Full Judgment Text
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CASE NO.:
Appeal (crl.) 486 of 2003
PETITIONER:
M. PRABHULAL
RESPONDENT:
ASSISTANT DIRECTOR, DIRECTORATE OF REVENUE INTELLIGENCE
DATE OF JUDGMENT: 19/09/2003
BENCH:
Y.K. SABHARWAL & B.N. AGRAWAL
JUDGMENT:
JUDGMENT
2003 Supp(3) SCR 958
The Judgment of the Court was delivered by
Y.K. SABHARWAL, J.: The Special Judge, Salem under narcotics Drugs and
Psychotropic Substances Act, 1985 (for short ’the NDPS Act’), ried 11
accused for various offences. Six were convicted. Two of the convicted
accused succeeded in the criminal appeal and the remaining four whose
conviction and sentence has been maintained by the High Court by the
impugned judgment are appellants before us. They are original accused Nos.
1, 2, 3 and 6. The trial judge convicted accused Nos. 1, 2 and 3 for
offences under Section 8(c), 29 read with Section 18 and Section 8(1), 29
read with section 21 of the NDPS Act and awarded on each appellant the
sentence of 10 years’ rigorous imprisonment and also fine amount of Rs.
1 lakh and in default of payment fine for each offence, they were directed
to undergo further rigorous imprisonment for two years. The substantive
sentences were, however, directed to run concurrently. Accused Nos. 6 was
also found guilty for offence under Sections 8(c), 29 read with Section 21
of the NDPS Act and sentenced to undergo 10 years’ rigorous imprisonment
and fine of Rs. 1 lakhs and in default of payment of fine, to undergo
further rigorous imprisonment for two years.
In brief, the case of the prosecution is that on 15th May, 1993, a truck
and car were apprehended. Accused No. 6 was in truck and accused Nos.
2 and 3 were in car. From them heroin weighing 66.1 kg. was seized.
Accused No. 1, the main kingpin, is the brother of accused No. 2. Both were
resident of Trichirappali. Accused No. 1 has been receiving narcotics from
Mandasore, Madhya Pradesh, a place to which he belonged. Another brother of
accused No. 1 named Durga Shankar was staying in the village Khonti in
Mandasore District, Madhya Pradesh along with his parents. The father of
accused Nos. 1 and 2 used to cultivate opium and their brother Durga
Shankar used to get opium and heroin and send the same to Trichy. The
consignment in question was to be received and sold with the help of
accused No. 3 for ultimate export to Sri Lanka through accused No. 6, Mohd.
Sabeer. The High Court in appeal having confirmed the conviction and
sentence of accused Nos. 1,2,3 and 6, they are in appeal on grant of leave.
The conviction of the appellants is based primarily on their statements
recorded under Section 67 of the NDPS Act as also on the recovery except
from accused No. 1/appellant No. 1.
Assailing, therefore, the statements made by each of the appellant under
Section 67, It was vehemently contended by Mr. R.K. Jain, Senior Advocate
that the statements on basis whereof the appellants have been found guilty
are not voluntary and thus their conviction cannot be sustained. The
statements of the appellants have been recorded by officers of Department
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of Revenue Intelligence who are not police officers within the meaning of
Section 25 of the Evidence Act, 1872. The confessional statements recorded
by such officers are admissible in evidence. Learned counsel though not
questioning the admissibility of the said statements contends that the same
were obtained by torture and harassment and are involuntary and, therefore,
the conviction of the appellants cannot be sustained. The delay in
recording of the statements of the appellants is put forth as one of the
reasons to support the contention that the statements were involuntary.
Learned counsel submits that after apprehending truck and the car on the
road at about noon time on 15th May, 1993, the seizure of the narcotics had
taken place between 6 to 9 p.m. at the Customs House and the statements of
accused Nos. 2, 3 and 6 were recorded on the next day i.e. 16th May, 1993
and the statement of accused No. 1 was recorded on 17th May, 1993. It may
be noted that accused Nos. 2, 3 and 6 were apprehended on the spot on 15th
May, 1993 whereas accused No. 1 was arrested on 16th May, 1993. The courts
below on appreciation of evidence have neither doubted the recovery nor has
found the statements to be involuntary.
It has been established that the Customs Office was about 20 kms. from the
place were the truck and the car were apprehended. Having regard to the
large quantity of the heroin, the said vehicles with accused Nos. 2, 3 and
6 were brought to the Customs Office. Further accused Nos 1 and 2 did not
know Tamil. A Hindi knowing officer had to be arranged. There was under the
circumstances no delay in recording the statements of the appellants.
Further, it is also to be borne in mind that the appellants did not make
any complaint before the Magistrate before whom they were produced
complaining of any torture or harassment. It is only when their statements
were recorded by the trial judge under Section 313 of Code of Criminal
Procedure that a vague stand about the torture was taken. Under these
circumstances, the confessional statements cannot be held to be
involuntary. The statements were voluntarily made and can, thus, be made
the basis of appellants’ conviction.
Next, learned counsel contends that the independent witnesses of the
recovery of the contraband having not been examined and only police
witnesses having been examined, the recovery becomes doubtful. Reliance is
placed upon the decision in Pradeep Narayan Madgaonkar and Ors. v. State of
Maharashtra, [1995] 4 SCC 255. In the decision relied upon while observing
that prudence dictates that evidence of police witnesses need to be
subjected to strict scrutiny, it was also observed that their evidence
cannot be discarded merely on the ground that they belong to police force
and are either interested in the investigating or prosecuting agency, but
as far as possible, corroboration of their evidence in material
particularly should be sought. In that case the observations were made in
the light of the fact that the police officials made an attempt to create
an impression on the court that the two witnesses were witnesses of
locality and were independent, knowing fully well that one of the witnesses
was under the influence of the police and available to police as he had
been joining the raids earlier also and other witness was a close associate
of the said already available witness. The friendship between the two
witnesses developed during the days of gambling when the police having
admittedly conducted a raid at their den. It was observed that the very
fact that the police officer joined the said two witnesses creates a doubt
about the fairness of investigation coupled with the manner in which the
statements had been recorded in that case. The observations relied upon
have no applicability to the facts and circumstances of the present case
particularly having regard to the confessional statements of the appellants
which we have held were voluntary. On the facts of the case, recovery
cannot be doubted for want of non-examination of independent witnesses.
The search and seizure was also faulted for the reason of the same having
taken place not on spot but in the customs office. The reason why it had
taken place in the customs office has been noticed earlier. In this regard,
reference may also be made to Khet Singh v. Union of India, [2002] 4 SCC
380, a case under NDPS Act where decision of the Constitution Bench in
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Pooran Mal v. Director of Inspection (investigation), New Delhi & Ors.,
[1974] 1 SCC 345 was noticed for the proposition that courts in India and
England have consistently refused to exclude relevant evidence merely on
the ground that it is obtained by illegal search or seizure. The Court
declined in that case to exclude relevant evidence merely on the ground
that it is obtained by illegal search or seizure. Further, in the said case
though the mahazar was not prepared at the spot but at the office of the
Customs Department, it was found that the accused were very much present
throughout and there was no allegation or suggestion that the contraband
article was, in any way, meddled with by the officers. The position in the
present case is also same. Here too, no allegation about meddling with the
contraband has been made, in our view, on the facts of the case, there is
no illegality in the seizure of the contraband either on account of non-
examination of the independent witnesses or by effecting the seizure at the
office of the Customs Department, the appellants having failed to establish
that any prejudice was caused to them.
Now, we come to the last and rather more serious objections raised on
behalf of the appellants regarding the non-compliance of Section 42 of the
NDPS Act vitiating the conviction which looks quite formidable but only at
the first impression and not on its deeper examination. The contention of
Mr. R.K. Jain is that the view of the High Court that when a Gazetted
Officer himself conducts a search it is not necessary to comply with
Section 42(2) of the Act, is clearly erroneous. Section 42(2) provides that
where an officer takes down any information in writing under sub-section
(1) or records grounds for his belief under the proviso thereto, he shall
forthwith send a copy thereof to his immediate official superior. This was
the statutory provision at the relevant time. By the Narcotic Drugs and
Psychotropic Substances (Amendment) Act, 2001 which came into force on 2nd
October, 2001, Section 42(2) was amended whereunder the information taken
down in writing under sub-section (1) or grounds of belief recorded under
proviso thereto are required to be sent within seventy-two hours to
officers’ immediate official superior. The contention is that the officer
who searched and seized the contraband did so on information received by
him as per Ex. Pw-1 but the said information was not forwarded to his
superior officer as contemplated in Section 42(2) of the NDPS Act, thus
vitiating the entire prosecution. Further argues the counsel that the
respondent after grant of bail to the appellants by the High Court taking
into consideration the non-compliance of Section 42(2) has tried to fill in
the lacuna with a view to show the compliance of this mandatory provision,
The officer who conducted the arrest, search and seizure was an empowered
Gazetted Officer of the department. This fact is not in dispute. According
to Mr. Vasudev, learned senior counsel for the respondent, Section 42(2) is
not applicable when an empowered Gazetted Officer conducts the arrest
search and seizure. Counsel submits that there was no obligation on the
officer to comply with the requirement of Section 42(2) of the NDPS Act. It
was also contended, in the alternative, that Section 42(2) of the NDPS Act
was complied with.
The High Court in the judgment impugned was held that, on facts found,
Section 41 of the NDPS Act alone was applicable and Section 42(2) was not
attracted and, therefore, the judgments rendered under Section 42(2) of the
NDPS Act relied upon by the appellants have no relevance.
The gist of intelligence reduced into writing and on basis whereof the
officer started to act reads as under :
"One Prabhulal of Anna Nagar, Trichy, his brother Shivanarain of Trichy,
Mohammed Shabir of Madhya Pradesh and Loganathan of Dindigul are engaged in
dealing in narcotic drugs. Intelligence gathered indicates that Shivanarain
and Loganathan are likely to proceed to Salem and stay in National Hotel,
Salem and are likely to receive huge quantity of Heroin from Mahammed
Shabir of Madhya Pradesh on 15.5.1993 who is accompanying the said
consignment in a lorry from North India. Shivanarain and Loganathan are
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likely to travel in a car bearing Registration No. TNB 9346 to meet the
lorry earring the contraband Heroin at the outskirts of Salem, if this car
is followed from national Hotel, Salem we may be able to seize the
contraband."
A xerox copy of the gist of intelligence was furnished to the appellants
during the proceeding under the preventive detention law through the
Superintendent, Central Prison, Salem on 22.6.1993. A learned Single Judge
of the High Court considering this writing to be a definite information
about the definite commission of the offence under the NDPS Act with
reference to car number, persons, lorry expected to arrive at that place
and holding that Section 42 of the NDPS Act was squarelly applicable and
that it being a mandatory provision not having been complied with,;the
petitioners were entitled to be released on bail. The view expressed in the
order, deciding bail application was of course prima facie. In the
background, the further contentiion of Mr. Jain is that if Section 42(2)
had been complied with, it would have been so pleaded by the respondent
before the High Court when bail application came to be considered and the
respondent would also have filed the requisite docu-ment along with challan
to show compliance of Section 42(2) of the NDPS Act. The learned counsel
submits that the document in purported compliance of Section 42(2) was
filed by the respondent only after the decision of the bail application
with a view to fill up the lacuna as a result of the observations made by
the High Court in the order granting bail.
To consider the contention about the applicability of Section 42(2) where
arrest, search and seizure is made by an empowered Gazetted Officer, it is
necessary to analyse Sections 41 and 42 of the NDPS Act which read as under
:
"41. Power to issue warrant and authorisation -(1) a Metropoli-tan
Magistate or a Magistrate of the First Class or any Magistrate of the
Second Class specially empowered by the State Govern-ment 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, convey-ance 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 authorised the arrest or search or the officer who is so
authorised under sub-section (2) shall have all the powers of an officers
acting under Section 42.
42. Power of entry, search, seizure and arrest without warrant or
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authorisation.- (1) Any such officer (being an officer superior in rank to
a peon, sepoy or constable) of the departments of Central Excise,
Narcotics, Customs, Revenue Intelligence or any other department of the
Central Government or of the Border Security Force as is empowered in this
behalf by general or special order by the Central Government, or any such
officer (being an officer superior in rank to a peon, sepoy or constable)
of the Revenue, Drugs Control, Excise, Police or any other department of a
State Government as is empowered in this behalf by general or special order
of the State Government, if he has reason to believe from personal
knowledge or information given by any person and taken down in writing,
that any narcotic drug, or psychotropic substance, in respect of which an
offence punishable under Chapter IV has been committed or any document or
other article which may furnish evidence of the commission of such offence
is kept or concealed in any building, conveyance or enclosed place, may,
between sunrise and sunset,-
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle
to such entry;
(c) seize such drug or substance and all materials used in the
manufacture thereof and any other article and any animal or conveyance
which he has reason to beileve 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 substances; and
(d) detain and search, and, if he thinks proper, arrest any person whom
he has reason to believe to have committed any offence punishable under
Chapter IV relating to such drug or substance :
Provided that if such officer has reason to believe that a search warrant
or authorisation cannot be obtained without affording opportunity for the
concealment of evidence or facility for the escape of an offender, he may
enter and search such building, conveyance or enclosed place at any time
between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-
section (1) or records grounds for his belief under the proviso thereto, he
shall forthwith send a copy thereof to his immediate official superior."
Section 41(1) which empowers a Magistrate to issue warrant for arrest of
any person whom he has reason to believe to have committed any offence
punishable under the NDPS Act or for search, has not much relavence for the
purpose of considering the contention. Under Section 41 (2) only a Gazetted
Officer can be empowered by the Central Government or the State Government.
Such empowered officer can either himself make an arrest or conduct a
search or authorize an officer subordinate to him to do so but that
subordinate officer has to be superior in rank to a Peon, a Sepoy or a
Constable. Sub-section (3) of Section 41 vests all the powers of an officer
acting under Section 42 on three types of officers (i) to whom a warrant
under sub-section (1) is addressed, (ii) the officer who authorized the
arrest or search under sub-section (2) of Section 41, and (iii) the officer
who is so authorized under sub-section (2) of Section 41. Therefore, an
empowered Gazetted Officer has also all the powers of Section 42 including
power of seizure. Section 42 provides for proceedure and power of entry,
search seizure and arrest withuot warrant or authorization. An empowered
officer has the power of entry into and search of any building, conveyance
or place, break open door, remove obstruction, seize contraband, detain,
search and arrest any person between sunrise and sunset in terms provided
in sub-section (1) of Section 42. In case of emergent situation, these
powers can also be exercised even between sunset and sunrise without
obtaining a search warrant or authorization, in terms provided in the
proviso to sub-section (1) of Section 42. Sub-section 2 of Section 42 is a
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mandatory provision. In terms of this provision a copy of information taken
down in writing under sub-section (1) or ground recorded for the belief
under proviso thereto, is required to be sent by the officer to his
immediate official superior. It is clear from Section 41(2) that the
Central Government or State Government, as the case may be, can only
empower an officer of a gazetted rank who can either himself act or
authorize his subordinate on the terms stated in the Section. Under sub-
section (1) of Section 42, however, there is no restriction on the Central
Government or the State Government to empower only a Gazetted Officer. But
on an officer empowered under sub-section (1) of Section 42, there are
additional checks and balances as provided in the proviso and also provided
in sub-section (2) of Section 42. It is clear from the language of sub-
section (2) of Section 42 that it applies to officer contemplated by sub-
section (1) thereof and to a Gazetted Officer contemplated by sub-section
(2) of Section 41, when such Gazetted Officer himself makes an arrest or
conducts search and seizure. It would be useful to also notice Section 43
which relates to power of seizure and arrest in public place. Any officer
of any of the departments mentioned in Section 42 is empowered to seize
contraband etc. and detain and search a person in any public place or in
transit on existence of ingredient stated in Section 43. It can, thus, be
seen that Sections 42 and 43 do not require an officer to be a Gazetted
Officer whereas Section 41(2) requires an officer to be so. A Gazetted
Officer has been differently dealt with and more trust has been reposed on
him can also be seen from Section 50 of he NDPS Act which gives a right to
a person about to be searched to ask for being searched in presence of a
Gazetted Officer. The High Court is, thus, right in coming to the
conclusion that since the Gazetted Officer himself conducted the search,
arrested the accused and seized the contraband, he was acting under Section
41 and, therefore, it was not necessary to comply with Section 42. The
decisions in State of Punjab v. Balbir Singh, [1994] 3 SCC 299, Abdul
Rashid Ibrahim Mansuri v. State of Gujarat, [2000] 2 SCC 513 and Beckodan
Abdul Rahiman v. State of Kerala, [2002] 4 SCC 229, on the aspects under
consideration are neither relevant nor applicable.
In view of our conclusion that Section 42(2) is not applicable when search
seizure etc. is conducted by a Gazetted Officer under Section 41(2) and
(3), the further contention of Mr. Jain that an attempt was made by the
respondent to fill up lacuna to show compliance of Section 42(2) of the
NDPS Act as a result of observations made in the order granting bail to the
appellants as noticed hereinbefore becomes inconsequential and, therefore,
it is not necessary to examine it.
For the foregoing reasons, the impugned judgment of the High Court cannot
be faulted. Thus, sustaining the conviction and sentence of the appellants,
the appeals are dismissed.