Important point
Requirement u/s 42(2) of NDPS Act need not to be extended to cases of arrest, search and seizure by officers of gazetted rank.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985—Sections 41 and 42—Recovery of 20 kg of Diazepam from a room in house where both accused-appellants were present at the time of search and seizure—Search and seizure was made by Assistant Commissioner Prohibition and Excise PW1 on a prior secret information—Conviction u/s 22 of NDPS Act by trial Court which was upheld in appeal by High Court—Appeal—Contention about non-compliance of Section 42 of the Act inasmuch as information received by Assistant Commissioner, Prohibition and Excise PW1 was not reduced into writing before proceeding for search and not sending copy thereof to immediate official superior as per Section 42(2) of the Act—Memo of search proceedings showed that PW1 recorded about a reliable information regarding storage and possession of Diazepam in the house—It was sufficient compliance of provision regarding making note in writing about the information—Requirement u/s 42(2) of the Act needed not to be extended to cases of arrest, search and seizure by officers of gazetted rank—Requirement of informing the immediate official superior u/s 42(2) of the Act was to be confined to cases where action was without authorisation by officers below rank of gazetted officers without authorisation—Since search and seizure in the case was by Gazetted Officer compliance of Section 42(2) was not required—Conviction could not be interfered with.
Held : It will be seen from Section 41 (2) that it refers to only officers of gazetted rank and it is such officers who can authorise their subordinates, not below the rank of peon, sepoy or constable, to carry out arrest, search or seizure. The function of arrest, search and seizure carried out under Section 42(1) is by officers who do not have warrants or authorization in their hands before proceeding to take action. This is as per the heading of the Section which reads: “Power of entry, search, seizure and arrest without warrant or authorization”. Under Section 41 it is the specified Magistrates who issue warrants of arrest and it is officers of gazetted rank who give authorisation in favour of their juniors. Provisions of sub-section (2) of Section 42 are meant to cover cases falling under Section 42(1). Therefore, in our view, the requirement under Section 42(2) need not to be extended to cases of arrest, search and seizure by officers of gazetted rank. The officer of gazetted rank while authorising junior officers under Section 41(2) knows what he is requiring them to do and, therefore, there is no need for reporting. For this reason Section 41 does not contain any such requirement. The need for reporting under Section 42(2) arises because the officer proceeds without authorisation in terms of Section 41(1) or 41(2). The requirement of informing the immediate official superior under Section 42(2), in our view, has to be confined to cases where the action is without authorisation by officers below the rank of gazetted officers without authorization. (Para 9)

Judgement Key Points

Key Points: - Appeals challenge conviction under Section 22 NDPS Act for possession of 20 kg Diazepam, upheld by trial court and High Court (!) (!) [1000271450001] - PW1 (Assistant Commissioner, gazetted officer) received secret information, recorded it in search memo (Ex. P1), and conducted raid at 5:30 a.m. without warrant [1000271450001][1000271450005] - Panchnama (Ex. P2) signed by accused, officers, and two witnesses (one examined as PW5, a reserve policeman); recovery not doubted due to large quantity [1000271450004] - Section 42(2) requires noting information in writing and sending copy to superior, but applies only to actions without warrant/authorization under Section 42(1) [1000271450006] - Section 41(2) empowers gazetted officers to authorize subordinates or act themselves; no need for Section 42(2) compliance by gazetted officers [1000271450008][1000271450009] - Search memo noting "reliable information" on Diazepam storage suffices as compliance for recording [1000271450005] - Section 42(2) confined to non-gazetted officers acting without authorization; gazetted officers need not report to superiors [1000271450008] - Supported by precedents: M. Prabhulal (2003) 8 SCC 449, State of Haryana v. Jarnail Singh (2004) 5 SCC 188 [1000271450010][1000271450011] - Appeals dismissed; conviction and sentence of 10 years RI and Rs.1 lakh fine upheld [1000271450015] (!)

What is required under Section 42(2) of the NDPS Act for recording information before search?

Does Section 42(2) of the NDPS Act apply to gazetted officers conducting arrest, search, and seizure?

Judgment

Arun Kumar, J.—These two appeals arise from a common judgment of the High Court maintaining the conviction of the appellants under Section 22 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) and sentencing both of them to rigorous imprisonment for ten years and a fine of Rupees one lakh each, in default of payment of fine further imprisonment of six months to the defaulter.

2. As per the prosecution case, P.W.1, who happens to be the Assistant Commissioner Prohibition and Excise, received information about illegal possession of Diazepam in premises bearing No. 12-13-700/2 Nagarjuna Nagar, Tarnaka, Secunderabad. Diazepam is a banned drug under the Act. On receipt of this information he prepared a memo of search proceedings and proceeded to the place in question along with two constables. On his way he took two persons along, one of them being a police constable to act as a mediators/independent persons. The memo of search proceeding is Exhibit P.1. After reaching the spot, he prepared a panchnama, Exhibit P.2 which is signed by the accused persons, two panch witnesses in addition to the three officers of the department. A copy of the panchnama was supplied to both the accused. According to the panchnama, on reaching the premises, the main doors were found open. The raiding party entered the house. They found two persons, the present appellants, sitting in a room. The house was searched and a plastic bag containing some chemical was found in a corner. The bag weighed about 20 kg. It was opened. It had white powder like substance. The two persons present in the house said that the substance was Diazepam. They were informed that the officer, P. Sivarama Sastry, was a gazetted officer. The officer took around one gram of chemical in a clean dish and made a spot verification about what it was by using some chemical which he was carrying with him and found that the substance contained in the bag was Diazepam. The occupants of the room did not have permit or licence for possessing the substance. The officers were informed that the substance had been purchased by one of the occupants viz. G. Sreenivisa Goud, A.1, from the other occupant, M. Uma Maheswar, A.2. The prosecution examined six witnesses, besides exhibiting the search memo as Exhibit P.1 and the panchnama as Exhibit P2. MOs 1, 2, 3 are the main bag containing Diazepam and the two samples respectively. Exhibit P.4 is the report of the Government Chemical Examiner, Regional Excise Lab., Hyderabad (A.P.). According to the report the sample contained diazepam and urea. The defence of the appellants was that of total denial. The trial court convicted both the accused for offence under Section 22 of the NDPS Act and sentenced them as aforesaid. The High Court maintained the conviction while dismissing the appeals of both the accused.

3. The learned counsel for the appellant raised the following points:

1. Non-association of independent witnesses.

2. Non-compliance of Section 42 of the NDPS Act, inasmuch as the information said to have been received by the Assistant Commissioner of Prohibition and Excise, P.W.1, was not reduced into writing before proceeding for search and not sending copy of information to immediate official superior as per Section 42(2) of the Act.

4. We have heard the learned counsel for the parties at length. We find no substance in either of the above points urged on behalf of the appellants.

5. So far as the point regarding non-association of independent witnesses is concerned, the same is intended to throw doubt upon the recovery of the contraband drug. Exhibit P.2 is the panchnama which is signed by the two independent witnesses, the three officers of the department and the two accused. It contains clear description of how the search was made and the contraband was seized. It is a case of recovery of 20 kg. of Diazepam which is a banned drug as per the Schedule to the Act. When the quantity recovered is so large, it does n

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2005 Supreme(SC) 1278

Important pointRequirement u/s 42(2) of NDPS Act need not to be extended to cases of arrest, search and seizure by officers of gazetted rank.

What is required under Section 42(2) of the NDPS Act for recording information before search?

Does Section 42(2) of the NDPS Act apply to gazetted officers conducting arrest, search, and seizure?

Cases Referred (7)

Important point
Requirement u/s 42(2) of NDPS Act need not to be extended to cases of arrest, search and seizure by officers of gazetted rank.