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CASE NO.: Appeal (crl.)  433 of 2002

PETITIONER: State, NCT of Delhi

RESPONDENT: Malvinder Singh

DATE OF JUDGMENT: 21/06/2007

BENCH: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment of a learned  Single Judge of Delhi High Court directing acquittal of the  respondent (hereinafter referred to as the ’Accused’). Learned  Session Judge, Delhi in Sessions Case No. 698 of 1991 found  the accused guilty of the offence punishable under Section 17  of the Narcotic  Drugs and Psychotropic Substances Act, 1995  (in short the ’Act’) and sentenced him to undergo rigorous  imprisonment for ten years with a fine of Rs.1,00,000/- with  default stipulation.

2.      Background facts in a nutshell are as follows:

On 20th February, 1990 Pran Nath, Sub Inspector of  Special staff, north District, was on patrolling duty along with  Ramesh Kumar, Assistant Sub-Inspector, Puran Chand, Head  Constable; Raghbir Singh, Head Constable; Ved Parkash Head  Constable and other constables.  At about 7 a.m., near the  petrol pump at Mall Road situated within the bounds of Police  Station, Timarpur, a police Informer gave information to Pran  Nath, Sub Inspector of the accused’s possession of opium.   Consequently, a raiding party was organized. Jeet Lal, public  witness was also joined in the raiding party besides the above  mentioned cops. Thereafter, the members of the raiding party  lay waiting at the Ring Road crossing, Timarpur. At about 7.45  a.m. scooter No. DIA 819 was spotted by the members of the  raiding party. It was observed that Malvinder Singh (accused)  was plying the said scooter and accused Om Parkash @ Lalla  @ Gupta was sitting on its pillion seat. At the instance of the  informer the scooter was stopped. Pran Nath, Sub Inspector  acquainted the accused with the contents of the information  and with the fact that if the accused so desired, they could be  produced before an Officer (Gazetted) for conducting their  search. The accused reeled off their refusal to the said  proposal and made clean breast of the charge that they were  having opium. However, Pran Nath sent information to  Ramesh Chand Saini, the then S.H.O. of Police Station  Timarpur and H.M. Meena, A.C.P. and called them to the spot.  After some time ACP Shri Meena and SHO Shri Saini arrived  at the spot one after the other. Both of verified the facts on the  spot. Thereafter, they directed the Investigating Officer to  conduct the search. The search of Om Parkash accused  resulted in recovery of opium weighing 800 gms. which had  been wrapped in a newspaper and kept in between chest, shirt  and sweater of Om Parkash. Malvinder accused produced the

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key of the scooter. He brought out the same from the lock of  the head of the scooter. Opium weighing 700 gms., wrapped in  green polythene paper was recovered from dicky of the above  said scooter. Two samples weighing 50 grams each were  separated from the above said opium weighing 800 grams and  700 grams. Both the samples and the remaining two parcels of  the opium were separately packed and sealed with the seals  bearing the initials of RKV belonging to Ramesh Kumar Vohra  ASI and RCS belonging to the SHO. CFSL form was filled in  and both the seals were affixed thereon. The seal of RKV was  entrusted with Jeet Lal, public witness, but the SHO retained  his seal with him. SHO carried the case property and CFSL  form to the police station and deposited the same with the  Moharar Malkhana. The case property recovered from the  possession of Om Prakash was seized vide recovery memo Ex.  PW 1/B, Malvinder’s case property, scooter, keys were seized  vide recovery memo Ex. PW1/A. Kuldip Singh constable took  the ruqqa Ex. PW 6/A to the police station and Kedar Nath  Singh, Head Constable registered the instant case. Report of  CFSL Ex. 7/B depicted the percentage of Morphine in the  samples as 5.5 and 4.8. approximately.  The Public Analyst  came to the conclusion that the samples had given positive  tests for opium.  The accused were thus arrested and charged  under Section 17 of the N.D.P.S. Act.

3.      After investigation, charge sheet was filed. Accused  pleaded innocence. Appellant also pleaded that on account of  animosity with the Head Constable Chandrika Parshad, he  was falsely implicated.  The trial court found the evidence to  be cogent and credible and convicted both the accused  persons i.e. Om Prakash and the present respondent.  Respondent preferred an appeal before the High Court and  questioned the conviction primarily on the ground that there  was non compliance of the requirements of Section 42 of the  Act.  The High Court accepted the plea that the secret  information received was not reduced into writing and was  also not sent to the higher officer. In the absence of any  evidence in this effect it was held that there was non  compliance of the mandatory requirements of Section 42 of the  Act.  Accordingly the conviction was set aside and acquittal  was directed. 4.      In support of the appeal learned counsel for the appellant  submitted that the High Court had erroneously concluded that  this was a case to which Section 42 has application.   Undisputedly, the police officer while on patrol duty, received  secret information and had organized the raid party.  The ACP  was also informed and he was a party of the raid party and,   therefore, Section 42 has no application.  In any case there  was no requirement to send any information which in fact had  been done. It was for the accused to call for the record relating  to the information given to the superior officer.  In any event,  this is a case which is not only covered by Section 43 IPC but  also covered by Section 41 IPC.

5.      Learned counsel for the accused supported the order of  the High Court.   

6.      At this juncture it would be relevant to take note of what  has been stated by this Court in T. Thomson v. State of Kerala  and Another [2002 (9) SCC 618]. At para 5 it was observed as  follows:         "5.     Learned Senior Counsel further  argued that the record alleged to have been  prepared by PW 1 on getting information  regarding the movement of the appellants has

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not been produced in court.  But he conceded  that no motion was made on behalf of the  appellants to call for the said record.  There is  no statutory requirement that such a record  should be produced in the court as a matter of  course.  We are, therefore, not disposed to  upset the finding on that score either."

7.      It appears that no effort was made by the accused to call  for the records of information, if any, sent. The further  question is whether in a case of this nature while the police  officer on patrol duty stops the vehicle in transit in a public  place and conducts search and seizure, Section 42 has no  application.

8.      In State of Haryana v. Jarnail Singh and Others [2004(5)  SCC 188], it was held as follows: "The next question is whether Section 42 of the  NDPS Act applies to the facts of this case. In  our view Section 42 of the NDPS Act has no  application to the facts of this case. Section 42  authorises an officer of the departments  enumerated therein, who are duly empowered  in this behalf, to enter into and search any  such building, conveyance or place, 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 etc. is kept or  concealed in any building, conveyance or  enclosed place. This power can be exercised  freely between sunrise and sunset but between  sunset and sunrise if such an officer proposes  to enter and search such building, conveyance  or enclosed place, he must record the grounds  for his belief 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.  Section 43 of the NDPS Act provides that any  officer of any of the departments mentioned in  Section 42 may seize in any public place or in  transit any narcotic drug or psychotropic  substance etc. in respect of which he has  reason to believe that an offence punishable  under the Act has been committed. He is also  authorized to detain and search any person  whom he has reason to believe to have  committed an offence punishable under the  Act. Explanation to Section 43 lays down that  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. Sections 42 and 43, therefore, contemplate two  different situations. Section 42 contemplates  entry into and search of any building,  conveyance or enclosed place, while Section 43  contemplates a seizure made in any public  place or in transit. If seizure is made under  Section 42 between sunset and sunrise, the  requirement of the proviso thereto has to be

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complied with. There is no such proviso in  Section 43 of the Act and, therefore, it is  obvious that if a public conveyance is searched  in a public place, the officer making the search  is not required to record his satisfaction as  contemplated by the proviso to Section 42 of  the NDPS Act for searching the vehicle  between sunset and the sunrise. In the instant case there is no dispute that the  tanker was moving on the public highway  when it was stopped and searched. Section 43  therefore clearly applied to the facts of this  case. Such being the factual position there was  no requirement of the officer conducting the  search to record the grounds of his belief as  contemplated by the proviso to Section 42.  Moreover it cannot be lost sight of that the  Superintendent of Police was also a member of  the searching party. It has been held by this  Court in M. Prabhulal vs. Assistant Director,  Directorate of Revenue Intelligence  [2003 (8)  SCC 449] that where a search is conducted by  a gazetted officer himself acting under Section  41 of the NDPS Act, it was not necessary to  comply with the requirement of Section 42. For  this reason also, in the facts of this case, it  was not necessary to comply with the  requirement of the proviso to Section 42 of the  NDPS Act."

9.      Above being the position of law as stated above, the order  of the High Court is clearly unsustainable.    Section 42 has no application to the facts of the case.  The  order of the High Court is set aside and that of the trial court  is restored.  Respondent accused shall surrender forthwith to  custody to serve remainder of sentence.

10.     Appeal is allowed.