IMPORTANT POINT
When accused carrying Ganja was apprehended from Railway Station platform on prior secret information, provisions of Section 42(2) NDPS Act had no application and when recovery was effected from bag, Section 50 NDPS Act had also no application.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 20 and 42-Appellant apprehended on prior secret information from Railway Station and was in possession of Ganja 23 kg. in a bag-Conviction challenged on plea of violation of Section 42(2) as there was no proof of endorsement to superior officer-Section 42(2) of the Act would come into operation-Commission of the act or concealment of document etc. must be in any building, conveyance or enclosed place-Section 42 had no application to facts of the case-Evidence did not show non-compliance of Section 42(2) of the Act.
       Held : Section 42 comprises of two components. One relates to the basis of information i.e. (i) from personal knowledge (ii) information given by person and taken down in writing. The second is that the information must relate to commission of offence punishable under Chapter IV and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 has no application. Sub-section (2) mandates as was noted in Baldev Singh s case (supra) that 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 forthwith send a copy thereof to his immediate official superior. Therefore, sub-section (2) only comes into operation where the officer concerned does the enumerated acts, in case any offence under Chapter IV has been committed or documents etc. are concealed in any building, conveyance or enclosed place. Therefore, the commission of the act or concealment of document etc. must be in any building, conveyance or enclosed place. The trial Court and the High Court after analyzing the evidence have come to hold that there was compliance of Section 42(2) in the sense that requisite documents were sent to the superior officer, though per se Section 42 had no application to the facts of the case. Though learned counsel for the appellant tried to submit that there was no definite evidence about sending copies of the requisite documents to the superior officers, yet in view of the analysis of evidence done by the trial Court and also by the High Court, we do not find any substance in the plea that there was violation of Section 42(2). (Paras 9 and 10)
       (ii) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 50-Recovery of Ganja 23 kg. which accused was keeping in a bag when apprehended from Railway Station-Search was of the bag and not of the person-Section 50 of the Act had no application. (Para 11)
       (iii) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 20-Recovery of 23 kg and 17 kg of Ganja from possession of two appellants respectively-Trial Court imposed sentence of 3 years imprisonment and fine of Rs. 2000/-Sentence was not excessive and did not call for interference. (Para 15)

JUDGMENT

Arijit Pasayat, J.-Appellants faced trial for alleged commission of offences punishable under Section 8 read with Section 20 (B)(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act ). Each was found guilty and sentenced to undergo imprisonment for 3 years and to pay a fine of Rs. 2,000/- with default stipulation by the learned Special Judge (NDPS) Bhopal. The conviction and sentence were maintained by the High Court of Madhya Pradesh at Jabalpur by the impugned judgment.

2. Background facts as projected by the prosecution during trial are as follows:

On 31.3.2001, while Inspector Ajay Singh Bisen (PW-10) was on duty at G.R.P Police Station, Bhopal, he received an information that two persons had got down from Madhya Pradesh Express and were waiting at platform No. 2 for Coolie with suitcases and bags in which they were carrying contraband article (Ganja). This information was recorded by him (Ex.P-25) and thereafter, he proceeded with his staff to the place as per the information received by him. He found the appellants standing with the suitcases and bags. On search of the suitcase of appellant No. 1 Rajendra, he found 23 kilograms of "Ganja" therein, which was seized. Likewise, on the search of the bag of appellant No. 2 Kalicharan he found 17 kilograms of "Ganja" therein, which was also seized. PW-10 prepared the seizure memos (Exh. P-5 and P-8 respectively). He took samples of 25 grams each and sealed the same. The sample Panchnama is Exh. P-7. The seized articles were kept in sealed condition in the Malkhana. PW-10 had sent the sealed samples with speimen of seal to the Forensic Science Laboratory, Sagar vide Exh. P-23 on 12.4.2001 and the report of the laboratory is Exh. P-29. PW-10 sent the full report of the search and seizure to the senior railway police as per Exh. P-28, dated 1.4.2001. K. Barsaiya (PW-3) was posted as Malkhana Moharrir in the Police Station, Government Railway Police, Bhopal and on 31.3.2001, the seized "Ganja" and the sample packets along with the suitcase and bag which were seized from the appellants were deposited by him in the Malkhana in a sealed condition.

3. Placing reliance on the evidence adduced, the trial Court recorded conviction and imposed sentence as noted supra. Appeal before the High Court did not bring any relief.

4. In support of the appeal, learned counsel for the appellants submitted that there was violation of Sections 42 and 50 of the Act. There was no proof of endorsement to the superior officer as mandated in Section 42(2) of the Act. Before the search was made the accused persons were not intimated of their right to be searched in the presence of prescribed authority. There was also non-compliance with the requirements of Sections 55 and 57.

5. Learned counsel for the State on the other hand submitted that both the trial Court and High Court have analysed the factual and legal position in detail. There is no infraction as alleged and the impugned judgment suffers from no infirmity.

6. The requirements vis-a-vis Sections 42 and 50 have been dealt with in many cases, more particularly by a Constitution Bench in State of Punjab v. Baldev Singh (1999 (6) SCC 172. In para 17 the conclusions in an earlier judgment State of Punjab v. Balbir Singh (1994 (3) SCC 299 at para 25) were quoted and approved. We are concerned with conclusions (2-C) and (3) which read as follows:

"(2-C) Under Section 42(1) the empowered officer if has a prior information given by any persons, 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 ca

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2003 Supreme(SC) 1123

IMPORTANT POINTWhen accused carrying Ganja was apprehended from Railway Station platform on prior secret information, provisions of Section 42(2) NDPS Act had no application and when recovery was effected from bag, Section 50 NDPS Act had also no application.

Cases Referred (5)

IMPORTANT POINT
When accused carrying Ganja was apprehended from Railway Station platform on prior secret information, provisions of Section 42(2) NDPS Act had no application and when recovery was effected from bag, Section 50 NDPS Act had also no application.