REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 164 OF 2002

Hamidhbai Azambhai Malik  ..Appellant

Versus

State of Gujarat ..Respondent  

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.  Challenge in this appeal is to the judgment of the Division Bench of

the  Gujarat  High  Court  upholding  the  conviction  of  the  appellant  for

offence  punishable  under  Section  20  (b)(ii)  of  the  Narcotic  Drugs  and

Psychotropic Substances Act, 1985 (in short the “NDPS Act”).  The learned

Additional  Sessions  Judge,  Bharuch  had  found  him  guilty  under  the

aforesaid provision for having committed the offence under Section 8(c) of

the NDPS Act.  Minimum sentence of 10 years’ rigorous imprisonment and

a fine of Rs.1,00,000/- with default stipulation was imposed.

2. The appellant, who is the original accused in Sessions Case No. 84 of

1996, was charged for having committed offence punishable under Section

20(b) (ii) of the NDPS Act, on the basis of a complaint lodged by one PSI

KD  Pandya,  LCB  Branch,  Aharuch  District,  Complainant  in  Course  of

investigation of one snottier offence, registered vide CR No, II 135 of 1995,

under  the  NDPS act,  came to  know that  accused  is  also  possessing  and

selling the contraband articles at his residence. Upon such information he

and other Officers started for raid.

3. Initially, he informed about having received such information to the

higher officers, namely D.S.P. and Circle Inspector of Bharuch District, by

writing  a  report  in  a  sealed  envelope,  and  sent  it  through  one  Police

Constable.

4. On the basis of the said report, entry came to be recorded in Jambusar

Police Station Diary at SL. No.17 of 1995 at about 2.30 P.M., the raid was

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effected  on  15.  12.1995  after  calling  panchas  and  other  officers  and  a

photographer, and after undertaking other exercise required under law.

5. The raiding party led by Mr. Pundya, PSI, went to the residence of

accused,  bearing  Bharuch  Municipal  House  No,  3132.  The  door  of  the

house was open, and one person standing there was questioned, who replied

that  his  name  was  Hamidbhai  Azambhai  Malik,  the  accused  and  the

appellant before us. After introducing himself, he prepared a memorandum,

to the effect as to whether, accused would like his house to be searched in

presence  of  an  Executive  Magistrate  or  a  Gazetted  Officer,  to  which,

accused  replied  in  the  nagative.  Since,  accused had no  objection,  before

starting  search,  PSI  Pandya,  took  the  signature  of  the  accused  on  the

memorandum, produced at Exh. 29.

6. Thereafter,  the house  was searched in  presence  of- Panchas,  and a

ladies  purse  containing  17  closed  plastic  small  bags  were  found  out,

containing small tablets. Out of 17, the 16 small plastic bags contained the

same  weight.  Plastic  bags  were  opened  and  verified  and  weighed  in

presence of panchas, photographs were taken and again they were placed in

the plastic bags. It was apprehended that on account of the unpleasant odour

and smell, it seemed to be contraband articles like 'Charas'. The necessary

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procedure for seizure was undertaken and after the procedure was followed,

the seal of LCB Branch, Bharuch was applied on the cover. The total weight

of  the  contraband  articles,  like  charas  came  to  4,900  mgs.  The  sealed

mudammal  contraband  articles  charas  thereafter  was  forwarded  to  the

Director of Forensic Science Laboratory, for examination and report, who

upon  examination  reported,  it  to  be  falling  within  the  prohibited  and

contraband article under the NDPS Act i.e.  ‘Charas’.  The FSL authority

had, also, verified the seal and it tallied with the forwarding letter and the

item sent. Upon the basis of the report, the accused came to be charged as

stated above.

7. In support of the prosecution case, the prosecution placed reliance on

as  many  as  nine  prosecution  witnesses  and  also  on  21  documents.  The

defence of the accused was of total denial. No defence evidence  was led.

Upon  the  analysis  and  appraisal  of  the  evidence  of  the  prosecution,  the

learned Addl. Sessions Judge found accused guilty for having committed an

offence  punishable  under  Section  20(b)  (ii)  of  the  NDPS Act,  and  after

hearing on the quantum of sentence, awarded minimum sentence prescribed

i.e.  10 years rigorous imprisonment and a minimum fine of Rs.1,00,000/-

and in default, to undergo further simple imprisonment of one year more.  

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8. The accused preferred  an  appeal  before  the high  Court  which  was

dismissed as aforestated.  Primary stand was that the officer who conducted

the search was not authorized and was not an empowered officer.  It was

pleaded that there was non-compliance with the requirement of Section 42

(2) of the Act.

9. Learned counsel for the respondent-State on the other hand supported

the judgment of the trial court and affirmed by the High Court.

10. Before dealing with the factual aspect certain observations made by

this Court in State of Punjab v. Baldev Singh [1999(6) SCC 172] need to be

noted:

 “9.Sub-section  (1)  of  Section  42  lays  down  that  the empowered officer,  if has a prior information given by any person, he should necessarily take it down in writing and where  he  has  reason  to  believe  from his  personal knowledge  that  offences  under  Chapter  IV  have  been committed or that 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  he may do so without recording his reasons of belief. 10.The proviso to sub-section (1) lays down that if the empowered  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. Vide sub-section (2) of Section 42, the empowered officer  who takes  down information in writing  or  records  the grounds  of  his  belief  under  the proviso to sub-section (1), shall forthwith send a copy of

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the same to his immediate official  superior. Section 43 deals with the power of seizure and arrest of the suspect in  a  public  place.  The material  difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard  to  the  commission  of  an  offence  before conducting  search  and  seizure,  Section  43  does  not contain  any  such  provision  and  as  such  while  acting under Section 43 of the Act, the empowered officer has the power of  seizure of  the article etc.  and arrest  of  a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.

17.The  trial  court  in  those  cases  had  acquitted  the accused on the ground that the arrest, search and seizure were conducted in violation of some of the “relevant and mandatory” provisions of the NDPS Act. The High Court declined to  grant  appeal  against  the  order  of  acquittal. The State of Punjab thereupon filed appeals  by special leave  in  this  Court.  In  some  other  cases,  where  the accused had been convicted, they also filed appeals by special leave questioning their conviction and sentence on  the  ground  that  their  trials  were illegal  because  of non-compliance  with  the  safeguards  provided  under Section  50  of  the  NDPS  Act.  A  two-Judge  Bench speaking  through  K. Jayachandra  Reddy,  J.  considered several  provisions  of  the  NDPS Act  governing  arrest, search and seizure and,  in particular,  the provisions of Sections  41,  42,  43,  44,  49,  50,  51,  52  and  57 of  the NDPS  Act  as  well  as  the  provisions  of  the  Code  of Criminal  Procedure  relating  to  search  and  seizure effected during investigation of a criminal case. Dealing with Section 50, it was held that in the context in which the  right  had  been  conferred,  it  must  naturally  be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires he shall be searched before a gazetted officer or Magistrate and on such request being made by him, to be taken before the gazetted officer or Magistrate for further proceedings. The reasoning given in Balbir Singh case1 was  that  to  afford  an  opportunity  to  the  person  to  be searched  “if  he  so  requires  to  be  searched  before  a gazetted officer or a Magistrate” he must be made aware of  that  right  and  that  could  be  done  only  by  the empowered officer by informing him of the existence of that  right.  The  Court  went  on  to  hold  that  failure  to inform the person to be searched of that right and if he so requires, failure to take him to the gazetted officer or the

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Magistrate,  would  mean  non-compliance  with  the provisions of Section 50 which in turn would “affect the prosecution  case  and  vitiate  the  trial”.  The  following conclusions were arrived at by the two-Judge Bench in State  of  Punjab v.  Balbir  Singh [  1994  (3)  SCC 299] (SCC pp. 320-22, para 25)

“25.  The  questions  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

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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 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

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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.

(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.”   

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23. In Mohinder Kumar v.  State, Panaji, Goa [(1998) 8 SCC  655]  a  three-Judge  Bench  (to  which  one  of  us, Sujata  V.  Manohar,  J.,  was  a  party)  once  again considered the requirements of Sections 42 and 50 of the Act. In that case the police officer “accidentally” reached the house while on patrol duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party, he would perhaps not have  had  any  occasion  to  enter  the  house  and  effect search.  But  when  the  conduct  of  the  accused  persons raised a suspicion, he went into the house and effected the  search,  seized  the  illicit  material  and  caused  the arrest.  The  Court  opined  that  in  the  facts  and circumstances of the case, when the investigating officer accidentally  stumbled  upon  the  offending  articles  and himself  not  being  the  empowered  officer,  then  on coming  to  know  that  the  accused  persons  were  in possession  of  illicit  articles,  then  from  that  stage onwards he was under an obligation to proceed further in the matter only in accordance with the provisions of the Act. On facts it was found that the investigating officer did not record the grounds of his belief at any stage of the  investigation,  subsequent  to  his  realising  that  the accused persons were in possession of charas and since he had made no record, he did not forward a copy of the grounds to his superior officer nor did he comply with the provisions of Section 50 of the Act, inasmuch as he did  not  inform  the  person  to  be  searched  that  if  he required, his search could be conducted before a gazetted officer or a Magistrate. The Bench held that for failure to comply with the provisions of Sections 42 and 50,  the accused  was  entitled  to  an  order  of  acquittal  and consequently  the  appeal  was  allowed and  the  order  of conviction  and  sentence  against  the  accused  was  set aside.”

11. Coming to the factual background it has to be noted as follows:

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The search was made by the raiding party at about 4.30 P.M. on

15. 12.1995. Section 42 will be invocable only if the search is made

by  the  police  officer  or  the  concerned  authority,  upon  the  prior

information.  If  such a  person  has  reason  to  believe  from personal

knowledge or information given by any person and obliged to take

down in  writing as such the information about the  accused having

possessed of and dealing with contraband article like 'charas' came to

be appraised of by the concerned PSI Mr. K,D,Pandya, LCB Branch

of Bharuch  Police  Station,  in  course  of  his  investigation  of  an

offence, registered vide CR No.II-135 of 1995. Therefore, it is settled

proposition  of  law  when  such  an  information  or  intimation  or

knowledge comes to the notice of the Investigating officer in course

of the regular patrolling or an investigation of some other offence, it

is not necessary to follow in all cases the conditions incorporated in

Section 42.

12. However, it may also be noted that by way of abundant precaution,

the PSI Mr. Pandya though he was investigating the offence registered with

CR No. 135 of 1995 under the NDPS Act, upon receipt of an intimation or

information about the present offence, also noted down such an information

taken down in writing, which is produced at Exh. 30, and such information

was  transmitted  through a  messenger  immediately  to  the  higher  officers.

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Not only that  this part  of the procedure, by way of abundant precaution,

exercised  and  followed  by  the  PSI,  is  also  manifestly  recorded  in  the

complaint at Exh.32.

13. Additionally, the question as to whether the officer who conducted

the proceedings was empowered officer or not was not raised before the trial

court and the High Court and, therefore, that plea cannot be entertained.

14. The appeal is without merit, deserves dismissal which we direct.

…………………………………..J. (Dr. ARIJIT PASAYAT)

…………………………………..J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, January 12, 2009

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