JUDGMENT
P.K. Mohanty, J.
1. This is an appeal under Section 374 of the Code of Criminal Procedure, against the order of conviction and sentence passed by the Second Additional Sessions Judge, Ganjan, Berhampur, in S.C. No. 14/93 under Section 18 of
S.C. No. 3/93(GDC)
The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act’).
2. The accused-appellant, A. Rajeswar Patra was prosecuted for having committed an offence under Section 18 of the N.D.P.S. Act, being in possession of six bags of opium puppy capsules, found from the shop room and the adjacent room to the shop, which on weightment came to 85 K.Gs. in contravention of the provisions of Section 8 of the N.D.P.S. Act.
3. The prosecution case shortly stated is that on 30-10-92 at 2.30 p.m., the Excise Sub-Inspector getting reliable information regarding possession of opium puppy by the accused-appellant in his house at Raghunath Bazar, he proceeded along with his staff and conducted search of the shop and the house of the accused, after observing all formalities, in course of search, 6 bags of puppy capsules were found from the shop room and the room adjacent to his shop. The Excise Sub-Inspector after making necessary burning test and smell test and having come to know from his own experience that the seized articles are opium puppy capsules he prepared the seizure list in presence of accused and witnesses etc. On weighment the total contents came to 58 K.Gs. The bags were sealed. Accused was arrested. The accused was forwarded to the Court of the J.M.F.C., Kodala along with the seized puppy capsules. The J.M.F.C. collected samples and forwarded to the Drug Testing and Research Laboratory. The investigation was taken up. The Chemical Examiner’s report, which was received, revealed that the sample packet contained opium puppy capsules. Prosecution report was filed. The accused-appellant’s plea was of total denial. However, it appears from the accused statement that the plea was that he resides with his parerits and brothers in joint family and he has been falsely implicated. The father of the accused has, however, been examined as D.W. 1 to substantiate the stand of joint living.
4. The learned Additional Sessions Judge, Ganjam, Berhampur .on consideration of the evidence of witnesses examined and materials on record found the accused-appellant guilty of an offence under Section 8 of the N.D.P.S. Act and convicted him and sentenced to undergo rigorious imprisonment for ten years and to pay a fine of Rupees 1,00,00/- and in default further R.I. for one year more.
5. Heard Mr. D. Sarangi for the appellant and the learned Additional Standing Counsel for the State .It is the submission of Mr. Debasis Sarangi that according to the prosecution case the Sub-Inspector of Excise conducted search of the premises, he having received prior information regarding commission of the alleged offence and as such he was mandatorily required under Section 42(1) to record such information in writing and send a copy thereof to his immediate superior forthwith as required under Sub-section (2) of Section 42 of the N.D.P.S. Act. The mandatory provision of law having not been complied with the trial is vitiated. Mr. Sarangi has referred to a decision of the Apex Court reported in AIR 1994 SC 1872 : 1994 Cri LJ 3702 (State of Punjab v. Balbirsingh) in support of his contention.
6. Section 42 (1) and (2) of the N.D.P.S. Act may be quoted hereunder for reference:
42. Power of entry, search, seizure and arrest without warrant or authorisation:- (1) Any such officer (being an officer superior in rank to a peon, sepoy, or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, 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, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset:-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, breakopen any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance;
Provided that if such 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.
(2) 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.
Thus in the present context an officer superior in the rank to peon, sepoy or constable, empowered on this behalf by general or special order of the State Government is authorised to exercise the powers of entry, search, seizure and arrest without a warrant from the Magistrate, Such officer further must have reasons to believe either from the personal knowledge or from information given by any person and taken down in writing that any narcotic drug or psychotropic substance, in respect of which an offence punishable under Chapter IV of the Act has been committed, has been kept or concealed in any building, conveyance or enclosed place or if he comes to form an opinion on the basis of information given by any person, he must reduce the same into writing and send a copy thereof to his immediate superior official. The officer concerned, only on compliance of all these requirements, would be entitled and shall have jurisdiction, to enter into and search any such premises or conveyance between sunrise and sunset. He is also empowered to detain, search and arrest, any person found present in such premises or conveyance whom he has reason to believe to have committed an offence punishable under Chapter IV relating to Narcotic Drugs and Psychotropic Substance recovered therefrom. Proviso to sub-section (1) lays down the circumstances under which such search or arrest can be made during night also, if such officer has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for the conceahnent of evidence or facilitating for the escape of an offender during sunset and sunrise, after recording the grounds of his belief. However, subsection (2) requires that the officer concerned where he takes down any information in drafting under sub-section (1) or records grounds for his belief under the proviso thereto he shall have to send a copy of the record of the grounds of his belief to his immediate superior officer before entering the said premises or conveyance.
7. In the case of State of Punjab v. Balbirsingh 1994 Cri LJ 3702 (SC) (supra), their Lordships of the Apex Court have laid down that to avoid harm to the innocent persons and avoid abuse of provisions of the Act by the officers, certain safeguards are provided which have to be observed strictly. These provisions make it obligatory that such of those officers mentioned therein on receiving an information should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso in Section 42(1) and to that extent, the provisions are mandatory. Consequently, the failure to comply with these requirements affects the prosecution case and therefore vitiates the trial.
8. The specific prosecution case is that on 3-10-92 at about 2 p.m. the Excise Sub-Inspector getting reliable information, searched the shop and house of the accused in presence of the witnesses and in course of the search, six packets of puppy capsules were found in the shop room and the adjacent room to the shop which was in contravention of the provisions of the Act and punishable thereunder.
9. P.W. 4, the Sub-Inspector of Excise attached to Kabisuryanagar in his evidence has stated that he was invested with the powers to conduct search and seizure under the N.D.P.S. Act by the State Government notification. It is his statement that on 3-10-92 he got reliable information from his source that the accused was selling puppy capsules in his shop at Raghunath Bazar and therefore at 2.15 p.m. he proceeded there along with his staff and independent witnesses like P.Ws. 1 and 2 and took search thereafter etc. In paragraph 6 of his deposition, the P.W. 4 has stated thus :
6. On 7-12-92 I filed P.R. in this case after completion of the enquiry. On 4-10-921 reported the matter to my superior authority in writing.
On a consideration of the evidence and materials on record, there is nothing to prove or even to suggest that the Sub-Inspector of Excise (P.W. 4) on receiving reliable information has either reduced the same to writing, formulated his opinion’ and recorded any such reason for his belief with regard to commission of the offence or sent any copy thereof forthwith to his immediate superior officer. In absence of any material on record that the authorised officer on receiving reliable information formulated his own opinion and recorded grounds for his belief in writing and sent a copy thereof forthwith to his immediate superior officer, the subsequent action in conducting the search and seizure has to be treated as vitiated being unauthorised and consequent thereto the trial is vitiated. The Hon’ble Apex Court at paragraph 16 of the judgment (1994 Cri LJ 3702) (SC) (supra) have observed- i
In K.L. Subhayya v. State of Karnataka AIR 1979 SC 711 : 1979 CH LJ 651).
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The object of N.D.P.S. Act is to make the stringent provision for control and regulation of operation relating to those drugs and substances. At the same time to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore, these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writirig and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently, the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial.
In that view of the matter, since there is no evidence on record or even a whisper that the Authorised officer P.W. 4, had reduced the information received by him with regard to commission of i he offence into writing and recorded the reason for ins belief, before proceeding with and carrying out the search and seizure as required under law trial is vitiated in law and has to be set at naught.
10. Mr. Sarangi for the appellant has raised several other contentions, which need not be gone into and decided in view of the aforesaid finding.
11. In the result, the appeal is allowed and the order of conviction and sentence is set aside. The accused be set at liberty forthwith unless he is required to be in custody in connection with any other case.
