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2012 DIGILAW 643 (BOM)

Sardar Wali Mohammad @ Sohail v. Union of India

2012-03-22

A.V.NIRGUDE

body2012
JUDGMENT: This appeal is filed by original accused No. 4 in N.D.P.S. Special Case No. 52/2005 clubbed with N.D.P.S. Special Case No. 107/2005. The appellant was convicted under Section 27A of N.D.P.S. Act and was ordered to suffer Rigorous Imprisonment for a period of 10 years and to pay a fine of rupees 1 lac with default clause on 5th May, 2009. The appellant was arrested in this case in 2005 and since then, he is in custody. The facts leading to this appeal, in short, can be stated as under:- On 1st November, 2004, the Narcotics Control Bureau, Mumbai (“NCB” for short) received secret information about of 2 Kg. Heroin, a narcotic substance, being kept in a flat at Panvel. Pursuant to this information, the officers of NCB raided the flat and not only seized 2 Kg. Heroin but also apprehended one Lalson George (accused No. 1) for possessing the Heroin. Thereafter, the NCB registered a case vide case No. 19/2004. 2) During the investigation of this incident, two more persons were apprehended and statements of these three apprehended persons, under Section 6 of N. D. P. S. Act, were recorded. The allegation against the other two apprehended persons was that they handed over the Heroin to Lalson on the same day at a public place at Panvel. The NCB then arrested the apprehended persons and filed a complaint, which was registered as N.D.P.S. Special Case No. 52/2005 against above mentioned three persons. In the mean time, in April, 2005, the NCB learnt from secret source that the appellant would be found in certain hospital at Kochin. Accordingly, a team of NCB officers went to the said hospital on 5th April, 2005 and apprehended him near the said hospital. No contraband was found in possession of the appellant. The officers of NCB then recorded statement of the appellant at Kochin and also at Mumbai. Thereafter, the NCB completed investigation and filed one more N.D.P.S. Special Case before the Special Judge, Mumbai and it was numbered as N.D.P.S. Special Case No. 107/2005. Since both these cases were connected, they were tried together. The allegation against the appellant is that he is resident of Mandsaur, Madhya Pradesh, where he procured Heroin and then sold it to one Usman Haji on several occasions. Since both these cases were connected, they were tried together. The allegation against the appellant is that he is resident of Mandsaur, Madhya Pradesh, where he procured Heroin and then sold it to one Usman Haji on several occasions. The modus operandi of the appellant was that he would deliver consignment of Heroin to various persons who were sent by Usman Haji to him either at Mandsaur or any other places. The NCB also alleges that the Heroin found in the house of Lalson too was supplied and sold by the present appellant. It is their case that he carried the consignment from Mandsaur to Mumbai and on 1st November, 2004, at about 2.00 p. m., he delivered the same to the other two persons apprehended in this case, mention of whom is already made above. 3) The NCB case further suggests that Lalson is a craftsman who expertise in making suitcases and briefcases, in which the Heroin could be concealed. Heroin in this case, was delivered to Lalson for concealment. The NCB also suggests that on many occasions earlier, the appellant sold Heroin to various parties sent to him by Usman Haji and the consignments then were delivered to Lalson for concealing in specially crafted cases. Such suitcases were then carried by carriers abroad. It is alleged that the appellant deposited large sum of money in the bank account of accused Nos. 1’s wife for financing of illicit drugs traffic. 4) In this case, the Learned Special Judge framed charge against Lalson, the appellant and two other persons for offences punishable under Sections 29 read with Section 8(c), Section 30 and Section 27A of N. D. P. S. Act. When they pleaded not guilty, the NCB recorded their evidence through 12 witnesses. “PW No. 1 deposed that it was he who received the secret information on 1st November, 2004 at 2.00 p. m. while he was at his office at Mumbai. He immediately jotted down the report on a piece of paper, he personally signed it along with his colleague and immediately sent it to his superior officer Shri. Ajit Patil, the prosecution witness No. 12. He said that prosecution witness No. 12 then asked the prosecution witness No. 3 Shri. Henri, who is also the intelligence officer of NCB, to take action for seizure of the contraband. Accordingly, prosecution witness Nos. He said that prosecution witness No. 12 then asked the prosecution witness No. 3 Shri. Henri, who is also the intelligence officer of NCB, to take action for seizure of the contraband. Accordingly, prosecution witness Nos. 1, 2, 3 and one more person proceeded to Panvel to visit the house. Prosecution witness Nos. 1, 2 and 3 all deposed that they then contacted an independent person who agreed to act as pancha. They stated that they then entered the flat mentioned in the secret information. They stated that they found Lalson and his two children in the flat. They then stated that after following due procedure, they proceeded to take search of the flat and found a plastic carry bag containing four packets containing two K.G. Heroin. They then recorded panchanama of this find and seized the contraband. They drew two samples for Chemical Analysis from the packets and sealed them separately. PW No. 2 and 3 then stated that thereafter they proceeded to Hotel Rekhi at Panvel and apprehended other two persons, who were ultimately made accused in this case. The witnesses then stated that they brought the seized consignment, along with the apprehended three persons, to their office at Mumbai. On the next day, they recorded their statements under Section 67 of the N.D.P.S. Act and thereafter, they arrested them.” 5) PW No. 3 stated in his deposition that he recorded statement of Lalson as per his say and got it typed on his office computer and obtained his signatures on every page of the statement. This statement was then exhibited and on perusal of the same, following evidence is disclosed: “Lalson (accused No. 1) Stated that he used to receive consignments of Heroin from number of persons. He said that he would make suitable cases for concealing such consignments of Heroin. He said that he would then hand over the cases with concealed Heroin to concerned parties. He said that he used to charge for such services. He further stated that the contraband in this case was handed over to him by the other two accused at Panvel. He said that he brought the same to his house and before he could make a case, his house was raided and the contraband was seized. He further said that the appellant deposited a sum of Rs. 90,000/- in two installments in the Saving Account of his wife. He said that he brought the same to his house and before he could make a case, his house was raided and the contraband was seized. He further said that the appellant deposited a sum of Rs. 90,000/- in two installments in the Saving Account of his wife. He said that he then personally withdrew the amount using ATM Card. He said that he then delivered this amount to a person, as per the direction of the appellant.” 6) The prosecution witness No. 2 stated that he recorded statement of accused No. 2 and proved the same. However, I am not going into details of the same because this part of the evidence is not relevant for deciding this appeal. Prosecution witness No. 4 stated that he recorded statement of accused No. 3 and proved the same. But, I am not going into the details of these statements because they are not relevant for deciding this appeal. 7) Prosecution witness Nos. 6 and 9 are Chemical Analyzers, who deposed that on receipt of the samples of the contraband of this case, they found seals intact. They said, they examined them chemically and found that the same was Heroin. Prosecution witness No. 10 is one Shaji Yohanan, who was the pancha for search and seizure of accused No. 1’s house on 1st November, 2004. But, this witness did not support the NCB’s case. 8) Prosecution witness No. 5 deposed that he received intelligence report in respect of where about of the appellant, in April, 2005. He stated that he jotted down the particulars of the report and signed it along with his colleague. He stated that he wrote down the report on a piece of paper on 4th April, 2005 at about 6.45 p. m. and then produced the same before prosecution witness No. 12, the superintendent. The prosecution witness No. 12 then directed prosecution witness No. 5 and 1 to proceed to Kochin for apprehending the appellant. The prosecution witness No. 1 and 5 stated that they accordingly went to Kochin and eventually apprehended the appellant on 6th April, 2005 at about 6.30 a. m., while he was about to leave the hospital. The prosecution witness No. 5 stated that he recorded statement of appellant at Kochin and proved the same. The prosecution witness No. 1 and 5 stated that they accordingly went to Kochin and eventually apprehended the appellant on 6th April, 2005 at about 6.30 a. m., while he was about to leave the hospital. The prosecution witness No. 5 stated that he recorded statement of appellant at Kochin and proved the same. Prosecution witness No. 3 stated that he recorded statement of appellant at Mumbai on 7th April, 2005 and proved the same. The gist of two statements can be stated as under. “The appellant admitted in his statement that he was procuring Heroin at Mandsaur, Madhya Pradesh and was selling it mainly to Usman Haji. He stated that the consignment in this case was brought by him from Mandsaur to Mumbai and on 1st November, 2004 he delivered it to accused Nos. 2 and 3 at a public road at Mumbai. He further admitted that he deposited Rs. 90,000 in the bank account of accused Nos. 1’s wife. It was further passed on to a person who was nominee of Osman Haji.” 9) Prosecution witness No. 12 deposed that the prosecution witness Nos. 1 and 5 had, at the relevant time, produced before him the intelligence report written by them on piece of paper. He stated that he signed the reports and then proceeded to take further action. He also said that the intelligence officers also reported to him, as to what had happened pursuant to the action they had taken in this case, namely the seizure of Heroin and apprehension of the appellant and other accused. 10) The appellant and other accused cross examined the witnesses and brought on record various admissions. The Learned Judge, after appreciation of the evidence, which was produced before him, recorded following findings: “1. He believed the case of NCB that pursuant to the intelligence report, they visited the flat of accused No. 1 and found the contraband Heroin weighing 2 Kg- in his possession. 2. He did not accept the case of the NCB that the accused Nos. 2 and 3 received the contraband from the appellant at Mumbai on that day and passed it on to accused No. 1. 3. The Learned Judge believed the case of the NCB that the appellant deposited Rs.90000 in the bank account of accused Nos. 2. He did not accept the case of the NCB that the accused Nos. 2 and 3 received the contraband from the appellant at Mumbai on that day and passed it on to accused No. 1. 3. The Learned Judge believed the case of the NCB that the appellant deposited Rs.90000 in the bank account of accused Nos. 1’s wife and held that such deposit amounted to financing of illicit drugs traffic.” 11) In view of these findings, the Learned Judge acquitted accused Nos. 2 and 3 but convicted accused No. 1 for possessing the contraband and convicted him under Section 8(c) read with Section 21(c) of N. D. P. S. Act. On the other hand, he convicted the appellant for committing offence punishable under Section 27A read with Section 21(c) of the N. D. P. S. Act. The appellant has filed this appeal challenging the findings against him. 12) After hearing the submissions of both the learned counsels for the appellant as well as learned Addl. P. P. for Union of India, following points arose for my consideration. “1. Whether the Learned Judge of the Trial Court recorded statement of the appellant vide Section 313 of Criminal Procedure Code, properly? If the answer is in negative, what are the defects in the same? In case it is found that incriminating circumstances are not put to the appellant during recording of the statement, whether those circumstances can be used against him and what would be the effect of such omission? 2. Whether the NCB officers, failed to comply with provisions of Section 42 of N.D.P.S. Act, while recording the intelligence reports on both the occasions i. e. on 1st November, 2004 and on 4th April, 2005? 3. Whether the evidence on record would prove the charge of financing of illicit drug traffic against the appellant?” POINT No.1 13) Evidence against the appellant can be summarized as under:- 14) The appellant stated in his statement under Section 67 of N. D. P. S. Act that he procured the Heroin at Mandsaur and sold it to various persons. 15) The appellant stated that he had procured Heroin seized in this case and then delivered it to the other two accused on 1st November, 2004 at Mumbai. 15) The appellant stated that he had procured Heroin seized in this case and then delivered it to the other two accused on 1st November, 2004 at Mumbai. 16) The appellant stated about, how he deposited amount in two installments in the account of wife of accused No. 1 and how he directed accused No. 1 to deliver the amount to a particular person. 17) The question is whether these incriminating circumstances were properly put to the appellant when his statement was recorded? The answer to this is in negative. On careful perusal of statement under Section 313 of Criminal Procedure Code, I found that none of the above mentioned circumstances, which are incriminating against the appellant, were put to him during recording of his statement. What was put to him was rather innocuous material which was apparently not connected to him at all. 18) The learned counsel for the appellant therefore took advantage of the laps on the part of the Learned Judge and the defects of the prosecution case. He said that the circumstances not put to the appellant, in his statement under Section 313 of Code of Criminal Procedure, cannot be used against him which is settled law. As against this, the learned Addl. P. P. strenuously tried to convenience me that the laps on the part of the Learned Judge was merely irregularity and can be cured utilizing provisions of Section 391 of Code of Criminal Procedure. Section 391 of Code of Criminal Procedure reads as under. “391. Appellate Court may take further evidence or direct it to be taken. - (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.” 19) The learned Addl. P. P. asserted this is a fit case where powers of the Appellate Court can even be utilized for remanding the case back for recording proper statement of the accused under Section 313 of Code of Criminal Procedure. She placed reliance on a judgment of division bench of this court in case of BhavlalShankar Mahajan vs. State of Maharashtra 1997 CRI L. J. 3060. In that case, indeed, this court noticed that there occurred mistake in following procedure while recording statement of the accused under Section 313 of Code of Criminal Procedure inasmuch as no opportunity was given to the accused to explain circumstances appearing in evidence, this court held that this mistake is curable by utilising powers under Section 313 of Code of Criminal Procedure and directed retrial of the case from the stage of recording of statement under Section 313 of Code of Criminal Procedure. The Division Bench also noticed that the Learned Judge of the Trial Court, while recording the statement of the accused, asked vague, complex and compound questions to the accused and thereby failed to give opportunity to explain the circumstances. The Learned Addl. P. P. particularly placed reliance on Para No. 11 of the said judgment. 20) The Learned Addl. P. P. then placed reliance on judgment of Supreme Court in case of Rambhauand Anr vs. State of Maharashtra, AIR 2001 S C 2120. The facts of this reported case are quite peculiar. The appellant before the Supreme Court was an accused in case arising from the provisions of Prevention of Corruption Act. It was a case where the appellant was charged for demanding and accepting bribe. The Trial Court acquitted the appellant but the High Court convicted him and while deciding the appeal, the High Court recorded additional statement of the appellant under Section 313 of Code of Criminal Procedure. It was a case where the appellant was charged for demanding and accepting bribe. The Trial Court acquitted the appellant but the High Court convicted him and while deciding the appeal, the High Court recorded additional statement of the appellant under Section 313 of Code of Criminal Procedure. One of the incriminating circumstances was not put to the appellant at the trial stage and the same was to put to him at appellate stage and his explanation was recorded. The High Court then proceeded to convict the appellant. The appellant then went to the Supreme Court and the Supreme Court held that recording of the additional statement, by the High Court, was not illegal. It was held that the same was done to rectify the irregularity. Further, the Supreme Court, in this judgment, reiterated the settled law on Section 391 of Code of Criminal Procedure and the same can be quoted below. “2. A word of caution, however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nature of the case against the accused. This Court in the case of Rajeswar Prasad Misra v. State of West Bengal and another, AIR 1965 SC 1887 in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record however, that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard. 3. Be it noted that no set of principles can be set forth for such an exercise of power under Section 391, since the same is dependent upon the fact-situation of the matter and having due regard to the concept of fair play and justice, well being of the society.” 21) The Supreme Court, in this case also observed that the laps on the part of the Trial Court, in not putting, to the appellant certain incriminating circumstance, was not of much consequence because the Trial Court had acquitted the accused on the point of lack of sanction. 22) The Learned Addl. P. P. also asserted that the most important circumstance that he made a statement to the Intelligence Officer, in which he made several admissions, was not challenged during the cross-examination. She further asserted that if the making of the statement is not denied by the appellant during the trial, there was virtually no reason, why this circumstance should be put to him, specifically at the time when his statement under Section 313 of Code of Criminal Procedure was recorded. In other words, she suggested that the incriminating circumstance, which was admitted by the appellant, was of no consequence as far as the statement under Section 313 of Code of Criminal Procedure was concerned. In order to support this submission, she placed reliance on judgment of the Supreme Court in case of AlisterAnthony Pareira vs. State of Maharashtra reported in (2012) 2 SCC 648 . In the reported case, the Supreme Court held that the incriminating circumstance if not denied in cross examination, failure to put such circumstance of to the accused in his statement under Section 313 of Code of Criminal Procedure would be insignificant lacuna in the prosecution case and would not matter much. Following is the relevant portion of the judgment. It is a fact that evidence of PW-1, as noticed above, has not been put to the Appellant in his statement under Section 313 of the Code but that pales into insignificance for want of cross examination of PW-1 in regard to his deposition that the Appellant was found in drunken condition and his blood sample was taken. 23) This assertion however is not acceptable because, one cannot say that the appellant has not challenged the circumstance of his making a statement etc. to the Intelligence Officer of NCB. There is flitting suggestion made by the cross-examiner of the appellant that the statement made to the Intelligence Officer (PW No. 3), who had recorded statement of the appellant, was not recorded according to his say. Thus, the appellant denied though not very elaborately the circumstance that the statement attributed to him was not his statement. In this case, the defence of the appellant in respect of laps on the part of the Learned Judge of the Trial Court, in recording his statement under Section 313 of Code of Criminal Procedure cannot be brushed aside lightly. Thus, the appellant denied though not very elaborately the circumstance that the statement attributed to him was not his statement. In this case, the defence of the appellant in respect of laps on the part of the Learned Judge of the Trial Court, in recording his statement under Section 313 of Code of Criminal Procedure cannot be brushed aside lightly. The laps on the part of the Court is gross. As said above, no incriminating circumstance was put to the appellant. It is not as if the insignificant incriminating circumstance remained behind inadvertently and the laps could be branded a mere irregularity. 24) Law on this subject is discussed in detail in case of SharadBirdhi Chand Sarda vs. State of Maharashtra 1984 AIR S. C. 1622. In the said judgment, the Supreme Court held that if an incriminating circumstance is not put to the accused in his statement under Section 313 of Code of Criminal Procedure, the prosecution cannot be permitted to rely on it. The Supreme Court observed, in Para Nos. 142 to 144, as under. “142. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16, and 17. As these circumstances were not put to the appellant in his statement under s.313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Fateh Singh Bhagat Singh v. State of Madhya Pradesh(1) this Court held that any circumstance in respect of which an accused was not examined under s. 342 of the Criminal procedure code cannot be used against him ever since this decision. There is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under s.342 of the or s.313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra(2) this Court held thus: "The fact that the appellant was said to be absconding not having been put to him under section 342, Criminal Procedure Code, could not be used against him." 143. In Shamu Balu Chaugule v. State of Maharashtra(2) this Court held thus: "The fact that the appellant was said to be absconding not having been put to him under section 342, Criminal Procedure Code, could not be used against him." 143. To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat (3) where the following observation were made: "In the first place, he stated that on the personal search of the appellant, a chadi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant.': 144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decision of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under s.313 of the Criminal Procedure Code have to be completely excluded from consideration.” 25) In view of this, this court cannot even be requested to send the case back for recording statement of the appellant once again or to record the appellant’s statement here before this court. Such attempt would amount to filling up gaps in the prosecution case. POINT No.2 26) Before I discuss the arguments of both the counsel, I must quote relevant portion of Section 42 of the N. D. P. S. Act, which reads as under. “42. Power of entry, search, seizure and arrest without warrant or authorisation. Such attempt would amount to filling up gaps in the prosecution case. POINT No.2 26) Before I discuss the arguments of both the counsel, I must quote relevant portion of Section 42 of the N. D. P. S. Act, which reads as under. “42. 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 including para-military forces or armed forces 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 of constable) of 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, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, - (a) enter nto 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 such 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 this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and (d) detain and search, and if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such 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 after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” 27) In the backdrop of this provision, one would advert to the facts of this case. As mentioned above, on two occasions the Intelligence Officers of NCB, prosecution witness Nos. 1 and 5 received intelligence reports from secret sources, that first, the contraband would be found in the house of accused No. 1 Lalson, second, the prosecution witness No. 5 received information that the appellant would be found admitted in certain Hospital at Kochin. On both these occasions, the prosecution witness Nos. 1 and 5 made a note of the information on loose sheet of paper and then the same was shown in the original to their superior officer for soliciting further direction. Prosecution witness Nos. 1, 3 and 12 deposed on this part of the case and there is no reason to disbelieve this part of their case. The question still remains, as to whether writing down particulars of intelligence report on a piece of paper and not in an assigned register for this purpose, would amount to non compliance of the provision? The above quoted Sub Section 1 of Section 42 of N.D.P.S. Act clearly mentions that the officer should “take down in writing” the information he receives. The appellant and other accused suggested in cross-examination that the writings on the loose sheet of paper were not authentic but fabricated document. In the cross examination the prosecution witness No. 12 admitted that for the purpose of writing down such information, there is a register kept in the office of NCB. He offered further unsolicited explanation in his cross examination, that such secret information would be written in the register only if the informer wished to claim reward (there is a reward policy of NCB, in which an incentive is given to the person offering information about drug traffic, to government of India). However, the NCB does not rely on any rule framed under the N.D.P.S. Act or any other provision of law, which requires NCB to record secret intelligence information in the register maintained with them only if the person would claim reward. This unsolicited explanation is not at all convincing and appears to be a skin saving after thought. However, the NCB does not rely on any rule framed under the N.D.P.S. Act or any other provision of law, which requires NCB to record secret intelligence information in the register maintained with them only if the person would claim reward. This unsolicited explanation is not at all convincing and appears to be a skin saving after thought. By no stretch of imagination, one can imagine that the intelligence officer, who is supposed to take down in writing information given to him in respect of drug traffic etc. would have a discretion as to where he would write down this information. If a register is maintained for writing down such information then it must be written down in such register only and the officer has no other option. In other words, he cannot write down this information on a piece of paper. On this point, there is a direct judgment of the Supreme Court in the case of KarnailSingh vs. State of Haryana 2009(8) SCC 539 . This is a judgment of constitutional bench of the Supreme Court comprising five judges. They were considered different judgments of the Supreme Court on Section 42 of N. D. P. S. Act and its compliance. The constitutional bench of the Supreme Court summarised the law on this point in Para No. 17, which reads as under. “17. 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 Sajay Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer 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 concerned Register and forthwith send a copy to his immediate official 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 officer 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 situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Section 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be clear violation of section 42 or not is a question of fact to be decided in each case. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be clear violation of section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.” 28) In view of above discussion, the Supreme Court clearly accepted the possibility of substantial compliance of Section 42 of the N.D.P.S. Act and total non compliance. The Supreme Court held that in some cases, compliance under Section 42(1)(2) can be made within 72 hours and would still amount to substantial compliance. 29) The Learned Addl. P. P. asserted that in this case, there is substantial compliance because, according to her, the information was written down on a piece of paper and the same was forwarded to the superior officer and the same was produced before the court and the court accepted genuineness of the same. But, the question is whether this compliance of provisions of Section 42 is compliance or non-compliance. In my view, if the compliance is not as per the provisions then, it does not amount to compliance at all. The cases of substantial compliance are different. They are mentioned in the judgment of the Supreme Court. The Supreme Court has clearly laid down that where secret information is received at such point of time that the officer does not get time to write it down etc. and if in such case such officer reaches to the spot for search and seizure, he should be permitted to do the compliance after such seizure etc., within 72 hours. In such cases, the compliance made subsequent to search and seizure, is made permissible and is called as substantial compliance. In this case, the facts are different. The information was received not when the officers were on move. They received the information when they were in their office and admittedly, they wrote down the information while they were in their office. If in such situation they did not write down this information in the register kept maintained for the purpose, then the failure to do so would amount to non compliance of the provision. 30) The Learned Addl. They received the information when they were in their office and admittedly, they wrote down the information while they were in their office. If in such situation they did not write down this information in the register kept maintained for the purpose, then the failure to do so would amount to non compliance of the provision. 30) The Learned Addl. P. P. placed reliance on certain judgments to suggest that in Section 42 of the Act, there is no mention of any register in which such information is required to be written down. Indeed, Section 42 does not make mention of register etc. or any station diary. There is similar provision in Section 154 of Code of Criminal Procedure, in which the Station House Officer is required to write down information he receives in a register, specially maintained for it. There are three judgments of this court, in which this point is discussed. Similar arguments were advanced at the instance of the convicted accused that the intelligence information was not written down in a register and so there was non compliance of provisions of Section 42 of the N. D. P. S. Act. The Learned Single Judges of this court, on all the three occasions, held that since Section 42 does not prescribe maintenance of a register specially for writing down the information, the court cannot expect the information to be written down in a register. The Learned Judges therefore held that there was proper compliance of Section 42 of the N. D. P. S. Act, when the information was written down on pieces of paper. The particulars of the judgments are as under. “1. Criminal Appeal No. 388 of 2007 (Uday kumar Abhevardhan vs. Union of India, dated 29.07.2011) (unreported) 2. Criminal Appeal No. 552 of 2007 (Ousmane Dialla vs. Union of India) 3. 2012 All M.R. (Cri) 10 (Agnes Ruddy Odhoch vs. Union of India)” 31) The significant difference between the facts of the above mentioned cases and the present case is that in the present case the prosecution witness No. 12 admitted that a register is maintained by NCB, for writing down intelligence reports. In the above mentioned cases, such admission was not brought on record that the intelligence officers were maintaining register etc. This, in my view, is the significant difference between the above mentioned judgments and this judgment. In the above mentioned cases, such admission was not brought on record that the intelligence officers were maintaining register etc. This, in my view, is the significant difference between the above mentioned judgments and this judgment. Even otherwise, when a particular provision requires some one to do something, it must be done with due precaution and care. When Section 42 of N. D. P. S. Act requires an intelligence officer to write down intelligence information, it can be said that the officer would be able to write down such information anywhere. When such provision is made in the law, all the concerned should take serious note of the same and it is expected from them that they would make a provision to maintain record of such information written down from time to time. In my view, pursuant to this provision the NCB and all other concerned mentioned in Section 42 of N. D. P. S. Act should maintain such record in such a manner that no one could even suggest that the information so written down is a fabrication etc. Such allegation can be avoided easily by maintaining a register and the same should be kept in safe place and should be maintained meticulously and chronologically in such a manner that the entries in such register can be proved in the court of law. Section 42 of N. D. P. S. Act presupposes this requirement because, Sub Section 2 says that a copy of such information should be forwarded to the superior officer. This means the original note would remain at the place where it is supposed to be kept. The record so maintained is of utmost importance and cannot be treated casually. In my view, one cannot say that if there is no prescription for maintaining a register, the information can be written down on piece of paper ans such loose piece of paper would then be sent from one place to other. If such information is handled in such a manner, there is possibility of loss of such information in transit etc. Since recording of such information is made essential and to ensure transparency in investigation, the same should be written down and preserved properly. I think, it is because of such reason, the NCB in this case admitted that they have maintained a register for recording such information in their office. Since recording of such information is made essential and to ensure transparency in investigation, the same should be written down and preserved properly. I think, it is because of such reason, the NCB in this case admitted that they have maintained a register for recording such information in their office. In my view, even if it is not so prescribed by Section 42 of N. D. P. S. Act, it would be in the interest of the prosecution to maintain a register. On this aspect, I think, I should refer to certain portion (Para 8) of the judgment of the Supreme Court in the case of Karnail Singh (Supra), which reads as under: “8) Sub-section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without warrant between sunrise and sunset and he may do so without recording his reasons of belief. The proviso to sub-section (1) of Section 42 lays down that if the empowered officer has reason to believe that a search warrant or authorization 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, after recording the grounds of his belief.” 32) In view of this, I record my finding that in this case, there is no compliance of Section 42 of N.D.P.S. Act made by the prosecution. POINT No.3 33) For the sake of argument, let me assume that the above two points would go against the appellant, still the question is whether the evidence on record would prove, on facts, the case against the appellant? As said above, the appellant is convicted only for offence punishable under Section 27A of the N. D. P. S. Act. It reads as under: “[27-A. Punishment for financing illicit traffic and harbouring offenders. As said above, the appellant is convicted only for offence punishable under Section 27A of the N. D. P. S. Act. It reads as under: “[27-A. Punishment for financing illicit traffic and harbouring offenders. - Whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbhours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]” 34) In view of this provision, the prosecution should prove that the appellant indulged in financing directly or indirectly any of the activities specified in sub clauses (i) to (v) of clause (viiia) of Section 2 of N. D. P. S. Act. The activities specified in sub clauses (i) to (v) are as under: “(i) cultivating any coca plant or gathering any portion of coca plant; (ii) cultivating the opium poppy or any cannabis plant; (iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances; (iv) dealing in any activities in narcotic drugs or psychotropic substances other than those referred to in sub clauses (i) to (iii); or (v) handling or letting out any premises for the carrying on of any of the activities referred to in sub clauses (i) to (iv), other than those permitted under this Act or any Rule or order made, or any condition of any licence, term of authorization issued, thereunder, and includes - (1) financing, directly or indirectly any of the afore mentioned activities; (2) abetting or conspiring in the furtherance of or in support of doing any of the afore mentioned activities; and (3) harbouring persons engaged in any of the afore mentioned activities.” 35) The prosecution thus should prove that the appellant deposited the amount of Rs. 90,000/- in the bank account of accused No. 1’s wife for any of the purposes mentioned in clause (viiia). 90,000/- in the bank account of accused No. 1’s wife for any of the purposes mentioned in clause (viiia). As per the prosecution case, Usman Haji had asked the appellant to deliver certain amount of cash to certain person. In order to do this job, the appellant deposited the amount in the said bank account and through the conduit of accused No. 1, the amount was delivered to that certain person. The prosecution is silent as to for what purpose above mentioned Usman Haji had sent the amount to the person, to whom the amount was finally delivered. Unless the prosecution proves or at least indicates that the amount was for the purpose of illicit traffic of narcotic drugs as defined in clause (viiia) of Section 2 the appellant cannot be said to have committed an offence of financing illicit traffic of narcotic drugs. 36) As said above, there is nothing on record to show that the amount was sent by Usman for facilitating illicit traffic of drugs and so even if the prosecution case is believed that the appellant deposited the amount and then instructed the accused to deliver the amount to a particular person, it would not amount to offence punishable under Section 27A of the Act. The prosecution case, even on facts on this point, is so much weak that I am not inclined to believe that it was the appellant who deposited the amount in the bank account of the accused No. 1’s wife. The statement of bank account is produced on record. This statement shows the evidence of depositing of the amount on particular dates. But the statement of account does not mention that the amounts were deposited by the appellant, probably because, these amounts were deposited in the account in cash. The prosecution did not take pains to search, find and seize the pay-in-slips of these transactions. It is common knowledge that pay-in-slip invariably requires a depositor to mention his name and put his signature on two parts. One part remains with him and other part remains with the bank. The fact that the appellant deposited the amount rests thus on pay-in slips which could have been seized from the bank. In absence of evidence, the evidence on this point is not sufficient to prove that it was the appellant who deposited the amount in the said account. One part remains with him and other part remains with the bank. The fact that the appellant deposited the amount rests thus on pay-in slips which could have been seized from the bank. In absence of evidence, the evidence on this point is not sufficient to prove that it was the appellant who deposited the amount in the said account. So, the prosecution would fail even on facts, to prove the case against the appellant. The appeal should therefore succeed. 37) The appeal is allowed. Judgment and order of conviction, dated 5th May, 2009 of the Court of Special Judge under N. D. P. S. Act, Greater Mumbai, only to the extend of the appellant, is set aside. He is acquitted. He shall be released forthwith from the custody, if he is not required in any other case.