Ishwar Dewangan Vs State Of Chhattisgarh

Ishwar Dewangan, S/o Daya Prasad Dewangan, aged about 49 years, R/o Naya Risda, Balco, Police Station Balco Nagar, District Korba, Civil and Revenue District Korba (C.G.) ... Appellant(s)

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Versus

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State of Chhattisgarh, through: Excise Circle (Internal), Korba (C.G.) ... Respondent(s)

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:- For Appellant Ms. Shivali Dubey, Advocate. :- For Respondent-State Mr. Arvind Dubey, Govt. Advocate.

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(Division Bench)

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal

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[C A V Judgment]

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Sanjay K. Agrawal, J.

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1. Assail in this criminal appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 is to the Judgment dated 27.01.2017 passed by learned

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Special Judge (NDPS), Korba in Special (NDPS) Case No.03/2015, by which the sole appellant herein has been convicted for offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act’) and sentenced thereunder to suffer rigorous imprisonment for 20 years and to pay fine of Rs.1,50,000/- and in default of payment of fine amount to suffer additional rigorous imprisonment for five years.

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2. Case of the prosecution, in brief, is that on 10.1.2015 near Sitamani Chowk, Korba within the jurisdiction of Police Station Kotwali, District Korba, the appellant was found in possession of total 166 kilograms of Ganja which he was unauthorisedly transporting in his Hyundai Car bearing Registration No. CG15-B/4634. According to the prosecution, on 10.1.2015, following a tip-off received from a secret informer that the appellant is carrying illegal contraband i.e., Ganja, as per Ex. P-1 prepared at 10:00 a.m., the Assistant District Excise Officer, PW-4 P.L. Nayak, along with the staff/search party, without

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any search warrant due to paucity of time, immediately rushed to the spot and intercepted the offending vehicle i.e. Hyundai Car in Sitamani Chowk,

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Korba at 11:00 a.m. gave him the information that was received from the informer and asked his consent vide panchnama (Ex. P-2) to make a search of his vehicle. Vide Ex. P-3, the appellant gave his written consent for search of his car by P.L. Nayak (PW-4). Appellant was given notice under Section 50 of NDPS Act vide Ex. P-4 at 11:30 a.m. and thereafter the search of the appellant as well as the offending vehicle was conducted at 12:00 noon vide search panchnama (Ex. P-5) wherein Ganja like substance was found kept in four plastic bags which were hidden in the dickey and under the rear-seats of the offending vehicle. After identifying the seized product to be Ganja, identification panchnama was prepared vide Ex. P-6 at 12:20pm. Samras panchnama of the seized product i.e., Ganja, found kept in four bags was made vide Ex. P-7 at 12:35 pm and vide weighment panchanama (Ex. P-8) prepared at 12:50 p.m., total 166 kilograms of Ganja was found in four plastic bags each one of which containing 65, 50, 30 & 21 kilograms of Ganja respectively. Vide Ex. P-9 prepared at 2:00 p.m., 75 grams of Ganja (in the quantity of 25 grams each) were taken from each of the four plastic bags and marked as A1, B1& C1; A2, B2& C2; A3, B3&

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C3 and A4, B4& C4 and after preparing the sealed samples vide Ex. P-10 and seizure memo vide Ex. P- 11 at 3:00 p.m., the remaining Ganja in the four plastics bags and the offending vehicle were seized in presence of the witnesses. Vide panchnama (Ex. P-12) prepared at 3:30 p.m., arrest of the appellant was made for offence under Section 20(b)(ii)(C) of NDPS Act and he was informed about his arrest vide Ex. P- 13. Vide Ex.P-14, panchnama with regard to information belonging to Hyundai Car was prepared. Spot map was prepared vide Ex.P-15. Vide Ex.P-16, information of arrest of the appellant was given to his wife. The seized Ganja was kept in a liquor store due to lack of space in the police station, vide Ex. P-27. Samples of the seized Ganja were sent for chemical examination to the Forensic Science Laboratory and, as per the FSL report (Ex. P-22), the seized substance was found to be Ganja.

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3. After completion of the investigation, charge sheet was filed against the appellant before the Special Judge under NDPS Act, Korba for offence under Section 20(b(ii)(C) of NDPS Act wherein the appellant abjured his guilt and claimed for trial. During trial, in order to bring home the offence, the prosecution examined as

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many as 5 witnesses as PW-1 to PW-5 and exhibited 35 odd documents vide Exbts. P-1 to P-35 in support of its case. After closure of the prosecution evidence, s tatement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the prosecution evidence, pleaded innocence and false implication. In his defence, the appellant examined total four witnesses as DW-1 to DW-4, though no document has been relied on by him.

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4. On completion of trial, learned trial Court, upon appreciation of the oral and documentary evidence available on record, by its impugned judgment, convicted the appellant for offence under Section 20(b) (ii)(C) of NDPS Act and sentenced him thereunder as mentioned in the opening paragraph of this judgment, which led to the filing of the present criminal appeal by the appellant calling in question the legality, validity and correctness of the impugned judgment.

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5. Ms. Shivali Dubey, learned counsel appearing for the appellant would submit that the conviction of the appellant under Section 20(b)(ii)(C) of NDPS Act, is without appreciating the evidence and material available on record and therefore it is perverse and is

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not in accordance with law. She would further submit that the provisions contained in Sections 42 (1) & (2), 52, 52(A)(2) & 55 of NDPS Act have not been complied with by the prosecution. She would also submit that the independent witnesses have not supported the case of the prosecution and turned hostile. Further, the seized Ganja was not kept in the safe custody and the constable who carried the samples has also not been examined by the prosecution. The samples of the seized contraband have not been taken in presence of concerned Magistrate. Therefore, the entire prosecution’s case stands vitiated and the prosecution has not been able to prove its case beyond reasonable doubt to connect the appellant with the crime in question. As such, the appeal deserves to be allowed and the appellant is entitled to be acquitted of the said offences. In support of her submissions, learned counsel for the appellant has placed reliance on the decisions of the Supreme Court rendered in the matters of Mohammed Khalid and Another v. State of Telangana1 , Yusuf @ Asif v. State 2 , Simarnjit v. Singh State of Punjab 3 , Sanjeet Kumar Singh @

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(2023) SCC OnLine SC 1328

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1 (2024) 5 SCC 393

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2 (2023) SCC OnLine SC 1328

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3 (2023) SCC OnLine SC 906

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Munna Kumar Singh v. State of Chhattisgarh 4 , v. State of Rajasthan Gurmail Singh 5 , Boota Singh & Others v. State of Haryana 6 , State of Rajasthan v. Daulat Ram 7 , Gorakh Nath Prasad v. State of Bihar8 & UOI v. Jarooparam 9 and also on the decision of Delhi Court in Basant Rai v. State 10 .

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6. Mr. Arvind Dubey, learned State Counsel, countering the submissions put forth on behalf of the appellant, would support the impugned judgment and submit that learned Trial Court, after considering the entire evidence, has rightly come to the conclusion that the appellant is guilty of the offence punishable under Section 20(b)(ii)(C) of NDPS Act. He would further submit that though the independent witnesses have turned hostile and not supported the case of the prosecution, but Investigating Officer, PW-4 P.L. Nayak, has proved the case of the prosecution and, therefore, the case of the prosecution cannot be said to be vitiated. He would also submit that in light of the material available on record and the investigation

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done in the present case, it cannot be said that

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4 (2022) SCC OnLine 1117

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5 (2005) 3 SCC 59

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6

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7

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8

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(2021) 19 SCC 606

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(1980) 3 SCC 303

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(2018) 2 SCC 305

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9 Cr.A. No.741-742/2022

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(2012) (130) DRJ 471

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10

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mandatory provisions of NDPS Act have not been complied with and the appellant was found in conscious possession of huge quantity of Ganja i.e. 166 kilograms carrying in the offending vehicle, which he failed to explain. As such, the appeal is liable to be dismissed and the appellant is not entitled to be acquitted of the said offence.

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7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and also perused the record of the case with utmost care and circumspection.

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8. Section 20(b)(ii)(C) of NDPS Act provides as under:-

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“20. Punishment for contravention in relation to cannabis plant and cannabis .-Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder,-

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(a) xxx xxx xxx

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(b) produces, manufactures, possesses, sells, purchases, transports, imports, inter-State, exports inter-State or uses cannabis, shall be punishable-

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(i) xxx xxx xxx (ii) where such contravention relates to sub-clause (b),-

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(A) and (B) xxx xxx xxx

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(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years

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but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

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Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. ”

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9. A careful perusal of the aforesaid provisions would

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show that whoever in contravention of NDPS Act possesses, transports cannabis shall be punishable and where the quantity of ganja is commercial quantity, the accused shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

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10. As regards the involvement of the appellant in commission of the offence under Section 20(b)(ii)(C) of NDPS Act, the evidence of the Investigating Officer, PW-4 P.L. Nayak, is very significant. He has categorically deposed that on 10.1.2015 after receiving the secret information from the informer that one vehicle (Hyundai Car bearing registration No.CG15/B-4634) is coming from Orissa for the purpose of selling illegal contraband - Ganja, he

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immediately informed the same to Assistant Excise Officer, District Korba over phone as per Ex. P-1 and on his directions, without taking a search warrant due to paucity of time, he along with search party/staff immediately reached the spot i.e. Sitamani chowk and intercepted the said offending vehicle and gave the appellant the information that was received from the informer. PW-4 P.L. Nayak has stated that he had reduced in writing in panchnama (Ex. P-1) about the explanation of not taking the search warrant and the information received from the informer. After that, in compliance of Section 50 of NDPS Act, a search notice (Ex.P-4) was given to the appellant. Thereafter, personal search of the police party and the witnesses was made by the appellant. As per the consent of the appellant vide Ex. P-3, the police party searched the appellant and the offending vehicle vide Ex. P-5 wherein they found Ganja like substance contained in four plastic bags, total 166 kilogram (50, 65, 30 & 21 kilograms respectively in each bag), and thereafter the same was seized from the offending vehicle vide Ex. P-6. Vide Ex. P-7, samras panchnama was prepared and following the provisions of law, Ganja was weighed vide weighment panchanama vide Ex.P-8 and

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total 166 kilogram of Ganja was recovered. It has been further stated by PW-4 P.L. Nayak that from each of the four bags, samples of 75 grams (in the quantity of 25 grams each in three separate polythene bags) of Ganja were collected and marked as A1, B1 & C1; A2, B2 & C2; A3, B3& C3 and A4, B4 & C4 were prepared from the seized Ganja vide Ex. P-9 and after preparing the samples, the remaining Ganja contained in the four bags and the offending vehicle was seized in presence of the witnesses vide Ex. P-11. The samples were duly sealed and tied with the rope and the panchnama of the specimen seal was prepared vide Ex. P-10. Spot map was prepared vide Ex.P-15. Vide Ex.P-14, panchnama with regard to information belonging to the offending vehicle was also prepared. Thereafter, vide Ex. P-16, the appellant was taken into custody and the information in this regard was given to his wife. He has also stated that after the search proceeding, the remaining sealed Ganja and the offending vehicle were sent to the police station City Kotwali, Korba and from where the same were returned on account of lack of space as per Ex. P-27, however, the sealed Ganja was finally kept in the spirit room at Korba in a safe custody vide Ex. P-27.

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Samples of the seized Ganja were sent to FSL for chemical examination and, as per FSL report (Ex. P-22), the seized samples were found to be Ganja. PW-4 P.L. Nayak has also stated that he had sent all the information to the Assistant Excise Officer, Korba along with Form P-8 and had also informed the same to the Special Judge vide Ex. P-32 and completed all the mandatory proceedings according with law. This witness was subjected to cross-examination and in his cross-examination at para-15 he has clearly admitted that he was authorized to investigate the case under the provisions of NDPS Act. He has further admitted in para-18 that he has reduced in writing the secret information received from the informer, though he did not mention about the authenticity of the secret information received from the informer. In para-25, he has specifically stated that as soon as he received the information, he immediately prepared the panchnama (Ex. P-1) and rushed to the spot assuming that the accused could escape from the spot. In paras 32 to 35, this witness produced two big size seized boxes before the Court sealed with his name and designation and those boxes were marked as Nos. 1 & 2 and upon opening the Box No.1, black

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and brown colour moist substance was seen which are Articles A1 & A-2 respectively. Upon opening Box No.2, two sealed gunny bags were found, out of which, one was marked as Article A-3 on which seal paper Ex. P-36 was affixed and another was marked as Article A-4 on which seal paper Ex. P-37 was affixed and in these boxes also from similar black and brown colour moist substance was found. Similarly, from para-36, it has emerged that all the 08 samples sent to the FSL have been returned as Articles A-1 to A-4 & B-1 to B-4 which were packed bearing the seal of FSL and again marked as A-5 to A-12 and the remaining samples deposited with the Assistant Commissioner Excise are 04 packets which are marked as C-1 to C-4 with the seal bearing the name and designation of PW-4 P.L. Nayak, which are again respectively marked as A-13 to A-16. In para-38, he further admitted that place Hati is adjacent to Korba district and is the border of Raigarh district and the accused/appellant had already left from there, therefore, he could not give information to the Excise Department, Raigarh. He has specifically stated that he could not pass the information to any police station or police outpost as the appellant was coming

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from different route. In para-45, he has stated that the proceedings of sending the seized property to the police station under Section 57 have been done by Head Constable and fellow Sub-Inspector. In para-50, he denied that he has not complied with Sections 42, 50 & 52 of NDPS Act. In this way, he was subjected to a lengthy cross-examination; however, the defence could not elicit anything from this witness, which could render his evidence untrustworthy or doubtful.

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11. PW-2 Aram Singh Porte, Assistant Grade-III, Excise Department, has stated that on 12.1.2015, constable of the Excise Department had given information with respect to search and seizure proceedings and submitted a copy of the original challan; 12 sealed envelopes; seal and specimen signature form; Form-1, which is a forwarding note and its copies and seized samples to be sent to the FSL, in his Office. He has further stated that Assistant District Excise Officer had sent a written letter regarding seized samples to be tested from the FSL, which was received by him and of which acknowledgment receipt was given vide Ex.P-18.

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12. There are two independent witnesses namely Manrakhan Lal and Raja Ram who have been examined in the instant case as PW-1 and PW-3 respectively. Although they have not supported the case of the prosecution and turned hostile, but both these witnesses (PW-1 & PW-3) have admitted their signatures on the documents Exbts. P-1 to P-16. This acceptance on the part of PW-1 and PW-3 of putting their signatures in the seizure panchnama, weighment panchnama, examination of the seized substance and identification etc., gives sufficient strength to the investigation being conducted in accordance with the provisions of NDPS Act.

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13. In this regard, their Lordships of the Supreme Court in the matter of P.P. Fathima v. State of Kerala 11 , held that mere fact that a panch witness did not support the prosecution case by itself would not make the prosecution case any less acceptable, if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made and observed in para-07 as under:-

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11 (2003) 8 SCC 726

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“7. Learned counsel then contended that in view of the fact that the Panch witness to the seizure has not supported the prosecution case, the seizure cannot be accepted. We have repeatedly held that the mere fact that a Panch witness does not support the prosecution case by itself would not make the prosecution case any less acceptable if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made. In the instant case also we are satisfied that from the evidence of PWs. 1 and 2 the seizure has been proved by the prosecution. Therefore, this argument also fails. ”

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14. NDPS Act is a complete Code in itself. Once the procedure enumerated in Sections 42, 43, 49 & 50 is scrupulously followed, it was for the accused, from whose possession the substance is recovered, to explain how he came into possession of the same. It has also been held by their Lordships of the Supreme Court in Mukesh Singh v. State (NCT of Delhi) 12 that it is not always necessary to corroborate the testimony of police officials, through the testimony of independent witnesses.

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15. In the matter of Dharampal Singh v. State of Punjab13 it has been held that lack of independent witness is not fatal to the case of the prosecution. By adopting same analogy, it has further been held in

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12 (2020) 10 SCC 120

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13 (2010) 09 SCC 608

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Rizwan Khan v. State of Chhattisgarh 14 that the

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independent witnesses turning hostile, cannot be a ground for acquittal under NDPS Act.

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16. As such, from above analysis on the point, it is vividly clear that merely because independent witnesses have not supported the case of the prosecution, it cannot be said that the entire prosecution’s case stands vitiated in itself. As already stated above, though the independent witnesses (PW-1 Manrakhan Lal and PW3 Raja Ram) have not supported the prosecution case and turned hostile, but the other official witnesses (PW-4 P.L. Nayak and PW-2 Aram Singh) along with the documents, have unequivocally stated about search and seizure of the contraband Ganja. The defence has utterly failed to elicit anything from them which could suggest that they had any interest or enmity with the accused/appellant for his false implication; their evidence appear to be trustworthy and supported by the documentary evidence on record. Beside this, the contents of Ex.P-6 which is an examination panchnama also fortified the fact that the seized substance was burnt and on being smelled and tasting, it was found to be Ganja. Furthermore,

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14 (2020) 09 SCC 627

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perusal of seizure memo (Ex.P-11) would show that after seizure, four samples were prepared from each bag which are marked as A1,B1 & C1; A2, B2& C2; A3, B3& C3 and A4, B4& C4 and after sealing the same in 12 envelopes, the same were kept in a safe custody in liquor store (spirit room) on the same day i.e. 10.1.2015 as is evident from Ex. P-27A. In his defence, the appellant has examined four witnesses i.e. DW-1 Ganesh Dewangan, DW-2 Kishanlal Dewangan, DW-3 Mochan Prasad Dewangan and DW-4 Hiralal Dewangan, however, their statements do not inspire confidence and they are not reliable as all of them are the relatives of the accused. Thus, from the oral and documentary evidence, it stands proved that the contraband Ganja was seized from the offending vehicle i.e. Hyundai Car bearing Registration No. CG15-B/4634 which was being driven by the appellant at the time of offence and the said vehicle was owned by him in the name of his wife PW-5 Krishni Dewangan, as is evident from panchnama (Ex. P-14) of the said vehicles and the registration certificate details & registration certificate (Exbts. P-33-C & P-34-C) produced by PW-5 Krishni Dewangan and the appellant has failed to explain as

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to how he had come with the physical possession of the seized contraband and it was in the specific knowledge of the appellant himself, which does not rebut the presumption of culpable mental state of the appellant under Section 35 of NDPS Act and thereby it is clearly established that the appellant was in conscious possession of 166 kilograms of Ganja.

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17. However, as per the contention of learned Counsel for the appellant, in the present case the provisions of Sections 42(1)&(2), 52 & 52A(2) and 55 of NDPS Act have not been complied with by the prosecution, which we will deal hereinafter:-

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18. Section 42 of NDPS Act states as under:-

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“42. Power of entry, search, seizure and arrest without warrant or authorisation .—

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(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 including paramilitary forces or armed forces 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

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Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,

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(a) enter into and search any such building, conveyance or place;

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(b) in case of resistance, break open any door and remove any obstacle to such entry;

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(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 this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or

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freezing or forfeiture under Chapter VA of this Act; and

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(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 this Act:

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Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:

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Provided further 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.

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(2) Where an officer takes down any information in writing under subsection (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. ”

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19. Section 42 of NDPS Act came up for consideration before the Constitution Bench of the Supreme Court 15 v. in the matter of Karnail Singh State of Haryana in which their Lordships considered the statutory requirement of writing down and conveying

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15 (2009) 8 SCC 539

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information to superior officer prior to entry, search and seizure, while resolving the conflict between two earlier decisions rendered by the Supreme Court in the matters of Abdul Rashid Ibrahim Mansuri v. State of Gujarat 16 and Sajan Abraham v. State of Kerala 17 and held that whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case and while total non-compliance with requirements of Section 42(1)&(2) is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. Their Lordships further held that non-compliance of Section 42 of NDPS Act may not vitiate the trial if it does not cause any prejudice to the accused and observed in paragraph 35 as under:-

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“35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :

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(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the register concerned and forthwith

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16 (2000) 2 SCC 513

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17 (2001) 6 SCC 692

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send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).

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(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

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(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.

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(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy

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of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001. ”

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20. Their Lordships of the Supreme Court have clearly held in paragraph 35(d) of Karnail Singh (supra) that while total non-compliance of requirements of subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. If any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the

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police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. The principle of law laid down in Karnail Singh (supra) has further been followed by the Supreme Court in the matter of Boota Singh v. State of Haryana 18.

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21. Reverting to the facts of the case, in light of the aforesaid principles of law laid down by the Supreme Court, so far as non-compliance of Section 42(1)&(2) of NDPS Act is concerned, it is apparent from paragraph 22 of the impugned judgment that PW-4 P.L. Nayak, being Assistant District Excise Officer, as per the Notification issued by the State Government on 11.11.1985 in accordance with the provisions of NDPS Act for the purpose of sub-section (2) of Section 41, was authorized to investigate the present case under the provisions of NDPS Act and that PW-4 P.L. Nayak also in his testimony has clearly stated that he was authorized to investigate the case under the provisions of NDPS Act. PW-4 P.L. Nayak has also

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18 (2021) SCC OnLine SC 324

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stated that he had received a secret information that Ganja was being carried by the appellant in his car from Orissa and the appellant had already left from Hati half an hour ago and he can be intercepted at Sitamani Chowk. After getting the said information, PW-4 P.L. Nayak immediately informed the same to Assistant Excise Officer, District Korba over phone and also had reduced in writing in panchnama (Ex. P-1) about the explanation of not taking the search warrant due to paucity of time and the secret information received from the informer and thereafter, as per the directions of the Assistant Excise Officer, he immediately rushed to the spot i.e., Sitamani Chowk, along with staff and where he intercepted the offending vehicle and conducted the search proceeding in compliance of Section 50 of NDPS Act (though compliance of Section 50 only applies in case of personal search of the accused and not for the vehicle etc.,) wherein, after getting the consent of the appellant vide Ex. P-2, the appellant and the offending vehicle were searched and from the dickey and under the back-seats of the offending vehicle, Ganja like substance was found kept hidden in four plastic bags, pursuant to which samras and weighment

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panchnamas were prepared and total 166 kilogram of Ganja (50, 65, 30 & 21 kilograms respectively each in four bags) was found which was seized. Thus, in the instant case, the secret information was reduced in writing and it was also informed to the higher officer on phone, as per Ex. P-1, though due to paucity of time search warrant could not be sought. As such, it cannot be held that there was total non-compliance or breach of the mandatory provisions of Section 42 of NDPS Act in the instant case. Thus, compliance of Section 42(1)&(2) of NDPS Act has been proved on behalf of the prosecution.

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22. Now, as regards the non-compliance of Sections 52 and 52A(2) of NDPS Act, it would be appropriate to reproduce herein the said provisions also, which read as follows: -

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“52 Disposal of persons arrested and articles seized.—

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(1) Any officer arresting a person under section 41, section 42 section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest.

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(2) Every person arrested and article seized under warrant issued under subsection (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.

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(3) Every person arrested and article seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to—

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(a) the officer-in-charge of the nearest police station, or

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(b) the officer empowered under section 53.

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(4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient dispatch, take such measures as may be necessary for the disposal according to law of such person or article.

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52A. Disposal of seized narcotic drugs and psychotropic substances.—

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(1) xxx xxx xxx (2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and

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make an application, to any Magistrate for the purpose of—

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(a) certifying the correctness of the inventory so prepared; or

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(b) taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or

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(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

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23. So far as non-compliance of Section 52 of NDPS Act is

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concerned, the appellant was arrested vide panchnama (Ex. P-12) for offence under Section 20(b)

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(ii)(C) of NDPS Act by PW-4 P.L. Nayak and the appellant was informed about his arrest vide Ex. P-13 and PW-5 Krishni Dewangan (wife of the appellant)

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was also given the information of arrest of the appellant vide Ex. P-16, which clearly establishes the compliance of Section 52 of NDPS Act by the prosecution. Similarly, as regards the non-compliance of Section 52A(2) of NDPS Act is concerned, from the record it is clear that the samples seized were duly

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sealed and tied with the rope and the panchnama of the specimen seal was prepared vide Ex. P-10. A panchnama with regard to information belonging to the offending vehicle was prepared vide Ex. P-14. The remaining sealed Ganja and the offending vehicle, after the search proceeding, were sent to the police station City Kotwali, Korba, vide Ex. P-27, and from where it has been returned on account of lack of space and therefore the sealed Ganja was finally kept in a liquor store at Korba in a safe custody, vide Ex. P-27A and thereafter the samples of the seized Ganja were sent for chemical examination by Excise Constable Pradeep Singh and the samples were found positive as per FSL report (Ex. P-22). All the informations were sent to the Assistant Excise Officer, Korba along with Form P-8 and the same was also informed to the Special Judge vide Ex. P-32. Two seized boxes, marked as Box No.1 and Box No.2, were produced before the Court affixing the seal of the name and designation of PW-4 P.L. Nayak. In Box No.1, black and brown colour substance was seen, which are Articles A1 & A-2 respectively. Similarly, in Box No.2, two sealed gunny bags were found, which were marked as Articles A-3 & A-4. On Article A-3,

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seal paper (Ex. P-36) was affixed and on Article A-4 seal paper (Ex. P-37) was affixed and similar black and brown colour substance was also found in these two boxes. Total 08 samples which were sent to the FSL were returned marked as Articles A-1 to A-4 & B- 1 to B-4 which were packed bearing the seal of FSL and again marked as A-5 to A-12 and the remaining 04 samples were deposited with the Assistant Commissioner Excise Officer marked as C-1 to C-4 bearing the seal of the name and designation of PW-4 P.L. Nayak, which again were marked as A-13 to A-16. As per PW-4 P.L. Nayak, the proceedings of sending the seized property to the police station under Section 57 have been done by Head Constable and fellow SubInspector, though they have not been examined. As such, it is vividly clear that the seized contraband was kept in a safe custody before it was produced before the Court and the non-examination of the witnesses who had deposited the seized property and the samples with the office of FSL and the nonmaintenance of the register would not adversely affect the case of the prosecution. Merely because the samples of the seized contraband have not been taken in presence of the Magistrate, that also would not

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itself vitiate the case of the prosecution. Thus, it cannot be said that the provisions of Sections 52A or 52A(2) or for that matter Section 55 of NDPS Act have not been complied with by the prosecution in its letter and spirit.

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24. As such, from careful perusal of the aforesaid provisions of NDPS Act, in the light of the decisions of the Supreme Court referred herein-above, coupled with the evidence available on record, it is quite established that there is sufficient evidence led by the prosecution to show that all the mandatory compliances of the provisions of NDPS Act have been followed and based on which the learned Trial Court has rightly convicted the appellant for offence under Section 20(b)(ii)(C) of NDPS Act. Therefore, the contention raised by the appellant is hereby rejected. So also, having gone through the judgments relied upon by the learned counsel for the appellant and the principles of law laid down therein, in the given facts and circumstances of the present case, the same being distinguishable on facts are of no help to the counsel for the appellant.

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25. In that view of the matter, having considered the evidence of the Investigating Officer, PW-4 P.L. Nayak, supported by the evidence of PW-2 Aram Singh, the compliances that are required under the provisions of NDPS Act, particularly pre-search and the post-search formalities including the intimation and permission which are required to be sought from the higher authorities so also providing of opportunity to the appellant to get himself searched in the presence of a Magistrate in case he has doubt on the search team, have been duly complied with. Further, the seized contraband - Ganja and the samples packets of the same have been properly found in the sealed condition, tied with rope and kept in a safe place and the sample packets were also sent to the FSL for chemical examination and, as per the FSL report (Ex. P-22), the seized contraband was found to be Ganja and the quantity of which being 166 kilograms was more than the commercial quantity which was being carried in the offending vehicle and for which the appellant has failed to give any explanation as to how he had come with the physical and conscious possession of such a huge quantity of Ganja. As such, the learned Trial Court, after examining and scanning

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the evidence available on record and compliances of the mandatory provisions of NDPS Act on the part of the prosecution, coupled with the fact that the appellant previously also was found to be involved in illegally possessing and carrying Ganja for which three criminal cases have already been registered against him at Police Station, Balco for offences under NDPS Act as is evident from the Crime Register (Ex. P-24) produced by the Station In-charge, Police Station Balco, has rightly convicted and sentenced the appellant for the offence under Section 20(b)(ii)(C) of NDPS Act. In our considered opinion, the said finding of learned Trial Court is finding of fact based on proper appreciation of the evidence and material available on record, which does not call for any interference by this Court.

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26. In the result, this Criminal Appeal being without any substance deserves to be and is hereby dismissed.

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27. The Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal under Article 136 of the Constitution of

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India before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee.

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Sd/- Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge

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(Radhakishan Agrawal) Judge

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sharad