Jitender Kumar v. State NCT of Delhi

2. Ms. Pooja Roy, learned counsel appearing for the petitioner argues, that the examination-in-chief of PW-1 Ct. Pooja was recorded on 12.04.2023, whereafter she was cross-examined by learned counsel who was then appearing on behalf of the petitioner.

3. Subsequently however, learned counsel appearing for the co-accused persons Dharambir and Amit was granted an opportunity to crossexamine PW-1; but they did not avail that opportunity.

4. Ms. Roy submits, that the case arises from an allegation that in a search and seizure operation conducted by S.I. Vikas, 21.[3] kilograms of ganja was recovered from the petitioner.

5. Counsel submits, that the examination-in-chief of PW-1 Ct. Pooja would show that the information alleged to have been received telephonically by S.I. Vikas from a secret informer was admittedly reduced into writing by way of DD No.11 dated 21.05.2022 by Ct. Pooja, since she was posted as the Duty Officer at AATS, Dwarka on 21.05.2022 from 08:00 a.m. to 08:00 p.m.

6. Ms. Roy argues, that section 42 of the Narcotic Drugs & Psychotropic Substances Act 1985 („NDPS Act‟) mandates that if information is received and the police have reasons to believe that contraband will be found in a premises, the police are entitled (between sunrise and sunset) to enter such premises, and to search, seize, and arrest without a search warrant, provided that such information is reduced into writing by an officer who is “superior in rank to a peon, sepoy or constable”. It is argued that since admittedly the DD entry in the present case was recorded by Ct. Pooja, who was not of the required rank, the information so recorded was not in compliance with the requirements of section 42 of the NDPS Act; and therefore the alleged seizure of contraband is illegal.

7. Attention in this behalf is drawn to section 42 of the NDPS Act, which reads as follows: ―42. Power of entry, search, seizure and arrest without warrant or authorization. – (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 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, 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 V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,— (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; 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 this Act: 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: 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 sunriseafter 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 within seventy-two hours send a copy thereof to his immediate official superior.‖ (emphasis supplied)

8. Ms. Roy has also drawn attention to the examination-in-chief of Ct. Pooja as recorded on 12.04.2023, the relevant extract whereof reads as under: ―1. On 21.05.2022 I was posted as Duty Officer at AATS Dwarka and duty hours were from 8 a.m. to 8 p.m. On that day at about 9 a.m. S.I. Vikas Yadav lodged his departure entry along with HC Dinesh, HC Jagat Singh, Ct. Manoj and Ct. Praveen for patrolling in the area. True copy of DD No. 3 is Ex. PW 1/A (OSR).

2. On the same day, at about 11 a.m. SI Vikas gave telephonic information that when he along with HC Jagat, HC Dinesh, Ct. Manoj, Ct. Praveen were on patrolling duty in the area PS Najafgarh and Chhawla and at about 10:40 a.m. when they reached at Najafgarh red light one secret informer met them and informed that one person namely Jitender R/o Palam who use to supply Ganja would come between 12 to 1 p.m. at Nangli Industrial area near Bharadwaj Properties office for supply of Ganja. SI Vikas further informed me that he has informed the Inspector AATS on which Inspector AATS ordered that the secret information (sic, be) reduced into writing u/s 42 NDPS Act and further sent to ACP Dwarka.‖

9. In support of her submission learned counsel has placed reliance upon order dated 19.01.2024 passed by a Co-ordinate Bench of this court in BAIL APPLN. No.3840/2023 titled Gulab Rai @ Chetan vs. State (NCT of Delhi), to argue that in the said case, while relying on the judgement of the Supreme Court in Directorate of Revenue & Anr. vs. Mohammad Nisar Holia, 1 as well as judgment dated 13.06.2017 passed by the Bombay High Court in Rajaram Kadu vs. State of Maharashtra,[2] the Co-ordinate Bench has held that where the first recipient of the secret information with regard to an offence under the NDPS Act does not reduce such information into writing, and the information is reduced into writing by some other person, the information so recorded becomes mere hearsay and is therefore not in compliance with the requirements of section 42 NDPS Act.

10. It is argued that in the present case, not only was the information reduced into writing by a person (namely, Ct. Pooja) who was not the

2017:BHC-AS:14746 person who had received the information (namely, S.I. Vikas), but the person who reduced the information into writing was also below the rank of a peon, sepoy or constable, which is impermissible under section 42 of the NDPS Act. It is submitted therefore, that the information comprised in DD Entry No.11 dated 21.05.2021 could not have been the basis of a valid entry, search or seizure operation.

11. Despite the above legal position, Ms. Roy argues, that by reason of inadvertence, the cross-examination of PW-1 Ct. Pooja was limited only to the aspect of whether she had received a call with regard to the arrest of the petitioner and recovery of 21.[3] kgs of ganja from him; and PW-1 was not cross-examined on other aspects relating to the requirement of section 42 of the NDPS Act, which would go to the root of the matter.

12. Ms. Roy submits, that it is for this reason that PW-1 needs to be crossexamined further, in the context of the mandatory requirements of section 42 of the NDPS Act, for which purposes she needs to be recalled as witness.