IMPORTANT POINTS
Section 42 does not apply where the place of occurrence is a public place.
As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not.

JUDGMENT :

Dhananjaya Y. Chandrachud, J.

1. The present appeal, by special leave, is directed against a judgment dated 19 February 2016 of a Division Bench of the Calcutta High Court. The High Court upheld the conviction of the appellant by the Additional Sessions Judge (“ASJ”) and Special Court under the Narcotic Drugs and Psychotropic Substances Act 1985 (“the Act”). On 15 February 2014, the ASJ had convicted the appellant of an offence punishable under Section 20(b)(ii)(C) of the Act. The appellant was sentenced to 14 years of rigorous imprisonment and directed to pay a fine of Rs. 1,40,000.

2. The facts of the case are as follows. On 15 November 2011, Sub-Inspector Prasanta Kr. Das, Narcotics Cell, DD (PW-2) received information that a drug dealer would be in the vicinity of Tiljala Falguni Club, 138B/1, Picnic Garden Road, near Tiljala Police Station to supply narcotic drugs in the afternoon. PW-2 sought permission from the Assistant Commissioner of Police, Anti-Narcotics Department, DD to organize a raid (Exhibit-2). Permission was granted by the superior officer on the same day and a raiding team consisting of PW-2 and others reached the spot at about 12.50 pm. At around 1.40 pm, the source of the information pointed out to the appellant who was coming along Picnic Garden Road. The appellant was intercepted and detained immediately by the raiding party in front of Falguni Club. The appellant was informed about the reasons for his detention and the identities of the raiding party were disclosed to him. Subsequently, the appellant also disclosed his identity to the raiding party. PW-5 was one of the two independent witnesses who agreed to be a witness to this search. The appellant was informed about his legal right to be searched either in the presence of a magistrate or a gazetted officer (Exhibit-3). The appellant opted for being searched by a gazetted officer. A gazetted officer, Inspector Joysurja Mukherjee (“PW-4”), arrived on the scene at about 3.20 pm. He provided the appellant with a “second option”. The appellant was asked by PW-4 whether he wished to be searched in the presence of a gazetted officer or a magistrate (Exhibit-4). Once again, the appellant consented to be searched in the presence of a gazetted officer. PW-4 then inquired of the appellant whether he wanted to search PW-2 before the latter would carry out his search. The appellant agreed to search PW-2 before his own search was carried out by PW-2. No narcotic substance was recovered from the person of PW-2. PW-2 recovered nineteen “deep brown/blackish broken rectangular sheets” from a black polythene packet which was inside a biscuit colour jute bag, which the appellant was carrying in his right hand. The sheets were tested by PW-2 on the spot with the help of a test kit. The substance was found to be charas. The substance was also weighed using a weighing scale. The appellant was found to be in possession of 1.5 kilograms of charas. Cash amounting to Rs. 2,400/- was recovered from the trouser of the appellant.

3. Learned counsel for the appellant has argued that there was non-compliance with Section 42 of the Act. After PW-2 was intimated about the appellant’s arrival, he sought permission from the Assistant Commissioner of Police, Anti-Narcotics Department. Upon receipt of the letter of permission from the Assistant Commissioner, PW-2 proceeded to the place of the occurrence. PW-2 admitted in his cross-examination that he was aware of the gravity of the need for compliance with Section 42. However, apart from a letter seeking permission to act on the information which was addressed to a superior officer, he did not (it was urged) diarise it elsewhere. Learned counsel urged that PW-2 had not complied with the mandatory requirements of Section 42, as a result of which the trial stood vitiated. He has relied on the following decisions of this Court to buttress the submission: Abdul Rashid Ibrahim Mansuri v State of Gujarat (“Mansuri”), (2000) 2 SCC 513 D