REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. _________OF 2009 [Arising out of Special Leave Petition (Criminal) No. 7722 of 2008]

SARJU @ RAMU     … APPELLANT

VERSUS

STATE OF U.P.    … RESPONDENT

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. This appeal by special leave arises out of a judgment and order dated  

30th January 2008 passed by a learned single judge of the High Court of  

Judicature at Allahabad, Lucknow Bench, Lucknow in Criminal Appeal No.  

491  of  1991  whereby  and  whereunder  the  judgment  of  conviction  and  

sentence  dated  4th September  1991 passed  by  the  V Additional  Sessions

Judge,  Barabanki  in  Sessions  Trial  Nos.  393  of  1989  and  395  of  1989  

convicting  the  appellant  for  commission  of  an  offence  punishable  under  

Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985  

(for short, “NDPS Act”) and sentencing him to undergo 10 years’ rigorous  

imprisonment as also the fine of Rs.1 lakh, and in default, to undergo one  

year’s rigorous imprisonment, was affirmed.   

3. Shrikant Mishra was the Station House Officer (SHO) of Safdarganj  

Police Station situate in the district of Barabanki.  He and other members of  

the police party were on a patrolling duty.  They came out of the Police  

Station in the night of 5th January 1989 with Constable No.56 Ram Shankar  

Srivastava (P.W.3) and Constable No.277 – Vidya Prasad Pandey.   They  

reached near a village commonly known as “Baghaura” in the official jeep  

No. UHG 4682, which was driven by one Satyadev Ojha.   

4. An informer allegedly reported to the appellants as also one Shobhalal  

of  village  Baghaura  and  Ramdutt  @ Dutta  of  village  Bariarpur  illegally  

selling morphine in packets to the truck drivers and the people of the area.  

According to the said informer, they were said to have been sitting on the  

road side near the mill of one Vishwanath Kashyap from 6 O’clock in the  

morning.  Appellant along with said Shobhalal and Ramdutt were said to  

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have been identified by the said police party to be sitting on the road side at  

about 6.15 a.m.  They became a bit perplexed and frightened after seeing the  

police party.  “Being assured”, Shrikant Mishra, Officer-in-charge, went to  

Barabanki to obtain authority letter for the purpose of carrying out search  

and seizure.  He instructed the other constables to keep an eye on them.  He  

upon obtaining the authority letter allegedly came back from Barabanki after  

some time.  He requested some passer-by to become witness to the seizure.  

They allegedly refused.  

5. Letters of consent were prepared in the names of accused to the effect  

that they were ready and willing to be searched by the Officer-in-Charge in  

stead  and place  of  a  Gazetted  Officer.   Persons  of  all  the  accused  were  

searched.  From the right pocket of the sweater of the appellant 40 packets of  

morphine and from his left pocket about 70 grams of morphine wrapped in a  

paper  were  found.   From  the  person  of  Shobhalal  about  82  grams  of  

morphine was found; whereas from the person of Ram Dutt about 53 grams  

of morphine was recovered.  

6. Appellant, however, has a different story to tell.  According to him,  

the SHO as also the constables had an evil eye on the appellant’s wife.  They  

came to his house at about 9.00 p.m. in the night of 5/6.1.1989 while his  

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wife was serving the food to the children.  He was not well.  When the door  

of his house was knocked by a constable, his wife who examined herself as  

D.W.1 came out  of  the  house and saw the Constable and the SHO. The  

constable was used to be called by local people as “Lala”.  They enquired  

about him.  When D.W. 1 wanted to call him, the said constable said that  

there was no work with him but it was with her.  He thereafter told the SHO  

that this was the same woman who goes to Chakki for grinding.  On hearing  

that,  she  started  going  back to  her  house.   The  said  constable  advanced  

towards  her.   She  shouted  loudly.   On her  shouting,  Sohan Lal  and  the  

appellant came.  D.W. 1 was slapped by the said constable 2-3 times and  

thereafter the appellant was arrested.  D.W.1 along with Sohan Lal and her  

brother-in-law  went  to  Barabanki  to  the  house  of  the  Superintendent  of  

Police by truck.  The Superintendent of Police was described as ‘Captain  

Sahib”.  They could not meet him at that time and on being informed that he  

had been sleeping and the Superintendent of Police would meet them only  

by 7.30 in the morning. They kept sitting in front of the gate; they met the  

Superintendent  of  Police  at  about  8-9  O’clock  in  the  morning.   An  

application was given to him.  Admittedly, a telegram was also sent.  

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7. The learned trial judge, relying on or on the basis of the evidence of  

Shrikant  Mishra,  SHO  (P.W.1)  and  Rama  Shankar  Srivastava  (P.W.3)  

recorded a judgment of conviction.  In regard to the sentence imposed to the  

accused, it was ordered:

“Accused  Sarju  @ Ramu and Ramdutt  @ Dutta  under  Section 8/21 of  the N.D.P.S.  Act,  thus 10  years  (10)  rigorous  punishment  to  each  and  Rs.1,00,000/-, Rs.1,00,000/- (Rupees One One Lac  only) each is  imposed fine.   On non-payment of  fine punishment of additional imprisonment shall  have to be undergone.   

By giving benefit  of Section 33 N.D.P.S. Act to  accused Shobha Lal of Prohibition (sic Probation)  of  Offenders  Act  of  bond of  good conduct  of  2  years  and  2  bails  of  Rs.10,000/-,  Rs.10,000/-  (Rupees Ten Ten Thousand only) and on filing the  sureties  of  the  same  amount  may  be  released,  subject to the condition that he may give written  undertaking to this effect that during this period he  shall not do any act against law and shall remain of  good conduct during this period and shall maintain  peace.  Whenever he summoned by the Court he  by  being  present  shall  received  the  punishment,  which the Court may give him.”

8. The High Court by reason of the impugned judgment has affirmed the  

said judgment while rejecting the appeals preferred by the appellant.  

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9. The prosecution case is shrouded in mystery.  Although in the First  

Information Report (‘FIR’), it was stated that information was received from  

the informer, but the P.W. 1 in his deposition before the learned trial judge  

stated:

“10. From the police station had gone in the night  for  the  gasht.   At  what  time  went,  this  I  can  intimate by looking to the Roznamcha.  Informer  had met on the road.  At what time he met, do not  remember.  That place also do not remember as to  where  he  met.   But  had  met  on  the  Lucknow,  Faizabad  Marg.   At  the  time  had  reached  at  Baghora Chhaki, that time do not remember.  But  it  was  recorded  in  the  Fard.   That  Fard  was  prepared by me.   Was written on my directions.  The Fard which I have got written from Constable  Vidhya Prasad Pandey by speaking, in the finger  of my hand was injured.  That is why I had not  written it……

11. Faizabad  Barabanki  Road  is  sufficiently  operation road.  Every time people keep on coming  going.  Kharkhara, truck, buses, and jeeps keep on  coming going.  We people had gone in uniform.  After the meeting with the Informer the witnesses  were  not  searched  because  after  looking  to  the  situation,  would  have  looked  for  the  witnesses  when  we   people  reached  at  the  chhaki,  then  accused Ramu was standing in front of Chhaki.  I  recognized  him  before  hand.   I  had  no  specific  acquaintance  with  him  but  these  people  usually  used to keep sitting at the chhaki of Vishwanath,  that is why I knew.  Those days were sitting on the  chhaki  of  Vishwanath.   I  knew  and  recognized  him.  I do not remember at this time as to who else  

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used to sit at a distance of 5 – 7 steps from Ramu  had stopped the jeep.  By looking to us the accused  went towards the chaki,  cannot intimate this that  he went running.  The constable by getting down  stopped  him.   The  constable  said  stop,  then  he  stopped.  Behind the chhaki, leaving to fields there  is village.  In front of the chhaki is road and field.  In the field crop was sown.  After the stopping by  the constable I immediately reached.  Whatever the  informer  had  intimated  me,  in  connection  with  that,  enquiry  from the  accused  then  he  said  that  this  matter  is  correct  that  I  have  Morphine.  Direction was given to the employees that keep on  watching them.  I  am going to  get  the  authority  letter.  For going to Barabanki and coming back, it  took me how much time I do not remember.  As to  at what time I reached on the spot by getting the  authority letter.  When I reached back at the place  of the incident, then mob had not assembled there.  What is important to write in the recovery Fard, I  know.  Stopping of jeep, going towards the chhaki  of the accused, mention of stopping the accused by  the constable is not in the Fard, because it was not  necessary to write this.  Whatever was considered  necessary that was recorded.  2 – 4 people came on  the spot, I asked them to witness, but they did not  get prepared.  I do not remember now as to which  which constable were there along with.  In those  days at my police station Ram Shankar Srivastava  was posted at the police station who was also with  me at the time of the incident.  His appointment  was also in that very Halka.  I do not know that the  wife of accused Ram on date 5.1.89 night gave one  application  before  Captain  Sahib  that  to  her  husband,  Daroga  and  contable  Ram  Shankar  by  catching have taken him away. On the same night  took him away in the night by catching.  I do not  know that in this context his wife has sent telegram  to Captain Sahib and the Home Secretary also.”

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10. The  learned  Trial  Judge  accepted  that  an  application  and telegram  

were brought to his notice but he had not carried any investigation in relation  

thereto.   

11. Vishwanath Kashyap near whose house the accused were said to have  

been sitting was a Member of the Legislative Assembly.  Why he could not  

be asked to be a witness to the search has not been explained.  The time  

when the information was received was not mentioned in the General Diary.  

Even the distance of the place where such information is received from the  

police station was not noticed.  The names of the persons who refused to be  

a witness had not been recorded.  He accepted that in terms of the Code of  

Criminal Procedure, the same should have been noted but the said provisions  

have not been complied with.  Shrikant Mishra did not state that the accused  

persons were informed about their right to be searched by a Gazetted Officer  

and/or that the purported consent letters marked as Exhibits A-3, A-4 and A-

5 were not written by him.   

12. P.W. 3 – Ram Shanker Srivastava, in his evidence, however, stated:

“1. On  date  6.1.89,  I  was  posted  in  Police  Station Safdarjung as Constable.   On that  day,  I  

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along with the Head Daroga Shri Kant Mishra by  jeep  were  going  on  road  holder  duty.   Vidhya  Prasad Pandey Constable and Driver Satyadev had  come.  When we people at Ferozabad Barabanki  road, then the Informer of Darogaji met.  He talked  to Daroga Ji.  Then Daroga Ji by taking we people  reached  at  the  Chakki  of  Vishwanath  Neta  in  village Baghora.  At that time it was the time of  6.15 O’ clock in the morning. At the chakki, Ramu  @ Sarju, Shobha Lal and Dutta @ Ramdutt were  sitting.  By looking to we people, got perplexed.  We people got assured that they have some illegal  material,  as  was  intimated  by  the  Informer.  Daroga Ji said that you people stop, I am going to  Barabanki  to  obtain  the  authority  letter  and  he  went away by jeep to obtain the authority letter.  Constable  Vidhya  Prasad  kept  stopped  those  people.  Daroga ji came back at 8.10 O’clock of  the day.  Then Daroga ji asked the mob assembled  there to give evidence.  Then those people denied  to give evidence due to fear of Vishwanath Neta.

Then Daroga ji enquired about their names  and  addresses  and  said  that  you  will  give  the  search  to  me,  or  to  Gazetted  Officer  or  the  Magistrate.  Then he said we shall give the search  to you.   In this  connection Daroga ji  prepared 3  separate separate consent Fards.  It was read over  and  by  hearing  it  we  people  consented.   The  accused also had put their signatures and TI.  The  witnesses were shown.  Ex. 3 and 5, by looking  and reading to which, the witness is said that these  are the same Fards which were prepared by Daroga  ji at the site and on this are my signatures.”

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He  furthermore  informed  that  they  have  committed  an  offence  

punishable under Section 8/18 of the NDPS Act and they have been taken in  

custody before the Fard was read over to them and signatures and left thumb  

impression were obtained.   

It is accepted that the patrolling duty starts at 6 – 8 O’ clock in the  

evening and finishes at 8 O’clock in the morning.  The Baghaura village was  

about 5 to 6 furlongs before Barabanki.  According to P.W.3, the informer  

had met them 3 – 4 hours prior to the raid.  According to P.W. 3, they were  

sitting in  the  jeep  when the intimation  was given  by the  informer.   The  

intimation was said to have been given at the Baghaura road but they did not  

go in the search of the accused in the village wherefor no reason could be  

assigned.   

13. The FIR disclosed that the information was given at about 6 O’ clock  

in the morning and the raid was conducted at about 6.15 a.m.  A closer look  

to the statement made in the FIR would show that in fact according to the  

informer the accused had been sitting on the road side from before 6 O’clock  

in the morning.  It is, therefore, difficult to believe the prosecution story.   

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The statement of D.W.1- Smt. Kusum Devi, wife of the appellant that  

they  had  been  sitting  near  the  gate  of  the  Superintendent  of  Police  at  

Barabanki had not been denied or disputed.  The fact that an application as  

also a telegram had been sent has not also been denied or disputed.  In a case  

of  this  nature,  at  least,  for  fair  investigation,  if  not  the  prosecution,  the  

learned Special Judge himself should have exercised his jurisdiction under  

Section 311 of the Code of Criminal Procedure.  He should have called the  

Superintendent  of  Police  and recorded  his  statement;  he  could have also  

called for the original telegram from the Superintendent of Police’s office or  

even from the Post Office.   

14. In  a  case  under  the  NDPS  Act,  particularly  where  such  serious  

allegations are made against the police officials, recovery of contraband in  

presence  of  the  independent  witness  assumes  significance.   [See  Ritesh  

Chakarvarti vs. State of M.P. (2006) 12 SCC 321]

15. It is now also well settled that the provisions of the NDPS Act being  

harsh  in  nature,  the  procedural  safeguards  contained  therein  must  

scrupulously be complied therewith.   

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It was so held by a Constitution Bench of this Court in State of Punjab  

vs. Baldev Singh [1999) 6 SCC 172)] in the following terms:

“57. On  the  basis  of  the  reasoning  and  discussion  above,  the  following  conclusions  arise:

(1)  That  when an  empowered officer  or  a  duly  authorized  officer  acting  on  prior  information is  about  to  search  a  person,  it  is  imperative for  him  to  inform the  person  concerned of his right under sub-section (1) of  Section  50  of  being  taken  to  the  nearest  gazetted  officer  or  the  nearest  Magistrate  for  making the search. However, such information  may not necessarily be in writing.

(2)  That  failure  to  inform  the  person  concerned about the existence of his right to be  searched  before  a  gazetted  officer  or  a  Magistrate  would  cause  prejudice  to  an  accused.

(3)  That  a  search  made by an  empowered  officer, on prior information, without informing  the person of his right that if he so requires, he  shall  be  taken  before  a  gazetted  officer  or  a  Magistrate  for search and in case  he so opts,  failure to conduct his search before a gazetted  officer or a Magistrate, may not vitiate the trial  but  would  render  the  recovery  of  the  illicit  article  suspect  and  vitiate  the  conviction  and  sentence  of  an  accused,  where  the  conviction  has  been  recorded  only on  the  basis  of  the  possession of the illicit article, recovered from  his  person,  during  a  search  conducted  in  violation of the provisions of Section 50 of the  Act.

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(4)  That  there  is  indeed  need  to  protect  society  from criminals.  The  societal  intent  in  safety will suffer if persons who commit crimes  are let off because the evidence against them is  to be treated as if it does not exist. The answer,  therefore, is that the investigating agency must  follow the procedure as envisaged by the statute  scrupulously and the failure to do so must be  viewed  by  the  higher  authorities  seriously  inviting action against the official concerned so  that the laxity on the part of the investigating  authority is curbed. In every case the end result  is important but the means to achieve it must  remain  above  board.  The  remedy  cannot  be  worse than the disease itself. The legitimacy of  the judicial process may come under a cloud if  the court is seen to condone acts of lawlessness  conducted  by  the  investigating  agency  during  search  operations  and  may  also  undermine  respect for the law and may have the effect of  unconscionably  compromising  the  administration  of  justice.  That  cannot  be  permitted. An accused is entitled to a fair trial.  A conviction  resulting  from an unfair  trial  is  contrary to our concept of justice. The use of  evidence collected in breach of the safeguards  provided  by  Section  50  at  the  trial,  would  render the trial unfair.

(5)  That  whether  or  not  the  safeguards  provided in Section 50 have been duly observed  would have to be determined by the court  on  the basis of the evidence led at the trial. Finding  on that issue, one way or the other, would be  relevant for recording an order of conviction or  acquittal. Without giving an opportunity to the  prosecution  to  establish,  at  the  trial,  that  the  provisions of Section 50 and, particularly, the  safeguards  provided  therein  were  duly  

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complied with, it  would not be permissible to  cut short a criminal trial.

(6)  That  in  the  context  in  which  the  protection has been incorporated in Section 50  for  the  benefit  of  the  person  intended  to  be  searched,  we  do  not  express  any  opinion  whether  the  provisions  of  Section  50  are  mandatory or directory, but hold that failure to  inform  the  person  concerned  of  his  right  as  emanating from sub-section (1) of Section 50,  may  render  the  recovery  of  the  contraband  suspect and the conviction and sentence of an  accused bad and unsustainable in law.

(7)  That  an  illicit  article  seized  from  the  person of an accused during search conducted  in  violation  of  the  safeguards  provided  in  Section  50  of  the  Act  cannot  be  used  as  evidence of proof of unlawful possession of the  contraband  on  the  accused  though  any  other  material  recovered during that  search  may  be  relied  upon  by  the  prosecution,  in  other  proceedings,  against  an  accused,  notwithstanding  the  recovery  of  that  material  during an illegal search.

(8) A presumption under Section 54 of the  Act can only be raised after the prosecution has  established that the accused was found to be in  possession  of  the  contraband  in  a  search  conducted in  accordance with the  mandate  of  Section 50. An illegal search cannot entitle the  prosecution  to  raise  a  presumption  under  Section 54 of the Act.”

{See also Noor Aga v. State of Punjab & Anr. [2008 (9) SCALE 681]  

and  Ranu Premji v. Customs Ner Shillong Unit [2009 (7) SCALE 568]}

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In Baldev Singh (supra), this Court noticed Miranda v. Arizona [384  

US 436] in the following terms:

“30. In D.K. Basu case the Court also noticed the  response of the Supreme Court of the United States  of  America  to  such  an  argument  in  Miranda v.  Arizona wherein  that  Court  had  said:  (SCC  pp. 434-35, para 33)

“The Latin maxim salus populi suprema lex  (the safety  of  the  people  is  the supreme law)  and salus republicae suprema lex (safety of the  State  is  the supreme law) coexist  and are not  only important and relevant but lie at the heart  of the doctrine that the welfare of an individual  must yield to that of the community. The action  of the State, however, must be ‘right, just and  fair’.””

16. Appellant at  no point of time was informed that he had a statutory  

right of being searched by a Gazetted Officer.  The combined reading of the  

depositions of the prosecution witnesses are pointers to the fact that the so-

called consent letters were obtained only after they had been arrested.  Even  

in relation to preparation of consent letters, there is a glaring discrepancy.  

According to P.W. 3, it  was SHO himself who wrote the said letters but  

Shrikant  Mishra  has  different  story  to  tell,  namely,  that  he  himself  had  

suffered an injury on his finger and as such he had asked some other person  

to write the said consent letters.  It is also difficult to believe that Mishra,  

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leaving the accused in the mercy of P.W. 2 and P.W.3, would go back to  

Barabanki to obtain letters of approval.  The nature of the statements made  

by him before the court clearly shows that the same was manipulated.   

We  must  place  on  record  that  in  State  of  Punjab  v.  Balbir  Singh  

[(1994) 3 SCC 299], this Court observed as under:

“10. It is thus clear that by a combined reading of  Sections 41, 42, 43 and 51 of the NDPS Act and  Section 4 CrPC regarding arrest and search under  Sections  41,  42  and 43,  the  provisions  of  CrPC  namely Sections 100 and 165 would be applicable  to  such  arrest  and  search.  Consequently  the  principles laid down by various courts as discussed  above regarding the irregularities and illegalities in  respect  of  arrest  and  search  would  equally  be  applicable to the arrest and search under the NDPS  Act  also  depending  upon  the  facts  and  circumstances of each case. 11.  But  there  are  certain  other  embargoes  envisaged under Sections 41 and 42 of the NDPS  Act.  Only  a  Magistrate  so  empowered  under  Section 41 can issue a warrant for arrest and search  where  he  has  reason  to  believe  that  an  offence  under Chapter IV has been committed so on and so  forth as mentioned therein. Under sub-section (2)  only  a  Gazetted  Officer  or  other  officers  mentioned  and  empowered  therein  can  give  an  authorization to a subordinate to arrest and search  if  such  officer  has  reason  to  believe  about  the  commission of an offence and after reducing the  information, if any, into writing. Under Section 42  only officers mentioned therein and so empowered  can make the arrest or search as provided if they  

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have reason to believe from personal knowledge or  information. In both these provisions there are two  important requirements. One is that the Magistrate  or  the  officers  mentioned  therein  firstly  be  empowered and they must have reason to believe  that  an  offence  under  Chapter  IV  has  been  committed  or  that  such  arrest  or  search  was  necessary  for  other  purposes  mentioned  in  the  provision.  So  far  as  the  first  requirement  is  concerned,  it  can  be  seen  that  the  Legislature  intended that only certain Magistrates and certain  officers of higher rank and empowered can act to  effect  the  arrest  or  search.  This  is  a  safeguard  provided having regard to the deterrent sentences  contemplated  and  with  a  view  that  innocent  persons are not harassed. Therefore if an arrest or  search  contemplated  under  these  provisions  of  NDPS Act has to be carried out, the same can be  done  only  by  competent  and  empowered  Magistrates or officers mentioned thereunder. 12. Nand  Lal  v.  State  of  Rajasthan is  a  case  where a police head constable and a station house  officer  were  not  empowered  to  carry  out  investigation and it was contended that the whole  investigation was illegal and consequently the trial  was vitiated. The Rajasthan High Court held that  for launching the prosecution or for initiating the  proceedings under the Act, the authority doing so  must  have  a  clear  and  unambiguous  power.  In  Bhajan Singh v. State of Haryana it was observed  that  only  officers  empowered under  the  Act  can  take  steps  regarding  entry,  search,  seizure  and  arrest and that the relevant provisions of the Act  are mandatory. In  Umrao  v.  State of Rajasthan it  was  held  that  the  search  made  by  a  police  constable  without  jurisdiction  and  investigation  made by an officer not empowered, vitiate the trial.  In Shanti Lal v. State of Rajasthan it was similarly  

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held that search and arrest made by SHO who was  not authorised under the Act, were illegal.”

17. We must, however, notice that recently a Constitution Bench of this  

Court in Karnail Singh v. State of Haryana [2009 (10) SCALE 255] in view  

of  difference  of  opinion  in  Abdul  Rashid  Ibrahim  Mansuri  v.  State  of  

Gujarat [(2000) 2 SCC 513] opining that compliance of Section 42 of NDPS  

Act is mandatory in nature and in Sajan Abraham v. State of Kerala [(2001)  

6 SCC 692] holding the said principle to be directory, opined as under:

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

(b) But  if  the  information  was  received  when  the officer was not in the police station, but  while he was on the move either on patrol  duty or otherwise,  either by mobile phone,  or other means, and the information calls for  immediate action and any delay would have  resulted  in  the  goods  or  evidence  being  removed  or  destroyed,  it  would  not  be  feasible or practical to take down in writing  the  information  given  to  him,  in  such  a  situation, he could take action as per clauses  (a) to (d) of section 42(1) and thereafter, as  soon as it is practical, record the information  

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in writing and forthwith inform the same to  the official superior .

(c) In  other  words,  the  compliance  with  the  requirements of Sections 42 (1) and 42(2) in  regard  to  writing  down  the  information  received and sending a copy thereof to the  superior  officer,  should  normally  precede  the entry, search and seizure by the officer.  But  in  special  circumstances  involving  emergent  situations,  the  recording  of  the  information in  writing and sending a  copy  thereof  to  the  official  superior  may  get  postponed  by  a  reasonable  period,  that  is  after  the  search,  entry  and  seizure.  The  question is one of urgency and expediency.  

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

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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.”

Even, admittedly, Shrikant Mishra had no authority to make search.  

Nothing has been brought on record to show that the provisions of Section  

42 of the NDPS Act were substantially complied with.  

18. Before  parting,  however,  we  may  notice  a  disturbing  fact.   The  

learned  Special  Judge  has  let  off  accused  No.3  Shobha  Lal   under  the  

Probation of Offenders Act.  He referred to Section 33 of the NDPS Act.   

Section 33 of the NDPS Act reads as under:

“33. Application of section 360 of the Code of  Criminal Procedure, 1973 and of the Probation  of  Offenders  Act,  1958.- Nothing  contained  in  section  360  of  the  Code  of  Criminal  Procedure,  1973 (2 of 1974) or in the Probation of Offenders  Act,  1958  (20  of  1958)  shall  apply  to  a  person  convicted of an offence under this Act unless such  person is under eighteen years of age or that the  offence  for  which  such  person  is  convicted  is  punishable under Section 26 or Section 27.”

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He, therefore, misread the entire provision.  We do not see any reason  

as to why such a provision had to be resorted to in the case of one of the  

accused only.  The High Court, in our opinion, also should have drawn the  

attention of the learned trial judge on the glaring mistake committed by him.  

19. For the reasons aforementioned,  the  impugned judgment cannot  be  

sustained.  It is set aside accordingly.  The appeal is allowed.  The appellant  

is in custody.  He is directed to be set at liberty forthwith unless wanted in  

any other case.  

……………….…..………….J. [S.B. Sinha]

..………………..……………J.  [Deepak Verma]

New Delhi; August 07, 2009

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