IMPORTANT POINT
Seciton 42(2) of NDPS Act is not applicable when search, seizure etc. is conducted by Gazetted Officer under Section 41(2) and (3) of NDPS Act.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 67-Truck and a car apprehended and accused No. 6 was in truck and accused 2 and 3 were in car and heroin 66.1 kg. was seized-Accused No. 1, brother of accused No. 2 was alleged to be the kingpin-Confessional statements of appellants recorded by officers of Department of Revenue Intelligence was admissible in evidence-No circumstance to indicate that statements were involuntary as appellants did not make any complaint of torture or harassment when produced before Magistrate-No delay in recording statements-Statements voluntarily made could be made basis of appellant s conviction.
       (ii) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 8(c), 29 r/w 18 and 21-Recovery of 66.1 kg. of heroin when accused were travelling in a truck and car-Search and seizure not made on spot but had taken place in customs office and no independent witness joined-Accused were present through out and no allegation or suggestion that contraband was meddled with by officers-No illegality in seizure of contraband-Having regard to confessional statements of appellants which were voluntary, recovery could not be doubted for want of examination of independent witness. (Para 7)
       (iii) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 42(2)-Gazetted Officer himself conducted the search and arrested accused and seized the contraband-He was acting under Section 41 of the Act and it was not necessary to comply with Section 42 of the Act.
       Held : It is clear from the language of sub-section (2) of Section 42 that it applies to officer contemplated by sub-section (1) thereof and not to a Gazetted Officer contemplated by sub-section (2) of Section 41, when such Gazetted Officer himself makes an arrest or conducts search and seizure. It would be useful to also notice Section 43 which relates to power of seizure and arrest in public place. Any officer of any of the departments mentioned in Section 42 is empowered to seize contraband etc. and detain and search a person in any public place or in transit on existence of ingredient stated in Section 43. It can, thus, be seen that Sections 42 and 43 do not require an officer to be a Gazetted Officer whereas Section 41(2) requires an officer to be so. A Gazetted Officer has been differently dealt with and more trust has been reposed on him can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in presence of a Gazetted Officer. The High Court is, thus, right in coming to the conclusion that since the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42. The decisions in State of Punjab v. Balbir Singh [(1994) 3 SCC 299], Abdul Rashid Ibrahim Mansuri v. State of Gujarat [(2000) 2 SCC 513], and Beckodan Abdul Rahiman v. State of Kerala [(2002) 4 SCC 229], on the aspects under consideration are neither relevant nor applicable. Para 14)

Judgement Key Points

Key Points: - The appellants were convicted under Sections 8(c), 29 r/w 18 and 21 of NDPS Act for offenses involving 66.1 kg heroin seized from a truck and car (!) (!) [1000082690001]. - Confessional statements under Section 67 NDPS Act by Revenue Intelligence officers were admissible, voluntary, and formed basis of conviction, with no complaints of torture before Magistrate and no delay [1000082690002][1000082690003][1000082690004]. - Search and seizure at Customs Office (20 km from apprehension site) without independent witnesses was valid as accused were present, no tampering alleged, and voluntary confessions corroborated recovery [1000082690005][1000082690006]. - Section 42(2) NDPS Act does not apply when a Gazetted Officer empowered under Section 41(2) himself conducts arrest, search, and seizure (!) [1000082690007][1000082690009][1000082690013]. - Section 41(2) empowers Gazetted Officers of specified departments to act directly or authorize subordinates, vesting them with Section 42 powers without Section 42(2) reporting requirement (!) (!) (!) (!) [1000082690013]. - Distinction: Section 42(1) applies to non-Gazetted empowered officers requiring immediate superior reporting under 42(2), unlike trusted Gazetted Officers under 41(2) [1000082690013]. - High Court correctly held Section 41 applicable, not Section 42, rendering prior decisions on Section 42(2) inapplicable [1000082690009][1000082690013]. - Appeals dismissed, upholding conviction and sentence as no illegality in procedure or evidence [1000082690014][1000082690015] (!) .

What is the applicability of Section 42(2) of NDPS Act when search, seizure etc. is conducted by Gazetted Officer under Section 41(2) and (3) of NDPS Act?

JUDGMENT

Y.K. Sabharwal, J.-The Special Judge, Salem under Narcotics Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act ), tried 11 accused for various offences. Six were convicted. Two of the convicted accused succeeded in the criminal appeal and the remaining four whose conviction and sentence has been maintained by the High Court by the impugned judgment are appellants before us. They are original accused Nos. 1, 2, 3 and 6. The trial judge convicted accused Nos. 1, 2 and 3 for offences under Section 8(c), 29 read with Section 18 and Section 8(1), 29 read with Section 21 of the NDPS Act and awarded on each appellant the sentence of 10 years rigorous imprisonment and also fine amount of Rs.1 lakh and in default of payment fine for each offence, they were directed to undergo further rigorous imprisonment for two years. The substantive sentences were, however, directed to run concurrently. Accused No.6 was also found guilty for offence under Sections 8(c), 29 read with Section 21 of the NDPS Act and sentenced to undergo 10 years rigorous imprisonment and fine of Rs.1 lakh and in default of payment of fine, to undergo further rigorous imprisonment for two years.

2. In brief, the case of the prosecution is that on 15th May, 1993, a truck and car were apprehended. Accused No.6 was in truck and accused Nos.2 and 3 were in car. From them heroin weighing 66.1 kg. was seized. Accused No.1, the main kingpin, is the brother of accused No.2. Both were resident of Trichirappali. Accused No.1 has been receiving narcotics from Mandasore, Madhya Pradesh, a place to which he belonged. Another brother of accused No.1 named Durga Shankar was staying in the village Khonti in Mandasore District, Madhya Pradesh along with his parents. The father of accused Nos.1 and 2 used to cultivate opium and their brother Durga Shankar used to get opium and heroin and send the same to Trichy. The consignment in question was to be received and sold with the help of accused No.3 for ultimate export to Sri Lanka through accused No.6, Mohd. Sabeer. The High Court in appeal having confirmed the conviction and sentence of accused Nos. 1, 2, 3 and 6, they are in appeal on grant of leave.

3. The conviction of the appellants is based primarily on their statements recorded under Section 67 of the NDPS Act as also on the recovery except from accused No.1/appellant No.1

4. Assailing, therefore, the statements made by each of the appellant under Section 67, it was vehemently contended by Mr. R.K. Jain, Senior Advocate that the statements on basis whereof the appellants have been found guilty are not voluntary and thus their conviction cannot be sustained. The statements of the appellants have been recorded by officers of Department of Revenue Intelligence who are not police officers within the meaning of Section 25 of the Evidence Act, 1872. The confessional statements recorded by such officers are admissible in evidence. Learned counsel though not questioning the admissibility of the said statements contends that the same were obtained by torture and harassment and are involuntary and, therefore, the conviction of the appellants cannot be sustained. The delay in recording of the statements of the appellants is put forth as one of the reasons to support the contention that the statements were involuntary. Learned counsel submits that after apprehending truck and the car on the road at about noon time on 15th May, 1993, the seizure of the narcotics had taken place between 6 to 9 p.m. at the Customs House and the statements of accused Nos. 2, 3 and 6 were recorded on the next day i.e. on 16th May, 1993 and the statement of accused No.1 was recorded on 17th May, 1993. It may be noted that accused Nos.2, 3 and 6 were apprehended on the spot on 15th May, 1993 whereas accused No.1 was arrested on 16th May, 1993. The courts below on appreciation of evidence have neither doubted the recovery nor has found the statements to be involuntary.

5. It has been establishe

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2003 Supreme(SC) 930

IMPORTANT POINTSeciton 42(2) of NDPS Act is not applicable when search, seizure etc. is conducted by Gazetted Officer under Section 41(2) and (3) of NDPS Act.

What is the applicability of Section 42(2) of NDPS Act when search, seizure etc. is conducted by Gazetted Officer under Section 41(2) and (3) of NDPS Act?

Cases Referred (6)

IMPORTANT POINT
Seciton 42(2) of NDPS Act is not applicable when search, seizure etc. is conducted by Gazetted Officer under Section 41(2) and (3) of NDPS Act.