Appeal against conviction under NDPS Act set aside. High Court held police violated Section 42(2) by failing to record information in writing or forward copy to superior while at station. Conviction unsustainable due to illegal search and seizure.
Impugned judgment set aside; accused acquitted; bail bond discharged; fine refunded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 5TH DAY OF SEPTEMBER 2018
BEFORE
THE HON’BLE MRS.JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL No.2575 OF 2010 [C]
BETWEEN:
SRI RAMA S/O NINGAPPA PUNDEKAR AGE 54 YEARS, R/O PALA, HALIYAL TQ DIST:UTTARA KANNADA.
... APPELLANT
(BY SRI. J. S.SHETTY, ADV.)
AND
STATE OF KARNATAKA BY POLICE SUB INSPECTOR GHATIKERI POLICE STATION HUBLI, DISTRICT DHARWAD.
... RESPONDENT
(BY SRI.PRAVEEN K.UPPAR, HCGP)
THIS CRL.A IS FILED U/S.378 CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER REGARDING SENTENCE DATED 2.2.2010, PASSED BY THE PRINCIPAL SESSIONS AND SPECIAL JUDGE, DHARWAD, IN SPECIAL (NDPS) C.C.NO.7/2006, AND ACQUIT THE APPELLANT FROM THE CHARGES FRAMED AGAINST HIM.
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This appeal coming on for Final Hearing , this day the Court delivered the following:-
JUDGMENT
This appeal of the accused arises out of the Judgment and Order of conviction and sentence dated 02.02.2010, passed by the Principal Sessions & Special Judge, Dharwad, in Special (NDPS) C.C. No.7/2006. By the impugned Judgment and Order, the Trial Court has convicted the appellant for the offences punishable under Section 20(b)(i) of the N.D.P.S. Act and sentenced him to rigorous imprisonment for one year and fine of Rs.10,000/-.
Spl.(NDPS)C.C.No.7/2006 for the offence punishable under Section 20(b)(i) of the NDPS Act, on the basis of the charge sheet filed by the Ghantikeri police, in Crime No.66/2006 of their police station. The said case was registered against the appellant for the offence punishable under Section 20(2)(b) of the NDPS Act on the
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basis of the complaint/report of PW.1-Adiveppa Rudrappa Badiger, Police Inspector of Ghantikeri Police Station.
On 05.07.2006 at about 9.00am, when PW.1
was in Ghantikeri police station, he received credible information that a person is illegally carrying ganja near Bankapur Chowk for the purpose of sale. Immediately, he secured PW.3 and CW-2 as panch witnesses, proceeded to the spot with panchas and his staff, PWs.-4 to 7. There they found the accused moving towards Bankapur chowk with a fertilizer bag on his shoulder.
The police squad apprehended the accused and interrogated him. The accused did not give satisfactory explanation. PW.1 briefed the
accused of his right of option of being searched in the presence of the Magistrate or the Gazetted Officer. The accused chose to be searched in the
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presence of the Gazetted officer. PW.1 informed PW.2-the Assistant Commissioner of police about the incident and sent written requisition Ex.P4 to PW.2 through CW.6. Immediately, PW.2 came to the spot.
Then search was conducted in the bag possessed by the accused. It was found containing 5kgs. of ganja leaves, fruiting tops, flowerings and seedling. After drawing sample of 100gm., the sample and remaining ganja were seized under the Mahazar Ex.P5.
Then PW.1 prepared the suo-motu reportEx.P6. On such report, he registered the FIREX.P7, arrested and produced the accused before the Court along with his report and PF.
PW1 recorded the statements of witnesses, sent the seized articles to the FSL and handed over the further investigation to PW.6. PW.6 conducted further investigation and filed the charge sheet.
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prosecution examined PW.1-the complainant, PW.2-the Assistant Commissioner of Police in whose presence the alleged search and seizure was effected, PW.3-the Mahazar witness, PW.5who allegedly weighed the ganja, PW.4-the carrier of the seized articles to the FSL, PW.7-the carrier of the FIR and PW.6-the Investigation Officer. The prosecution got marked Exs.P1 to P12 and M.Os.1 and 2-the sample ganja and the bulk ganja.
i) The official witnesses PWs.-1 and 2; ii) Mahazar witness-PW.3; iii) The other police witness-PWs.4, 6 & 7;
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iv) The suggestions of the accused to the prosecution witness that when he was moving in the area of scene of offence for searching the address of his relative, the police planted the bag on him and for the purpose of their statistic, they have falsely implicated him in the case proves his presence at scene of offence; and
v) The compliance of Section 42 of the NDPS Act is not required since the Gazetted Officer himself conducted the search.
i) The raid conducting officer-PW.1 has not complied the provision of Section 42 of the NDPS act;
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ii) There are major contradictions and variations in the evidence of the prosecution witnesses regarding the time and place of the alleged search and seizure and the person who actually conducted the search and seizure;
iii) PW.5 has clearly stated that he weighed the ganja in the police station and nothing was elicited in the crossexamination by the prosecution that his evidence is unacceptable;
iv) The presence of PW.2 at the scene of offence is highly doubtful as he has not subscribed the signature on the Mahazar Ex.P5.
In support of his contention, he seeks to rely on the following judgments:-
i) Sarju @ Ramu Vs. State of U.P. 2009 SAR (Crl) 870 ii) Karnal Singh Vs. State of Haryana 2009 CRL.L.J.4299
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support the impugned judgment and order on the following grounds:-
i) PWs.1, 2, 4, 6 and 7 are the official witnesses and they have no ill-will against the accused or personal interest in the matter. Therefore, there was no reason to suspect their evidence;
ii) The evidence of the official witnesses is corroborated by the Mahazar witness PW.3;
iii) The accused himself by his suggestion to the prosecution witness in the crossexamination admitted his presence at the scene of occurrence and the possession of the bag by him. Though he contended that the police thrusted the said bag on him, he failed to prove such defence;
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area Section 42 of the NDPS Act is not
applicable.
In support of his contention he seeks to rely
on the following judgments:-
i) Union of India Vs. Satrohan, (2008) 8 SCC 313
ii) Jarnail Singh Vs. State of Panjab (2011) 3 SCC 521
iii) State of H.P. Vs. Pawan Kumar (2005) 4 SCC 350
the points that arise for consideration are whether the finding of trial Court that the prosecution proved beyond reasonable doubt, that on 05.07.2006 at 9.30 am, the accused found illegally possessing 5 kgs. of ganja for the purpose of sale and consequently the impugned order of conviction and sentence are sustainable.
upon the evidence of;
i) PW.1-complainant-cumInvestigation Officer;
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ii) PW.2-the Assistant Commissioner of
police in whose presence allegedly the search and seizure was conducted at the scene of occurrence;
iii) PW.3-the seizure Mahazar witness;
iv) PW.5-who allegedly weighed the ganja at the scene of occurrence;
v) PW.6-the Investigation Officer;
vi) PWs.-4 and 7-the carriers of the seized articles to the FSL and FIR to the Court.
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accused. In Ex.P6, it is simply stated that personal search was conducted and the incriminating articles were seized. It does not specifically states whether that was done by PW.1 or PW.2.
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“42. Power of entry, search, seizure and arrest without warrant or authorisation. – (1) ……
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso
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thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.”
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chief-examination, PW.1 did not whisper anything about the recording the information in writing in compliance with Section 42(2), but for the first time in the cross examination, he stated that he has recorded such information in the station house diary. But, the said extract of the station house diary is not produced along with the charge sheet.
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applies only when the search and seizure is conducted in any building, conveyance or enclosed place, and the provision applicable to the case on hand is Section 43. Section 43 of the NDPS Act reads as follows:-
“43. Power of seizure and arrest in public place.—Any officer of any of the departments mentioned in section 42 may-
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act 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;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation .—For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.”
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refers to Section 42. In addition to that the term ‘public place’ is explained as including public conveyance, hotel, shop or other place intended for use by, or accessible to the public . The place where the accused was allegedly apprehended and search was conducted is a road, which was accessible to the public.
“50. Conditions under which search of persons shall be conducted.— (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.”
Supreme Court in Karnal Singh’s case referred to
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supra, after considering it’s earlier judgments in
this regard, laid the ratio as follows:-
“17. In conclusion, what is to be noticed is 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 Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :
(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 concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).
(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 .
(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
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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.
(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 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.
(Emphasis supplied)
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had sufficient time to reduce the information to writing and inform his official superior forthwith. But he has not done that. Thereby there is violation of Section 42 of the NDPS Act. It has to be noted in one of the case, which were referred to the Constitutional Bench in Karnal Singh’s case, the search and seizure was on a public road.
bearing of Sections 41, 42, 43 and 50 on each other, held that since the search and seizure itself was by PW.2, the Gazetted Officer, the compliance of Section 42 was not required. That reasoning is erroneous in law. Apart from that, as already pointed out, even the evidence regarding who conducted the search and seizure is ambiguous.
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The judgment relied upon by the learned HCGP are not applicable to the facts of the case.
impugned judgment and order of conviction and sentence is not sustainable. The appeal is allowed. The impugned judgment and order of conviction and sentence dated 02.02.2010 passed by the Prl. Sessions & Special Judge, in Spl.(NDPS)C.C.7/2006 is hereby set aside. The accused-appellant is acquitted of the charge for the offence under section 20(b)(i) of the N.D.P.S. Act . The bail bond of the accused and his surety shall stand discharged. The fine amount deposited if any shall be refunded to the accused. The order regarding disposal of the property is maintained.
SD/JUDGE
Vmb
3 issues framed by the court
Whether failure to record information in writing and forward to superior within 72 hours under Section 42(2) of the NDPS Act when officer was at station renders search invalid.
Whether the trial court erred in holding that Section 42 compliance was not required because search was conducted in presence of a Gazetted Officer.
Whether the sustaining of conviction requires strict compliance of Section 42 given the inextricable link between information and seizure.
Colour shows how this judgement treated each authority
Sarju @ Ramu Vs. State of U.P.Referred¶47
Sarju @ Ramu Vs. State of U.P. 2009 SAR (Crl) 870
Karnal Singh Vs. State of HaryanaExplained¶113
Karnal Singh Vs. State of Haryana 2009 CRL.L.J.4299
Union of India Vs. SatrohanDistinguished¶59
Union of India Vs. Satrohan, (2008) 8 SCC 313 · Who else cites this
Jarnail Singh Vs. State of PanjabDistinguished¶59
Jarnail Singh Vs. State of Panjab (2011) 3 SCC 521 · Who else cites this
State of H.P. Vs. Pawan KumarDistinguished¶59
State of H.P. Vs. Pawan Kumar (2005) 4 SCC 350 · Who else cites this
2 provisions across 2 enactments
Sri Rama S/o Ningappa Pundekar
State of Karnataka
K.S. Mudagal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
