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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO 36 OF 2006

State of Rajasthan ... Appellant

Versus

Bheru Lal         ...Respondent

J U D G M E N T

Dipak Misra, J.

The present appeal is directed against the judgment  

of acquittal dated 9.4.2004 passed by the learned single  

Judge of the High Court of Judicature of Rajasthan in S.B.  

Criminal Appeal No. 659 of 2002 whereby he has reversed  

the judgment of conviction and order of sentence passed  

by the learned Special Judge, NDPS cases, Chittorgarh on  

7.8.2002  and  acquitted  the  respondent  of  the  offences  

punishable under Sections 8/18 of the Narcotic Drugs and  

Psychotropic Substances Act, 1985 (for short “the Act”).

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2. The  broad  essential  facts  leading  to  trial  of  the  

respondent are that on 4.4.2001 about 5.45 p.m. Parveen  

Vyas,  temporary  in-charge  S.H.O.,  Police  Station  

Chittorgarh, received information from a reliable informer  

that the respondent would come with illegal opium on his  

Hero Honda Motor Cycle No. 5902 from Phkhliya towards  

Chittorgarh  and  would  sell  it  to  some  person.   The  

information was entered into Daily Diary at report No. 146  

and  dispatched  to  higher  officers  through  Constable  

Davender  Singh.   Thereafter,  Parveen  Vyas,  along  with  

other police officials and independent witnesses, namely,  

Abdul Kareem and Haider Ali laid a trap at Sarhad Kheri  

Road and when the respondent came to the spot with a  

plastic  bag,  he  was  informed  about  his  right  to  be  

searched  by  a  gazetted  officer  or  a  Magistrate  and,  

thereafter,  after  proper  search  two  polythene  bags  

containing  3  Kgs.  opium  in  each  bag  were  seized.  

Following  due  procedure,  the  samples  were  sent  for  

chemical analysis and, after completing the investigation,  

charge-sheet  was  placed  for  the  offences  punishable  

under Sections 8/18 of the Act.

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3. The  accused  denied  the  charges,  pleaded  false  

implication and claimed to be tried.

4. The  prosecution  to  bring  home  the  charges  

examined Abdul Raheem, PW-1, Parveen Vyas, PW-2, Rais  

Mohammad, PW-3, Narayan, PW-4, Madan Lal, PW-5, Arjun  

Lal,  PW-6, Mithu Lal,  PW-7, RodSingh, PW-8, Rameshwar  

Prasad, PW-9, Davender Singh, PW-10, and Kailash, PW-

11.  The accused examined Bheru Lal, DW-1, and Shanti  

Lal, DW-2.

5. The  learned  trial  Judge,  analyzing  the  evidence  

and other material brought on record, and considering the  

contentions  raised  by  the  learned  counsel  for  the  

prosecution and defence, found the accused guilty of the  

offence  punishable  under  Sections  8/18  of  the  Act  and  

sentenced the accused to undergo rigorous imprisonment  

for ten years and to pay a fine of rupees one lakh and in  

default  of  payment  of  fine,  to  suffer  further  rigorous  

imprisonment for one year.

6. Challenging the conviction and sentence an appeal  

was preferred by the respondent before the High Court.  

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The  principal  contention  that  was  raised  in  appeal  was  

that Parveen Vyas was not authorised under Section 42 of  

the Act to search, seize or arrest a person and hence, the  

whole trial was ab initio void.  The High Court, scanning  

the statutory provision and the notification issued by the  

Government, came to hold that Parveen Vyas was not the  

Station  House  Officer  of  Police  Station,  Chittorgarh,  as  

Rameshwar Prasad was the only Station House Officer and  

hence, Parveen Vyas did not have the authority to conduct  

any search, seizure and arrest and, therefore, the whole  

trial was vitiated.  Being of this view, the learned single  

Judge dislodged the judgment of conviction and acquitted  

the accused.

7. We  have  heard  Dr.  Manish  Singhvi,  learned  

Additional  Advocate  General  for  the State  of  Rajasthan,  

and Mr. Atul Agarwal, learned counsel appearing for the  

respondent.  It is submitted by Dr. Manish Singhvi that the  

High  Court  has  failed  to  appreciate  the  language  

employed in the Section 42 of the Act and the notification  

issued  by  the  State  of  Rajasthan  in  that  behalf  as  a  

consequence of which the ultimate conclusion of the High  

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Court has become wholly unsustainable.   It  is  urged by  

him that Rameshwar Prasad, Station House Officer of the  

police station, had gone out of police station and handed  

over the charge to Parveen Vyas,  Sub-Inspector and he  

had  conducted  the  search  and  seizure  and,  therefore,  

there has been substantial compliance of the provision in  

view of the Constitution Bench decision in Karnail Singh  

v. State of Haryana1.

8. Mr.  Atul  Agarwal,  learned  counsel  for  the  

respondent,  would  submit  that  the  High  Court  has  

correctly  interpreted  the  provision  and  as  per  the  

notification only those Sub Inspectors of Police who are  

posted as Station House Officers are authorised to carry  

out the search and seizure and Praveen Vyas, not being  

the permanent S.H.O. could not have carry out the search  

and seizure, and hence, the judgment of acquittal cannot  

be flawed.  

9. To appreciate the rival submissions raised at the  

Bar, it is necessary to refer to the ununamended Section  

42 of the Act as the said provision was applicable at the  

1 (2009) 8 SCC 539

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relevant time.  The original Section 42 of the Act has been  

substituted by Act 9 of 2001 with effect from 2.10.2001.  

Prior to the amendment Section 42 read as follows: -

“42.  Power of  entry,  search,  seizure and  arrest without warrant or authorization. –  (1) Any such officer (being an officer superior in  rank  to  a  peon,  sepoy  or  constable)  of  the  departments  of  central  excise,  narcotics,  customs,  revenue  intelligence  or  any  other  department of the Central Government or of the  Border Security Force as is empowered in this  behalf by general or special order by the Central  Government,  or  any  such  officer  (being  an  officer  superior  in  rank  to  a  peon,  sepoy  or  constable) of the revenue, drugs control, excise,  police  or  any  other  department  of  a  State  Government as is empowered in this behalf by  general  or  special  order  of  the  State  Government,  if  he has reason to believe from  personal knowledge or information given by any  person  and  taken  down  in  writing,  that  any  narcotic  drug,  or  psychotropic  substance,  in  respect  of  which an offence punishable under  Chapter  IV  has  been  committed  or  any  document  or  other  article  which  may  furnish  evidence of the commission of such offence 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  

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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  Chapter  IV  relating  to  such drug or substance; 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  Chapter  IV  relating  to  such drug or substance:

Provided that if such officer has reason to  believe that a search warrant or  authorization  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 sun set and  sun  rise  after  recording  the  grounds  of  his  belief.

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

10. In pursuance of the aforesaid Section the State of  

Rajasthan had issued a notification No. F.1(3) FD/Ex/85-1  

dated 16.10.1986, which reads as follows: -

“S.O. 115. In exercise of the powers conferred  by  Section  42  of  the  Narcotic  Drugs  and  Psychotropic  Substances  Act,  1985  the  State  Government hereby authorise all  Inspectors of  Police, and Sub Inspectors of Police posted as  Station House Officers, to exercise the powers  

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mentioned in  Section  42 of  the  said  Act  with  immediate effect:

Provided that when power is exercised by Police  Officer other than Police Inspector of the area  concerned such officer shall immediately hand  over the person arrested and articles seized to  the  concerned Police  Inspector  or  SHO of  the  Police Station concerned.”

11. On  a  perusal  of  the  aforesaid  notification  it  is  

manifest  that  the  Sub  Inspectors  of  Police,  posted  as  

Station House Officers,  were authorised by the State of  

Rajasthan to exercise the powers enumerated in Section  

42 of the Act.  There is cogent and reliable evidence on  

record that Rameshwar Prasad had left the police station  

for  certain  length  of  time and at  that  juncture,  he  had  

given charge of the Station House Officer to Parveen Vyas,  

PW-2.  The learned single Judge has accepted that he was  

handed  over  temporary  charge  of  the  Station  House  

Officer  by  Rameshwar  Prasad,  PW-9.   However,  he  had  

taken note of the fact that he was not posted as Station  

House Officer at the police station and by the time the  

search  and  seizure  had  taken  place  about  8.00  p.m.,  

Rameshwar  Prasad  had  already  returned  to  the  police  

station.  As far as the timing is concerned, we are not at  

all impressed as there are circumstances to negative such  

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a conclusion.   However,  as  far  as  charge is  concerned,  

there  is  no  difficulty  in  holding  that  he  was  in-charge  

Station  House Officer.   The question  that  emanates  for  

consideration  is  whether  he  could  have  carried  out  the  

search, seizure and arrest or there has been violation of  

the requirements as contained in Section 42 of the Act by  

which the whole trial becomes ab initio void.

12. In  Karnail Singh (supra) the Constitution Bench  

was required to resolve the conflicting opinions expressed  

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  larger  Bench  

analysed the ratio laid down in  Abdul Rashid Ibrahim  

Mansuri  v.  State of Gujarat2 and  Sajan Abraham  v.  

State of Karala3 and opined that Abdul Rashid did not  

require  literal  compliance  with  the  requirements  of  

Sections  42(1)  and  42(2)  and  similarly  in  Sajay  

Abraham’s case  it  was  not  held  that  requirements  of  

Sections 42(1) and 42(2) need not be fulfilled at all.  The  

2 (2000) 2 SCC 513 3 (2001) 6 SCC 692

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Constitution Bench in paragraph 34 of the report observed  

as follows: -

“34. 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  policymakers  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  authorised  officials  in  the  Act  if  the  emergency  of  the  situation  so  requires.  As  a  result, if the statutory provision under Sections  41(2) and 42(2) of the Act of writing down the  information  is  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  a  discretionary  measure  which should check the misuse of the Act rather  than providing an escape to the hardened drug  peddlers.”

13. After so observing, the Constitution Bench stated  

in  seriatim  the  effect  of  the  two  earlier  decisions.  

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Paragraph 35(d), being relevant for the present purpose,  

is reproduced below: -

“(d)  While  total  non-compliance  with  requirements  of  sub-sections  (1)  and  (2)  of  Section  42  is  impermissible,  delayed  compliance with satisfactory explanation about  the  delay  will  be  acceptable  compliance  with  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  of  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 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.”

14. Though  the  principle  was  stated  in  a  different  

context,  yet  the  dictum  laid  down  therein  is  clear  as  

crystal  that  there  cannot  be  literal  interpretation  of  

Section 42(1) of the Act.  The provision employs the words  

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“empowered in this behalf by general or special order of  

the State Government.” The notification has stated “any  

Sub Inspector posted as Station House Officer”.  The High  

Court has acquitted the respondent solely on the ground  

that Rameshwar Prasad was posted as the Station House  

Officer and not Parveen Vyas, who conducted the search,  

seizure  and  arrest.   It  is  the  accepted  position  that  

Parveen Vyas, PW-2, was given temporary charge of the  

Station House Officer at the relevant time.  He received  

information from the reliable source.   He complied with  

the other necessary requirements and proceeded to the  

spot to trap the accused.  Any delay would have allowed  

the  accused  to  escape.   As  per  the  notification  a  Sub  

Inspector of Police can be posted as Station House Officer  

and  at  the  relevant  time  PW-2  was  in-charge  Station  

House  Officer.   There  is  no  justification  to  place  

unnecessary importance on the term “posted”.  He was, in  

fact, in-charge of the post of Station House Officer at that  

juncture.   In  our  considered  view,  such  a  literal  and  

technical approach would defeat the principle laid down  

by  the  Constitution  Bench  in  Karnail  Singh’s case.  

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Therefore, the search,  seizure and arrest carried out by  

him would not  make the trial  ab initio  void.   Thus,  the  

irresistible conclusion is that the High Court has fallen into  

grave error by opining that Section 42(1) of the Act was  

not complied with as the entire exercise was carried out  

by an officer who was not authorised.

15. In  view  of  the  aforesaid  analysis,  the  appeal  is  

allowed,  the  judgment  passed by  the  High Court  is  set  

aside  and  the  judgment  rendered  by  the  learned  trial  

Judge is restored.  The learned trial Judge is directed to  

take steps  for  arrest  of  the  respondent  so  that  he  can  

undergo rest of the sentence.

…………………………….J.    [Dr. B.S. Chauhan]

….………………………….J.                                            [Dipak Misra]

New Delhi; May 28, 2013.

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