Research › Search › Judgment

Madras High Court · body

2002 DIGILAW 242 (MAD)

Thulaseedharan . v. State of Kerala

2002-03-18

M.R.HARIHARAN NAIR

body2002
JUDGMENT: A new question has been raised before me in the case and that is whether for the purpose of proper compliance with Sec.42(2) of the N.D.P.S. Act the report that should reach the immediate official superior should actually be a copy of the record and not the original. 2. The appellant stands convicted for the offence under Sec. 20(b)(i) of the N.D.P.S. Act. It was alleged that at about 4.30 p.m. on 16.3.2000, P.W.1 - Circle Inspector of Police, received the information that a person riding a motor cycle was coming with ganja carried in a bag, that accordingly P.W.1 along with his police party intercepted the vehicle while it was still in motion and in the subsequent search it was revealed that the bag possessed by the accused was containing 1.05 kgs of ganja. After preparing the necessary sample and after recording the details in a contemporaneous seizure mahazar, the arrested accused and the seized contraband were removed to the police station and steps proceeded with. 3. The trial Court found based on the evidence of P.Ws.1 to 7 and Exs.P-1 to P-21 and on a consideration of M.Os.1 to 4 that the aforesaid evidence was acceptable. The accused was accordingly convicted for the offence and sentenced to undergo rigorous imprisonment for 18 months and to pay a fine of Rs. 10,000 (in default simple imprisonment for six months). 4. When this case came before another learned Judge of this Court, the contention that there was no adequate proof of the receipt of the report sent under Sec.42(2) of the N.D.P.S. Act by the official superior of P.W.1 was highlighted. The learned Judge invoked the power under Scc.391(1) of the Crl.P.C. and directed that the official superior, viz. the Dy. S.P. Perinthalmamanna be examined as additional witness on the above aspect and that the evidence so recorded duly certified should be sent back to this Court. The said Dy. S.P. was since examined as P.W.8 on 3.1.2002 and his evidence has been duly certified. 5. the Dy. S.P. Perinthalmamanna be examined as additional witness on the above aspect and that the evidence so recorded duly certified should be sent back to this Court. The said Dy. S.P. was since examined as P.W.8 on 3.1.2002 and his evidence has been duly certified. 5. The learned counsel for the appellant submitted that even after the examination of P.W.8 the situation has not improved substantially in so far as the report that P.W.8 received from P.W.1 was not a copy of the information, but the original report itself and that such a report is insufficient to meet the requirements of Sec.42(2) of the N.D.P.S. Act in so far as it would always be possible for an investigating officer to fabricate such a report. In this regard it was highlighted that there was inordinate delay in Ex.P-1 report reaching the Court. While it is dated 16.3.2000, it has reached the Court only on 1.1.2001. 6. On the arguments advanced in the case the points that arise for decision are: (1) Whether for meeting the requirements of Sec.42(2) of the Act the report that is sent by the investigating officer should invariably be a copy and not the original? (2) Whether there is sufficient compliance with the requirements of Sec.42(2) of the N.D.P.S. Act in the present case? (3) Whether the conviction entered against the appellant is justified? and (4) Whether the sentence imposed in the case requires any modification? 7.Point No.1: Sec.42(2) of the N.D.P.S. Act provides that where an empowered officer 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 article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, he may between sunrise and sunset enter into and search any such building, conveyance or place and seize such drug or substance and also detain and search any person whom he has reason to believe to have committed the offence punishable under Chapter IV. Under the proviso if the officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise, but after recording the grounds of his belief. It is after the aforesaid empowerment that Sec.42(2), appears which reads as follows: “42(2): Where an officer takes down any information in writing under Sub-sec.(1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior”. 8. The object of the N.D.P.S. Act is to make stringent provisions for control and regulation of operations relating to certain drugs and substances. Harm to innocent persons and abuse of the provisions by the officers are to be avoided. It was with this intent that safeguards like the one available in Sec. 42(2) were built into the Act. The purpose is to ensure that the empowered officer on receiving an information should reduce the same to writing and also record reasons for his belief while carrying out search and arrest. Sending of the report would ensure that the false cases are not fabricated by the empowered officers. It was found in State of Punjab v. Balbir Singh, A.I.R. 1994 S.C. 1872, that Sec. 42(2) in sofar as it requires sending of a copy of the information to the immediate official superior is mandatory; but if there is delay, whether it was undue or whether the same has been explained or not, will be a question of fact in each case. 9. It is nowhere provided that the report that the empowered officer sends under Sec.42(2) should invariably be a carbon copy of the original which must be available in the case diary. The question then is only whether there was actual communication of the information that the empowered officer got to the official superior without delay. 10. The purpose behind Sec. 42(2) has already been explained. The question then is only whether there was actual communication of the information that the empowered officer got to the official superior without delay. 10. The purpose behind Sec. 42(2) has already been explained. The receipt of such a report would, to some extent, ensure that the empowered officers do not misuse their power and make search and seizure only in genuine cases because based on the report that the official superior gets he would always be in a position to make immediate enquiries to convince himself that there was in fact a genuine information and a genuine seizure. If the said purpose is to be achieved, it does not make any difference whether the report that he got is a carbon copy or the original, I am therefore of the view that the empowered officer would not be violating the law if he sends the report to the official superior which is not a carbon copy of another original which is retained in his office. 11. Point No. 2: When the investigating officer gave evidence as P.W.1 he deposed that he had sent a report complying with Sec.42(2) to the Dy. S.P. Perinthalmamanna which was marked as Ex.P-1. At the same time, there was no reference about the sending of such a report in the seizure mahazar or in the F.I.R. though the fact that an information was received was mentioned in the F.I.R. It is based on the said circumstance that this Court thought it necessary to collect additional evidence under Sec. 391(1) of the Crl.P.C. A perusal of the evidence of P.W.8 so recorded shows that he had received the report on 16.3,2000 itself. The mention of the year as 2001 in his evidence obviously is a mistake because Ex.P-1 has reached the trial Court atleast two months before the date on 1.1.2001. The emphasis given by him that the report was received on 16.3.2000 itself is an indicator that he was really having in mind the receipt of the report on the date of occurrence itself. It is true that there was delay in Ex.P-1 reaching the trial Court. The question is whether the report was fabricated. Even at the time when the report was produced before Court it had contained on its reverse the following endorsement: “No.931/PMS/2000/16.3.2000 Received 16.40 hours. Sd/Dy. It is true that there was delay in Ex.P-1 reaching the trial Court. The question is whether the report was fabricated. Even at the time when the report was produced before Court it had contained on its reverse the following endorsement: “No.931/PMS/2000/16.3.2000 Received 16.40 hours. Sd/Dy. S.P Perinthalmamanna 16.3.2000.” His official seal containing the date 16.3.2000 was also affixed near the said endorsement. The above endorsements have been duly proved by P.W.8 when he went to the box. In cross-examination P.W.8 stated that he did not remember as to who had passed on Ex.P-1 report to his hands and that he had parted with Ex.P-1 to the Investigating Officer. The delay in the report reaching the Court is thus explained to some extent. Since Ex.P-1 was not available with P.W. 1 at the time of presenting the F.I.R. he could not have produced it along with other contemporaneous records. On a perusal of the evidence of P.W.8 and on a consideration of the endorsement duly proved by him, I am of the view that there was forwarding of report under Sec.42(2) of the N.D.P.S. Act and that the prosecution does not fail on the ground of violation of Sec.42(2) of the Act. 12. As regards the search and seizure there was adequate evidence coming through the witnesses examined in this case. I do not think it necessary to deal with that aspect in more detail as there was no argument advanced before me on that aspect. 13. The sample sent up from the Court as produced by the seizing officer pursuant to Ex.P-17 forwarding note when examined in the Chemical Examiner’s Laboratory, Kozhikode, revealed that the item examined was genuine ganja. In view of this fact reported in Ex.P-18 it is safe to conclude that there was actually seizure of 1.05 kgs. of ganja from the bag carried by the accused in his motorcycle as per the details mentioned in Ex.P-3 seizure mahazar. In view of this position the conviction entered against the appellant for the offence under Sec. 20(b)(i) of the Act cannot be set aside. The point is found in favour of the prosecution. 14. of ganja from the bag carried by the accused in his motorcycle as per the details mentioned in Ex.P-3 seizure mahazar. In view of this position the conviction entered against the appellant for the offence under Sec. 20(b)(i) of the Act cannot be set aside. The point is found in favour of the prosecution. 14. Point No.4: Learned counsel for the appellant submitted that the quantum of ganja seized in the case is not a commercial quantity as defined in the Act as it stands now and that in the circumstances the punishment imposed in the case is excessive. According to the law as it stood on the date of occurrence, i.e., 16.3.2000, 1.05 kgs. of ganja was not a small quantity. Under Sec. 20(b)(i) of the Act the punishment therefore could extend upto imprisonment for a term of 5 years besides fine, which could extend upto Rs.50,000. In the present case, the accused had undergone pre-trial detention of two months during the period from 16.3.2000 to 16.5.2000. He has been suffering the imprisonment imposed by the trial Court from 3.4.2001 onwards. Thus the total period of imprisonment suffered by him exceeds one year. Considering the circumstances of the case, I am of the view that the substantive term imposed on the accused can be reduced to the period of detention and imprisonment already undergone by him. As regards the fine, the sum of Rs. 10,000 imposed will stand reduced to Rs. 5,000 with default sentence of simple imprisonment for three months. 15. In the result, the appeal is disposed of with the only modification in sentence as mentioned above. The trial Court will issue necessary revised warrant as required by the Rules.