PATNA HIGH COURT
Mihir Kumar Jha and Aditya Kumar Trivadi, JJ.
Raju Mistri @ Riyazuddin —Appellant
versus
State of Bihar —Respondent
Criminal Appeal (DB) No.196 of 2008
Decided on 25.4.2013

Headnote:Aditya Kumar Trivedi, J.

       (i)Narcotic Drugs and Psychotropic Substances Act, 1985—Section 51—Criminal Procedure Code, 1973—Sections 4 and 5—Search and seizure—Application of Cr.P.C. is only permissible to the extent of search, seizure, arrest of an accused, in case, matter in hand appears to be guided by Special Act—In such event, procedure for proceeding with case falling under NDPS Act case in hand has to be carried out in accordance with law so formulated under NDPS Act and more particularly is to be governed according to procedure incorporated under Chapter-V of NDPS Act. (Paras 4 and 5)

       (ii) Narcotic Drugs and Psychotropic Substances Act, 1985—Sections 20(b)(2)(c) and 42—Seizure of Charas—Law as it existed at the time of commission of offence would be the law which will govern rights and obligations of the parties under NDPS Act—On account of apprehension of appellant on 26.10.2000, then requirement prevailing under Section 42 was to be complied with. (Para 14)

       (iii) Narcotic Drugs and Psychotropic Substances Act, 1985—Sections 20(b)(2)(c) and 42—Seizure of Charas—Conviction—There is total lacking of compliance of Section-42 (2) of NDPS Act because of fact that no Sanha entry has been brought on record to support that it was ever reduced into writing nor there happens to be other supporting document to infer that information to that context was ever communicated to superior authority—Due to non compliance of mandate of Section-42 judgment impugned has become illegal—There is no necessity to proceed with other points—Conviction and sentence set aside—Appeal allowed. (Paras 18 to 21)

       Mihir Kumar Jha, J. (Dissenting View)

       (A) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 20(b)(2)(c)—Seizure of Charas—Conviction—Acquittal of co-accused—It was appellant who had been apprehended at spot alongwith Jeep with 90 kilograms of Charas whereas name of the co-accused had only surfaced on statement given by appellant himself—If there was no connecting material in evidence of raiding party which could have brought home charge against co-accused within fold of prosecution case, his acquittal in no way would enure to benefit of appellant whose case is absolutely on a different footing. (Para 34)

       (B) Narcotic Drugs and Psychotropic Substances Act, 1985—Sections 20(b)(2)(c) and 42—Seizure of Charas—Conviction—If there is specific information about commission of offence under Chapter IV of NDPS Act it is required to be reduced in writing and said information of such commission of crime which has been reduced in writing is further required to be sent to superior officer forthwith—It does not mean that any or every vague or unspecific information in connection with NDPS Act and about likelihood of commission of offence under NDPS Act is required to be reduced in writing—A vague information in connection with NDPS Act cannot be equated with information of commission of offence under Chapter IV of NDPS Act as contemplated under NDPS Act—Such vague information in connection with NDPS Act may at best provide a basis for suspicion about commission of crime but does not furnish a positive information that crime has been committed—Failure to record even a vague information cannot be held to be fatal in all circumstances—Even otherwise, there was substantial compliance of first part of Section 42(1) of NDPS Act because there is an entry in Station Diary of police station with regard to confidential vague information. (Paras 37 to 44)

       (C) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 42—Seizure of Charas—Conviction—Due to emergent situation subsequent information given by Police Officer to Superintendent of Police after recovery cannot be held to have vitiated trial—This is not a case of complete not compliance of Section 42 rather there has been substantial compliance—Amended provision of outer time limit of seventy two hours in Section 42(2) being in force only w.e.f. 2.10.2001, for giving such information to immediate controlling authority, is not applicable to present case on account of date of occurrence being 26.11.2000—Informant police officer having received and recorded confidential information in station diary of police station rushed, chased and had intercepted moving jeep of appellant and also recorded huge amount of Charas within half an hour on a highway it cannot be said that non-compliance of furnishing information, prior to recovery, to his immediate controlling officer in terms of Section 42(2) as it existed prior to 2.10.2001 would vitiate trial and consequential conviction of appellant—Alleged non-compliance of provision of Section 42(1) and (2) has not in any manner prejudiced appellant or has vitiated trial. (Paras 49, 51 and 52)

       (D) Narcotic Drugs and Psychotropic Substances Act, 1985—Sections 20(b)(2)(c) and 52A(2)—Seizure of Charas—Conviction—Seizure of 90 Kgs. of Charas was made by Officer In-charge of the Police Station who had reported the matter to Magistrate on that very day by forwarding copy of the F.I.R. and seizure—If Forensic Science Laboratory had found sealed box containing sample of Charas to be intact, much cannot be made out on account of delayed submission of Forensic Science Laboratory report—If prosecution had suffered on account of vitiated trial conducted by court below leading to an erroneous judgment of acquittal, delayed action taken on part of trial court in sending specimen to Forensic Science Laboratory cannot be to disadvantage of prosecution, especially when defence has not been able to establish that sealed box containing sample of Charas presented before court had in any manner been tampered or that quality of Charas on account of passage of time had deteriorated and it was not possible for Forensic Science Laboratory to opine that sample was that of Charas— Prosecution has successfully proved its case against appellant beyond reasonable doubt—Conviction and sentence as awarded by trial court upheld—Appeal dismissed. (Paras 55, 57, 58 and 59)

       Note: In view of difference of opinion matter referred to larger Bench.