JUDGMENT
R.M. Lodha, J.
1. Sense and soundness of the judgment dated 5th July, 1993 passed by the Additional Sessions Judge, Akola in Sessions Trial No. 130 of 1991, State of Maharashtra v. Syed Jamir, whereby he has convicted the accused-appellant of the offence under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’) and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 25,000/- and in default to suffer rigorous imprisonment for one year, is under challenge in this criminal appeal filed by the appellant-accused.
2. Pralhad Suryabhan Khillare, B/No. 171, Police Station Ural gave a complaint to the Police Station, Ural, Sub-division Akot, District Akola that on 26-4-1991 while he was in the Police Station, a secret informer came to the Police Station and gave information that at Nimba – Fatta four persons having suit cases and bundles of Ganja were gossiping and making suspicious movements. When Pralhad Khillare received this information from the informer, then he, Police Station Officer Shri S.V. Jadhav, H.C. Shankar B/No. 896, Motiram, B/No. 383 and few other police constables went to Nimba Fatta and made enquiry about the said persons. It was revealed during the enquiry that the said persons proceeded on foot from the said Fatta towards Karanja and to catch those persons, it was decided by the Police Station Officer that all of them should proceed in four groups. Police Head Constable Pralhad and one Police Constable B/No/ 2017 formed one group and they started going on foot by road. When they were proceeding further, they saw those four persons going with luggages and suit cases. On seeing police, those four persons ran away. Pralhad along with Ramrao Deshmukh, resident of Nimba and Pandharinath, also resident of Nimba, chased those persons and caught hold of one of them, took him into custody and also the bundle. The said person disclosed his name as Syed Jamir, aged about 50 years, resident of Mullani Chowk, Khadan area, Akola. On taking search of the bundle with that person, Ganja weighing 8 kgs. and 250 gms. valuing Rs. 8,010/- along with cotton carpet bag was seized from him. On this complaint, First Information Report bearing Crime No. 42 of 1991 dated 26-4-1991 at 18.05 hours against the accused/appellant was lodged at Police Station, Ural, Sub-division Akot, District Akola.
3. Exhibit 16, dated 14-6-1991 is an invoice challan whereby one duly sealed parcel was sent through P.C. Sitaram, B/No. 1399 to the Regional Forensic Science Laboratory.
4. Seizure Panchanama (Exh. 9) is dated 26-4-1991 and gives the details about the seizure. It is recorded in the said seizure memo that H.C. Khillare (P.W. 2) at the time of seizure told the accused his intention of taking search of the said bundle and further asked him whether he wanted to take search in presence of panchas and Gazetted Officer, but he declined and permitted to take search of the bundle and then the said property was seized after taking search of the said bundle in the presence of two panchas viz., Ramrao s/o. Bapurao Deshmukh (P.W. 1) and Pandharinath who has not been examined during the trial. In the trial before the Additional Sessions Judge, the prosecution in addition to the aforesaid oral and documentary evidence, examined Pralhad Khillare (P.W. 2) and Sitaram (P.W. 3). Pralhad (P.W. 2) in his deposition before the Court has reiterated the complaint made by him at the Police Station, Ural on 26-4-1991 which has been registered as Crime No. 42 of 1991. He has stated before the Court in his deposition that while he was present at the Police Station, Ural on 26-4-1991, he received secret information that at Nimba Fatta, four persons with two suit cases and three bundles were standing and their movements were suspicious. The information was noted down by the Police Station Officer and then he, Police Station Officer and other police staff proceeded to Nimba Fatta by police van. At Nimba Fatta they could not see those four persons regarding whom information was given, but on enquiry, they were told that those four persons went on foot towards Karanja. They called two panchas and gave information. At the instance of the Police Station Officer, four groups were formed and in his group, two other constables were there. They proceeded towards Karanja on foot and saw four persons on Karanja road. The said four persons started running on seeing the police party. He further deposed that he along with other persons accompanying him, chased those persons and were successful in catching hold of accused Syed Jamir on Karanja Shegaon Road. The bundle was thrown by him there and on enquiry he told them that it contained Ganja which was kept in gunny bag and wrapped in carpet. The bundle was opened and it was found to contain green coloured Ganja weighing 8 kgs. and 250 gms. which was weighed by calling a scale from hotel near Nimba Fatta. The said Ganja was valuing about Rs. 8,000/-. Out of the said Ganja, 250 gms. was taken as sample and it was sealed under the signatures of panchas. According to this witness, P.W. 2 Pralhad, remaining Ganja was also sealed in the gunny bags in the presence and under signatures of panchas. The accused and the seized goods were taken to Police Station, Ural where the accused was arrested. Then the First Information Report of his complaint was lodged, as aforesaid. He has further stated that he gave seized material to concerned Malkhana in-charge of the Police Station in prescribed proforma which was Exh. 12 and bears his signature. The sample was sent to the Chemical Analyser, Nagpur and the Chemical Analyser’s Report is at Exh. 13. He has further admitted his signature on printed First Information Report which was Exh. 14.
5. In the cross-examination of P.W. 2 Pralhad Khillare nothing further could be found and his testimony cannot be said to have been shaken in cross-examination.
6. The trial Court after considering the aforesaid evidence, has held the accused-appellant guilty of the offence under section 20(b)(i) of the NDPS Act and sentenced him, as aforesaid.
7. I have heard the learned Counsel for the parties. Mr. M.R. Daga, the learned Counsel for the accused-appellant submits that even if the evidence which has been produced by the prosecution is accepted on its face, in the absence of compliance of mandatory provisions contained in sections 41, 42 and 50 of the NDPS Act, conviction and sentence awarded to the accused cannot be sustained. The argument of Mr. Daga is that the procedure which is provided in Chapter V of the NDPS Act is mandatory and is intended to safeguard and protect the rights of the person who is suspected and accused of the offences under the NDPS Act. The valuable right which is provided in aforesaid sections of Chapter V of the NDPS Act cannot be taken away and non-compliance of any of the provisions of sections 41, 42 and 50 of the NDPS Act renders the whole trial vitiated. In support of his submission, Mr. Daga, the learned Counsel relies on the decision of the Apex Court in the State of Punjab v. Balbir Singh, 1994 Crimes 753 and submits that the judgment of conviction and sentence impugned in this appeal deserves to be quashed and set aside.
8. On the other hand, the Addl. Public Prosecutor submits that there has been full compliance of sections 41, 42 and 50 of the NDPS Act and that regarding non-compliance of these provisions, if any, no questions have been put to P.W. 2 Pralhad in his cross-examination and, therefore, there is no merit in the contention of the learned Counsel for the accused-appellant and the appeal deserves to be dismissed.
9. The legal position regarding the nature of provisions of sections 41, 42 and 50 of the NDPS Act is now well-settled. It is not disputed that the present case is not the case of prior information. As a matter of fact, the prosecution case itself is that on secret information received, the proceedings for search and seizure of contraband under the NDPS Act was commenced. The observations made by the Apex Court in the said case of the State of Punjab v. Balbir Singh (supra) regarding the nature of provisions of the aforesaid sections have been summarised by the Apex Court as under :
“1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.
2-A) Under section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc., when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal.
Likewise only empowered officers or duly authorised officers as enumerated in sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.
2-B) Under section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention that would affect the prosecution case and vitiate the conviction.
2-C) Under section 42(1) the empowered officer has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.
To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
3) Under section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is a total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
4-A) If a police officer, even if he happens to be an “empowered” officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr. P.C. fails to strictly comply with the provisions of sections 100 and 165 Cr. P.C. including the requirement to record reasons, such failure would only amount to an irregularity.
4-B) If an empowered officer or an authorised officer under section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr. P.C., namely sections 100 and 165 Cr. P.C. and if there is no strict compliance with the provisions of Cr. P.C. then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the Courts while appreciating the evidence in the facts and circumstances of each case.
5) On prior information the empowered officer or authorised officer while acting under sections 41(2) or 42 should comply with the provisions of section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would not be a question of fact.
6) The provisions of sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizures as well as merits of the case.”
10. Coming to the first submission of Mr. Daga that compliance of section 50 of the NDPS Act has not been made and that the accused-appellant was not informed that search can be taken in the presence of Gazetted Officer, it may be observed that this argument of Mr. Daga has no force. In the seizure memo (Exh. 9) it is clearly recorded that P.W. 2 Pralhad Khillare while taking search of accused-appellant asked him whether he wanted the search to be taken in the presence of panchas or Gazetted Officer, but he declined and permitted the search to be taken by him. In view of the specific mention of this fact in the seizure memo and the fact that P.W. 2 Pralhad has not been cross-examined on this point, as to whether he asked the accused that if he wanted the search may be taken in the presence of the Gazetted Officer, it can safely be said that compliance of section 50 of the NDPS Act has been made. The fact that the accused was asked whether he wanted the search to be taken in presence of Gazetted Officer or not, can be proved by various ways and means. In the present case, in view of the clear, specific and unambiguous mention of this fact in the seizure memo that accused-appellant was asked as to whether he wanted the search to be taken in presence of panchas or Gazetted Officer and the fact that there was no cross-examination on this point of P.W. 2 Pralhad Khillare, it can be held that compliance of section 50 of the NDPS Act was made. Thus, the argument of the learned Counsel for appellant that there was non-compliance of section 50 of the NDPS Act, has no force and cannot be accepted.
11. Mr. M.R. Daga, the learned Counsel for the appellant who also submits that the provisions of sections 52 and 57 of the NDPS Act have not been complied with, is based on improper reading of sections 52 and 57 of the NDPS Act. Mr. Daga has failed to point out that for non-compliance of provisions contained in sections 52 and 57, any prejudice has been caused to the accused-appellant. In the absence of any prejudice having been shown by the accused-appellant for non-compliance of sections 52 and 57 of the NDPS Act, the trial is not vitiated, because the provisions of sections 52 and 57 of the NDPS Act which only provide for the steps to be taken by the officers after making arrest or seizure, are not mandatory by themselves. In Balbir Singh’s case (supra), the Apex Court has held that sections 52 and 57 of the NDPS Act by themselves are not mandatory and if there is no compliance or if there are lapses, delay etc., then it has to be examined to see whether any prejudice has been caused to the accused. As observed above, the accused-appellant has failed to point out any prejudice for non-compliance of provisions of sections 52 and 57 of the NDPS Act and, therefore, this argument of Mr. M.R. Daga relating to non-compliance of sections 52 and 57 also has no force and is accordingly negatived.
12. The last and fore-most argument urged by Mr. Daga relates to non-compliance of sections 41 and 42 of the NDPS Act. Sections 41 and 42 of the NDPS Act read as under:
“41. Power to issue warrant and authorisation. –
(1) A Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class specially empowered by the State Government in this behalf may issue a warrant for the arrest of any person whom he has reason to believe to have 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 other article which may furnish evidence of the commission of such offence is kept or concealed.
(2) Any such officer of Gazetted rank 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 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 in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place.
(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42″.
… … …
“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, 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 :
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 of 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”.
13. The only person who can carry out the search and seizure under sections 41(2) and 42(1) of the NDPS Act is the person who is duly authorised by the authorities mentioned hereinabove.
14. In Balbir Singh’s case (supra), the Apex Court has emphasised that only empowered officers or duly authorised officers as enumerated in sections 41(2) and 42(1) of the NDPS Act under the provisions of the NDPS Act can carry out arrest or search and if such arrest or search is made under the provisions of the NDPS Act by any other person, the same would be illegal. The Supreme Court has further laid down that under section 41(2) only the empowered officer can give authorisation to his subordinate officer to carry out the search and seizure as mentioned therein and if there is any contravention, that would vitiate the prosecution case and vitiate conviction. The prosecution has miserably failed to prove in this regard that P.W. 2 Pralhad Khillare who was Head Constable and who carried out the arrest of the accused-appellant and search was duly authorised by empowered officer under the provisions contained in sections 41 and 42 of the NDPS Act. The trial Court has not adverted to this aspect of the case at all despite the specific argument advanced by the counsel for accused in that Court. A perusal of the impugned judgment of the learned trial Court would reveal that the trial Court only considered in its judgment whether the compliance of mandatory provisions of section 50 of the NDPS Act has been made or not and did not advert to whether compliance of the mandatory provisions of sections 41 and 42 of the NDPS Act to the extent referred to hereinabove has been made or not. The Public Prosecutor before me also could not show from the entire record that P.W. 2 Pralhad who carried out the arrest of accused/appellant and search, was the person authorised by an empowered officer under the provisions of sections 41 and 42 of the Act. In the absence of proof of this fact by the prosecution that P.W. 2 Pralhad Khillare who carried out arrest of the accused-appellant and search was authorised under sections 41 and 42 of the Act by the empowered officer, the conviction of accused-appellant is rendered illegal since it seriously affects prosecution case. The burden was on the prosecution to prove that P.W. 2 Pralhad Khillare who carried out arrest and seizure was duly authorised under sections 41 and 42 of the NDPS Act. Since the prosecution has failed to prove this fact, the judgment of the trial Court convicting the accused-appellant of the offence under sections 20(b)(i) of the NDPS Act and sentence to suffer rigorous imprisonment for five years, and to pay fine of Rs. 25,000/- and in default, to suffer further rigorous imprisonment for one year, cannot be sustained and has to be set aside.
15. Consequently, this criminal appeal is allowed. Judgment of conviction and sentence passed by the Addl. Sessions Judge, Akola in Sessions Trial No. 130 of 1991, State of Maharashtra v. Syed Jamir, on 5-7-1993 is quashed and set aside. The appellant-accused should be set free immediately, if not required in any other case. The appeal is allowed accordingly.
