JUDGMENT
S. Marimuthu, J.
1. This appeal is directed challenging the conviction and sentence delivered by the Sessions Judge, Kozhikode Division in S.C. No. 178 of 1993.
2. The prosecution case is that on 11-6-1993 at about 11.30 A.M., the Sub Inspector of Police attached to Kozhikode Town Police Station, examined as PW1, received reliable information that the accused was indulging in the sale of brown sugar at the Beach Road, Kozhikode. Therefore, with his party, he proceeded in a jeep. In the Beach Road, he saw yet another person standing near the accused. On seeing the jeep, the another person ran away from that place and the accused also began to walk towards the south. PW1 intercepted the accused and questioned him. The accused admitted that he had been indulging in the sale of brown sugar and he is in possession of sale proceeds and also 2 packets of brown sugar. Then he put a question to the accused as to whether he is willing to be searched in the presence of a gazetted officer or a magistrate. The reply was in negative. Hence he arrested the accused and recovered brown sugar as per Ext. P1 mahazar. Thereafter, he proceeded to the police station along with this accused. There, he prepared Ext. P2 F.I.R. During the course of the trial, witnesses were examined on the prosecution side, since the accused denied the charge under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (here in after referred to as ‘the Act’). Learned Sessions Judge, on conclusion of the trial, found the accused guilty under Section 21 of the Act and sentenced him to undergo rigorous imprisonment for ten years and also to pay a fine of Rs. 1 lakh and in default in the payment of fine, to undergo imprisonment for a further period of three years.
3. In this appeal, Mr. Sunny Mathew raised a question of law that the statutory requirements contemplated under Sections 42 and 50 of the Act were not complied with by PW1, the Sub Inspector of Police. For appreciation of the above contention, Sections 42 and 50 of the Act can be reproduced hereunder:
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, break open 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;
(2) Where an officer takes down any information in writing under Sub-section (1) or records grounds for his behalf under the proviso there to, he shall forthwith send a copy thereof to his immediate official superior.
50. Conditions under which search of person shall be conducted : (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made the Officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
The mandatory requirements in Section 42 of the Act is that whenever the prosecuting agency received an information from any person regarding any commission of the offence under the Act, that must be taken down in writing and the copy of the same must be sent to his immediate superior officer. In the instant case, P.W. 1 states as follows :
(Vernacular matter omitted)
The above evidence of P.W. 1 is crystal clear that only on the information he received, he proceeded to the scene of occurrence. When he received certain information, it follows that the information was furnished by a person or a third party. When that be so, that information should have been reduced into writing and the copy of the same ought to have been sent to the superior officer as per the above statutory provision in Section 42. In Ext. P2 F.I.R. also, P.W. 1 had narrated that on receipt of secret information, he proceeded to the scene. When that be so, the discussion of the learned Sessions Judge that when it is in the evidence of P.W. 1 that he received information from a third party, it can be concluded that he had acquired a personal knowledge about the occurrence in the scene and hence that need not be in writing. That interpretation of the learned Sessions Judge in respect of the evidence of P.W. 1 extracted above, is erroneous. Therefore, I have no hesitation to conclude that the mandatory provision in Section 42 was not complied with by P. W. 1.
4. It is also the testimony of P. W. 1 as follows :
(Vernacular matter omitted)
The interpretation of the above statement of P. W. 1 by Mr. Sunny Mathew would be that search had already been commenced by P. W. 1 before he questioned the accused whether he required to be searched in the presence of a gazetted officer or a Magistrate. That interpretation of the above evidence of P. W. 1 by the learned counsel for the appellant was not agreed by the learned Public Prosecutor, Mr. Sukumaran, and the contention of the person of the accused. Thereafter, he had put the question as per the provision in Section 50 of the Act and then he had arrested and recovered the contraband. In that situation, there was no violation of Section 42. When I examined the above submissions of both learned Counsel and learned Public Prosecutor, I feel that there is no provision in Section 50 of the Act to conduct an inspection over the body of the accused person before the search is made on him. The above oral testimony of P.W. 1 clearly indicates that P. W. 1 caught hold of his waist and at that juncture, the accused informed P. W. 1 that he was in possession of brown sugar. When that be the situation, it can be rightly said that the body had been searched by P. W. 1 by putting his hand on the waist of the accused. So, it can be rightly said that the search had been commenced by P. W. 1 before ascertaining the willingness of the accused as to whether he liked to be searched in the presence of a gazetted officer or a Magistrate. Therefore, as rightly argued by the learned Counsel for the appellant, Section 50 of the Act also has been violated by P. W. 1. Regarding the effect of the violation or non-compliance of the statutory provisions enjoined in Section 42 or 50 and other Sections of the Act, the Supreme Court has laid down the following principle in the decision reported in State of Punjab v. Balbir Singh AIR 1994 SC 1872 : 1994 Cri LJ 3702 at page 3714 of Cri LJ:
The object of NDPS Act is to make stringent provisions for control and regulation of operations 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 writing 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 affects the prosecution case and therefore, vitiates the trial.
The law laid down by the Supreme Court extracted above is to the effect that the non-compliance of any statutory provisions of the Act would affect the prosecution and that ultimately will vitiate the trial. In the instant case on hand, as I have pointed out and concluded, there is a clear violation of the requirements of Sections 42 and 50 and therefore, conviction and sentence rendered by the Sessions Judge cannot be supported by this Court. In the result, the appeal is allowed by acquitting the appellant. The accused is set at liberty.