REPORTABLE
IN THE SURPEME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1145 OF 2001
Union of India ...Appellant
Versus
Satrohan ...Respondent
JUDGMENT
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 but9
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 connection13
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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