Important Points
Contents of a document can be held to have been proved in terms of section 66 only when the contents are decipherable and not otherwise.
An officer who receives information is bound to reduce same in writing and not person who hears thereabout.

Headnote:Narcotic Drugs and Psychotropic substances Act,1985 – Sections 42,43,66,8(c), 22,29- Arrest of respondent accused from a Hotel in Mumbai accused on prior information on being found in possession of a fax copy of consignment note under which Mandrex tablets were being transported from Delhi to Mumbai – Conviction by Trial Court – Appeal – High Court however held that since statutory requirements of Section 42 had not been complied with, judgment of Trial Court could not be sustained –Appeal- Instantly, statutory requirements had not been complied with as person who had received first information did not reduce same in writing - An officer who received such information was bound to reduce same in writing and not for person who hears thereabout – Again, apart from proving fax and copy of a challan nothing else had been proved - Fax was illegible - It allegedly was received in PCO run by PW-17 who could not prove contents of the fax – PW17 also could not show when same was received and from whom – Nothing to show that accused was person who obtained said fax from PW-17 - Furthermore, contents of said documents had not been proved - In absence of aforementioned details, fax being illegible and its contents being not known, question of same being admissible in evidence in terms of Section 67 of Act not arose - Xeroxed copy of said fax had not been proved in strict sense of term - No secondary evidence could have been led to prove another secondary evidence - Contents of document are required to be proved - Contents of a document could be held to have been proved in terms of section 66 only when the contents are decipherable and not otherwise - Impugned judgment not suffering from any legal infirmity so as to warrant interference - Appeal having no merit dismissed. (Paras 19,25)
       Facts of the case :
       Respondent accused was arrested from a Hotel in Mumbai on prior information on being found in possession of a fax copy of consignment note under which Mandrex tablets were being transported from Delhi to Mumbai. Trial Court convicted Respondent accused for said offence. On Appeal thereagainst High Court however held that since statutory requirements of Section 42 had not been complied with, judgment of Trial Court could not be sustained.
       Present Appeal has been filed against said order of High Court.
       Findings of the Court:
       The Court held that Instantly, statutory requirements had not been complied with as person who had received first information did not reduce same in writing. An officer who received such information was bound to reduce same in writing and not for person who hears thereabout. Again, apart from proving fax and copy of a challan nothing else had been proved. Fax was illegible. It allegedly was received in PCO run by PW-17 who could not prove contents of the fax. PW17 also could not show when same was received and from whom. Nothing to show that accused was person who obtained said fax from PW-17. Furthermore, contents of said documents had not been proved. In absence of aforementioned details, fax being illegible and its contents being not known, question of same being admissible in evidence in terms of Section 67 of Act not arose. Xeroxed copy of said fax had not been proved in strict sense of term. No secondary evidence could have been led to prove another secondary evidence. Contents of document are required to be proved. Contents of a document could be held to have been proved in terms of section 66 only when the contents are decipherable and not otherwise. Impugned judgment not suffering from any legal infirmity so as to warrant interference. Appeal having no merit was dismissed.
       Result : Appeal dismissed.

JUDGMENT

S.B. Sinha, J.—

1.Interpretation of the provisions of Sections 42 and 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) calls for our consideration in this appeal which has been filed by the Directorate of Revenue against the respondent herein aggrieved by and dissatisfied with a judgment and order dated 19 and 20 December, 2000 passed by a learned Single Judge of the High Court of Judicature at Bombay in Criminal Appeal No.462 of 1999 whereby and whereunder the judgment of conviction and sentence passed by a Special Judge at Mumbai in NDPS Special Case No.221 of 1997 was reversed.

2.An information was received in the office of the appellant on 23.1.1997 that one person staying in Room No.305 or 306 at Hotel Kalpana Palace, Grant Road, Mumbai was in possession of a fax copy of consignment note under which Mandrex tablets were being transported from Delhi to Mumbai. The said information was passed on to PW-1, Parmar. He reduced the same in writing. He in turn passed it placing same by reducing it to writing before A.D. Patekar, Senior Intelligence Officer (PW-10) allegedly as advised by Assistant Director, Atul Dixit, Assistant Director. PW-1 along with two other officers, namely, Dhani and Petkar visited the said hotel. They came to know that the accused was staying in Room No.306. Two of the employees of the said hotel were asked to be panch witnesses. The door of the said room was knocked; Appellant opened it. He allegedly was given an option to get himself searched in presence of a Gazetted Officer or a Magistrate. He opted for the former. He was searched by the said officers. A sum of Rs.4,25,000/- in cash and a fax copy of a receipt of Green Carriers from Delhi showing the consignment of medicine was found in the said room. A xeroxed copy of the said fax message was retained.

3.It appears that the statement of the accused was also recorded in terms of Section 67 of the Act. The consignment arrived as per the said receipt within a couple of days. Respondent herein was arrested on 27th January, 1997, inter alia, relying on or on the basis of recovery of the said fax message which was marked as Exhibit-8 and the purported xerox copy thereof which was marked as Exhibit-8A.

4.The learned Trial Judge relying on the provisions of Section 66 of the NDPS Act held the respondent guilty of commission of an offence under Section 8(c), 22 and 29 of the NDPS Act. He was not provided any opportunity to be heard on the quantum of sentence. The minimum sentence of 10 years and a fine of Rs.1,00,000/- was imposed on him.

5.On an appeal having been preferred against the said judgment of conviction and sentence, the High Court, however, without going into the other question, opined that as the statutory requirements of Section 42 of the Act had not been complied with, the judgment of the Trial Court could not be sustained, holding :

“As observed earlier though the information seems to have been received by the office of DRI, it was not reduced to writing by the officer who received it but by the PW-1, Parmar who was later on conveyed the message by the office. Thus, there was no compliance to Section 42(1) of the Act.”

6.The High Court, in arriving at the said finding, principally relied upon the decisions of this Court in State of Punjab v. Balbir Singh1, [AIR 1994 SC 1872]; Karnail Singh v. State of Rajasthan2, [(2000) 7 SCC 632]; and Abdul Rashid Ibrahim Mansuri v. State of Gujarat3, [2000 AIR SCW 375] where the provisions of Section 42 were held to be mandatory in nature.

7.Mr. Ashok Bhan, learned counsel appearing on behalf of the appellant, in support of this appeal, inter alia, would submit that as a hotel is a public place within the meaning of Section 43 of the Act, it was not necessary to comply with the provisions of Section 42 thereof.

8.Mr. Harinder Mohan Singh, learned amicus appearing on behalf of the Respondent, however, would support the judgment.

9.NDPS Act is a penal statute. It invades the r

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2007 Supreme(SC) 1551

2007(8) Supreme 741Supreme Court of indiaS.B. Sinha & Harjit Singh Bedi, JJ.Directorate of Revenue & Anr. — AppellantsversusMohammed Nisar Holia — RespondentsAppeal (crl.) 311 of 2002Decided on : 05-12-2007

Important PointsContents of a document can be held to have been proved in terms of section 66 only when the contents are decipherable and not otherwise.An officer who receives information is bound to reduce same in writing and not person who hears thereabout.

Cases Referred (10)

2007(8) Supreme 741
Supreme Court of india
S.B. Sinha & Harjit Singh Bedi, JJ.
Directorate of Revenue & Anr. — Appellants
versus
Mohammed Nisar Holia — Respondents
Appeal (crl.) 311 of 2002
Decided on : 05-12-2007

Important Points
Contents of a document can be held to have been proved in terms of section 66 only when the contents are decipherable and not otherwise.
An officer who receives information is bound to reduce same in writing and not person who hears thereabout.