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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S. S. Shinde, N. R. Borkar, JJ.
State Of Maharashtra - Appellant
Versus
Ramsingasan Jamunaprasad Mourya - Respondent
Criminal Appeal No. 635 of 2003
Decided On : 31-01-2022
NDPS - Narcotic Drugs and Psychotropic Substances - 20, 22 - The court discussed the non-compliance of sub-section (2) of Section 42 of the NDPS act and referred to the case of Karnail Singh vs. State of Haryana (2009) 8 SCC 539 to interpret the requirements of Sections 42(1) and 42(2) and the permissibility of delayed compliance with satisfactory explanation.
Fact of the Case:
The accused was acquitted of the ofence punishable under Sections 20 and 22 of the Narcotic Drugs and Psychotropic Substances act, 1985 due to non-compliance of sub-section (2) of Section 42 of the NDPS act.
Finding of the Court:
The court found that there was total non-compliance of sub-section (2) of Section 42 of the NDPS act, leading to the justification of the accused's acquittal.
Issues: Non-compliance of sub-section (2) of Section 42 of the NDPS act
Ratio Decidendi: The court applied the interpretation of the requirements of Sections 42(1) and 42(2) from the case of Karnail Singh vs. State of Haryana (2009) 8 SCC 539 to determine the permissibility of delayed compliance with satisfactory explanation.
Final Decision: The criminal appeal was dismissed, and no interference was called for in the impugned judgment and order of acquittal.
Based on the provided legal document, the key legal points are as follows:
The primary issue in the case was the non-compliance with sub-section (2) of Section 42 of the NDPS Act during the procedure of search and seizure. The court emphasized that total non-compliance of this subsection leads to the acquittal of the accused (!) .
The court clarified that while strict compliance with Sections 42(1) and 42(2) is generally required, delayed compliance with a satisfactory explanation for the delay can be permissible, especially in emergent situations where immediate action is necessary to prevent evidence or goods from being removed or destroyed (!) (!) .
The court highlighted that the recording of information and communication to the official superior should normally precede search and seizure activities. However, in urgent circumstances, these steps can be postponed, provided there is a reasonable explanation for the delay (!) (!) .
The case underscored that the failure to send a copy of the information to the superior or to record the information in writing at the appropriate time constitutes a violation of the statutory requirements, which can justify an order of acquittal if not properly explained (!) .
The court applied the interpretation that total non-compliance with the statutory procedural safeguards related to information recording and communication results in the invalidity of the search and seizure process, leading to the acquittal of the accused (!) .
The appellate court dismissed the appeal, affirming the trial court's decision, noting that the prosecution failed to establish compliance with the procedural requirements under Section 42, specifically regarding the submission of the report to the superior officer (!) (!) .
Overall, the judgment emphasizes the importance of procedural compliance in search and seizure under the NDPS Act and recognizes that delayed compliance, with a satisfactory explanation, may be acceptable, but total non-compliance warrants acquittal.
JUDGMENT
N.R. Borkar, J. - This appeal takes an exception to the judgment and order dated 18.2.2003 passed by the Special Judge, N.D.P.S., Thane, in Special Sessions Case No.5 of 2002. By the impugned judgment and order, the respondent, who was accused before the trial Court, has been acquitted of the ofence punishable under Sections 20 and 22 of the Narcotic Drugs and Psychotropic Substances act, 1985 (for short 'NDPS act').
2] It is the case of the prosecution that on 9.10.2001 at about 2.00 p.m., PW-5 Rajendra Tambat, who at the relevant time was working as Sr.Police Inspector at Wagale Estate, Police Station, had received an information that the accused would be coming near Hotel Vikrant, Wagale Estate, Thane for sale of charas. The description of the accused was also informed to him. The information was reduced into writing. The entry of information was taken in Station dairy. The panch witnesses were then called. PW-5 along with other police personnel and panch witnesses then reached to the spot at about 3.20 p.m. The trap was arranged. at about 4.00 p.m., the accused came there and stood in front of Hotel Vikrant. according to the prosecution at that time accused was carrying a suitcase.
3] The accused was intercepted. PW-5 disclosed his identity to him. The reason for his search was apprised to him. He was then given option to be searched before a Gazetted Ofcer, however, according to the prosecution the same was declined. Thereafter search of the accused was taken.
4] according to the prosecution, during search 2 Kgs charas was found in the suit case. The samples were collected. all the incriminating articles were seized and accordingly, panchanama was prepared.
5] The complaint was then fled by PW-2 PSI Harishchandra M. Sawant against the accused for the ofences punishable under Sections 20 and 22 of the NDPS act. On completion of investigation, charge-sheet was fled.
6] The accused was charged and tried for the abovesaid ofences. The trial Court by the impugned judgement and order acquitted the accused inter alia on the ground of non-complaince of sub-section (2) of section 42 of NDPS act.
7] We have heard the learned aPP for the appellant / State. The learned aPP for the appellant/ State submits that the trial Court had erred in acquitting the accused for non-compliance of sub-section (2) of Section 42 of the NDPS act. It is submitted that PW-5 has stated in his evidence that he had submitted report to assistant Commissioner of Police. It is submitted that the trial Court was therefore, not justifed in acquitting the accused for non-compliance of sub-section (2) of Section 42 of the NDPS act. It is thus submitted that the order of acquittal needs to be set aside and the accused needs to be convicted for the ofences for which he was charged.
8] The Hon'ble Supreme Court, in the case of Karnail Singh vs. State of Haryana (2009) 8 SCC 539, has observed :
'35. In conclusion, what is to be noticed is abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulflled at all. The efect of the two decisions was as follows :
(a) The ofcer on receiving the information (of the nature referred to in sub- section (1) of Section 42) from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate ofcial superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).
(b) But if the information was received when the ofcer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to
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