JUDGMENT
P.M. Chauhan, J.
1. The appellant Suraj-mal Kanaiyalal Soni has challenged the conviction by the learned Additional Sessions Judge, vadodara for the offence punishable Under Section 18, of the Narcotic Drugs and Psycho-tropic Substances Act, 1985 (hereinafter referred to as N.D.P.S. Act) and sentence to rigorous imprisonment for 10 years and fine of Rs. 1,00,000/- in default, rigorous imprisonment for three years, for being in illegal and unauthorised possession of 9 Kgs. 775 gms. opium worth Rs. 19,550/- at 10-00 p.m. on march 7, 1988 at Bagikhana Road, Vadodara, on various factual and legal grounds that the opium was not recovered from the appellant and was recovered from other persons but they were allowed to go and the appellant is falsely implicated and that the various mandatory procedural provisions specified in Chapter V, N.D.P.S. Act are not complied with, which has prejudiced the appellant and has resulted into miscarriage of justice requiring the setting aside of the conviction.
2. The prosecution case against the appellant is that Police Inspector P. S. Patil of Navapura Police Station, on information from his informant, kept watch along with his staff members, nearby Kasam Dula’s Dargah at Bagikhana Road, Vadodara, and at about 10-00 p.m. they saw the appellant proceeding in suspicious manner towards Polo ground. They apprehended him near Dargah and called two panch-witnesses who were passing by and on being asked the name, the appellant gave his name as Surajmal Kanaiyalal Soni and that he is resident of Bhesoda, District Mansor. The appellant had one rexine bag and on search, three bags were recovered from it. All the three bags were stitched with threads and on opening some portion of those bags the blacksoft substance was found and on taking smell it was found to be opium. One Police constable was sent and one person was brought with scales. On weighing it was found that one bag contained 3 Kgs. 700 gms, second bag contained 3 kgs. 50 gms. and third bag contained 3 Kgs. 025 gms of opium. The appellant had no pass or permit. Some of the opium from each bag was taken out and 3 pellets weighing about 50 gms. were separately put in one plastic bag and that bag was sealed with slip bearing the signatures of the panch-witnesses and by personal seal of the Police Inspector. Three bags recovered from the rexine bag were stitched and were sealed with slips bearing the signatures of the panch-witnesses and with the seals of the Police Inspector. Detailed panchnama was prepared there and muddamal opium was attached. The appellant along with the muddamal opium was taken to the police station and the Police Inspector Patil filed complaint Ex. 10. The Police Station Officer registered the offence and after that Police Inspector Patil carried on further investigation and recorded the statements of the members of the staff who were with him during the seizure operation. The muddamal samples were sent to the Chemical analyser for chemical analyse through the D.C. Branch along with letter Ex. 11. Report Ex. 13, was received from the Forensic Science Laboratory. The appellant in the statement Under Section 313, Criminal Procedure Code, stated that he is falsely involved and on March 5, 1988 he had come to Baroda from Bombay and had put up in Aggrawal Guest House and one Kanchan was with him. In the afternoon they were just taking round in the city and at that time Vikram of Rajasthan, who knew Kanchan, met them and inquired about the place where they had put up and accompanied them and he also put up with them in the common room. The charges of Aggrawal Guest House being more, they shifted to Poona Boarding House, Selatwada, on the next day. Vikram also accompanied them. On March 7, 1988, the appellant was standing at the entrance of the gali and at that time three persons came there and inquired about Vikram and he told that Vikram must be inside the Guest house. They inquired from the boy working in the Boarding house about Vikram and they were informed that Vikram had gone to take the dinner. They then inquired from the appellant as to how he knew Vikram. The appellant told that he did not know Vikram but his companion knew him. On inquiries, the appellant further stated that he is resident of M.P. and had put up in a common room and had one bag with him. Those three people then verified the register of the guest house and waited for Vikram but Vikram did not turn up. They then told him to accompany them as they happened to be the C.I.D. Officers. They then took him to room No. 5 in Relief Hotel, in a rickshaw. Two persons were sitting there and they had black rexine bag. He told that he did not know those two persons. One of them was having the name Karansingh and opium was lying there. Another person was having the name Manohar. One packet of opium was recovered from Karansingh and two packets of opium were recovered from Manohar. Those three policemen i.e. Dilip, Prem and Mehboob then waited there for three hours. During that period they were threatening Manohar and Karan and subsequently, some persons known to Manohar and Karan managed for money and, therefore, both of them were allowed to go and after that they demanded Rs. 20,000/- from the appellant but the appellant could not manage. He had given the name of his relation S. N. Soni and subsequently of one Malik. They went there but money could not be arranged. Police Inspector Patil also came there and he also demanded money but the appellant could not manage and therefore, Police Inspector Patil directed to File the case. He was then taken to Navapura Police Station and was kept in lock-up at Raopura Police station and was informed in the morning that opium was recovered from him.
3. The appellant examined D.W. 1 Rajesh Bhailalbhai Patel (Ex. 16), a clerk working in Poona Boarding House and D.W. 2 Foolsing Maganbhai Rathwa (Ex. 18), a clerk of Baroda Central Jail, to establish that he had put up at Poona Boarding House and that rexine bag was with him when he was taken to Jail as under-trial prisoner.
4. At the trial the prosecution examined Police Inspector Patil, Police Constable Meheboobsa Gulamsa (Ex. 6) and panch-witness Parasram Baburao Mugdal (Ex. 7). All the three witnesses narrated the incident as discussed above. In short evidence of Police Inspector Patil and Police Constable Mahboobsa is that they were keeping watch and on seeing the appellant proceeding in a suspicious manner, he was stopped and two panch-witnesses who were proceeding on the road, were immediately called. The evidence of both the witnesses and of Panch-witness Parasram Baburao Mugdal is that the appellant was carrying one bag and on search three stitched bags were found therein. On opening each of those three bags black soft material was found and on taking smell it was found that it was opium. The appellant was asked but he had no pass or permit for the same. One Atmaram was called with scales and on weighing the three bags, one contained 3 Kgs. 700 gms. another contained 3 Kgs. .050 gms and third contained 3 Kgs. 025 gms. of opium. From all the three bags samples were taken out, were rolled in pellets and the pellets were kept in one packet which was sealed with the slip bearing of signatures of the panch-witnesses and seal of the Police Inspector. The three bags recovered from the rexine bag were stitched and were sealed with the slip bearing the signatures of the panch-witnesses and the seal of the Police Inspector. Detailed Panch-name, Ex. 8 was prepared there. Subsequently, Police Inspector Patil lodged complaint and on registering the offence further investigation was carried out. Police Inspector Patil has also stated that he had sent the sample muddamal opium to the Forensic Science Laboratory with his letter Ex. 11 and the Report, Ex. 13 was received.
5. In cross-examination Police Inspector Patil stated that the muddamal was kept in his personal custody. He did not remember as to when the muddamal was sent to the D.C.B., with whom it was sent and after how many days it was sent. The sample muddamal was received by the Chemical Analyser on April 8, 1988. He admitted that in the Report of the Chemical Analyser is not stated that the sample bag contained the slip hearing the signatures of the panch-witnesses. It is, however, clear from the letter Ex. 11 that he had stated that the sample bag contained the slip bearing the signatures of the panch-witnesses and the seal. About the secret information, Police Inspector Patil stated that he had received that information in the late evening, but he did not remember the time, but he had reached the place at about 9 to 9-15 p.m. for keeping watch. He had not made entry in the Police station diary after he started. After he got the information he had not attempted to secure warrant from the Magistrate but had informed his superior Shri Raol that he bad received the secret information and that be was going for keeping watch. There are residential premises at Bagikhana Road and many people frequently move on that road. When the Police stopped the appellant people did not stop there, as it being night time the residents of the society were taking rest and therefore, he had not called any panch witness from the locality but the persons who were passing, were called to work as Panch-witnesses. He admitted that the brother of panch-witness Parasram Baburao Mugdal is having a stall in which ‘sev-used’ is served. Himself and police had not given their search. He denied that police constable Dilip Jairam had called him at the police station at 10-45 p.m. on telephone and three persons, namely, Karamsinh, Manohor Darji and the appellant were produced before him and was informed that one bag was recovered from Karamsinh and two bags were recovered from Manohar Darji, but the police had settled with them and they were allowed to go. He also denied that he was informed that one Manohar Darji gave the information and thereupon they had gone to Poona Boarding house, Vikram and Chandansinh had fled away from there, but the appellant was brought from there with Aristocrate bag. He also denied that the appellant could not manage for money. The allegation that the panchnama was subsequently prepared was also denied by him. He had not inquired as to whether the appellant had put up at Poona Boarding house. He had not seen any Aristocrat Bag with the appellant. He had affixed the seal of ‘P.S.P.’ He informed the superior officer about the seizure and of the incident on phone but had not submitted any written report. He did not remember as to whether the entry was made in the log-book.
6. Police Constable Mahboobsa Gul-amsa (Ex. 6) was also cross-examined at length. He denied the allegation about Karansinh and Manohar and taking the appellant from Poona Boarding House to Relief Hotel as Vikram and Chandansinh had fled away from there. He denied that they had brought Aristocrat bag of the appellant from Poona Boarding House. He also stated that the bags were sealed by the Police Inspector with the (SIC) of Police Inspector Navapura’.
7. Panch-witness Parasram B. Mugdal (Ex. 7) stated in the cross-examination that he had gone to temple for darshan and was returning from there. Another Panch Kishan was not with him. He came there after about 10 minutes. The bag was opened in his presence. He remained there from about 10.00 p.m. to 11-30 p.m. Atmaram was also called for weighing the opium. Sample opium about 50 gms from each bag was placed in separate plastic bags and were sealed in one plastic bag. He denied that as his brother is having a stall of Sev-Usad, he is supporting the police. He has categorically stated that he has never appeared as panch in any other case. The seal was affixed by the policeman. He denied that he simply signed the panch-name at the police chowky. He also stated in the cross-examination that over and above the panchnama, he had also signed one or two other papers.
8. The learned trial Judge has rightly accepted the evidence of Police Inspector Patil, Police Constable Mehboobsa and Panch-witness Parasram as their evidence is cogent and convincing and nothing was brought out to discard their evidence. The muddamal opium 9 Kgs. 775 gam was recovered from three bags, each bag containing more than 3 Kgs. opium. It is therefore, not possible to plant such muddamal. It is tried to establish that Karansinh and Manohar were in possession of three bags, but they were let off by accepting the bribe and the appellant was falsely implicated. It is very easy to make such allegations. If at all Karansinh and Manohar would have paid the illegal gratification to the Police Inspector Patil and the staff, they would not have filed case. It cannot be easily accepted that some innocent person would be roped in for such offence. The contention that the police subsequently went to the Poona Boarding House and the appellant was brought from there, cannot be easily believed. If at all Karansinh and Manoharsinh were in possession and they were taken to police chowky, then it was not necessary for the police to take the appellant from Poona Boarding House. It was alleged in the cross-examination of Police Inspector Patil that Karansinh, Manohar and the appellant were produced before him at polo-ground police chowky and he was also informed that on information police had gone to Poona Boarding House and from there the appellant was brought with Aristocrat bag and Chandansinh and Vikram had fled away. If at all muddamal would have been recovered from Karamsinh and Manohar then it cannot be easily believed that after that the police will go in search of Vikram and Chandansinh and on their not being found the appellant would be arrested. It is very easy to make such allegation, or create such evidence. As the police witnesses and the panch-witness have rib reason to tell a lie the learned trial Judge I has rightly accepted their evidence.
9. Mr. Shethna, learned Advocate for the appellant stated that according to the police and the panch-witnesses, 50 gms. opium was taken from each bag for sample, but the Chemical Analyser had received 48 gms opium. Merely because there was some minute difference of about 2 gms. that will not make any difference and would not be sufficient to hold that the samples must not be the same which were seized from the appellant. It is clear from the report of the Chemical Analyser, Ex. 13, that the sample was received on April 8, 1988 and the seal was intact and was as per the specimen seal. Mr. Shethna submitted that according to the panch-witnesses the substance attached was black while in the report of the Forensic Science Laboratory, it was stated that it was black-brown. We do not think that describing the sample as black-brown or black would make any difference for the identity of the muddamal article sent to the Chemical Analyser. The Chemical Analyser has stated that one pellet contained 1.06%, second pellet contained 2.7% and third pellet contained 2.3% Anhydrous morphine.
10. It is submitted that no investigation 1991 Cri. L. J./94 V was directed as to from where the appellant secured such huge quantity of opium and the Police Inspector should have carried out investigation on that point. It is true that investigation was not directed on that point but that is not relevant as the possession and seizure of opium from the appellant is established. It is also submitted that during the evidence the panch-witness did not state specifically by pointing out the appellant that he was the person from whom the muddamal was recovered. The identity was never in dispute and no importance should be attached to such a fact if the identity is not in dispute. Mr. Shethna also made grievance that the panch from the locality was not taken. It is clear from the evidence that it being the night time people residing in the nearby society were taking rest in their houses and the persons who were passing by, were immediately called as panch-witnesses and search was made in their presence. Merely because the panch-witnesses did not belong to that locality, by itself would not vitiate the search. It is now well settled that the fact that the Panch-witnesses do not belong to the locality where the search was carried out, would not affect the prosecution case. The evidence of those panch witnesses is required to be closely scrutinised. In Durand Didier v. Chief Secretary, Union Territory of Goa, AIR 1989 SC 1966, the Supreme Court observed:
“………This Court, while considering a similar contention in Sunder Singh v. State of U.P. 1956 Cri LJ 801 : (AIR 1956 SC 411) and Tej Bahadur v. State of U.P. (1970) 3 SCC 779 has observed that if pancha witnesses are not respectables of the same locality but from another locality, it may amount to an irregularity, not affecting the legality of the proceedings and that it is a matter for Courts of fact to consider and the Supreme Court would not ordinarily go behind the finding of facts concurrently arrived at by the Courts below,”
It was asserted by Mr. Shethna, learned Advocate for the appellant that the evidence of the defence witnesses should have been accepted by the learned trial Judge. Mr. Shethna took us to the evidence of the witnesses and asserted that the appellant was at Poona Boarding House and was taken by the police from there. The defence witness Rajesh Bhailalbhai Patel (Ex. 16) was serving in Poona Boarding House. On referring the register, he stated that on March 6, 1988 Surajmal, Vikrambhai and Chandansinh had put up in that Boarding House. At about 6-45 p.m. three policemen had come there and had taken away them alongwith their bags. The muddamal bag was the same bag which was taken away by the police. He had not made entry in the register that the police had taken away them. Two persons accompanying the appellant had run away. After that no body had approached him in the Boarding House. In cross-examination he stated that prior to that he had seen the appellant Surajmal in the Boarding House. On referring the register, he stated that on December 21, 1987 Surajmal had put up in the Boarding House and left on the next day. At that time he had given his address : Palace Road, Ratlam M.P. Again he had put up in the said Boarding House on February 19, 1988 and left on the next day. At that time he had given address : Bharani Mandi, Mandsor, Police Chowki, Madhya Pradesh. On March 6, 1988 when he had put up in the Boarding House, at that time he gave his address : Tagar Mohalla, Bhavani Mandir, Rajasthan. Admittedly, no entry was made that the appellant was taken away by the police on March 6, 1988. The evidence of the witness was recorded on December 20, 1988. Such a witness can easily be got up. It also cannot be easily believed that the two associates of the appellant could flee away and he was arrested by the Police from the Boarding House. The learned trial Judge has, therefore, rightly not accepted the evidence of this witness.
11. Another defence witness Pulsing Maganbhai Rathwa (Ex. 18) was the clerk in Baroda Central Jail. According to him, on March 11, 1988, appellant Surajmal Kanaiyalal Soni was produced with the warrant by the court, but at that time he was not present. Entry was made in the register that Surajmal was produced at 2-50 p.m. Entry in the register is made by the concerned clerk. Referring to the entry, Mr. Shethna, learned Advocate for the appellant states that the shaving brush, pants and some other articles alongwith one bag were produced, and for that it should be held that the bag must have been recovered by the police from the Boarding House. Merely because one bag was produced that does not necessarily mean that the bag must have been recovered from the Boarding House. The learned trial Judge has, therefore, rightly rejected the defence version. We agree with the learned trial Judge that the prosecution has established that 9 Kgs. 775 gms. opium was recovered from the appellant and it was seized under panchnama and the samples were also properly taken and sent to the Chemical Analyser.
12. It is asserted that the Police Inspector Patil has stated that the sample of Opium was sent to the chemical analyser through the detection of Crime Branch and from the Report of the Chemical Analyser it transpires that the sample was received by him on April 8, 1988. Mr. Patil also admitted that the sealed sample muddamal was kept in his custody and was sent to the Chemical Analyser through the detection of Crime Branch, but he did not remember the date when he sent it. Mr. Shethna, learned Advocate for the appellant submits that the prosecution should have examined the witness who carried the sample to the Chemical Analyser. It is true that the prosecution has not examined any witness but it is clear from the letter written by the Police Sub-Inspector, Navapura Police Station, Vadodara (Ex. 11), on the same day that the sample having the seal with the slip bearing the signatures of the Panch-witnesses and the official seal was sent. The letter was prepared on March 7, 1988, and it appears that the singnatures of the panchwitnesses were taken on that letter. It is also clear from the Report of the Chemical Analyser, Ex. 13, that the sealed sample parcel was received and the seal was as per the specimen. As the sample packet was received in sealed condition, merely because the person who carried the sealed packet to the Chemical Analyser, was not examined, should not be attached any importance. It should also not be lost sight (of) that the defence was that the appellant was not in possession of muddamal opium. The judgment in the State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314 : (1980 Crei LJ 929) relied on by Mr. Shethna is not applicable to the facts of the instant case, as in that case the opium was seized and it had changed various hands and ultimately after more than one month the samples were taken by the police to the offence of the superintendent of police, Jodhpur for onward transmission to the police Analyst, but the samples were not accepted by the office of the Superintendent of Police as the labels were not in order. The prosecution had not taken the Court into confidence in disclosing the reasons for which the office of the Superintendent of Police refused to take the samples. It was held that as the labels were not in order, it was necessary for the prosecution to prove that the seals were still intact. In light of those facts it was observed by the Supreme Court that some of the witnesses, who had handled the samples should have been examined. No principle of general law is laid down by the Supreme Court that even in cases when the parcels were handed over intact with seal, the witnesses who carried the parcel to the Chemical Analyser, should be examined by the prosecution.
13. It is also submitted that the entry was not made in the Log-book of the vehicle in which the Police Inspector Patil had gone to the place of office and therefore, it should be held that he had not gone to that place and no search was made at the time alleged by the prosecution. Police Inspector Patil has stated in the cross-examination that he did not remember as to at what time he had started from the police station, but he had reached the place of incident at about 9 or 9.15 p.m. when he had started from the police station he had not made entry in the police station diary. He also stated that he did not remember as to whether entry was made in the Log Book of the vehicle at Navapura Police station that he had gone to Bagikhana area. It was not specifically asked to Police Inspector Patil that he had gone to the place of incident by vehicle for which the log book is got produced. Merely because no entry was made in the log book that the vehicle was taken to the place of incident, by itself is not sufficient to doubt or discard the evidence of the Police Inspector Patil and to hold that he had not gone to the place of incident at all. Even according to the accused, he was taken to the Relief Hotel and Police Inspector Patil had gone there. Even no entry for that is found in the log book. No importance therefore, can be attached to the fact that the entry was not made in the log book of the vehicle for the trip to the place of incident.
14. Mr. Shethna, learned Advocate for the appellant referring to the provisions of N.D.P.S. Act, 1985 submitted that various procedural provisions of the Act are not complied and are violated, which has prejudiced the appellant and resulted into miscarriage of justice and, therefore, also the conviction should be set aside.
15. It is submitted that the mandatory provisions of Sections 41, 42 and 43 of the N.D.P.S. Act are violated as the information was not reduced in writing by the Police Inspector Patil and the full report of the case was not submitted to the immediate superior. In view of the submission, it is necessary to ascertain, (1) whether Section 41, Section 42 or Section 43, is applicable to the facts of the instant case? (2) whether the offence is a cognizable offence? (3) whether the Police Inspector had the power to seize and arrest? (4) whether the provisions of Section 42 regarding taking down the information in writing are mandatory? (5) whether the provisions of Section 57 regarding submitting the full report within 48 hours to the immediate Superior are mandatory or directory? (6) whether procedural provisions of Chapter V, N.D.P.S. Act are mandatory or directory and (7) whether infraction of any provision of Chapter V vitiates investigation, proceedings, trial or conviction ipso facto or prejudice to accused or miscarriage of justice is required to be proved by the accused?
16. The appellant is convicted for being in possession of opium without pass or permit, Under Section 18, N.D.P.S. Act. Chapter V, N.D.P.S. Act, provides for the procedure to be followed for issuing the warrant, for entry, search and seizure and arrest without warrant, seizure and arrest in public places; power to stop and search the conveyance; conditions under which the search of the person he conducted; informing the grounds of arrest to the accused; forwarding the accused to the Magistrate who has issued the warrant; forwarding the arrested accused and the seized muddamal to the Officer in charge of the nearest Police Station; the officer in charge of the Police Station taking the charge of the articles seized and delivered to him; report of the arrest and seizure to superior officer, and application of Code of Criminal Procedure insofar as not inconsistent with the provisions of the Act to all warrants issued and the arrests, searches and seizures made under the Act. It is asserted on behalf of the appellant that the provisions of Section 42, NDPS Act should have been complied but on the contrary are violated. Therefore, first of all we shall consider the provisions of Sections 41, 42 and 43, NDPS Act, as, in our view, the provisions of Sections 43 and 49 are applicable and not provisions of Sections 41 and 42, NDPS Act. Section 41 empowers the Metropolitan Magistrate, or a Magistrate of the First Class or any Magistrate of the Second Class, specially empowered by the State Government in that behalf, to issue a warrant for the arrest of any person whom he has reason to believe, has committed any offence punishable under Chapter IV, or for the search, whether by day or by night, of any building, conveyance or place, in which he has reason to believe any narcotic drug or Psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or any other article which may furnish evidence of the commission of such offence is kept or cancelled. Sub-section (2) of Section 41 authorises gazetted officers of various departments of the Central Government specified in that section empowered by general or special order by the Central Government, or such officer of the revenue, drugs control, excise, police, or any other department of a State Government as is empowered in that behalf by general or special order of the State Government to search a building conveyance, or place by himself or authorise an officer subordinate to him, but superior in rank to a peon, sepoy or a constable, to arrest such & person or search a building, conveyance or place. If the information is given by any other person, then such empowered officer should take it down in writing and then take further action for arrest or search a building, conveyance or place by himself or authorise a subordinate officer, but above the rank of Peon, Sepoy or Constable, to arrest or search a building, conveyance or place. Section 41 makes provisions empowering such officers and also relating to the authority of the empowered officer to authorise his subordinate to take action or himself take action of arrest or search. By Notification No. GHL-14 and CS 1082-10577 (1)-M dated June 15, 1987, the Government of Gujarat, in exercise of its power Under Sub-section (2) of Section 41, NDPS Act, empowered for the purpose of Sub-section (2) of Section 41, all officers of the Police Department of and above the rank of Inspector of Polke posted in any part of the State of Gujarat and other Officers of the prohibition, Excise Department, Drugs, Cosmetic Department, etc. The Officers of the rank of Inspector, of Police and above, therefore, can exercise the powers Under Sub-section (2) of Section 41, NDPS Act. Under Section 41, arrest and search can be made either under warrant issued by the Magistrate or by the authorised officer or under orders of such authorised officer. Without being empowered Under Sub-section (2) of Section 41, NDPS Act, the Officer cannot arrest or search without warrant or authorise arrest and search. That, however, does not mean that other officers, who ate authorised Under Section 42 or who can exercise the power Under Section 43, NDPS Act, cannot take action for arrest and seizure of the prohibited articles. Section 41, is, therefore, not relevant and applicable to the facts of the instant case.
17. Section 42, NDPS Act, provides for the power of entry, search, seizure and arrest without warrant or authorisation. Any 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 that 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 the State Government as is empowered in this behalf by the 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 psycho-tropic 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 commision of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset enter into and search any such building, conveyance, or place and in case of resistance, break open any door and remove any obstacle to such entry and seize the drug and 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. The proviso to Sub-section (1) of Section 42 of the Act authorises such officer to enter and search the building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief, if such officer has reason to believe that the search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender Sub-section (2) of Section 42 makes it obligatory on the officer, who takes down any information in writing Under Sub-section (1) or recording the grounds of his belief under the proviso of Sub-section (1) to forthwith send a copy thereof to his immediate superior. The provisions of Section 42 are applicable in the case in which a building, conveyance or place is to be entered into and searched. If the places are not to be entered into and searched, the provisions of Section 42 are not applicable. In the instant case the question of entry did not arise as the appellant was searched on the public road.
18. The specific provisions in S, 43 provide for the seizure and arrest in a public place or in transit and that also clearly exclude the application of the provisions of Section 42 in the instant case. It was therefore, not necessary to record in writing the grounds of the information and to forward such information forthwith to the immediate official superior. Police Inspector Patil was duly authorised by the State Government by Notification No. GHL-14 NDS 1082-10577(1)-H, dated June 15, 1987, by which, in exercise of the powers conferred by Sub-section (1) of Section 42, NDPS Act, the Government of Gujarat has invested all the police officers of and above the rank of Head Constable in the State of Gujarat, within the limits of their respective jurisdiction, the power of entry, search, seizure, detention and arrest without warrant between sunset and sunrise exercisable Under Section 12, of NDPS Act. By that notification, the powers, which can be exercised under the proviso of Sub-section (1) of Section 42 are also conferred on the said officers. Police inspector Patil who was the in charge of the police station within the jurisdiction of which the offence occurred, was authorised to exercise the powers Under Sub-section (1) of Section 42, NDPS Act.
19. Section 43, empowering seizure and arrest in a public place is relevant to the facts of the instant case :
“43. Power of seizure and arrest in public places — Any officer of any of the departments mentioned in Section 42 may —
(a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance :
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or psycho-tropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation : For the purposes of this section, the expression ‘public place’ includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public.”
Section 43 gives plenary power to the officers to seize in a public place or in transit any narcotic drug or psychotropic substance and to detain and search any person, whom he has reason to believe has committed the offence. The only restriction is that such powers can be exercised by the officer of any Department mentioned in Section 42. The Police Department is specifically mentioned in Section 42 and as stated above, even Under Section 42 the Police Inspector in charge of the Police Station is empowered to exercise the powers Under Section 42. Police Inspector Patil was, therefore, an authorised officer to exercise the power and take action for seizure, detention, search and arrest Under Section 43, NDPS Act.
20. In our view, therefore, the provisions of Sections 41 and 42, NDPS Act, are not applicable, but the provisions of Section 43, NDPS Act are applicable for any search and seizure of the narcotic drug in a conveyance etc. and detaining and searching any person in a public place. We are fortified, in our view, by the judgment of this Court in Aslambhai Ibrahimbhai Memon v. The State of Gujarat, Criminal Appeal No. 844 of 1988, delivered by a Division Bench of this Court, consisting of M. B. Shah and B. S. Kapadia, JJ. on October 5, 1989, in which the learned Brother Judges, on considering the relevant provisions of Sections 41 and 43, NDPS Act, observed :
“Thus, the intention of the Legislature in Sections 41 and 42 is different as revealed from the language of sections as stated above from the one in Section 43 which authorises any officer of the departments mentioned in Section 42 for search, seizure, arrest and detention in any public place or in transit in respect of any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed and, alongwith such drug or substance, any animal or conveyance or article is liable to be confiscated under the Act, or any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance.
Thus, Section 42 speaks about search and seizure from any building, conveyance or enclosed place, while Section 43 speaks about the search and seizure from public place or in transit. It is important to note that the wordings of Sections 41 and 42 with regard to information taken in writing have been deliberately omitted by the Legislature in Section 43 and in our view, that has been done so advisedly inasmuch as the police officer empowered Under Section 42 may get information with regard to the person in any public place or in transit at the last moment and if he has to undergo the procedure of taking that information in writing and recording the reasons for his belief, possibly such information may not be useful. When that is so, any search or seizure is to be made in any public place or in a vehicle in transit or any person is to be arrested or detained from a public place, it is not intended by the Legislature to take down the said information in writing.”
In view of our observations that the provisions of Section 43 NDPS Act, are applicable and the provisions of Sections 41 and 42 are not applicable to the facts of the instant case, and that the provisions of Section 43 NDPS Act, are not violated, it is not necessary for us to refer to certain judgments by the High Courts on the point. We shall, however, refer some of them as they are cited at Bar.
21. In Hakam Singh v. Union Territory, 1988 Cri.LJ 528, the facts were that the Assistant Sub-Inspector had received secret information that the accused would be passing by bus stop of village Dhanas carrying crushed poppy heads. The accused went there and was overpowered by the police on suspicion and in the bag which he was carrying, crushed poppy heads were found. The defence of the accused was that he was falsely implicated, but was ultimately convicted by the Court and in Appeal the conviction was challenged mainly on the ground that the provisions of the NDPS Act being mandatory, were not complied with. Learned single Judge of of Punjab and Haryana High Court considered the provisions of Sections 41 and 42, NDPS Act and observed that the authorised police officer could exercise the power only if he had reason to believe from personal knowledge or information given by any person and taken down in writing, but such information was not taken down in writing, in that case. In view of the learned single Judge the prerequisite is laid down not without any purpose and the contravention would certainly cause prejudice to the accused because in absence of any writing, there will be no chance to cross-examine the officer with regard to the factum and contents of the information received. The provisions of Section 43 are not considered by learned single Judge in the said judgment. We are not in a position to endorse the view that in absence of writing, there will be no chance to cross-examine the officer with regard to the factum and contents of the information received and that would cause prejudice to the accused. It is always a question of fact required to be considered in the light of the circumstances and the relevant provisions and to ascertain as to whether prejudice is caused to the accused Merely because a particular provision is not strictly complied with, the necessary implication may not always be that prejudice is caused to the accused.
22. Karamsingh v. State of Punjab, 1987 Drug Cases 194, was a case in which the Head Constable searched the accused and recovered 50 gms. of opium from the right side pocket of the pants of the accused. It was contended before the learned Judge that the head constable was not the Police Officer, who was empowered by the State Government to exercise the powers. It was urged on behalf of the State that on a combined reading of Sections 37 and 51, NDPS Act, the offence is cognizable and the provisions of the Code of Criminal Procedure so far as they are not inconsistent with the provisions of the Act shall apply to all arrests, searches and seizures under the Act and, therefore, the investigation and trial of the case has rightly been conducted in accordance with the procedure laid down in the Code. The learned Judge, considering the provisions of Section 4 of the Criminal Procedure Code and the observation of the Supreme Court in State of Gujarat v. Lal Singh Krishansingh AIR 1981 SC 368 : (1980 Cri LJ 1413), held in terms, that the offence under the NDPS Act is a cognizable offence and that the Head Constable Sumel Singh was not entitled to arrest the accused nor could he conduct the search in violation of the relevant provisions contained in Chapter V nor the opium recovered (had?) been seized or secured in the manner provided for in the said Chapter. It is also observed that :
“It hardly need be emphasised that if the power of the special or authorised police officer to deal with the offences under the Act and therefore, to investigate which essentially includes the power to arrest the suspected offender be not held exclusive to the officers specified in Sections 41 to 43 of the Act, there can be two investigations carried on by two different agencies, one under the Act and the other by the ordinary police.”
It is therefore, clear from the observations that the Head Constable who exercised the powers, was not authorised under the Act and, therefore, the search was without any authority and in violation of the provisions, even though the offence was held cognizable. It is clear that the provisions of Section 43 were not considered by the learned Judge. Even the provisions of Section 74, NDPS Act providing for transitional powers are also not considered. The matter was then taken in appeal to the Supreme Court, and the Supreme Court, by order dated August 9, 1988 in the Criminal Appeal, 1988 observing that the High Court lost sight of the provisions of Section 74 of the Act and omitted to consider the said provisions, though they were relevant for deciding whether the conviction was vitiated in the absence of compliance of Chapter V, allowed the appeal and set aside the judgment by the High Court and remitted the matter to the High Court for disposal in accordance with law. It appears that before the Supreme Court, the learned Additional Solicitor General, appearing for appellant, contended that the High Court did not examine the merits of the matter, but came to the conclusion in favour of the accused by accepting the contention that the procedure provided in Chapter V of the Act had not been complied with. It also appears to have been urged that the High Court further found that under the Act, the offence has been made cognizable and when a special procedure for investigation has been provided, it necessarily meant that unless the special procedure was followed, there could be no investigation under the Act so as to end up in conviction in case the charge is made out. It was then observed by the Supreme Court :
“Though learned Additional Solicitor General has challenged the view of the High Court on this score, we find no substance in that contention.”
As discussed above, the learned single Judge in the case of Karam Singh (supra) had set aside the judgment mostly on the ground that the head constable was not an authorised officer under the Act and that observation appears to have been challenged before the Supreme Court and therefore, their Lordships of the Supreme Court observed that the provisions of Section 74 of the Act were lost sight of by the learned Judge.
Section 74 provides :
“74. Transitional provisions : Every Officer or other employee of the Government exercising or performing, immediately, before the commencement of this Act, any powers or duties with respect to any matters provided for in this Act, shall, on such commencement, be deemed to have been appointed under the relevant provisions of this Act to the same post and with the same designation as he was holding immediately before such commencement.”
As these provisions provided for the statutory appointment under the relevant provisions of NDPS Act, it was necessary for the High Court to consider the provisions and the powers and authority of the head constable taking action for the cognizable offence and, therefore, it appears that their Lordships remitted the case for consideration of the said provisions of the Act and the authority of the head constable. It also appears that the Supreme Court made the said observation , with regard to the powers of the Head Constable from the observations, therefore, it cannot be called, out that except want of; authority or power to take action for search, seizure and arrest, the provisions of Sections 41 , 42 and 43 are such mandatory that violation of which would vitiate the proceedings even without establishing any prejudice to the accused or miscarriage of justice and, there fore, the conviction is bad.
23. Various High Courts have expressed diverse views on the mandatory nature of the procedural provisions of the NDPS Act and vitiating the conviction on that ground. The Delhi High Court in Richhpal v. State 1989 Drugs Cases 97, considering the provisions of Section 42, providing for reducing the information in writing, observed that there was some soft of urgency for making immediate arrangement for apprehending the accused and, therefore, even though there was lapse in not reducing the secret information in writing, it did not vitiate the recovery effected from the accused. The learned Judge relied on the observation of the Supreme Court in Radha Kishan v. State of Uttar Pradesh, AIR 1963 SC 822 : (1963 (1) Cri LJ 809), Kamalabai Jethamal v. State of Maharashtra, AIR 1962 SC 1189 : (1962 (2) Cri LJ 273) and Khandu Sonu Dhobi v. The State of Maharashtra, AIR 1972 SC 958 : (1972 Cri LJ 593). Extracting the relevant observations of the Supreme Court, the learned Judge observed that even if certain statutory provisions are not complied with before effecting the seizure, the seizure does not become invalid on that score alone. The learned Judge did not agree with the view expressed in Hakam Singh (supra) that if the mandatory provisions of the NDPS Act are not complied with, then the charge against the appellant must fail and expressed inability to agree with the broad proposition of law laid down in that judgment, observing that “the Court must consider the facts of each case in order to determine whether failure of prosecution to comply with any particular provision of NDPS Act has the effect of creating any doubt regarding the prosecution case or not. There cannot be any mechanical application of law to the facts of the case. The salutary provisions introduced into the NDPS Act contained in Sections 41 to 55 are not to be obviously ignored by the Courts or by the prosecution, but these provisions have to be kept in view only to see whether the prosecution case set up is truthful or not or there arises any doubt in respect of the prosecution case for non-compliance of any of the provisions of NDPS Act”. We are in respectful agreement with the observations by the learned Judge.
24. The Bombay High Court, Panaji Bench (Goa) in Abdul Sattar v. State, 1989 Drug Cases, 50, while expressing the view that even if the provisions of Sections 41 to 58, NDPS Act are mandatory and were not complied with, held that this procedural infirmity would not, by itself, vitiate the conviction of the appellant and the only question that remained to be determined was whether the non-compliance with the said provisions had caused any prejudice to the appellant and the answer to that question was manifestly in the negative, the Court held and observed :
“We indeed do not see and the learned counsel for the appellant was unable to satisfy and show us, in what manner the omission in recording in writing the information received and in reporting it to the superiors could have and in facts of this case, where the recovery is proved to be genuine, prejudiced the appellant.”
25. In Jayapalan v. State, 1969 Drugs Cases, 106, the Delhi High Court, considering the provisions of Section 42, observed that in that case, where the information was taken down by the Officer in writing, but the copy was not produced before the Court during the trial, the provisions of Section 42 had not been shown to have been complied with. It was, however, observed that there may be cases where it may become imprecticable to comply with the provisions of Section 42 of the Act. On facts, it was held that the offence was not proved beyond shadow of doubt.
26. In Bhajan Singh v. State of Haryana, 1988 Drugs Cases 94, the Punjab and Haryana High Court, relying on Karam Singh v. State of Punjab (supra), observed that the provisions of Sections 41 , 42, 43, 50, 51 and 55 of the Act have been held to be mandatory and contravention thereof vitiates the investigation and trial. With due respect, we are not in a position to agree with such broad proposition of law. Similar view is expressed in Harbhajan Singh v. The State of Haryana, 1988 Drugs cases 81.
27. Nand Lal v. The State of Rajasthan, 1988 Drugs Cases 44, Umrav v. State of Rajasthan, 1989 Drugs Cases 39, Shanti Lal v. State of Rajasthan, 1989 Drugs Cases 213, and State v. Jagmala Ram 1989 Drugs Cases 169, were the cases in which the officers exercising the power of seizure and search Under Section 42 of the NDPS Act were not authorised by the State Government and, therefore, the accused were acquitted.
28. In Sivakumar alias Kumar alias Sugumar v. State 1989 Drugs Cases 285, a learned single Judge of the Madras High Court, while considering the provisions of Sections 41 to 43, NDPS, observed that the officers authorised under the said Sections 41 and 42 can only exercise the powers of seizure, arrest etc. and no other Police Officer, even though the offence is a cognizable offence. Referring to Section 74 NDPS Act, the learned Judge observed that it is a transitional provision and meant for a limited period. It is clear that the learned Judge has considered the provisions of Section 74 as a transitory provision, and not transitional provision. Transitory provision is a provision for a temporary period, while ‘transitional’ means changing over to another form or passage from one state, subject, set of circumstances to another.
29. In view of the discussion above, it is clear that the view of several High Courts is that if the Officer exercising the powers of seizure, arrest, etc. under the Act is not empowered, either Under Section 41 or Section 42, the seizure, arrest and investigation etc. arc without jurisdiction and violative of the mandatorty provisions and vitiated the investigation and trial. Even though we may be in broad agreement with that view, we do not express our view on that point as the Division Bench of this High Court in Aslambhai (supra), after considering the relevant provisions in Sections 41, 42, 43, 47, 53, 57, NDPS Act, and Section 4 Criminal Procedure Code, expressed the view that the offence is a cognizable offence and, therefore, investigation is to be carried out in accordance with the provisions of the Code of Criminal Procedure. There is no question of following any other procedure than the procedure prescribed in the Code. It is observed :
“In view of these sections, it is apparent that considering the seriousness of the offence, the Legislature thought that apart from investigation by the police under the Criminal Procedure Code, some other officers mentioned in Sections 41, 42, 43 and 53 be empowered to discharge certain duties as specified therein. But this does not mean that a police officer who is investigating the offence under the Act is not required to follow the procedure prescribed under the Criminal procedure Code. He has to investigate in accordance with the provisions of the Criminal Procedure Code. To the other officers limited powers are given. Under Section 53 the Central Government or the State Government as the case may be, is entitled to invest any officers of the department mentioned therein with the powers of an officer in charge of police station for the investigation of the offences under the Act. From the aforesaid discussion it would be clear that if the competent police officer has investigated the offence under the Act, there is no question of following any procedure other than the procedure prescribed under the Criminal Procedure Code.”
30. As the view is expressed by the Division Bench of this Court judicial propriety requires that in case we do not agree with the view, reference should be made to a larger Bench. Even though we have reservations, we do not express any view regarding the observations by the Division Bench as it is not necessary for us to consider and decide that point in the present appeal as we hold that the Investigating Officer concerned was authorised to investigate the offence and seize the contraband.
31. Considering the provisions of Sections 37 and 51, NDPS Act, we are of the view that the offence under the Act is a cognizable offence.
32. Referring to the provisions of Section 50, NDPS Act, it is submitted that the appellant should have been informed that if at all he desired, he may be taken to the nearest Gazetted Officer of the Departments specified in Section 42 or to the nearest Magistrate and in the instant case, the prosecution has not led any evidence for that and therefore, the proceedings vitiate. Section 50 provides that in case the officer, who is authorised Under Section 42, is about to search any person under the provisions of Section 41, Section 42 or Section 43, such officer should, if such person so requires, take such person to the gazetted officer of the Department specified in Section 42 or to the nearest Magistrate. As provision in Sub-section (2) in case such requisition is made the officer can detain such person till he is taken to the gazetted officer or a Magistrate. The Gazetted Officer or the Magistrate, if he does not see any reasonable ground for the search, may discharge the person, but otherwise shall direct the search to be made. This section provides for the additional safeguard for the personal search, probably with a view that the authorised officer may not misuse the power. The person, who is to be searched, has, however, to require the authorised officer to take him to the nearest gazetted officer of the department mentioned in Section 42 or to the nearest Magistrate. If no such requisition is made, it is not necessary for the authorised officer to take such person to the gazetted officer or the nearest Magistrate. The section does not specifically provide that such person should be informed by the authorised officer that it is his right to be taken to the gazetted officer or to the Magistrate nor does it impose any obligation or duty on such officer to inform such person. In absence of any such provision imposing the duty on the authorised officer to inform the person, who is to be searched, it cannot be said that the officer is bound to inform of such right to the person to be searched, much less it can be said that in case such person is not reminded of his right, breach of any statutory provision is committed, vitiating the investigation and proceedings. As no specific provision is made imposing the duty on the authorised officer to inform the person to be searched of his such right, it cannot be said that in case no such information is given, any beach is committed by such officer or any mandatory provision is violated. As such the Act does not provide for any such mandatory provision and, therefore, not informing such person about his right would not amount to committing breach of the provisions of the Statute much less the mandatory provisions of the statute. If such person is not informed, no illegality can be said to have been committed by the Authorised Officer nor that would vitiate the investigation or the proceedings. Instate of Himachal Pradesh v. Sudarshan Kumar, 1989 Cri LJ 1412 : 1989 Drugs Cases 188, after referring the provisions of Section 50(1), NDPS Act, the learned Judges proceeded on to observe (at page 1419; 1989 Cri LJ) :
“The rationale behind this provision is manifest. A search before a Gazetted Officer or a Magistrate would impart much more authenticity and credit-worthiness to the proceedings. It would, verily strengthen the prosecution. Thus, there is no conceivable reason why a designated officer should shirk from affording a real opportunity to the person concerned to avail of his right, if he so desires. But for it, this valuable right would become illusory and a farce. In fact, the designated officer should, as far as practicable, make the offer in question to the person in the presence of two independent and respectable witnesses of the locality. If he fails to do so, onus would be on prosecution to prove that association of such witnesses was not possible on the facts and circumstances of a particular case. This provision thus cannot but be regarded as mandatory and violation thereof per se would be fatal to the prosecution case.”
We are not in a position to agree and endorse view that the provisions make it obligatory on the Authorised Officer to make the offer to the person to be taken before Specified Gazetted Officer or Magistrate and in case no such information is given or offer is made, the mandatory provisions are violated, making per se fatal the prosecution case. As discussed above, the statute does not provide for that and therefore, it cannot be said that any such obligation is imposed on such officer It is, however, clear that in case the person to be searched himself asserts for being taken to the Gazetted Officer or the nearest Magistrate, it is the obligatory duty on the authorised officer to take such person to such gazetted officer or the Magistrate and in case it is not done, that would create a shadow of doubt in the search and that may be one of the strongest grounds for not accepting the evidence of the witnesses about the recovery of the prohibited articles from such person. It may, however, per se not be fatal to the prosecution case unless it is established or proved or the Court has reason to believe that prejudice is caused to the accused or it has resulted in miscarriage of justice. Huge quantity of opium was recovered from the bag which was carried by the appellant and therefore there was no possibility of planting opium in the bag of the appellant. The defence of the appellant is also required to be considered to ascertain as to whether any prejudice was caused to the appellant. According to the appellant he was taken away from the Boarding House and no contrabaned articles were with him at that time, but such articles belonged to some other person. As discussed above, it is established that the appellant was in possession of such huge quantity of opium. Merely because the appellant is not informed of the provisions of Section 50 that he had a right to be taken to the nearest Gazetted Officer or the Magistrate, does not therefore, prejudice the appellant, nor can it be said that it has resulted into miscarriage of justice.
33. Mr. Shethna, learned Advocate for the appellant, asserting that the provisions of Section 57, NDPS Act, were not complied with as, even though it was obligatory to make a full report of all the particulars of such arrest or seizure, within 48 hours, to the immediate superior official, no such report in writing was sent by Police Inspector Patil to his immediate superior official. Police Inspector Patil has stated that before proceeding for keeping watch he had informed his immediate superior Mr. Roul and after seizure also he had informed him on phone about the recovery and the offence but had not submitted any report in writing. Section 56, NDPS Act, does not provide that the report in writing should be submitted within 48 hours. ‘Report’ as used in context means ‘make official or formal statement’ ‘inform against’. As Section 57 provides for making full report of all the particulars of such arrest and seizure, it is desirable to make a report in writing but in absence of specific provision making it obligatory to submit report in writing, it cannot be held that report should be in writing. Even if it is held that the report is required to be submitted in writing, non-compliance of submitting such report Under Section 57, NDPS Act, by itself would not vitiate the investigation and the trial. The provisions of Section 57 should not be considered such mandatory, non-compliance of which should be fatal to the prosecution as such report is to be submitted subsequent to the arrest and seizure and in most of the cases after filing of the complaint and producing the muddamal before the Police Station Officer. It appears that such provision is made in Section 57, NDPS Act, with a view to see that the police officers or other officers, who may be authorised to investigate Under Section 52, NDPS Act, may not misuse the power and subsequently create evidence. Normally seizure is made under the panchnama and in presence of panch-witnesses and after that the complaint is filed and First Information Report is lodged before the Police Station Officer and the muddamal is also normally produced before the Police Station Officer. After the entries are made in the official record it may not be easily possible to tamper with the evidence or create evidence. The very fact that the First Information Report is made is sufficient security and after that there may not be any possibility for changing the record. In such circumstances, it should be held that even though compliance of that section is necessary non-compliance of it will not be fatal to the prosecution till it is established that it has resulted in miscarriage of justice or prejudice is caused to the accused. When the panchnama is prepared and the FIR is lodged and the entry is made in the Police Station Diary or the relevant record and the muddamal is produced before the Police Station Officer, it cannot be accepted that any prejudice is caused to the accused merely because report was not made to the immediate superior in writing, within 48 hours.
34. Himachal Pradesh High Court in case of Sudarshan Kumar (supra), while holding the provisions of Section 57 mandatory, observed that non-compliance of it would result into failure of the prosecution case. With due respect, we are not in a position to accept the broad proposition of law. In our view, the prosecution may fail for non-compliance of provisions of Section 57, NDPS Act, only in case miscarriage of justice or prejudice to the accused are established.
35. Mr. G. D. Bhatt. Learned Additional Public Prosecutor asserts that even if the procedural provisions in Sections 41 to 58, NDPS Act, are considered mandatory, the non-compliance of such provisions would not be fatal to the prosecution case or conviction would not vitiate till it is established that prejudice is caused to the accused or it has resulted into miscarriage of justice. In submission of Mr. Bhatt, special procedure is provided in Chapter V, NDPS Act, for various reasons, including the protection to the accused as well as to the Officers, who enter in the premises, conveyance or enclosures and carry out the raid. Mr. Bhatt also submitted that similar provisions are made in Sections 100 and 165, Code of Criminal Procedure, non-compliance of which is not considered fatal to the prosecution or vitiating the trial or conviction. Refuting the contention of Mr. Bhatt, Mr. Shethna, learned Advocate for the appellant, referring the judgment in Sudarshan Kumar (supra) asserted that the non-compliance of all the procedural provisions is fatal to the investigation, trial and conviction. As discussed above, the Bombay High Court and the Himachal Pradesh High Court have expressed divergent views on that. We are of the view that the provisions Under Sections 41, 42, 49 and 53, NDPS Act, regarding authorisation to an officer only are such mandatory that non-compliance of which may vitiate the trial or the proceedings and ultimately, conviction, if the seizure or arrest is made by the person who is not duly authorised to do it and such act is without any authority or power. If the officers, who are not authorised under the relevant provisions of the Act, either to seize, search or arrest, exercise that power, the very act should be considered as not authorised by law and therefore, ab initio ineffective and unauthorised. Any further proceedings after that also should be considered as ineffective and per se vitiating the trial and conviction. However, the other procedural provisions, even though may be mandatory, should not be considered as such that the non-compliance per se would be fatal to the prosecution or vitiate the proceedings and conviction, in case the proceedings result into conviction and it should be established that non-compliance of such other procedural provisions resulted in miscarriage of justice or prejudice to accused.
36. Mr. G. D. Bhatt, learned Additional Public Prosecutor in support of the above contention referred several judgments of the Supreme Court, some of which are referred by the Bombay High Court in Abdul Sattar (supra). In Radha Kishan v. State of Uttar Pradesh, AIR 1963 SC 822 : (1963 (1) Cri LJ 809), provisions of Sections 103 and 165, Criminal Procedure Code, were contravened, but that was not considered fatal to the prosecution. The Supreme Court observed (at page 811; 1963 (1) Cri LJ:
“It may be that where the provisions of Sections 103 and 165 Cri. P.C. are contravened the search can be resisted by the person whose premises are sought to be searched. It may also be that, because of the illegality of the search, the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues, and the seizure of the articles is not vitiated.”
Same view is reiterated in State of Maharashtra v. Natwarlal Damodardas Soni, AIR 1980 SC 593 : (1980 Cri LJ 429).
37. H. N. Rishbud v. State of Delhi AIR 1955 SC 196 : (1955 Cri LJ 526), Munnalal v. State of U.P., AIR 1964 SC 28 : (1964 (1) Cri LJ 11), Muni Lal v. Delhi Administration, 1971 (2) SCC 48 : (1971 Cri LJ 1153), Khandu Sonu Dhobi v. The State of Maharashtra, AIR 1972 SC 958 : (1972 Cri LJ 593) and A. C. Sharma v. Delhi Administration, AIR 1973 SC 913 : (1973 Cri LJ 902), were cases under the Prevention of Corruption Act, in which certain procedure required to be followed under the Act was not followed and the observation by their Lordships of the Supreme Court are that any irregularity or even illegality committed in the course of the investigation does not, by itself, affect the legality of the trial by an otherwise competent Court unless miscarriage of justice has been caused. It is, therefore, necessary to establish the miscarriage of justice or prejudice to the accused. In the instant case, no such miscarriage of justice or prejudice to the accused is established or even can be inferred.
38. The sentence for ten years’ rigorous imprisonment and fine of Rs. 1,00,000/-, in default, rigorous imprisonment for three years, is quite adequate and we do not find any reason to interfere with the order of sentence. Appeal preferred by the State, therefore, should be dismissed.
39. Appeals dismissed accordingly.
