Full Judgment Text
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CASE NO.:
Appeal (crl.) 433 of 2002
PETITIONER:
State, NCT of Delhi
RESPONDENT:
Malvinder Singh
DATE OF JUDGMENT: 21/06/2007
BENCH:
Dr. ARIJIT PASAYAT & P.P. NAOLEKAR
JUDGMENT:
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of a learned
Single Judge of Delhi High Court directing acquittal of the
respondent (hereinafter referred to as the ’Accused’). Learned
Session Judge, Delhi in Sessions Case No. 698 of 1991 found
the accused guilty of the offence punishable under Section 17
of the Narcotic Drugs and Psychotropic Substances Act, 1995
(in short the ’Act’) and sentenced him to undergo rigorous
imprisonment for ten years with a fine of Rs.1,00,000/- with
default stipulation.
2. Background facts in a nutshell are as follows:
On 20th February, 1990 Pran Nath, Sub Inspector of
Special staff, north District, was on patrolling duty along with
Ramesh Kumar, Assistant Sub-Inspector, Puran Chand, Head
Constable; Raghbir Singh, Head Constable; Ved Parkash Head
Constable and other constables. At about 7 a.m., near the
petrol pump at Mall Road situated within the bounds of Police
Station, Timarpur, a police Informer gave information to Pran
Nath, Sub Inspector of the accused’s possession of opium.
Consequently, a raiding party was organized. Jeet Lal, public
witness was also joined in the raiding party besides the above
mentioned cops. Thereafter, the members of the raiding party
lay waiting at the Ring Road crossing, Timarpur. At about 7.45
a.m. scooter No. DIA 819 was spotted by the members of the
raiding party. It was observed that Malvinder Singh (accused)
was plying the said scooter and accused Om Parkash @ Lalla
@ Gupta was sitting on its pillion seat. At the instance of the
informer the scooter was stopped. Pran Nath, Sub Inspector
acquainted the accused with the contents of the information
and with the fact that if the accused so desired, they could be
produced before an Officer (Gazetted) for conducting their
search. The accused reeled off their refusal to the said
proposal and made clean breast of the charge that they were
having opium. However, Pran Nath sent information to
Ramesh Chand Saini, the then S.H.O. of Police Station
Timarpur and H.M. Meena, A.C.P. and called them to the spot.
After some time ACP Shri Meena and SHO Shri Saini arrived
at the spot one after the other. Both of verified the facts on the
spot. Thereafter, they directed the Investigating Officer to
conduct the search. The search of Om Parkash accused
resulted in recovery of opium weighing 800 gms. which had
been wrapped in a newspaper and kept in between chest, shirt
and sweater of Om Parkash. Malvinder accused produced the
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key of the scooter. He brought out the same from the lock of
the head of the scooter. Opium weighing 700 gms., wrapped in
green polythene paper was recovered from dicky of the above
said scooter. Two samples weighing 50 grams each were
separated from the above said opium weighing 800 grams and
700 grams. Both the samples and the remaining two parcels of
the opium were separately packed and sealed with the seals
bearing the initials of RKV belonging to Ramesh Kumar Vohra
ASI and RCS belonging to the SHO. CFSL form was filled in
and both the seals were affixed thereon. The seal of RKV was
entrusted with Jeet Lal, public witness, but the SHO retained
his seal with him. SHO carried the case property and CFSL
form to the police station and deposited the same with the
Moharar Malkhana. The case property recovered from the
possession of Om Prakash was seized vide recovery memo Ex.
PW 1/B, Malvinder’s case property, scooter, keys were seized
vide recovery memo Ex. PW1/A. Kuldip Singh constable took
the ruqqa Ex. PW 6/A to the police station and Kedar Nath
Singh, Head Constable registered the instant case. Report of
CFSL Ex. 7/B depicted the percentage of Morphine in the
samples as 5.5 and 4.8. approximately. The Public Analyst
came to the conclusion that the samples had given positive
tests for opium. The accused were thus arrested and charged
under Section 17 of the N.D.P.S. Act.
3. After investigation, charge sheet was filed. Accused
pleaded innocence. Appellant also pleaded that on account of
animosity with the Head Constable Chandrika Parshad, he
was falsely implicated. The trial court found the evidence to
be cogent and credible and convicted both the accused
persons i.e. Om Prakash and the present respondent.
Respondent preferred an appeal before the High Court and
questioned the conviction primarily on the ground that there
was non compliance of the requirements of Section 42 of the
Act. The High Court accepted the plea that the secret
information received was not reduced into writing and was
also not sent to the higher officer. In the absence of any
evidence in this effect it was held that there was non
compliance of the mandatory requirements of Section 42 of the
Act. Accordingly the conviction was set aside and acquittal
was directed.
4. In support of the appeal learned counsel for the appellant
submitted that the High Court had erroneously concluded that
this was a case to which Section 42 has application.
Undisputedly, the police officer while on patrol duty, received
secret information and had organized the raid party. The ACP
was also informed and he was a party of the raid party and,
therefore, Section 42 has no application. In any case there
was no requirement to send any information which in fact had
been done. It was for the accused to call for the record relating
to the information given to the superior officer. In any event,
this is a case which is not only covered by Section 43 IPC but
also covered by Section 41 IPC.
5. Learned counsel for the accused supported the order of
the High Court.
6. At this juncture it would be relevant to take note of what
has been stated by this Court in T. Thomson v. State of Kerala
and Another [2002 (9) SCC 618]. At para 5 it was observed as
follows:
"5. Learned Senior Counsel further
argued that the record alleged to have been
prepared by PW 1 on getting information
regarding the movement of the appellants has
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not been produced in court. But he conceded
that no motion was made on behalf of the
appellants to call for the said record. There is
no statutory requirement that such a record
should be produced in the court as a matter of
course. We are, therefore, not disposed to
upset the finding on that score either."
7. It appears that no effort was made by the accused to call
for the records of information, if any, sent. The further
question is whether in a case of this nature while the police
officer on patrol duty stops the vehicle in transit in a public
place and conducts search and seizure, Section 42 has no
application.
8. In State of Haryana v. Jarnail Singh and Others [2004(5)
SCC 188], it was held as follows:
"The next question is whether Section 42 of the
NDPS Act applies to the facts of this case. In
our view Section 42 of the NDPS Act has no
application to the facts of this case. Section 42
authorises an officer of the departments
enumerated therein, who are duly empowered
in this behalf, to enter into and search any
such building, conveyance or place, 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 etc. is kept or
concealed in any building, conveyance or
enclosed place. This power can be exercised
freely between sunrise and sunset but between
sunset and sunrise if such an officer proposes
to enter and search such building, conveyance
or enclosed place, he must record the grounds
for his belief that a search warrant or
authorization cannot be obtained without
affording opportunity for the concealment of
evidence or facility for the escape of an
offender.
Section 43 of the NDPS Act provides that any
officer of any of the departments mentioned in
Section 42 may seize in any public place or in
transit any narcotic drug or psychotropic
substance etc. in respect of which he has
reason to believe that an offence punishable
under the Act has been committed. He is also
authorized to detain and search any person
whom he has reason to believe to have
committed an offence punishable under the
Act. Explanation to Section 43 lays down that
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.
Sections 42 and 43, therefore, contemplate two
different situations. Section 42 contemplates
entry into and search of any building,
conveyance or enclosed place, while Section 43
contemplates a seizure made in any public
place or in transit. If seizure is made under
Section 42 between sunset and sunrise, the
requirement of the proviso thereto has to be
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complied with. There is no such proviso in
Section 43 of the Act and, therefore, it is
obvious that if a public conveyance is searched
in a public place, the officer making the search
is not required to record his satisfaction as
contemplated by the proviso to Section 42 of
the NDPS Act for searching the vehicle
between sunset and the sunrise.
In the instant case there is no dispute that the
tanker was moving on the public highway
when it was stopped and searched. Section 43
therefore clearly applied to the facts of this
case. Such being the factual position there was
no requirement of the officer conducting the
search to record the grounds of his belief as
contemplated by the proviso to Section 42.
Moreover it cannot be lost sight of that the
Superintendent of Police was also a member of
the searching party. It has been held by this
Court in M. Prabhulal vs. Assistant Director,
Directorate of Revenue Intelligence [2003 (8)
SCC 449] that where a search is conducted by
a gazetted officer himself acting under Section
41 of the NDPS Act, it was not necessary to
comply with the requirement of Section 42. For
this reason also, in the facts of this case, it
was not necessary to comply with the
requirement of the proviso to Section 42 of the
NDPS Act."
9. Above being the position of law as stated above, the order
of the High Court is clearly unsustainable.
Section 42 has no application to the facts of the case. The
order of the High Court is set aside and that of the trial court
is restored. Respondent accused shall surrender forthwith to
custody to serve remainder of sentence.
10. Appeal is allowed.