REPORTABLE  

IN THE SURPEME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1145  OF 2001

Union of India …Appellant

Versus

Satrohan …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

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

acquittal  passed  by  learned  Single  Judge  of  the  Allahabad

High  Court,  Lucknow  Bench,  directing  acquittal  of  the

respondent (hereinafter referred to as the ‘accused’) by setting

aside  the  judgment  of  conviction  recorded  by  learned

Additional District and Sessions Judge, Lucknow in Criminal

Appeal   No.65  of  1993.  The  trial  Court  had convicted   the

respondent for offences punishable under Section 8(c) and 15

of the Narcotics Drugs and Psychotropic Substances Act, 1985

(in short the ‘Act’) and sentenced to undergo RI for 10 years

and fine of rupees one lakh with default stipulation.  

2. Prosecution version in a nutshell is as follows:

On the basis of secret information Sri Naseem Ahmad, an

Inspector  of  Narcotics  Department  along with other  officials

raided the house of the respondent on 20.11.1992 at about

8.00  a.m.  in  village  Dadari  Jamalpur.  The  house  of  the

respondent  was  searched  and  from  his  house  29  bags

containing  poppy  straws  were  recovered.  The  respondent

could not explain legal possession of poppy straws weighing

309 kgs. The respondent was arrested and after investigation

charge  sheet  was  submitted  against  him.  The  respondent

denied  the  possession  and  ownership  of  the  property  in

question and claimed trial.  

The trial Court found the evidence adduced to be clear

and cogent and directed conviction and imposed sentence as

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afore-noted. In appeal, the High Court directed acquittal by a

practically  non-reasoned  order  holding  that  there  was  non-

compliance of Sections 42(2) and 50 of the Act.  It was noted

that the Narcotics Department has given licence to the father

of  the respondent  for  cultivation of  opium and if  there  had

been  recovery  of  poppy  straws  it  might  be  relatable  to  the

ownership of father of the respondent.   

3. Learned  counsel  for  the  appellant  submitted  that  the

trial  Court  had  relied  upon  the  confession  of  the  accused

respondent and the grounds on which the High Court directed

acquittal are (i) non examination of independent witnesses; (ii)

lack  of  evidence  to  show  exclusive  ownership;  and  (iii)  the

alleged non compliance of Sections 42(2) and 50 of the Act.   

4. It is pointed out that Section 50 is not applicable to the

case. Additionally, under Section 57 secret information has to

be sent and the particulars of seizure and arrest have to be

sent. The records if asked for could have been produced. In

the  instant  case  there  is  no  evidence  led  or  not  even  any

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question  was  asked  about  absence  of  records.  In  the

alternative,  the  inspector  was  a  Gazetted  Officer  and,

therefore, even if it is conceded for the sake of argument that

there  is any incorrect  reference,  the acts are covered under

Section 41 and not under Section 42.  

5. Learned counsel  for the respondent on the other hand

submitted  that  the  confessional  statement  could  not  have

been relied upon.  The statement was recorded by PW-2 and

by the investigating officer (PW-6) on 20.11.1992. There could

not have been any recording of statement by PW-6 as he was

entrusted with investigation on 3.12.1992.  It  is  pointed out

that the investigating officer was not a Gazetted Officer. Since

authorization was obtained Section 57 comes into play.  It is

pointed out that there is licence of the father also. Therefore,

the High Court’s order does not suffer from any infirmity.  

6. Section  2(xv)  and  Section  2(xviii)  define  “opium’  and

“poppy straws” respectively.  It is the stand of the respondent

that  since  there  was  licence  of  opium,  obviously  there  is

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presumption that there  was  licence  of  poppy  straws.   As  a

matter of fact the High Court did not direct acquittal on the

ground  that  there  was  licence  for  poppy  straws  also.  The

evidence on record clearly shows that the expressions “opium”

and “poppy straws” are not interchangeable as contended by

learned counsel  for the respondent,  as Section 2(xiv) clearly

makes out a distinction between opium and poppy straws.  So

far as the role  of PW-6 is concerned,  it  is to be noted that

there is no reference to the stand presently highlighted by the

High Court.    

7. Undisputedly,  there are two different entries for opium

and poppy straws.  Opium appears at Sl. No.92 while poppy

straws appear at Sl. No.110. The statement of the accused-

respondent in terms of Section 67 throws considerable light

on the controversy.  In the statement recorded there was no

retraction and in fact during examination under section 313 of

the  Code  of  Criminal  Procedure,  1973  (in  short  the  ‘Code’)

while answering question No.4 it was stated that there was no

confession.  The  confessional  statement  was  recorded  on

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20.11.1992 and the statement under Section 313 of the Code

was  recorded  on  6.2.1999.  Therefore,  there  has  been  no

retraction at any point of time. The position is also clear from

Section 57 of the Code.  At the time of production before the

Magistrate, there was no allegation of any torture as presently

submitted.  In  this  connection a few decisions  of  this Court

need to be noted.

8. In Kanhaiyalal v. Union of India (2008 (1) SCALE 165) at

para 7 it was noted as follows:

“7. Since  the  appellant  Kanhaiyalal  was convicted on the basis of the statement made by him under  Section 67 of the NDPS Act, a question  has  been  raised  whether  such statement  made  to  an  officer  within  the meaning of Section 42 of the said Act could be treated  as  a  confessional  statement  and whether the accused could be convicted on the basis  thereof  in  the  absence   of  any  other corroborative evidence.”

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9. Similarly  in  A.K.  Mehaboob v.  The  Intelligence  Officer,

Narcotics Control Bueau (JT 2001 (1) SC 614) it was observed

as follows:

“4. Smt. Malini Poduval, learned counsel for the  appellants  contended  that  Exhibit  P-8 cannot be relied on for more than one reason. One  is  that  the  said  statement  had  been retracted  by  the  accused  himself.  Second  is that  on  11.8.1994  appellant-  Naushad informed  the  Magistrate  in  writing  that  the said statement had been coaxed out from him. The third is that the said retracted confession had no corroboration and therefore cannot be made the basis for conviction.

5. There is nothing to indicate that Exhibit P-8  had  been  elicited  from  A-2  by  any coercion,  threat  or  force  and  therefore   the learned  Single  Judge  of  the  High Court  had spurned down that contention. Regarding the complaint  alleged  to  have  been  made  by appellant-Naushad  on  11.3.1994  we  have perused  it.  His  case  therein  was  that  he offered himself  to be a witness   in the case and some reward was offered for it. It was on the said offers that he agreed to sign the said statement.  It  must  be  remembered  that appellant-Naushad has no case that when he was  produced  before  the  Magistrate, immediately  after  his  arrest,  he  made  any grievance of any maltreatment administered to him by the members of the Narcotics Control Bureau.  Wisdom  downed  on  him  (when  the complaint dated 11.3.1994 was filed) to put up an  advance  defence  against  the  statement given by him under his own signature.  Even

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then he did not think it necessary to make any allegation that any intimidatory  tactic,  much less any third degree method had been applied on him. His case in the said complaint that a reward  was  offered  to  him  and  hence  he agreed to sign the statement is contrary to the present  stand  adopted  by  him  that  he  was coerced  and  threatened  to  made  such  a statement.  The  learned  Single  judge  had rightly  repelled  the  contentions  made  on behalf  of  appellant-  Naushad  relating  to Exhibit P-8.”  

10. The inferential conclusion that the articles seized might

have  been  recovered  by the  father’s  licence  is  a  conclusion

without any foundation and basis.  

11. So far as the fulfillment of the requirement of Section 57

of the Act is concerned it is to be noted that the legal position

was stated by this Court in T. Thomson v. State of Kerala and

Anr.  (2002  (9)  SCC  618)  and  in  State,  NCT  of  Delhi v.

Malvinder Singh (JT 2007 (9) SC 283). In  Malvinder Singh’s

case (supra) at para 6, it was observed as follows:

“6. At this juncture, it would be relevant to take note of that has been stated by this Court

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in T. Thomson v. State of Kerala and Anr.  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 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.”

12. So far as the applicability of Section 42 is concerned few

decisions need to be noted.

13. In M. Prabhulal v. The Assistant Director, Directorate of

Revenue Intelligence (JT 2003 (2) Supp SC 459) it was noted

as follows:

“8. Now, we come to the last and rather more serious  objections  raised  on  behalf  of  the appellants regarding the non-compliance with Section  42  of  the  NDPS  Act  vitiating  the conviction  which  looks  quite  formidable  but

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only  on  the  first  impression  and  not  on  its deeper examination. The contention of Mr R.K. Jain is that the  view of  the High Court  that when  a  Gazetted  Officer  himself  conducts  a search  it  is  not  necessary  to  comply  with Section 42(2) of the Act, is clearly erroneous. Section  42(2)  provides  that  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.  This  was  the  statutory provision at the relevant time. By the Narcotic Drugs  and  Psychotropic  Substances (Amendment) Act, 2001 which came into force on  2-10-2001,  Section  42(2)  was  amended whereunder  the  information  taken  down  in writing  under  sub-section  (1)  or  grounds  of belief  recorded under the proviso thereto are required to be sent within seventy-two hours to  officers’  immediate  official  superior.  The contention is that the officer who searched and seized  the  contraband did  so  on information received by him as per Ext. PW 1 but the said information was not forwarded to his superior officer as contemplated in Section 42(2) of the NDPS  Act,  thus  vitiating  the  entire prosecution. Further argues the counsel  that the  respondent  after  grant  of  bail  to  the appellants  by  the  High  Court  taking  into consideration the non-compliance with Section 42(2) has tried to fill in the lacuna with a view to  show  the  compliance  of  this  mandatory provision.  

9. The  officer  who  conducted  the  arrest, search  and  seizure  was  an  empowered Gazetted Officer of the Department. This fact is

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not  in  dispute.  According  to  Mr  Vasdev, learned  Senior  Counsel  for  the  respondent, Section  42(2)  is  not  applicable  when  an empowered  Gazetted  Officer  conducts  the arrest,  search  and  seizure.  The  counsel submits  that  there  was no obligation on the officer  to  comply  with  the  requirement  of Section  42(2)  of  the  NDPS  Act.  It  was  also contended, in the alternative, that Section 42 (2) of the NDPS Act was complied with.

14. Section  41(1)  which  empowers  a Magistrate  to issue warrant for arrest  of  any person whom he has reason to believe to have committed any offence  punishable  under  the NDPS  Act  or  for  search,  has  not  much relevance  for  the  purpose  of  considering  the contention.  Under  Section  41(2)  only  a Gazetted  Officer  can  be  empowered  by  the Central Government or the State Government. Such  empowered  officer  can  either  himself make  an  arrest  or  conduct  a  search  or authorize an officer subordinate to him to do so  but  that  subordinate  officer  has  to  be superior  in  rank  to  a  peon,  a  sepoy  or  a constable. Sub-section (3) of Section 41 vests all  the  powers  of  an  officer  acting  under Section  42  on  three  types  of  officers  (i)  to whom  a  warrant  under  sub-section  (1)  is addressed,  (ii)  the  officer  who authorized the arrest  or  search  under  sub-section  (2)  of Section  41,  and  (iii)  the  officer  who  is  so authorized under sub-section (2) of Section 41. Therefore, an empowered Gazetted Officer has also all the powers of Section 42 including the power  of  seizure.  Section  42  provides  for procedure and power of entry, search, seizure and  arrest  without  warrant  or  authorization.

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An empowered officer has the power of entry into and search of any building, conveyance or place,  break  open  any  door,  remove obstruction,  seize  contraband,  detain,  search and  arrest  any  person  between  sunrise  and sunset in terms provided in sub-section (1) of Section 42. In case of an emergent situation, these  powers  can  also  be  exercised  even between sunset and sunrise without obtaining a  search  warrant  or  authorization,  in  terms provided  in  the  proviso  to  sub-section  (1)  of Section 42. Sub-section (2) of Section 42 is a mandatory provision. In terms of this provision a copy  of  information taken  down in writing under sub-section (1)  or ground recorded for the  belief  under  the  proviso  thereto,  is required  to  be  sent  by  the  officer  to  his immediate  superior  official.  It  is  clear  from Section 41(2) that the Central Government or State  Government,  as  the  case  may  be,  can only empower an officer of a gazetted rank who can  either  himself  act  or  authorize  his subordinate on the terms stated in the section. Under sub-section (1) of Section 42, however, there  is  no  restriction  on  the  Central Government  or  the  State  Government  to empower  only  a Gazetted  Officer.  But  on an officer  empowered  under  sub-section  (1)  of Section  42,  there  are  additional  checks  and balances as provided in the proviso and also provided in sub-section (2) of Section 42. It is clear  from the language of  sub-section (2)  of Section  42  that  it  applies  to  an  officer contemplated  by  sub-section  (1)  thereof  and not to a Gazetted Officer contemplated by sub- section  (2)  of  Section  41,  when  such  a Gazetted  Officer  himself  makes  an  arrest  or conducts  search  and  seizure.  It  would  be useful to also notice Section 43 which relates

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to  power  of  seizure  and  arrest  in  a  public place.  Any  officer  of  any  of  the  departments mentioned in Section 42 is empowered to seize contraband  etc.  and  detain  and  search  a person  in  any  public  place  or  in  transit  on existence of ingredient stated in Section 43. It can, thus, be seen that Sections 42 and 43 do not require an officer to be a Gazetted Officer whereas Section 41(2) requires an officer to be so.  A  Gazetted  Officer  has  been  differently dealt with and more trust has been reposed in him can also be seen from Section 50 of the NDPS  Act  which  gives  a  right  to  a  person about to be searched to ask for being searched in the presence of a Gazetted Officer. The High Court  is,  thus,  right  in  coming  to  the conclusion  that  since  the  Gazetted  Officer himself  conducted  the  search,  arrested  the accused  and  seized  the  contraband,  he  was acting under Section 41 and, therefore, it was not necessary to comply with Section 42. The decisions  in  State  of  Punjab v.  Balbir  Singh, Abdul  Rashid  Ibrahim  Mansuri v.  State  of Gujarat and Beckodan Abdul Rahiman v. State of  Kerala on the aspects under consideration are neither relevant nor applicable.”

14. Section 67 reads as follows:

“67. Power to call for information, etc.

Any  officer  referred  to  in  Section  42  who  is authorised  in  this  behalf  by  the  Central Government  or  a  State  Government  may, during the course of any enquiry in connection

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with the contravention of any provision of this Act, -

(a) Call for information from any person for the purpose  of  satisfying  himself  whether  there has been any contravention of the provisions of  this  Act  or  any  rule  or  order  made thereunder;

(b)  Require  any person to produce  or deliver any document  or  thing useful  or  relevant  to the enquiry;

(c)  Examine  any  person  acquainted  with  the facts and circumstances of the case.”

15. Section 41(2) deals with two situations. One is relatable

to Gazetted Officer while in the other case the Gazetted Officer

may authorize his subordinate to do the relevant act or may

do it himself.  Section 41(3) refers to the power under Section

42 which refers to subordinates.   

16. In  the  confessional  statement  the  accused  has  clearly

stated about the ownership. So, there has been no retraction

at considerable length of time.

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17. Above being the position, the High Court was clearly in

error by setting aside the judgment of the trial Court. We set

aside the judgment of the High Court and restore that of the

trial Court. The appeal is allowed to the aforesaid extent.  

……………………………J. (Dr. ARIJIT PASAYAT)

………………….………..J. (P. SATHASIVAM)

New Delhi, July 14, 2008

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