Full Text
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.351 OF 2015
Gurmeet Singh s/o Harjinder Singh
Age – 28 years, Indian National, R/o.: House No.540, Sector-II, Nanak Nagar, Jammu
(At present lodged at Nashik Central ...Appellant
Prison, Nashik Road.) Org. Accd. No.1
(NCB/BZU/CR-04/2010)
2. State of Maharashtra ...Respondents
Pyarelal Shridhar Keer @ Pahalwan
Age – 54 years, Indian National, R/o.: Room No.7, Shiv Ram Sadan, Veer Savarkar Marg, Prabhadevi, Mumbai – 400 025.
(At present lodged at Nashik Central ...Appellant
Prison, Nashik) Org. Accd. No.2
(NCB/BZU/CR-04/2010)
2. State of Maharashtra ...Respondents
Mr. Ayaz Khan, for the Appellant in Criminal Appeal No.351 of 2015.
Mr. Dilip Mishra, for the Appellant in Criminal Appeal No.426 of 2015.
Ms. Ameeta Kuttikrishnan, Special Public Prosecutor, for the Respondent
No.1.
Mr. S. V. Gavand, APP for the Respondent No.2 – State.
ORAL JUDGMENT
1. By these appeals, the appellants have impugned the judgment and order dated 30th December 2014, passed by learned NDPS Special Judge, City Civil and Sessions Court, Greater Bombay, in NDPS Special Case No.148 of 2010, convicting and sentencing them, as under:- - for the offence punishable under Sections 8(c), 20(b)(ii)(c) r/w 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to suffer rigorous imprisonment for 15 years and to pay fine of Rs.[1] lakh each, in default of payment of fine, to undergo rigorous imprisonment for 1 year; - for the offence punishable under Sections 28 r/w 8(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to suffer rigorous imprisonment for 15 years and to pay fine of Rs.[1] lakh each, in default of payment of fine, to undergo rigorous imprisonment for 1 year. Both the aforesaid sentences were directed to run concurrently and sentence in default of fine was directed to run consecutively.
2. A few facts as are necessary to decide the aforesaid appeals, are as under:- May 2010, specific information was received by PW 1 – Sanjay Kumar Sinha, Intelligence Officer, that ‘one Gurmeet Singh, aged 24 years, resident of Jammu is to deliver a substantial quantity of Hashish, a Narcotic Drug under the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’) to a person by the name Pyarelal Shridhar Keer @ Pahalwan, aged 50 years, a resident of Room No.7, Shiv Ram Sadan, Veer Savarkar Marg, Prabhadevi, Mumbai and that Gurmeet Singh would be coming in a white Maruti Car in front of ICICI Prudential Bank Building at Veer Savarkar Marg, Prabhadevi, Mumbai, at around 11:00 p.m.’ On receipt of the said information (Exhibit – 31), PW 1 - Sanjay Kumar Sinha, forwarded the same, at around 7:00 p.m., to PW 6 – Claudius Fernandes as well as to the Zonal Director, Yashodhan Wanage. Accordingly, the Zonal Director gave permission to PW 2 – Davinder Singh to proceed with the raid. Thereafter, the officers of the Narcotic Control Bureau (‘NCB’), organised a raid and maintained surveillance at the spot alongwith two independent panch witnesses from 10:30 p.m. onwards. It appears that shortly thereafter, a vehicle mentioned in the information (Exhibit – 31) arrived at the spot and the said vehicle was parked in front of the ICICI Prudential Bank Building. After some time, a middle aged person of wheatish complexion (Gurmeet Singh) arrived near the said vehicle carrying a white polythene bag. It is alleged that after a brief talk with the driver (Pyarelal Shridhar Keer @ Pahalwan) of the said car, the said person (Gurmeet Singh) sat on the rear seat of the car. Immediately, thereafter, the officers of NCB encircled the car and asked the occupants to come out of the car. The officers introduced themselves and asked the persons in the car their names. The said persons gave their names as Gurmeet Singh and Pyarelal Shridhar Keer @ Pahalwan. The officers disclosed the information so received to both the appellants. On enquiry, the appellant – Gurmeet Singh allegedly disclosed that a total of 40 packets of Hashish were concealed in the gas cylinder and in the cavity made in the rear seat and rear door panels. Accordingly, the officers of the NCB took the car to the NCB office at Ballard Pier, Fort, Mumbai for conducting inspection. Thereafter, a detailed search and examination of the car was undertaken and the said examination resulted in recovery of 40 packets of 1 kg Hashish from the cavity of the said car. All the packets were opened. They tested positive for Hashish when examined by the field testing kit. Thereafter, samples were taken and necessary formalities with respect to sealing were completed. The bulk as well as the samples were deposited in the godown on 9th May 2010 at 10:45 a.m. Thereafter, the statements of the appellants were recorded under Section 67 of the NDPS Act and the appellants were placed under arrest on 9th May 2010 in the evening. After completion of investigation, a complaint was filed in the Special Court and the same was numbered as NDPS Special Case No.148 of 2010. Charge was framed as against the appellants, to which they pleaded not guilty and claimed to be tried. The prosecution in support of his case examined 10 witnesses. PW 1 – Sanjay Kumar Sinha, Intelligence Officer, who received the secret information (Exhibit – 31); PW 2 – Davinder Singh, Intelligence Officer, who conducted the investigation, prepared the panchanama and filed a complaint as against the appellants; PW 3 – Kiran Prakash Sable, Intelligence Officer, who recorded the statements of appellant – Pyarelal Shridhar Keer @ Pahalwan and arrested him. The said officer also deposited the samples with the DYCC; PW 4 – B. S. Bisht, Assistant Chemical Examiner, DYCC; PW 5 – Babu Lal Yadav, Intelligence Officer, who recorded the statements of appellant – Gurmeet Singh and arrested the said appellant; PW 6 – Claudius Fernandes, Superintendent, NCB, who received a copy of the information (Exhibit – 31); PW 7 – Balkrishna Narayan More, panch to the seizure of contraband; PW 8 – Mohammed Shafi Ahmed Khan, Intelligence Officer, who participated in the seizure panchanama and house search of the appellant – Pyarelal Shridhar Keer @ Pahalwan; PW 9 - Prakash P.A. Antony, Intelligence Officer, who participated in the seizure of the contraband and who took photographs of the seized contraband; and PW 10 – Shriram Gajanan Dole, Intelligence Officer who recorded the statement of the appellant – Pyarelal’s wife. After the prosecution closed its evidence, the learned Judge recorded the statements of the appellants under Section 313 of the Criminal Procedure Code. The defence of the appellants was that of denial and false implication. Each of the appellants examined one defence witness each, on their behalf. DW 1 – Yogesh Bhoite, Administration Manager of ICICI Prudential Life Insurance Company and DW 2 – Vikram Jain, a money lender. The learned Special Judge, after considering the evidence on record was pleased to convict and sentence the appellants as aforesaid in paragraph 1 of this Judgment.
3. Several grounds were raised by both the appellants whilst impugning the judgment and order passed by the learned NDPS Special Judge, City Civil and Sessions Court, Greater Bombay. Learned Counsel for the appellant – Gurmeet Singh also submitted written submissions.
4. However, having heard the first submission advanced by the learned counsel for the appellants, essentially on non-compliance of the proviso to sub-section (1) of Section 42 of the NDPS Act and having being satisfied that there is non-compliance of the same, it is not necessary to consider or delve into the other submissions/grounds. Learned Counsel for the appellants relied on several judgments in support of the said submission to show that the trial of the appellants had vitiated on the ground of noncompliance of the proviso to sub-section (1) of Section 42 of the NDPS Act, thus entitling their acquittal from the said case. Learned Counsel relied on Mazzanti Esposto Gian Carlo v State of Goa[1]; Sukhdev Singh v State of Haryana[2]; State of Rajasthan v Jagraj Singh Alias Hansa[3]; 1 1996(3) Bom.C.R. 185
5. Learned Special Public Prosecutor for the respondent No.1, although supported the impugned judgment and order of conviction and sentence, was unable to show that there was compliance of the proviso to sub-section (1) of Section 42 of the NDPS Act, having regard to the law laid down by the Apex Court, in this regard.
6. Perused the evidence, both oral and documentary, with the assistance of the learned counsel for the parties. As noted above, it is not necessary to consider or go into the other submissions canvassed by the learned counsel for the appellants, inasmuch as, the aforesaid appeals ought to succeed only on the ground of non-compliance of the mandate of the proviso to sub-section (1) of Section 42 of the NDPS Act.
7. Section 42 of the NDPS Act deals with the Power of entry, search, seizure and arrest without warrant or authorisation. The relevant part of Section 42, of which non-compliance is alleged reads as under; “42. Power of entry, search, seizure and arrest without
5 JT 2002 (5) SC 1 warrant or 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 intellegence or any other department of the Central Government including para-military 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 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, (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 VA 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 sunrise after recording the grounds of his belief.” (2) …… (Emphasis supplied) As far as the second proviso to sub-section (1) of Section 42 of the NDPS Act is concerned, it clearly stipulates that if an 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.
8. In the present case, PW 1 – Sanjay Kumar Sinha received secret information (Exhibit – 31) to the effect that appellant – Gurmeet Singh was to deliver a substantial quantity of Hashish, a Narcotic Drug under the NDPS Act to appellant - Pyarelal Shridhar Keer @ Pahalwan. It was also informed that appellant – Gurmeet Singh would be coming in a white Maruti Car in front of ICICI Prudential Bank Building at Veer Savarkar Marg, Prabhadevi, Mumbai, at around 11:00 p.m. on 8th May 2010 to give delivery of the said contraband. According to the prosecution, the said information was received on 8th May 2010 at 7:00 p.m. The said secret information was reduced into writing by PW 1 – Sanjay Kumar Sinha and forwarded to PW 6 – Claudius Fernandes, as well as, to the Zonal Director, Yashodhan Wanage, who in turn authorised PW 2 – Davinder Singh to conduct the raid. Accordingly, the raid was conducted at 11:00 p.m.
9. Admittedly, the search and seizure of the contraband was after sunset and before sunrise. Admittedly, no authorisation was taken from any officer as mandated by the said proviso nor has the reason to believe been recorded, as mandated to show why such authorisation or search warrant could not be obtained. The evidence on record, in particular the evidence of PW 1 – Sanjay Kumar Sinha, clearly shows that he had prepared the information (Exhibit – 31) and that he was aware of the fact that the vehicle was to be intercepted after sunset. Infact, the secret information note itself reflects that the car was to come at the spot at about 11:00 p.m. It is not the prosecution case, that PW 1 – Sanjay Kumar Sinha asked for any search warrant or authorisation. Infact, PW 1 – Sanjay Kumar Sinha in his crossexamination has admitted that he was aware when he prepared the information note (Exhibit-31) that the said vehicle was to be intercepted after sunset; that search warrant was required for searching houses after sunset; and that he did not apply for any search warrant. He has also admitted that he was aware that the person who wants to go and search the house after sunset, has to obtain permission to search from a Gazetted Officer. He has also admitted that there were 2 Gazetted Officers at that time in the office when the said information was received. He has also admitted that he did not ask for authorisation nor did the Gazetted Officer tell that such proforma was available with him. It is thus evident, that though the Gazetted Officers were present in the office at the time when PW 1 – Sanjay Kumar Sinha received the information, their authorisation for conducting the search was not taken. Neither does the information note (Exhibit – 31) record any reason to believe, why such authorisation could not be taken, as mandated. PW 1 – Sanjay Kumar Sinha has clearly admitted that there were 2 Gazetted Officers who were present in the office when the information was received. In these circumstances, no reason is forthcoming why the authorisation/search warrant was not taken from them.
10. PW 2 – Davinder Singh, the seizing officer has also admitted that the vehicle was searched after sunset and before sunrise; and that no Gazetted Officer was present during the search of the said vehicle. He has also admitted that the proforma was available in the office for house search and that neither he nor any officer applied for any search warrant or authorisation though he was aware that the vehicle was to be intercepted and searched after sunset and before sunrise.
11. Learned Special Public Prosecutor for the respondent No.1 fairly conceded that although the raid was to be conducted after sunset and before sunrise, no authorisation/search warrant was taken from a Gazetted Officer to conduct the raid; nor does the information note reflect the reason for not obtaining the said authorisation, as contemplated under the proviso to sub-section (1) of Section 42 of the NDPS Act. Learned Special Public Prosecutor could not also from the record or evidence show that the mandate of the proviso to sub-section (1) of Section 42 of the NDPS Act was followed by the officer concerned.
12. From the aforesaid discussion, it is clearly evident that no officer had applied for any search warrant or authorisation nor reasons recorded for not obtaining the said authorisation/search warrant as mandated by the proviso to sub-section (1) of Section 42 of the NDPS Act.
13. The Apex Court in the case of State of Orissa v Laxman Jena (Supra) has in paras 5 and 6, held as under:- “5. There is no dispute that section 42 has two parts. The first part deals with the recording of the information and the second with the conduct of the search. Again first part of the section has two limbs, first dealing with the recording of the information received and the other relating to the belief of the officer based upon his personal knowledge. Any information recorded in terms of sub-section (1) of section 42 is required to be sent to the superior officer of the person recording the information as mandated by sub-section (2) of section 42. Second part of the section 42(1) deals with the power of the officer regarding entry, search, seizure and arrest without warrant of authorisation. The authorised officer has the power to enter into and search any building, conveyance or place and in case of resistance, break open any door and remove any obstacle to such entry. He has power to seize the 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 the Act and to detain and search, if he thinks proper, and arrest any person whom he has reason to believe to have committed any offence punishable under chapter IV relating to such drug or substance.
6. However, in exercising a power under the second part of section 42(1) the designated officer is under a legal obligation to comply with the mandate of the proviso to sub-section (1) providing for recording of grounds of his belief to make the search in terms of the powers conferred upon him. In the instant case the High Court has found on facts that before making the search, the officer concerned had not recorded reasons or grounds for his belief to make the search in terms of proviso to Section 42(1) of the Act.” The Apex Court in para 7 of the said judgment further held that the mandate of law, as incorporated under the Act, is required to be strictly complied in view of the grave consequences which are likely to be followed on proof of illicit article under the Act; that the legislature had enacted and provided certain safeguards in various provisions of the Act including sections 42 and 50, in all cases which must be proved to have been strictly followed; and that the harsh provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and comply with the safeguards.
14. Infact, the Apex Court in State Of Punjab v Balbir Singh (Supra), after referring to a large number of cases, recorded its conclusion in para 25, as under:- “25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows: (1) ……... (2-A) …… (2-B) ……. (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (Emphasis supplied) (3) ……….. (4-A) ………. (4-B) ………. (5) …………. (6) ……….
15. Similarly in the case of State of Rajasthan v Jagraj Singh Alias Hansa (Supra) the Apex Court held that non-compliance with Section 42(1) proviso and Section 42(2) had seriously prejudiced the accused therein and that non-compliance of the said provisions had vitiated the trial and as such confirmed the acquittal of the accused.
16. Having regard to the legal position as stated aforesaid and the evidence on record in the present case, it is clear that there is total non-compliance of the proviso to sub-section (1) of Section 42 of the NDPS Act. The non-compliance of the said provision vitiates the trial and as such both the appeals ought to succeed only on the aforesaid premise.
17. Accordingly the following order is passed: ORDER i) The Appeals are allowed; ii) The Judgment and Order dated 30th December 2014, passed by learned NDPS Special Judge, City Civil and Sessions Court, Greater Bombay, in NDPS Special Case No.148 of 2010, convicting and sentencing the Appellants, is quashed and set aside; iii) The appellants are acquitted of the offences, with which they are charged. The appellants are set at liberty forthwith, if not required in any other case. Fine amounts, if paid, be refunded to the appellants.
REVATI MOHITE DERE, J.