which  is  liable  for  seizure  or freezing or forfeiture under Chapter V A of this Act; and

(d)  detain  and  search,  and,  if  he  thinks  proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

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12 Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained  without  affording  opportunity  for  the concealment of evidence or facility for the escape of an  offender,  he  may  enter  and  search  such building,conveyance or enclosed place at any time between  sunset  and  sunrise  after  recording  the grounds of his belief.

(2) Where an officer takes down any information in writing under subsection (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two  hours  send  a  copy  thereof  to  his immediate official superior.”

12. The High Court has come to the conclusion that there

is breach of mandatory provisions of Section 42(1) and Section

42(2) and further Section 43 which was relied by the Special

Judge  for  holding  that  there  was  no  necessity  to  comply

Section 42 is not applicable. We thus proceed to first examine

the question as to  whether  there is  breach of  provisions of

Section 42(1) and Section 42(2). The breach of Section 42 has

been  found  in  two  parts.  The  first  part  is  that  there  is

difference  between  the  secret  information  recorded  in  Exh.

P-14 and Exh. P-21 and the information sent to Circle Officer,

Nohar by Exh. P-15. It is useful to refer to the findings of the

High Court in the above context, which is quoted below:

“  From the above examination, it is not found that Exh.  P-14  the  information  which  is  stated  to  be

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13 received from the informer under Section 42(2) of Act or Exh. P-21, the information given by the informer which is stated to be recorded in the Rozanamacha, copy whereof has been sent to C.O. Nohar, who was the then Senior Officer, Rather, Exh. P-15, the letter which was sent, it is not the copy of Exh. P-14, but it is the separate memo prepared of their own. From the above examination, it is not found in the present case  that  section  42  (2)  of  Act,  1985  is  complied with.”

13. What Section 42(2)  requires is  that  where an officer

takes down an information in writing under sub-Section (1) he

shall sent a copy thereof to his immediate officer senior . The

communication Exh.  P-15 which was sent  to  Circle  Officer,

Nohar was not as per the information recorded in Exh. P 14

and Exh. P 24.  Thus,  no error was committed by the High

Court in coming to the conclusion that there was breach of

Section 42(2).  

14. Another  aspect  of  non-compliance  of  Section  42(1)

proviso, which has been found by the High Court  needs to be

adverted.  Section 42 (1) indicates that any authorised officer

can carry out search between sun rise and sun set without

warrant or authorisation. The scheme indicates that in event

the search has to be made between sun set and sun rise, the

warrant  would  be  necessary  unless  officer  has  reasons  to

believe  that  a  search  warrant  or  authorisation  cannot  be

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14 obtained  without  affording  the  opportunity  for  escape  of

offender which grounds of his belief has to be recorded. In the

present case, there is no case that any ground for belief as

contemplated by proviso to sub-section (1)  of  Section 42 or

Sub-section (2)  of  Section 42  was  ever  recorded by  Station

House  Officer  who  proceeded  to  carry  on  search.  Station

House Officer  has appeared as PD-11 and in his statement

also he has not come with any case that as required by the

proviso to Sub-section (1), he recorded his grounds of belief

anywhere.  The  High  Court  after  considering  the  entire

evidence has made following observations :  

“Shishupal Singh PD-11 by whom search has been conducted, on reaching at the place of occurrence by him no reasons to believe have been recorded before conducting the search of  jeep bearing HR 24 4057 under Section 42(1), nor any reasons in regard to not obtaining  the search warrant have been recorded. He  has  also  not  stated  any  such  facts  in  his statements that he has conducted any proceedings in regard to compliance of proviso of Section 42(1). Since reasons to believe have not been recorded, therefore, under Section 42(2) it is not found on record that copy thereof  has  been  sent  to  the  senior  officials. Shishupal  Singh could  be  the  best  witness  in  this regard, who has not stated any fact in his statement regarding compliance of proviso to Section  42(1) and Section 42(2), sending of copy of reasons to believe recorded by him to his senior officials.”

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15 15. In this context, it is relevant to note that before the

Special Judge also the breach of Section 42(1) and 42(2) was

contended on behalf  of  the defence. In paragraph 12 of the

judgment  Special  Judge  noted  the  above  arguments  of

defence. However, the arguments based on non-compliance of

Section  42  (2)  were  brushed  aside  by  observing  that

discrepancy  in  Exh.  P-14  and  Exh.  P-15  is  totally  due  to

clerical  mistake and there was compliance of  Section 42(2).

Special Judge coming to compliance of proviso to Section 42(1)

held  that  vehicle  searched  was  being  used  to  transport

passengers as has been clearly sated by its owner Veera Ram,

hence,  as per the explanation to Section 43 of  the Act,  the

vehicle was  a public transport vehicle and there was no need

of any warrant or authority to search such a vehicle.  The High

Court has reversed the above findings of the Special Judge. We

thus,  proceed  to  examine  as  to  whether  Section  43  was

attracted in the present case which obviated the requirement

of Section  42(1) proviso. Section 43 of the Act is as follows:

“43.  Power  of  seizure  and  arrest  in  public place.-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

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16 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”

16. Explanation to Section 43 defines expression “public

place”  which  includes  any  public  conveyance.  The  word

“public conveyance” as used in the Act has to be understood

as a conveyance which can be used by public in general. The

Motor Vehicles Act,  1939 and thereafter  the Motor  Vehicles

Act, 1988 were enacted to regulate the law relating to motor

vehicles. The vehicles which can be used for public are public

Motor  Vehicles  for  which  necessary  permits  have  to  be

obtained. Without obtaining a permit in accordance with the

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17 Motor  Vehicles  Act,  1988,  no  vehicle  can  be  used  for

transporting passengers. In the present case, it is not the case

of the prosecution that the jeep HR-24 4057 had any permit

for transporting the passengers. The High Court has looked

into the evidence and come to the conclusion that there was

no material to indicate that there was any permit for running

the  jeep  as  public  transport  vehicle.  The  High  Court   has

further held that even Kartara Ram who as per owner of the

vehicle Veera Ram was using the vehicle, do not support that

the jeep was used as public transport vehicle. The High Court

held  that  personal  jeep  could  not  be  treated  as  public

transport  vehicle.  Following  observations  were  made  by  the

High Court:  

“Kartara Ram is produced as PD-5,who has deposed the  statement  that  Vira  Ram is  his  brother-in-law (Saala), on whose name jeep bearing No.HR 24 4057 is lying registered. He had employed Inderjit  singh as driver for that jeep. Person namely Krishan has never  been  employed  as  driver.  This  witness  has been declared hostile and he has been examined too, who does not support the prosecution case. In this manner, Viraram is the owner of the jeep. According to him he had given the jeep to Kartara Ram, but Kartara  Ram  has  not  stated  anywhere  in  is statement  that  this  jeep was given to  him and he used  the  same  as  Public  Transport  Vehicle.  Since powder of opium was caught in this jeep and even

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18 Notice  Exh.  P-6 was also  served upon him by the police,  he  with  a  view  to  save  himself,  can  also depose such statement that Kartara used to use the jeep as Public Transport Vehicle , whereas Kartara Ram  PD-5  does  not  affirm  this  fact.  Jeep  was personal,  it  is  clear on the record.  In this  manner, just on this ground that he has given the jeep to his brother-in-law  and  he  used  it  to  carry  the passengers, the personal jeep could not be treated as public transport vehicle. However, the fact that jeep is  used  to  carry  the  passengers  has  not  been affirmed  from the statements of Kartara Ram. There is  no  evidence  on  record  on  the  basis  of  which  it could be stated that jeep was public transport vehicle and they have the  permit  for  it,  rather  it  was the private vehicle and it is stated that Vira Ram himself is the owner of that vehicle”

17. There  is  nothing  to  impeach  the  aforesaid  findings.

We have  also  perused the  statement  of  Vira Ram in which

statement he has never even stated that he has any permit for

running the vehicle as transport vehicle. He has stated that

“..... I had given this jeep to Kartara Ram resident of …... who is

my relative to run it for transporting passengers” Admittedly the

jeep was intercepted and was seized by the police. In view of

the above, the jeep cannot be said to be a public conveyance

within  the  meaning  of  Explanation  to  Section  43.  Hence,

Section 43 was clearly not attracted and provisions of Section

42(1)  proviso  were  required  to  be  complied  with  and  the

aforesaid  statutory  mandatory  provisions  having  not  been

Page 19

19 complied with,  the High Court did not commit any error in

setting aside the conviction.  

18. There is one more aspect which needs to be noted. The

present is  a case where prosecution himself  has come with

case that secret information was received from informer which

information  was  recorded  in  Exh.  P-14  and  Exh.  P-21

Roznamacha and thereafter   the Station House Officer  with

police party proceeded towards the scene. The present is not a

case  where  the  Station  House  Officer  suddenly  carried  out

search  at  a  public  place.  The  Station  House  Officer  in  his

statement has also come up with the facts and case to prove

compliance  of  Section  42.  When  search  is  conducted  after

recording information under Section 42(1), the  provisions of

Section  42  has  to  be  complied  with.   This  Court  in

Directorate Of  Revenue & Another vs  Mohammed Nisar

Holia, (2008) 2 SCC 370,  had occasion to consider Sections

41,42 and 43 explanation. Following was stated in paragraph

14:

“14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that  even subjective  satisfaction on the  part  of  the authority,  as  is  required  under  sub-section  (1)  of Section 42, need not be complied with, only because the place whereat search is to be made is a public

Page 20

20 place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with. An  interpretation  which  strikes  a  balance  between the enforcement of law and protection of the valuable human right  of  an accused must  be  resorted to.  A declaration  to  the  effect  that  the  minimum requirement, namely, compliance of Section 165 of the Code of Criminal Procedure would serve the purpose may  not  suffice  as  non-compliance  of  the  said provision  would  not  render  the  search  a  nullity.  A distinction  therefor  must  be  borne  in  mind  that  a search conducted on the basis of a prior information and a case where the authority comes across a case of  commission  of  an  offence  under  the  Act accidentally or per chance………….”

19. Thus the present is not a case where Section 43 can

be  said  to  have  been  attracted,  hence,  non-compliance  of

Section  42(1)  proviso  and  Section  42(2)  had  seriously

prejudiced  the  accused.  This  Court  had  occasion  in  large

number  of  cases  to  consider  the  consequence  of  non-

compliance of provisions of Section 42(1) and 42(2), whether

the entire trial stand vitiated due to above non compliance or

conviction can be set aside. In this context reference is made

to the judgment of this Court in State of Punjab Vs. Balbir

Singh  (1994) 3 SCC 299.  In the above batch of cases, the

High Court has acquitted accused on the ground that search

was  conducted  without  conforming  to  the  provisions  of  the

NDPS Act.  Sections  41,42 43 and other  relevant  provisions

Page 21

21 came  for  consideration  before  this  Court,  referring  to  the

provisions of Chapter IV following was stated in paragraph 8:

“8.  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 Sections 41 and 42. Under  Section  42,  the  empowered  officer  even without a warrant issued as provided under Section 41 will  have the power to enter, search, seize and arrest between sunrise and sunset if he has reason to  believe  from personal  knowledge  or  information given by any other person and taken down in writing that  an  offence  under  Chapter  IV  has  been committed  or  any  document  or  other  article  which may furnish the evidence of the commission of such offence is kept or concealed in any building or in any place. Under the proviso if such officer has reason to believe that search warrant or authorisation cannot be  obtained  without  affording  opportunity  for  the concealment of the evidence or facility for the escape of the offender, he can carry out the arrest or search between sunset and sunrise also after recording the grounds of his belief. Sub-section (2) of 8 1990 Cri LJ 414 (Del)  Section 42 further  lays down that  when such officer takes down any information in writing or records grounds for this belief under the proviso, he shall forthwith send a copy thereof to his immediate official superior.”

20. After  referring  large  number  of  cases,  this  Court

recorded conclusion in paragraph 25 which is to the following

effect:

Page 22

22 “25. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows :  

(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act  makes  a  search  or  arrests  a  person  in  the normal  course  of  investigation  into  an  offence  or suspected  offences  as  provided  under  the provisions  of  CrPC  and  when  such  search  is completed at that stage Section 50 of the NDPS Act would  not  be  attracted  and  the  question  of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance  recovery  of  any  narcotic  drug  or psychotropic substance then the police officer, who is  not  empowered,  should  inform the  empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to  be  an  empowered  officer  also,  then  from  that stage  onwards,  he  should  carry  out  the investigation  in  accordance  with  the  other provisions of the NDPS Act.  

(2-A)  Under  Section  41(1)  only  an  empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such  substances  are  kept  or  concealed  in  any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried  out  would  be  illegal.  Likewise  only empowered officers or duly authorized officers as enumerated  in  Sections  41(2)  and  42(1)  can  act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.  

(2-B)  Under  Section  41(2)  only  the  empowered officer can give the authorisation to his subordinate

Page 23

23 officer to carry out the arrest of a person or search as mentioned therein.  If  there  is  a  contravention, that would affect the prosecution case and vitiate the conviction.  

(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that  offences  under  Chapter  IV  have  been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this  provision  does  not  mandate  that  he  should record his reasons of belief. But under the proviso to Section 42(1) if  such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.  

To this extent these provisions are mandatory and contravention  of  the  same  would  affect  the prosecution  case  and  vitiate  the  trial.  (3)  Under Section  42(2)  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 affects the prosecution case. 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.  

(4-A) If a police officer, even if he happens to be an "empowered"  officer  while  effecting  an  arrest  or search  during  normal  investigation  into  offences purely under the provisions of CrPC fails to strictly comply with the provisions 'of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.

Page 24

24 (4-B)  If  an  empowered  officer  or  an  authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial.  

The effect of such failure has to be borne in mind by the  courts  while  appreciating  the  evidence  in  the facts and circumstances of each case.  

(5)  On prior  information the  empowered officer  or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before  the  search  of  the  person  is  made and such  person  should  be  informed  that  if  he  so requires,  he  shall  be  produced before  a  Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to  be  searched  and  if  such  person  so  requires, failure  to  take him to  the  Gazetted Officer  or  the Magistrate,  would  amount  to  non-compliance  of Section 50 which is mandatory and thus it would affect  the  prosecution  case  and  vitiate  the  trial. After being so informed whether such person opted for such a course or not would be a question of fact.

(6) The provisions of Sections 52 and 57 which deal with  the  steps  to  be  taken  by  the  officers  after making arrest  or  seizure under Sections 41 to 44 are  by  themselves  not  mandatory.  If  there  is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case.”

Page 25

25 21. A  three  Judges  Bench  in   Saiyad  Mohd.  Saiyad

Umar Saiyed & others vs. The State Of Gujarat (supra)

after elaborate consideration of provisions of the NDPS  Act

including section 50 had endorsed the judgment of this court

in Balbir Singh's case (supra).  

22. A Constitution Bench of this Court in State of Punjab

Vs.  Baldev  Singh, (1999)  6  SCC  172,   had  occasion  to

consider the provisions of  the NDPS Act and several  earlier

judgments of this Court. The Constitution Bench noticed that

the  earlier  judgments  in  Balbir  Singh's case  has  found

approval  by  three  Judges  Bench in  Saiyad Mohd.  Saiyad

Umar Saiyed & others vs. The State Of Gujarat  (supra)

and a discordant  note  was struck by two Judges Bench in

State of Himachal Pradesh Vs. Pirthi Chand and another,

(1996) 2 SCC 37.  The Constitution Bench approved the view

of this Court in Balbir Singh's case that there is an obligation

on authorised officer under section 50 to inform the suspect

that  he  has  right  to  be  informed  in  the  presence  of  the

Gazetted  Officer.  It  was  held  by  Constitution  Bench that  if

search is conducted in violation of Section 50 it may not vitiate

the trial but that would render the recovery of illicit articles

Page 26

26 suspect  and  vitiates  the  conviction  and  sentence  of  the

accused. What is said about non-compliance of Section 50 is

also true with regard to non-compliance of Section 42 of the

Act.  

23. In  Beckodan Abdul Rahiman vs State Of Kerala,

2002 (4) SCC 229,  this Court had occasion to consider both

Section 42 and Section 50. In the above case there was non

compliance of Section 42 (2) as well as Section 50. It was also

noticed  that  a  Constitution  Bench in  State  of  Punjab  Vs.

Baldev Singh (supra) has already laid down that provisions of

Section 42 and 50 are mandatory and their non-compliance

would render the investigation illegal. Following was held in

paragraphs 5 and 6:

“5.In  this  case  the  violation  of  the  mandatory provisions  is  writ  large  as  is  evident  from  the statement  of  K.R.  Premchandran  (PW1).  After recording the information, the witnesses is not shown to have complied with the mandate of sub-section (2) of Section 42 of the Act.  Similarly the provisions of Section  50  have  not  been  complied  with  as  the accused has not been given any option as to whether he wanted to be searched in presence of a Gazetted Officer or Magistrate.

6.We are of  the firm opinion that  the provisions of sub-section  (2)  of  Section  42  and  the  mandate  of Section 50 were not complied with by the prosecution

Page 27

27 which rendered the case as not established. In view of  the  violation of  the  mandatory  provisions of  the Act, the appellant was entitled to be acquitted….”

24. It is also relevant to note another Constitution Bench

judgment  of  this  Court  in  Karnail  Singh  Vs.  State  of

Haryana,  2009 (8)  SCC 539, where  this  Court  had  again

occasion to consider the provisions of Sections 42 and 50. The

Constitution  Bench  noted  the  divergence  of  opinion  in  two

earlier cases which has resulted in placing the matter before

the larger Bench. The question was noticed in paragraphs 1

and 2 of the judgment which are to the following effect:

“1)  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  (hereinafter  referred  to  as  "NDPS  Act")  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.  

2) 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, these appeals were placed before the Constitution Bench to resolve the issue.

Page 28

28 3) The statement of objects and reasons of the NDPS Act makes  it  clear  that  to  make the  scheme of  penalties sufficiently  deterrent  to  meet  the  challenge  of  well organized  gangs  of  smugglers,  and  to  provide  the officers of a number of important Central enforcement agencies  like  Narcotics,  Customs,  Central  Excise,  etc. with the power of investigation of offences with regard to new drugs of addiction which have come to be known as psychotropic substances posing serious problems to national  governments,  this  comprehensive  law  was enacted by Parliament enabling exercise of control over”

25. After  referring  to  the  earlier  judgments,  the

Constitution  Bench  came  to  the  conclusion  that

non-compliance  of  requirement  of  Sections  42  and  50  is

impermissible  whereas  delayed  compliance  with  satisfactory

explanation will be acceptable compliance of Section 42.  The

Constitution  Bench  noted  the  effect  of  the  aforesaid  two

decisions  in  paragraph 5.  The present  is  not  a  case  where

insofar  as  compliance  of  Section  42(1)  proviso  even  an

arguments based on substantial compliance is raised  there is

total  non-compliance of  Section  42(1)  proviso.  As observed

above,  Section  43  being  not  attracted  search  was  to  be

conducted after  complying the provisions of  Section 42.  We

thus, conclude that the High Court has rightly held that non

compliance of Section 42(1) and Section 42(2) were proved on

Page 29

29 the record and the High Court has not committed any error in

setting aside the conviction order.  

26. In  view  of  what  has  been  stated  above,  it  is  not

necessary for us to enter into the other reasons given by the

High Court  for  setting aside the conviction order.  The High

Court has given the sufficient reasons and grounds for setting

aside  the  conviction  order  in  which  we  do  not  find  any

infirmity so as to interfere in this appeal.

27. In the result the appeal is dismissed.  

………………………………….J. ( ABHAY MANOHAR SAPRE )

………………………………….J.                                                ( ASHOK BHUSHAN )

NEW DELHI, JUNE 29, 2016.