Jayantilal Modi & others vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2001 Supreme(Bom) 257

IN THE HIGH COURT OF BOMBAY
(FULL BENCH)
Vishnu Sahai, Dr. (Mrs.) Pratibha Upasani S.S. Parkar, JJ.
Jayantilal Modi others .... Appellants.
Versus
State of Maharashtra .... Respondent.
Criminal Appeal No. 622 of 1994 with Criminal Appeal Nos. 643 649 of 1994 and 82 of 1995, decided on 9-3-2001.
Advocates appeared :
A.P. Mundargi with Yogesh Yagnik, Jayesh Yagnik, Ayaz Khan and Ganesh Gole, in Cri.A. No. 622, 649/1994, for the appellants.
S.G. Aney, Special Counsel, Ms. P.H. Kantharia and Ms. Usha Kejriwal, A.P.P., in Cri.A. No. 622, 643, 649/1994, for the respondents.
Ms. Q.M.Z. Ziaee, in Cri.A. No. 643/1994, for the appellant.

Headnote:Narcotic Drugs and Psychotropic Substances Act, l985 - Sections 42 and 43 - Prior information in regard to commission of offence in a public place - Whether it was necessary for empowered officer to comply with provisions of Section 42 of the Act? Yes.
       Held: Since in our view, Ganga Bahadur Thapas case and Sayarpuris case are silent on the aspect of prior information and a perusal of Mansuris case and. Razaks case shows that despite the fact that there was prior information that the contraband was to be recovered at a public place, the Supreme Court held that section 42 had to be complied with, it is proper to apply the decision of the Supreme Court in Mansuris case and Razaks case. (Para 25)
       The ratio laid down in them is that even when the information received by the empowered officer relates to a recovery of contraband etc. at a public place, section 42(1) and section 42(2) would still have to be complied with. (Para 26)
       We also feel that the ratio laid down in Mansuris case and Razaks case is in conformity with the ratio laid down in paras 9 and 10 of the Constitution Bench - decision of the Supreme Court reported in 1999 Supreme Court Cases Criminal-1080 supra and para 10 of the decision of the Supreme Court reported in 1994 Cri.L.J. 3702 (supra). (Para 27)
       We have earlier seen that the main distinction between section 42 and section 43, as pointed by the Apex Court in the said decisions is that section 42 relates to recovery of contraband on a prior information furnished by a person and in section 43 this element of prior information is wanting. We have also seen that section 43 goes away with the requirement on the part of the empowered officer to record his reasons of belief. (Para 28)
       For the said reasons, we answer the reference made by S.A. Bobde. J., thus:
       "In respect of an offence under the Narcotic Drugs and Psychotropic Substances Act. 1985 it is necessary for the empowered officer to comply with the provisions of section 42 even when the information received by him is regarding the commission of an offence in a public place of the like mentioned in the explanation to section 43.” (Para 32)

JUDGMENT - VISHNU SAHAI, J.:---On 14th July, 2000, while S.A. Bobde, J., was hearing Criminal Appeal Nos. 622 of 1994, 643 of 1994, 649 of 1994 and 82 of 1995, two conflicting decisions of this Court were cited before his Lordships; (Longuram Tariram Thakur v. The State of Maharashtra)1, 2000(Supp.) Bom.C.R. 128 : 2000 All Maharashtra Reporter (Criminal) 542 wherein this Court had taken the view that since in pursuance of prior information the accused were found in possession of charas at the S.T. stand, Pune, which was a public place, as contemplated by section 43 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to by us as the N.D.P.S. Act) it was not necessary to comply with the provisions of section 42 of the N.D.P.S. Act in terms that the information had to be recorded in writing and its copy sent forthwith to the official superior and (Bindarsingh v. State of Maharashtra)2, 1999(1) Mh.L.J. 643 wherein it was laid down that even if the information pertained recovery of a narcotic substance under the N.D.P.S. Act was in relation to a public place, it was obligatory to comply with section 42 of the N.D.P.S. Act and to record the information in writing and to send its copy forthwith to the official superior.

To resolve this apparent conflict S.A. Bobde, J., felt that the following questions arose for determination for a larger Bench :---

"Whether in respect of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985, it is necessary for an empowered officer to comply with the provisions of section 42, when the information received by him is regarding the commission of an offence in a public place of the like mentioned in the explanation to section 43 ?"

His Lordship was pleased to direct the Registry to place the papers along with the judgment in the said cases before the Honourable Chief Justice for appropriate orders.

2. In the said factual matrix, the Honourable Chief Justice was pleased to constitute the present Bench for the decision of the said question.

3. We have heard Mr. A.P. Mundargi for the appellants and Mr. S.G. Aney, for the respondents.

In our view, to answer the questions referred to us, it would be necessary to extracts the provisions contained in sections 42 and 43 of the N.D.P.S. Act.

Section 42 reads thus :---

"Power of entry, search, seizure and arrest without warrant or authorisation.:---- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs, control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other articles which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,---

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry ;

(c) seize any drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and

(d) detain and s

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