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2017 DIGILAW 1032 (HP)

Narcotic Control Bureau v. Ghambir Dass

2017-09-07

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

body2017
JUDGMENT Tarlok Singh Chauhan, J. (Oral) - The Narcotic Control Bureau has filed the instant Appeal under Section 378 of the Code of Criminal Procedure read with Section 36-B of the NDPS Act against the judgment passed by learned Special Judge, Mandi, H.P. in Sessions Trial No. 20 of 2012 whereby the respondents have been acquitted from the charge framed under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short NDPS Act). 2. The learned Special Judge has acquitted all the Accused on the grounds; firstly, that the independent witness had clearly stated that he had been taken to the office of NCB by his friend Harish where his signature had been obtained by the NCB team. Secondly, the statements of the respondents recorded under Section 67 of the Act, while they were in custody of NCB team have no evidentiary value and reliance in this regards has been placed on the Division Bench judgment Navin Sood vs. Narcotic Central Bureau, (2010) 1 Latest HLJ 449. Thirdly, the non-association of independent witness of locality and the manner in which such witnesses came to be so-called ''associated'' was also held to be a circumstance which made the entire case of the NCB highly doubtful. Lastly, the learned Special Judge after placing reliance on the judgment of this Court in State vs. Parkash Chand, (2010) 1 HLR 598, discarded the report of the Chemical Examiner on the ground that the same was not in accordance with law laid down by this Court in Parkash Chand''s case (supra). 3. At the outset, it may be observed that the judgment rendered in Parkash Chand''s case (supra) does not hold good as has been overruled by the Full Bench of this Court in State vs. Mehboob Khan, (2014) Cr.L.J 705. 4. It is argued by learned counsel for the respondents that even if the grounds on which the respondents have been acquitted by the Court below are ignored even then the respondents are entitled to be acquitted in view of the search being in violation of the provisions of Section 42 of the Act. We have heard learned counsel for the parties and have gone through the records of the case. 5. Section 42 of the NDPS Act, reads as under: "42. We have heard learned counsel for the parties and have gone through the records of the case. 5. Section 42 of the NDPS Act, reads as under: "42. Power of entry, search, seizure and arrest without warrant or authorization - (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 or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons 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 VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) enter into 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 VA 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 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. 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. 6. The factual position as pleaded in the complaint is that on 28.1.2012, secret information was received by the I.O. Shri Arvind Sharma, who was posted as Intelligence Officer in NCB, Sub Zone, Mandi. As per the secret information, some persons stated to be involved in smuggling of charas, were carrying charas in the vehicle bearing registration No. HP-23-0087. This information was reduced in writing and conveyed to the Superintendent, NCB. Upon which, he directed the I.O. to constitute a team to nab the culprits. 7. Now, in case the information regarding drug trafficking Ext.PW-4/A, which is alleged to have been sent to the Superintendent, NCB is perused, the same reads as under: "To The Superintendent, Narcotics Control Bureau, Chandigarh. Sub:- Information regarding Drug Trafficking. Sir, It is submitted that a specific secret information is received that on 28.01.2012 at around 1700 hrs some persons who are involved in drug trafficking, will be carrying a consignment of Charas in a HP regd. No. Car bearing No. 0087 (Dark Green colour Maruti Van) towards Ner Chowk, Mandi (HP). If approved, Naka/Surveillance may be conducted at Bhangrotu Pul, near Ner Chowk, Mandi, (HP) to intercept the vehicle and to apprehend the Drug Trafficker. Yours faithfully, Sd/- Dated : 28.01.2012 Time :- 1500 hrs. Place :- Mandi. (Arvind Sharma) Intelligence Officer NCB, Mandi (HP). Shri Arvind Sharma, I.O. Please constitute a team of IOs and Sepoys under my supervision to place surveillance/Naka in the aforesaid place to apprehend the traffickers and act under provisions of NDPS Act. Outcome of the case be intimated to me on disposal. Sd/- Ganesh Balooni Supdt./NCB 28.01.12." 8. It would be evidently clear from the perusal of Ext.PW-4/A that there is no whisper much less satisfaction recorded therein that the search warrant or authorization cannot be obtained without affording opportunity for concealment of evidence or facility for the escape of an offender. Outcome of the case be intimated to me on disposal. Sd/- Ganesh Balooni Supdt./NCB 28.01.12." 8. It would be evidently clear from the perusal of Ext.PW-4/A that there is no whisper much less satisfaction recorded therein that the search warrant or authorization cannot be obtained without affording opportunity for concealment of evidence or facility for the escape of an offender. He Intelligence Officer has only recorded the information in writing about the contraband being transported but has not mentioned that if delay is caused, there are chances of escape of the offender, therefore, the same cannot be said to be the compliance of proviso to sub-section (1) of Section 42 of NDPS Act and the same also cannot be considered to be recording of reasons under sub-section (2) of Section 42 as the noting does not mention reason for not obtaining warrant or authorization. 9. The compliance of Section 42 assumes importance as the recovery admittedly has been effected after the sunset at 18:50 i.e. 6:50 p.m. on 28.1.2012 as is evident from the recovery cum seizure memo Ex.PW-4/E. 10. What would be the consequences of search was a subject matter of a decision rendered by three judges Bench of Hon''ble Supreme Court in Chhunna alias Mehtab vs. State of Madhya Pradesh, (2002) 9 SCC 363, wherein it was held that noncompliance of proviso to sub section (1) of Section 42 of the Act vitiates the trial. In that case the Hon''ble Supreme Court observed that neither any search warrant or authorization was obtained nor were the grounds for possible plea that if opportunity for obtaining search warrant or authorization is accorded the evidence will escape. The Hon''ble Supreme Court held that there was clear non-compliance with the provisions of the proviso to sub section (1) of Section 42 of the NDPS Act. It would be apt to refer to the relevant observations as contained in paras 1 & 2 of the judgment, which reads thus: "1. The case of the prosecution was that at 3.00 a.m. a police party saw opium being prepared inside a room and they entered the premises and apprehended the Accused who was stated to be making opium and mixing it with chocolate. 2. The case of the prosecution was that at 3.00 a.m. a police party saw opium being prepared inside a room and they entered the premises and apprehended the Accused who was stated to be making opium and mixing it with chocolate. 2. It is not in dispute that the entry in search of the premises in question took place between sunset and sunrise at 3.00 a.m. This being the position, the proviso to Section 42 of the Narcotic Drugs and Psychotropic Substances Act was applicable and it is admitted that before the entry for effecting search of the building neither any search warrant or authorization was obtained nor were the grounds for possible plea that if opportunity for obtaining search warrant or authorization is accorded the evidence will escape indicated. In other words, there has been a noncompliance with the provisions of the proviso to Section 42 and therefore, the trial stood vitiated." 11. While dealing with a case where the search had been conducted after sunset, a learned Single Judge of this Court in Ramesh Chand alias Nikka vs. State of H.P., (2007) 3 Shim.L.C. 139 after relying upon the Constitution Bench decision of the Hon''ble Supreme Court in State of Punjab vs. Baldev Singh, (1999) 6 SCC 172 wherein the compliance of proviso to sub-section (1) of Section 42 of the Act was held to be mandatory, observed as under: "8. It has come in the evidence that the search was conducted at 5.45 p.m. Reference in this behalf may be made to the search and seizure memo Ex.PW-11/C. the date of search is 15.12.2003. In mid December, sun sets around 5.25 p.m. In any case, the sunset takes place in mid December, before 5.30 p.m. That means the search was conducted after sunset. However, no reasons for the belief that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of the offender were recorded by PW-12 Sarbjeet Singh to meet the mandatory requirement of proviso to sub-section (1) of Section 42 of the Act. Thus, there is violation of mandatory provision of proviso to sub-section (1) of Section 42 of the Act. Thus, there is violation of mandatory provision of proviso to sub-section (1) of Section 42 of the Act. Not only that no reasons for such belief were recorded but even while leading evidence the prosecution made no effort to show that in fact there was possibility of concealment of evidence or facility for the escape of the offender if time was spent on obtaining search warrant or authorization for carrying out the search after sunset. A Constitution Bench of the Hon''ble Supreme Court in State of Punjab vs. Baldev Singh, (1999) 6 SCC, 172, has held that compliance of proviso to subsection (1) of Section 42 of the Act is mandatory and non-compliance renders the entire prosecution case suspect and causes prejudice to the Accused. In State of W.B. and others vs. Babu Chakraborthy, (2004) 12 SCC, 201, where search was conducted after sunset and before sunrise without complying with the requirement of proviso to sub-section (1) of Section 42 of the Act, regarding the recording of reasons for the belief that obtaining of search warrant or authorization would afford an opportunity for the concealment of the evidence or facility for the escape of the offender, it was held that proviso to sub-section (1) of Section 42 of the Act is mandatory and its non-compliance causes prejudice to the Accused. 9. In view of the above discussed evidence of the prosecution coupled with the fact that the proviso to sub-section (1) of Section 42 of the Act had not been complied with, it is held that the sole testimony of PW-12 Sarbjeet Singh is not sufficient to hold that opium, in question, was recovered in the course of the search of the house of the appellant. Consequently, the Appeal is accepted. The judgment of the trial Court convicting and sentencing the appellant for an offence under Section 18 (c) of the Act is set-aside. The appellant, being in jail, is ordered to be released immediately in case his detention is not required in connection with any other case." 12. We may refer to the judgment of the Hon''ble Supreme Court in State of Rajasthan vs. Jagraj Singh alias Hansa, (2016) 11 SCC 687 wherein like in the instant case the search was of a private vehicle and it was held that compliance of Section 42 was mandatory in such a case, where Section 43 was not attracted. We may refer to the judgment of the Hon''ble Supreme Court in State of Rajasthan vs. Jagraj Singh alias Hansa, (2016) 11 SCC 687 wherein like in the instant case the search was of a private vehicle and it was held that compliance of Section 42 was mandatory in such a case, where Section 43 was not attracted. It was further held that Section 42 was found in two parts - First, that there is presence of difference between secret information recorded by SHO and information sent to CO, his immediate superior. Section 42 (2) requires, that where an officer takes down information in writing under Section 42 (1), he shall send a copy thereof to his superior. Whereas, under Section 42 (1) proviso it is clearly provided that in the event search has to be made between sunset and sunrise, the warrant would be necessary unless the officer has reasons to believe that a search warrant or authorization cannot be obtained without affording the opportunity for escape of the offender, which grounds of his belief have to be recorded. Since there was non-compliance of both the provisions i.e. Section 42 (1) proviso and Section 42(2), the Hon''ble Supreme Court affirmed the acquittal order passed by the High Court. 13. Once it is established on record that the appellant has not complied with the provisions of Section 42 (1) as also Section 42 (2) of the Act, therefore, the respondents are entitled to be acquitted on this ground alone and we need not to go into the other questions raised in the present Appeal including the ground on which the respondents have been acquitted by learned Special Judge. 14. For the forging reasons, the Appeal is sans merit and is accordingly dismissed. Pending application(s), if any also stands dismissed. Bail bonds are discharged.