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Himachal Pradesh High Court · body

2014 DIGILAW 967 (HP)

State of Himachal Pradesh v. Khub Ram

2014-07-24

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment : Sureshwar Thakur, Judge The instant appeal, is, directed by the State, against the impugned judgment, rendered, on, 1.9.2001 by the learned Sessions Judge, Kullu, Himachal Pradesh, in Sessions trial No. 47 of 2000, whereby, the learned trial Court acquitted the accused/respondents for theirs having committed an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. Brief facts, of the case are, that, PW-5 R.P. Singh, Intelligence Officer, Narcotic Control Bureau, Chandigarh, along with his team, for, collecting intelligence, came to Kullu on 28.7.2000. On 30.7.2000, when he along with his team, was, present at Bathahar, he received a secret information about transportation of a huge haul of contraband from Bathahar towards Banjar. PW-5 along with Mr. O.P Bhat, Investigating Officer, N.C.B, went, to, P.S. Banjar at 10.00 a.m. and informed SHO, P.S. Banjar by giving information Ex.PW5/A. Shri Kushal Sharma, PW-7, SHO telephonically conveyed the information to S.P. Kullu and entered the same in the daily diary at serial No.24, dated 30.7.2000. PW-7 accompanied by Sh. R.P. Singh, Constable Vinod Kumar, S.I. Shiv Ram, ASI Narain Singh, H.C. Naresh Chand, H.C. Mohan Lal, constable Sunil Kumar, constable Uttam Singh, L.C. Hara Dei and team members of PW-5, went to Bhathahar and laid a Nakka at Faryadi Mor, 16 kilometers from Banjar. At 2.45 a.m., spotting head light of a vehicle from Bathahar, coming towards Banjar, the same was stopped and was found to be a Maruti car bearing No.DL-2CD-2489. The car was being driven by accused Ram Singh and accused Khub Ram was occupant of the car. Name of the accused were enquired into, who turned perplexed and four plastic bags kept in the dicky of the car were checked. On opening, they were found to be containing charas in the shapes of sticks. Charas with the help of testing kit was tested by Shri R.P. Singh and was found to be charas. One bag was marked “A” and Charas contained therein was found to be 9 kilo grams. Therefrom, three samples of 25 grams each were separated and marked X1, X2 and X3. Second bag was marked “B” and found to be containing 15 kilograms of charas. One bag was marked “A” and Charas contained therein was found to be 9 kilo grams. Therefrom, three samples of 25 grams each were separated and marked X1, X2 and X3. Second bag was marked “B” and found to be containing 15 kilograms of charas. The charas of the bag was divided in two lots of 7.5 kilograms, each and both lots were marked as Y and Z. From both bags marked as Y and Z, three samples each weighing 25 grams were separated and marked Y1, Y2 and Y3, Z1, Z2 and Z3. The third bag was marked as “C” and it found to be containing 19 kilograms of charas. It was also divided into two lots and marked, as, M and N. From both those lots, 3-3 samples each weighing 25 grams each were separated and marked as M1, M2 and M3, and N1, N2 and N3. On the fourth bag, distinct mark of D was affixed and the same was found to be containing 19 kilograms of charas. It was also divided into two lots of 9.5 kilograms and both lots were marked as O and P. Out of these lots, three samples each of 25 grams were separated and marked as O1, O2 and O3 and P1, P2 and P3. All samples were wrapped in polythene bag and thereafter wrapped with a cloth and sealed with seal bearing impression “H”. The remaining lots of charas were packed in polythene bags and thereafter, polythene packets individually were wrapped in cloth bag, which was stitched and thereafter sealed with seal “H”. Signatures of the witnesses were obtained on the packets and samples. Sample packets were put, in, the sample plastic bag from which particular charas was recovered and packets were also sealed by affixing seal impression “H”. NCB forms were filled and seal entrusted to R.P. Singh. The entire case property was taken into possession vide memo Ex.PW5/B which was signed by the accused and the witnesses. Accused were then apprised about the offence, punishment provided for qua which memo Ex.PW5/A was prepared. The vehicle along with its documents was taken into possession vide recovery memo Ex.PW5/D. Shri Kushal Chand, SHO, Police Station Banjar sent a rukka, Ex.PW2/B, through constable Virender Kumar to Police Station Banjar, on the basis of which FIR Ex.PW2/A was entered by the MHC Narain Singh. The vehicle along with its documents was taken into possession vide recovery memo Ex.PW5/D. Shri Kushal Chand, SHO, Police Station Banjar sent a rukka, Ex.PW2/B, through constable Virender Kumar to Police Station Banjar, on the basis of which FIR Ex.PW2/A was entered by the MHC Narain Singh. Thereafter constable Virender Kumar brought the file to the spot after registration of the case. Specimens of the seal were taken on memo Ex.PW7/B. Photographs were also taken. On the evening of 31st July, 2000, 26 sealed packets of the case property were deposited with MHC Narain Singh, P.S. Banjar, who entered the same in the Malkhana register. Out of them, seven packets were sent to CTL, Kandaghat vide R.C. No.30 of 2000. The copy of the information recorded in the daily diary, through, constable Bahadur Singh was sent to S.P. office, Kullu, through, constable Uttam Singh, where it was entered in the relevant register by ASI Lal Singh, Reader. On analysis of the samples, vide chemical report Ex.PW7/D, the contents were reported to be charas. 3. On completion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 Cr.P.C. was prepared and filed in the Court. 4. The accused were charged for theirs having committed an offence punishable under Section 20 of the Act, by the learned trial Court, to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined seven witnesses. On closure of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded in which they pleaded innocence and claimed false implication. 5. On appraisal of the evidence on record, the learned trial Court returned findings of acquittal against the accused. 6. The State of H.P., is, aggrieved by the judgment of acquittal recorded by the learned Trial Court in favour of the accused/respondents. Mr. Ramesh Thakur, the learned Assistant Advocate General has concertedly and vigorously contended, that the findings of acquittal recorded by the learned trial Court below are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material evidence on record. Mr. Ramesh Thakur, the learned Assistant Advocate General has concertedly and vigorously contended, that the findings of acquittal recorded by the learned trial Court below are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material evidence on record. Hence, he, contends that the findings of acquittal be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of conviction and concomitantly, an appropriate sentence be imposed upon the accused/respondent. 7. On the other hand, the learned defence counsel has with considerable force and vigour contended that the findings of acquittal recorded by the Court below are based on a mature and balanced appreciation of the evidence on record and do not necessitate interference, rather merit vindication. 8. This Court with the able assistance of the learned counsel on either side, has with studied care and incision, evaluated the entire evidence on record. 9. The first witness, who stepped into the witness box to prove the prosecution case, is, PW-1 Uttam Singh. He has deposed that, on 1.8.2000, Dy S.P./SHO Kushal Sharma, P.S., Banjar, handed over to him special report which he took to S.P. Office, Kullu, and handed it over to Addl. S. P., on the same day. He deposed that, so, long the special report remained in his custody, nobody tampered with it. In cross-examination, he deposed that he started from Banjar in the morning and handed over the report, at 10.00/10.15 a.m. 10. PW-2 H.C. Narain Singh deposes that on receipt of rukka, he registered FIR Ex.PW2/A and made his endorsement, Ex.PW2/B, on the rukka, which was signed by him. He continued, to, depose that on the same day at about 6.10 P.M., SHO Kushal Sharma, deposited with him 26 sealed parcels with seal ‘H” along with NCB forms. On 1.8.2000, he, deposes that he sent seven sample parcels, through, constable Bahadur Singh to CTL, Kandaghat, vide R.C. No. 38/2000 along with NCB form, in, triplicate and other documents. He further testifies after the constable having deposited the same at CTL, Kandaghat, he delivered to him the receipt qua its deposit to him. He proceeds to depose that during investigation, he supplied copies of rapat rojnamacha, R.C. and abstract of entry made in the Malkahan register to the Investigating Officer. He further testifies after the constable having deposited the same at CTL, Kandaghat, he delivered to him the receipt qua its deposit to him. He proceeds to depose that during investigation, he supplied copies of rapat rojnamacha, R.C. and abstract of entry made in the Malkahan register to the Investigating Officer. Ex.PW2/A and Ex.PW2/A-1 are deposed to be copies of malkhana register and Ex.PW2/B and Ex.PW2/C are deposed to be copies of R.C. and rapat rojnamacha, respectively. These have been deposed to be correct as per the original. 11. PW-3 C. Bahadur Singh deposed, that, on 31.7.2000, MHC Narain Singh handed over to him copy of rapat rojnamacha No.24, dated 30.7.2000, information under Section 42(2) of the NDPS Act which he took to S.P. office Kullu and handed over the same to Addl. S.P., at about 10 a.m. Subsequently, he deposed that he went, to, P.S. Banjar and that, on, 1.8.2000 at about 8.00 P.M. MHC handed over to him samples, sample seal, NCB form, which he took to CTL, Kandaghat vide RC No. 38/2000, which, he, deposited on 2.8.2000 and on return handed over the receipt of deposit to MHC. 12. PW-4 ASI Lal Singh deposed, that, on 31.7.2000, Addl. S.P., Kullu handed over to him information under Section 42(2) of the NDPS, Act which, he, entered at serial No.36 of the relevant register. On 1.8.2000, Additional S.P., Kullu again handed over to him special report, which he entered at serial No.37 of the concerned register. He deposed that during the investigation he handed over copy of information Ex.PW4/A to the Investigating Officer, as also, copy of special report, Ex.PW4/B. Both have been deposed to be correct as per the original by this witness. 13. PW-5 R.P. Singh, Intelligence Officer, NCB, Chandigarh deposed that on 28.7.2000, NCB team was constituted for collecting intelligence and it came to Kullu. On receipt of information, the NCB team went towards Banjar side and on 30.7.2000 at Bathahar they received secret information that on that day large quantity of charas would be taken from Bathahar towards Banjar. O.P. Bhatt, Investigating Officer of NCB was also accompanying him. On the receipt of the information, they went to Police Station, Banjar during night. At about 10.00 p.m., he gave information in writing to SHO comprised in Ex.PW5/A and the same has been deposed to have been signed by him. O.P. Bhatt, Investigating Officer of NCB was also accompanying him. On the receipt of the information, they went to Police Station, Banjar during night. At about 10.00 p.m., he gave information in writing to SHO comprised in Ex.PW5/A and the same has been deposed to have been signed by him. Dy.S.P./SHO Kushal Sharma has been deposed to be present in the police station. He deposed that in their presence, SHO/Dy.S.P., Kushal Sharma telephonically conveyed the information to the S.P., Kullu and their application was entered by the police in the register. He further proceeds to corroborate the entire genesis of the prosecution case qua the laying of naka, search, seizure and recovery of the huge haul of contraband in the manner as alleged by the prosecution and extracted hereinabove. In his cross-examination, he, deposed that on reaching Banjar, he telephonically informed Zonal Director about the information. The information has been deposed by him to have been comprised in Ex.PW5/A. During his inexorable cross-examination, he denied the suggestion of the defence that he omitted to join the independent witnesses. He has also denied the suggestion that owing to land slide on 30.7.2000, the road was blocked at 12 noon near Faryadi Mor and remained blocked upto 1st August, 2000. 14. PW-6 LHC Vijay Kumar deposed that on 31.7.2000, he along with Dy. S.P. Kushal Sharma, the then SHO, Police Station Banjar and other police officials and NCB Officials were at Faryadi Mor and remain with them from 11 P.M. to 6.45 A.M. He deposed that the Investigating Officer handed over to him rukka of the case, for registration of the FIR at 6.45 a.m., which he took to Police Station Banjar. After registration of FIR by MHC, the file was taken by him to the spot and the same was delivered to the Investigating Officer. 15. PW-7, Kushal Chand, Dy. After registration of FIR by MHC, the file was taken by him to the spot and the same was delivered to the Investigating Officer. 15. PW-7, Kushal Chand, Dy. S.P./SHO corroborates the testimony of PW-5 qua the latter on 31.7.2000 at about 10.00 a.m. having come to the police station and handed over to him secret information comprised in Ex.PW5/A and he proceeded to record the same in the rapat rojnamacha register, copy of the same has been deposed to be Ex.PW2/C. In all other material particulars, relating to search, seizure and recovery from the alleged conscious and exclusive possession of the accused in the manner as alleged by the prosecution, he, has lent a forceful corroboration to the testimony of PW-5. 16. The secret information, as, deposed by PW-5, R.P. Singh, Intelligence Officer, of a large haul of contraband being transported from Bathahar towards Banjar, was received by PW-5, on 30.7.2000. The secret information was recorded/reduced into writing in Ex.PW5/A. The information was conveyed to Dy. S.P./SHO Kushal Sharma, PW-7, Police Station, Banjar. The fact of the PW-5 having conveyed the information, recorded in Ex.PW5/A to PW-7 at Police Station, Banjar, on the night of 31.7.2000, at about 10.00 a.m. stands corroborated by PW-7. Subsequently, an entry in the daily diary vide report No.25, copy of which has been proved to be comprised in Ex.PW2/C, was recorded. PW-5, also telephonically conveyed the information to his superior officers, at, Zonal Office, NCB, Chandigarh. The said fact has not come to be repulsed by adduction of evidence by the defence to tear, its, veracity and authenticity. A perusal of testimony of PW-3, Bahadur Singh, unfolds, as well, as, divulges the crucial fact of PW-2, Narain Singh, having handed over to him copy of rapat rojnamcha No. 24, dated 30.7.2000, information under Section 42(2) of the NDPS Act, which he carried to the S.P. Office Kullu and handed over the same to Addl. S.P. at about 10 a.m. Subsequently, he deposes that he had gone to Police Station, Banjar. S.P. at about 10 a.m. Subsequently, he deposes that he had gone to Police Station, Banjar. The disclosure made in the testimonies of the witnesses aforesaid, brings to the fore, the evidence fact of (a) secret information having been received by PW-5 and it having come to be reduced into writing by PW-5, in, Ex.PW5/A; (b) the secret information having been conveyed and transmitted by PW-5 to PW-7, Dy.S.P./SHO, Police Station Banjar on the night of 30.7.2000, whereupon, an entry in rapat rojnamcha No.24, comprised, in, Ex.PW2/C, was recorded. (c) The secret information having been transmitted by PW-3 on 31.7.2000 to Additional S.P., Kullu and (d) A telephonic information having been transmitted by PW-5 to his superior officers at NCB, Zonal Office, Chandigarh. (e) The secret information recited in Ex.PW5/A also too comprises reasons for belief given the time of its receipt and immediacy as well as expediency for preempting the transportation of the haul of contraband, so as to render dispensable the possession of search warrant as well as authorization by PW-5 preceding to carry out the search of conveyance between sunset and sunrise. 17. The Incident took place at about 2.45 a.m., on, 31.7.2000 and preceding to it, Ex.PW5/A was recorded. There, is, a statutory obligation enjoined upon the officer, carrying out search, seizure and recovery of the contraband from a “conveyance”, as was the Maruti car occupied at the relevant stage by both the accused, especially when such proceedings of search, seizure and recovery of contraband are carried out between sunset and sunrise, as has happened in this case, to record reasons of belief that search warrants or authorization conveying or according permission, to, the searching party to carry out the search of conveyance, which was to be searched and wherefrom recovery was to be effected, could not, be obtained, as, delay which would be occasioned in obtaining it, and, hence, its imprompt procurement would facilitate the concealment of the evidence or the escape of the offender. The evident fact which emerges from the unfoldment, in, the testimonies of the prosecution witnesses, as, referred to hereinabove, is that PW-5 in Ex.PW5/A has loudly and plain speakingly communicated, his having received a secret information on 30.7.2000, of, a huge haul of contraband being transported from Bathahar. The evident fact which emerges from the unfoldment, in, the testimonies of the prosecution witnesses, as, referred to hereinabove, is that PW-5 in Ex.PW5/A has loudly and plain speakingly communicated, his having received a secret information on 30.7.2000, of, a huge haul of contraband being transported from Bathahar. Hence, in the face of the fact, that, the NCB team constituted for nabbing the culprits was deficient, in, manpower and, hence, the services of the local police were requisitioned, as also, as articulated by Ex.PW5/A, of the help from the Dy. S.P./SHO, Police Station, Banjar, being requisitioned to be rendered for facilitating, a, successful nabbing of the accused with the huge haul of contraband. Consequently, when this Court has already drawn a conclusion hereinabove that the recording of the secret information along with its further communication, was quickly, rapidly and promptly done by PW5, to the Dy. S.P., SHO, Police Station Banjar, as also, by him to his superior officers, at, NCB, Zonal Office, Chandigarh. Also, when secret information does not recite the names of the accused in it, obviously, for non recital of the names of the accused in it, whose names may not have been in the knowledge of PW-5, hence, when the information was not specific qua the names of the persons, who would carry/transport a huge haul of contraband or who were suspected to handle and transport the huge haul of contraband from Village Bathahar, hence, obviously, when a secret information recorded as Ex.PW5/A, as such omitted to display the name of each of the accused, who would carry a huge haul of contraband. As, a natural concomitant, then, given the authenticity of the secret information and the prompt action taken on it, portrays the speedy communication by PW-5 to PW-7, as also, to his superiors at NCB, Zonal Office, Chandigarh. He, hence, cannot be construed to have committed any omission or lapse, in, not obtaining warrants preceding the search of the conveyance, in, which it was being carried out and wherefrom it was ultimately recovered from the exclusive and conscious possession of both, the accused being its driver and occupant. He, hence, cannot be construed to have committed any omission or lapse, in, not obtaining warrants preceding the search of the conveyance, in, which it was being carried out and wherefrom it was ultimately recovered from the exclusive and conscious possession of both, the accused being its driver and occupant. As a sequel then, it has to be formidably, concluded, that the non-obtaining of search warrants by PW-5 before carrying out the search of the conveyance from which the haul of the contraband was recovered, from the exclusive and conscious possession of the accused, especially when, he, was not in the know of the names of the accused or in the know of the number of the vehicle, in, which it was being carried out, would not constitute the said omission to be a severe lapse, having grave repercussions, upon the success of the prosecution case. In aftermath, this Court convincingly comes to the forthright inference, that, when even otherwise, given the expediency or urgency of the prompt carrying out of the proceedings relating to the search, seizure and recovery of contraband from the conveyance, in, which it was concealed and hidden, and was to be transported at night, as also, given the fact that it was not known to the PW-5 or other police officials about the exact time when the haul of the contraband would be carried, in, the vehicle from which it was recovered. Therefore, for want of information, qua the exact time, when the contraband would be transported in the vehicle by the accused, in which event, it would, given the precise information qua the exact time of its being transported, hence, providing adequate leverage, in, time to PW-5 to obtain warrants authorizing them to search the conveyance. However, when such, precise information with exactness qua the time about its being carried, in, the vehicle, as, done by the accused, was not available with the PW-5. Therefore, it can, also, be said that when they were ready to nab the accused on arrival of the vehicle, at, “any time”. However, when such, precise information with exactness qua the time about its being carried, in, the vehicle, as, done by the accused, was not available with the PW-5. Therefore, it can, also, be said that when they were ready to nab the accused on arrival of the vehicle, at, “any time”. Obviously, then, in case, delay would have been occasioned, in, obtaining the warrants or authorization from the competent officer, for searching the conveyance, in, which it was carried, the very purpose of setting up the naka for searching the vehicle and on, its, search recovery and seizure of contraband from the exclusive and conscious possession of the accused, as, done, would have been preempted, as well, as, aborted. In nut shell, it has to be concluded, that, hence, when there are stark and overwhelming circumstances existing, in, this case which do not render the omission on the part of PW-5 to obtain search warrant or authorization, from the competent officer preceding, to, the search of the conveyance from which the contraband was recovered, to be constituting a tenacious and potent legal flaw, besides, such omissions do not oust the prosecution case. 18. The information, as, comprised in Ex.PW5/A, as discussed hereinabove was conveyed both, to, Additional S.P., Kullu, with utmost promptitude and without dereliction. Information was also conveyed by PW-5, to, his superior officers at NCB, Zonal Office, Chandigarh. Now, in the face of the latter fact having remained un-rebutted, it is not open, to, the counsel for the accused/appellant, to, contend that the secret information comprised, in, Ex.PW5/A having remained un-communicated to his superior officers, at, NCB, Zonal Office, Chandigarh, the prosecution case is to be faulted. Moreover, it has also got to be construed that the communication of the secret information by PW-5 to his superior officers at NCB, Chandigarh, constitutes compliance with the mandate of Section 42(2) of the NDPS Act. Further more, the recording of the secret information along with the necessity, hence, to promptly nab the accused, too, comprises compliance with the provisions of Section 42(2) of the NDPS, Act, when the conveyance was searched between sunset and sunrise to record reasons to belief in writing. Besides when, even if, the Dy. Further more, the recording of the secret information along with the necessity, hence, to promptly nab the accused, too, comprises compliance with the provisions of Section 42(2) of the NDPS, Act, when the conveyance was searched between sunset and sunrise to record reasons to belief in writing. Besides when, even if, the Dy. S.P./SHO, Police Station Banjar or Additional S.P., Kullu was not his superior officers, rather, when they were available in immediate vicinity of the site of the occurrence, besides, when they contrary to lack of manpower with the PW5, to, efficaciously and successfully carry out the search, seizure and recovery of the contraband from the dicky of the car driven and occupied by the accused respectively, rather had adequate and sufficient manpower. Obviously when there is no bar to intra departmental or intra agency or intra investigating agency co-ordination and collaboration in nabbing the accused, who were carrying or transporting the huge haul of contraband, this, Court does not find any flaw or lack of transparency, in, the act of PW-5 in giving the information to PW-7 and Additional S.P., Kullu, for, requisitioning the services of the local police for the successful carrying out of the search of the car, driven and occupied by the accused, respectively, wherefrom the contraband was recovered. 19. Before departing, it is necessary, while, reversing the findings of the learned trial Court, to, hence, advert, to, the factum of inherent fallacies of frailties with which the judgment of the learned trial Court is fraught with. The prime reason, as, afforded by the learned trial Court, for recording findings of acquittal in favour of the accused, is, of the statutory compliance, of, provisions of Section 42(2) of NDPS, Act, having not come to be recorded, by PW-5, hence, necessitating the returning of findings of acquittal, in, favour of the accused, comprised in the fact of MHC Narain Singh, PW-2, having omitted, to, depose of PW-3 being deputed to send a copy of Rapat Roznamcha, Ex. PW-2/C, for its transmission, to, A.S.P, Kullu. As such, the deposition, of, PW-3, qua, its having come to be delivered, by him, to, ASP, is, ingrained with a falsity. PW-2/C, for its transmission, to, A.S.P, Kullu. As such, the deposition, of, PW-3, qua, its having come to be delivered, by him, to, ASP, is, ingrained with a falsity. However, the said attribution of falsity, to, the deposition of PW-2, is, itself ingrained in untruth, in, as much, as, when PW-3 deposes qua the said fact and his deposition in his examination-in-chief, has remained un-shattered, during the course of his cross-examination. Consequently, truth is to be imputed to his deposition in his examination-in-chief qua the above fact. Besides when PW-3 Narain Singh has remained unexamined or uncross-examined qua the aforesaid fact, it cannot be said that the mere omission, in, his deposition qua the said fact, renders his testimony of his having handed over Ex.PW2/C to Additional S.P. at about 10.00 a.m. on 31.7.2000, to, acquire any grain of untruth or prevarication. Consequently, for the reasons aforesaid, this Court has concluded, that, Ex.PW5/A records, a truthful fact, of, secret information having been received by PW-5, as also, given the fact that it was, hence, promptly, transmitted to Dy.S.P./SHO, Police Station, Banjar, qua which factum, of its transmission, to him by PW-5 has been testified by PW-7, Dy.S.P./SHO, too. Hence, it is to be inferred that there is no laxity on the part of PW-5, to, record or to transmit the secret information initially, to, Dy.S.P./SHO, Police Station, Banjar and subsequently through PW-3 for its transmission, to, Additional S.P., Kullu. 20. Hence, it is to be inferred that there is no laxity on the part of PW-5, to, record or to transmit the secret information initially, to, Dy.S.P./SHO, Police Station, Banjar and subsequently through PW-3 for its transmission, to, Additional S.P., Kullu. 20. The other reasons which have been afforded by the learned trial Court, in, proceedings to conclude, that, there was infraction on the part of PW-5, to, comply with the provisions of Section 42 (2) of the NDPS Act, is comprised in the fact that when the conveyance, in, which the contraband was allegedly carried by the accused, was subjected to search, seizure and recovery, therefrom, at, hours between sunset and sunrise, in as much,as, when detection thereof and consequent recovery, was effected from the conscious and exclusive possession of the accused at 2.45 a.m., on, 31.7.2000, hence, as, mandated, in, the aforesaid provisions of law, that preceding such search and seizure of conveyance at, hence, between sunset and sunrise, such search of the conveyance was permissible only, in the event of the Investigating Officer, being empowered by search warrant and authorization, which having been not in the possession of PW-5, renders the entire proceedings to be for non-compliance with the mandatory statutory provisions, to be, vitiated. However, the said reason falters and is rendered frail, in, the face of the discussion aforesaid portraying the fact that given the immediacy of apprehension of the accused. Besides, when for the other reasons, highlighted hereinabove, which are to be construed, to, have precluded the Investigation officer, to, before proceeding to search and recover contraband from the conveyance in which it was carried, obtain search warrant or authorization, that, hence, there was no willful or volitional departure from the mandate of the provisions of Section 42(2) of the NDPS Act, envisaging, that preceding the act of the Investigating Officer, proceeding to search the conveyance in which the huge haul of contraband was carried, at, about 2.45 a.m., he, was required to before doing, possess, search warrants or authorization to do so. Rather, when the reasons attributed hereinabove also divulges palpable tenable extenuatory circumstances for such purported infraction, it does not acquire any sinew. Moreover, for reiteration, it has also got to be construed that communication of secret information by PW-5, to his superior officers at NCB, Chandigarh, constitutes compliance with the mandate of Section 42(2) of the NDPS Act. Rather, when the reasons attributed hereinabove also divulges palpable tenable extenuatory circumstances for such purported infraction, it does not acquire any sinew. Moreover, for reiteration, it has also got to be construed that communication of secret information by PW-5, to his superior officers at NCB, Chandigarh, constitutes compliance with the mandate of Section 42(2) of the NDPS Act. Furthermore, the recording of the secret information along with the necessity, to promptly nab the accused, too, comprises compliance with the provisions of Section 42(2) of the NDPS, Act, when the conveyance was searched between sunset and sunrise, in as much, as, they constitute and comprise “reasons to belief in writing” of the immediacy of the apprehension of the accused which immediacy of search, seizure and recovery may have been thwarted by delay occasioned in the procurement of search warrant or authorization. 21. Moreover, the reasons, as, attributed by the learned trial Court in, its, impugned judgment qua the omission on the part of PW-5, to transmit the information to his superior officials, infects the judgment with the vice of infraction of the provisions of Section 42(2) of the NDPS Act and that, hence, the transmission of information by PW-5 to PW-7, who was not his superior officer, cannot, constitute any compliance, with the provisions of the Section 42(2) of NDPS, Act, mandating transmission of information, by, PW-5 to his superior officers, who were, rather, at NCB Zonal Office, Chandigarh and not at Kullu. The effect of above contention, too, get ridden with frailty, in, the face of PW-5, having pronounced, in, his deposition, qua his telephonically intimated his superior officers, at, NCB, Zonal Office, Chandigarh, the said deposition has remained unscathed or un-torn. Besides, un-stripped of truth by way of any tenacious evidence, in, rebuttal thereto, having come to be adduced at the instance of the accused. Consequently, the learned trial Court fell, in, error in concluding, that in the PW-5 having not endeavored to transmit the contents of PW-5/A to his superior officers, at NCB Zonal Office, Chandigarh, whereas, he was mandated to do so renders, it, to constitute an infraction, of, the provisions of Section 42(2) of NDPS, Act, as such, vitiating the entire prosecution case. Moreso, when the provisions of Section 42(2) of NDPS, Act do not envisage imposition of any prohibition upon the PW-5 or Investigating Officer, to, transmit the secret information in a mode other than its statutory dispatch. 22. Before parting , it, is also imperative, to, refer to a judgment of the Hon’ble Apex Court reported in Karnail Singh versus State of Haryana, (2009)8 SCC 539 , wherein, the Hon’ble Apex Court holds:- “12. The ratio in Abdul Rashid ( (2000)2 SCC 513 ), is that the non-recording of vital information collected by the police at the first instance can be counted as a circumstance in favour of the accused-appellant. The police officer examined as a crucial witness, PW2, in that case admitted that he proceeded to the spot only on getting information that somebody was trying to transport a narcotic substance, but failed to take down the information in writing. Nor did he apprise his superior officer of any such information either then or later, much less send a copy of the information to the superior officer. Thus, it was a case of absolute noncompliance with the requirements of Section 42(1) and (2). 13. The facts in Sajan Abraham v. State of Kerala, (2001)6 SCC 692 , were completely different. The appellant/accused - Sajan Abraham was put on trial for an offence punishable under Section 21 of the Act. As per the prosecution case, on 10.10.1993 at about 7.45 p.m. the appellant was in possession of a manufactured drug by the name of "Tidigesic" and three syringes for injecting the same near Blue Tronics Junction at Palluruthy. The Head Constable, PW 3 and two other Constables of the Special Squad got information at about 7.00 p.m. on the said date that a person was selling injectable narcotic drugs near Blue Tronics Junction at Palluruthy. They informed this to PW 5 - Sub-Inspector of Police, Palluruthy Cusba Police Station, who was coming in a jeep along with his police party. Thereafter PW 5 along with his police party including PW 3 and other members of the Special Squad went to the scene of occurrence found the accused standing on the road with a packet in his hand. He was identified by PW 3 and apprehended by PW 5. Thereafter PW 5 along with his police party including PW 3 and other members of the Special Squad went to the scene of occurrence found the accused standing on the road with a packet in his hand. He was identified by PW 3 and apprehended by PW 5. On search, the packet possessed by the appellant revealed that it contained 5 strips of 5 ampoules each of Tidigesic and three injection syringes and a purse containing currency note of Rs. 10. At the spot, one ampoule was taken as a sample for chemical analysis and the said contraband articles were seized as per Ext. P-1 and seizure mahazar was prepared at the spot. The appellant was also arrested. The charge-sheet was submitted, the appellant pleaded not guilty. 17. It is clear from Sajan Abraham (supra) that to enforce the law under the NDPS Act stringently against the persons involved in illicit drug trafficking and drug abuse, the legislature has made some of its provisions obligatory for the prosecution to comply with, which the courts have interpreted to be mandatory. It is further clear that this is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The court however while construing such provisions strictly should not interpret them literally so as to render their compliance impossible. It concluded that if in a case, the strict following of a mandate results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out. It is also clear that when substantial compliance has been made it would not vitiate the prosecution case. 22. Sub-section (2) of Section 42 as it originally stood mandated that the empowered officer who have taken down information in writing or records the grounds of his belief under the proviso to sub- section (1), should send a copy of the same to his immediate official superior forthwith. But after the amendment in the year 2001, the period within which such report has to be sent was specified to be 72hours. Section 43 deals with the power of seizure and arrest of the suspect in a public place. 23. But after the amendment in the year 2001, the period within which such report has to be sent was specified to be 72hours. Section 43 deals with the power of seizure and arrest of the suspect in a public place. 23. We may note that Abdul Rashid followed State of Punjab vs. Balbir Singh - 1994 (3) SCC 299 .We extract below the passage that was followed : (Balbir Singh Case, SCC p.321, para 25) “25. (2-C) Under Section 42(1), the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or 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 a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1), if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(1), such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it 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." 25. A careful examination of the facts in Abdul Rashid and Sajan Abraham shows that the decisions revolved on the facts and do not really lay down different prepositions of law. In Abdul Rashid, there was total non-compliance with the provision of section 42. The police officer neither took down the information as required under section 42(1) nor informed his immediate official superior, as required by Section 42(2). In Abdul Rashid, there was total non-compliance with the provision of section 42. The police officer neither took down the information as required under section 42(1) nor informed his immediate official superior, as required by Section 42(2). It is in that context this Court expressed the view that it was imperative that the police officer should take down the information and forthwith send a copy thereof to his immediate superior officer and the action of the police officer on the basis of the unrecorded information would become suspect though the trial may not be vitiated on that score alone. On the other hand, in Sajan Abraham, the facts were different. In that case, it was very difficult, if not impossible for the Sub-Inspector of police to record in writing the information given by PW-3 and send a copy thereof forthwith to his official superior, as the information was given to him when he was on patrol duty while he was moving in a jeep and unless he acted on the information immediately, the accused would have escaped. The Sub-Inspector of Police therefore acted, without recording the information into writing, but however, sent a copy of the FIR along with other records regarding arrest of the accused immediately to his superior officer. It is in these circumstances that this Court held that the omission to record in writing the information received was not a violation of Section 42.” The paragraphs, as, extracted hereinabove, mandate the necessity of “substantial compliance” and not “strict compliance” with the requirement enshrined, in, section 42(2) of NDPS Act. Besides, render permissible entry, for search and seizure by the Investigating Officer, of, a conveyance, even when such an act, is, performed by the Investigating officer, between sunset and sunrise, even without the Investigating Officer possessing search warrants and authorization to do so, when special circumstances involving an emergent situation permit him, to do so and when the recording of an information and sending copy thereof to the superior officers, would delay the nabbing or apprehension of the accused or provide an opportunity to the accused to escape, in which event, the recording of information and sending copy thereof to superior officers, may get postponed. Therefore, when, it has been construed hereinabove for formidable reasons that communication of secret information by PW-5, to, his superior officers at NCB, Chandigarh, constitutes compliance with the mandate of Section 42(2) of the NDPS Act. Furthermore, the recording of the aforesaid secret information per se along with the necessity to promptly nab the accused, too, comprises compliance with the provisions of Section 42(2) of the NDPS, Act, in as much, as, it divulges reasons to believe qua immediacy of nabbing or apprehension of the accused and search of the vehicle. Consequently, even , when the conveyance was searched between sunset and sunrise, it is to be firmly held given the pronouncement in Ex.PW5/A of the facts, recorded therein, disclosing immediacy of necessity of apprehension of the accused, that the Investigating Officer, had substantially complied with the proviso of Section 42(2) of the NDPS Act, consequently, his act, in, searching the conveyance, between sunset and sunrise, without search warrant, is, not ingrained with any vitiation, arising from his omission, to, record reasons to believe in writing, especially, when Ex. PW-5/A, is, an omnibus communication thereof. Moreover, given the evident fact as eminently surging forth from the testimonies of the prosecution witnesses qua the immediate recording of secret information comprised in Ex. PW-5/A and its prompt and immediate dispatch to SHO, besides its dispatch by PW-5 to his superior officers at NCB Zonal Officer, Chandigarh. Preponderantly, also, the prime fact of the quantum of haul of contraband, as, likely to be transported by the accused from Bathahar to Banjar, obviously necessitated, an, immediate laying of Naka at the instance of PW-5 with the aid and assistance of PW7, to, obviate and avert as well, as, preempt transportation of huge haul of contraband, as communicated in the communication comprised in Ex. PW-5/A. Therefore, with, there having been abysmal lack of evidence, qua, the fact that the secret information, through a telephonic communication by PW-5, to, his superior officers at NCB, Zonal Office, Chandigarh, remained un-communicated. Consequently, the exercise of search, seizure and recovery of the contraband from the car which was occupied by the accused as driver and occupant, respectively, constitutes “substantial compliance” which, is, adequate and sufficient within the contemplation of the provisions of Section 42(2) of NDPS Act. Consequently, the exercise of search, seizure and recovery of the contraband from the car which was occupied by the accused as driver and occupant, respectively, constitutes “substantial compliance” which, is, adequate and sufficient within the contemplation of the provisions of Section 42(2) of NDPS Act. This Court ought not to omit to loudly and plain speakingly articulate, here, that the intra agency participation, in as much, as, inter se the team headed by PW-5, an officer of Narcotic Control Bureau, Chandigarh and the team headed by PW-7, SHO/Dy.S.P., Police Station Banjar, who constituted the manpower, of, the local police was, to, fulfill the objective of nabbing the accused with large haul of contraband, as, was likely to be conveyed by them, as, communicated in Ex.PW5/A. Hence, to, preempt its transportation given the deficient manpower with PW-5, the act of PW-5, in, soliciting the services of PW-7 was an expedient act. Besides, also when the police unit of NCB has not been shown to be located within the local limits of the territory where the exercise relating to search, seizure and recovery from the alleged excusive and conscious possession of the accused was carried out. As such, when an FIR could have been lodged, only with the police Station located in the vicinity of the place of seizure. Obviously, then when the necessary FIR qua the incident was lodgable, only at the nearest police station, which had PW-7, as, its head itself. Consequently, the act of PW5, in, intimating the PW-7 and on intimation delivered to him, by, the informer his having prepared rukka and lodged FIR, cannot, succumb to any legal ouster. 23. In view of the above discussion, the appeal filed by the State is allowed and the judgment of the learned trial Court is set aside. Both the accused/respondents are convicted for theirs having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. They be heard on quantum of sentence on 4.8.2014 on which date they be produced before this Court.