1. This appeal has been filed against the judgment dated 28.05.1997 passed by the Designated Court under the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' in short) in Sessions Case No. 64/1996 whereby the respondent was acquitted of the charges under Sections 21 and 23 r/w Section 28 of the NDPS Act solely on the ground of non-compliance of the mandatory provisions of Section 42 of the NDPS Act at the time of apprehension and search of the respondent and his baggage at Indira Gandhi International Airport, Delhi on 28/29-2-1996 when he had gone there to fly to London.
2. The facts leading to the prosecution of the respondent herein as noticed by the learned trial court in para Nos. 1 to 7 of the impugned judgment are as under:
...on the intervening night of 28/29.2.96 in the International Departure Hall of I.G.I. Airport New Delhi while proceeding on BA Flight No. 142 and on his search for having been found to be in illegal and unlawful possession of 1704 gms. diacetyl morphine/heroin and thereby prima facie guilty of an offence punishable Under section 21 of the ndps act as also his attempt to export the said contraband out of the country and thereby punishable for an offence Under Section 28 read with 23 of the said act.
2. The case of the prosecution is that after the accused had been cleared by the customs he was intercepted by PW-1 and the accused was carrying three hand bags but had no checked in luggage. Two panch witnesses PW-2 Viresh and PW- 4 Shri Ram Avtar were asked to join the proceedings and the accused on being questioning was noticed not to understand the English language as he was a French national and one Sanjay, a custom officer brought PW-3 Shri Gopi Nath, the interpreter who could understand both the English and the French language.
3. In the presence of the two panch witnesses the provisions of Section 50 of the NDPS Act were explained by the interpreter PW-3 to the accused about his option of having his search of the person and the bags conducted before a Gazetted Officer or a Magistrate vide Ex. PW 1/A to which vide endorsement Ex. PW 1/B he stated that he has no objection if his search is conducted by any custom officer. As per the version of the prosecution the contents of the requirement of the notice Under section 50 of the ndps act had been explained to the accused through PW-3.
4. That on the search of the yellowish brown printed zipper bag Ex. P-5 which was opened with the key Ex. P-13 produced by the accused, it revealed a blue coloured bucket with a white lining Ex. P-6 which on opening contained six plastic containers of a body lotion which when cut opened contained a polythene packing each except one container which contained two polythene packets one big and one small. In all seven poly packets were recovered from the six plastic containers of which six contained a brownish powder and one packet contained whitish powder which when tested with the field testing kit gave positive indication for heroin. The total weight of the heroin recovered from the 7 packets weighed 1704 gms.
5. Two representative samples of 5 gm. each were drawn from each of the 7 poly packets; in all 14 samples were drawn which were subsequently placed in a polythene pouch each and kept in a brown paper envelope and sealed with the seal No.08 of the Air Customs over a paper slip bearing the sign. of the accused, the two panch witnesses and PW-1. The remaining contraband was also sealed by putting it back in the six plastic containers and then again in the blue coloured bucket Ex. P-6 as also the wrappers and stitched with a cloth and sealed in the similar fashion over a paper slip bearing the sign. of the aforestated persons. The personal effects of the accused i.e. the air ticket Ex. P-1, Boarding Card Ex. P-2 and the three receipts of hotel Roxy Ex. P-3/1-3 were also seized and sealed in a similar fashion.
6. The panchnama Ex.PW 1/C was prepared on the spot.
7. The case property including one set of sample was deposited with the SDO Arrival vide detention receipt Ex. PW 1/D to Ex. PW 1/F. The second set of sample which were to be sent to the CRCL for analysis was deposited by PW-1 with PW-5 Shri Lovdev, the Supdt. The statement of the accused was recorded in his handwriting in French through PW-3, the interpreter in the presence of PW-5 and is Ex. PW 3/A and the English translation of the same is Ex. PW 3/B. The samples were sent for analysis through PW-5 and the report of the CRCL is Ex. PW 6/A testing the drawn samples positive as heroin.
3. On the aforesaid allegations the respondent was charged and tried by the learned trial Court for the commission of offences punishable under Sections 21 and 23 r/w Section 28 of the NDPS Act. The prosecution had examined six witnesses in all to prove the aforesaid allegations levelled against the respondent. The respondent had at the time of recording of his statement under Section 313 Cr.P.C. denied the entire prosecution case and pleaded false implication. He had pleaded that this was a false and fabricated case foisted upon him because of his having fought with custom officers and slapping one of them.
4. Before the trial Court, acquittal of the accused was sought on the grounds of non-compliance of the provisions of Sections 42, 50 and 57 of the NDPS Act. The learned trial Judge found on considering the prosecution evidence that there was no non-compliance of the provisions of Section 50 and 57 of the NDPS Act. However, accepting the submissions of learned Counsel for accused regarding non-compliance of the provisions of Section 42 of NDPS Act, learned trial Court after concluding that since the compliance of section 42 of the ndps act was mandatory and the Search Officer having not complied with the same passed an order of the acquittal of the accused on this ground alone.
5. The prosecution felt aggrieved by the acquittal of the accused and approached this Court with a prayer for leave to appeal against the impugned judgment of the trial Court whereby the respondent was acquitted. Leave to appeal was granted and the appeal was admitted for hearing.
6. There was no appearance in the matter from both the sides when the appeal was taken up for hearing. Since the trial Court record was available, this Court decided to dispose of the appeal on merits instead of dismissing it for non-prosecution since from the non-appearance of the counsel for the parties who were earlier appearing it appeared to this Court that none of them was interested in advancing arguments. At least Custom Department's counsel should have appeared to pursue this appeal in which reversal of acquittal of the accused for the offence under the NDPS Act was being sought.
7. This being an appeal against acquittal by the trial Court an Appellate Court before interfering with the judgment of the trial Court acquitting the accused has to keep in mind certain guidelines which have been laid down by the Apex Court in various judgments. I may refer to two of them only. In 'State of Punjab v. Ajaib Singh and Ors.' , it was observed by the Hon'ble Supreme Court that:
11. This being an appeal against acquittal we have with the assistance of counsel for the parties gone through the evidence on record with a view to find whether the view favorable to the accused taken by the High Court is based on the evidence on record and is reasonable. It is well settled that in an appeal against acquittal, the appellate court is entitled to re-appreciate the evidence on record, but having done so it will not interfere with the order of acquittal unless it finds the view of the court acquitting the accused to be unreasonable or perverse. If the view recorded by the court acquitting the accused is a possible, reasonable view of the evidence on record, the order of acquittal ought not to be reversed.
In its earlier decision reported as , 'Narinder Sing and Anr. v. State of Punjab', Hon'ble Supreme Court had observed:
12. The High Court while considering the appeal against acquittal is not exercising any extra ordinary jurisdiction. Its power to consider and decide the appeal against the judgment of acquittal is same as against the judgment of conviction. However, there are certain guidelines. One is that if there are two views on evidence which are reasonably possible one supporting acquittal and the other indicating conviction. High Court in an appeal against judgment of acquittal should not interfere merely because it feels that it would as a trial Court have taken a different view. High Court will certainly interfere if it finds that the judgment of acquittal is manifestly erroneous and that the trial Court has acted with material irregularity or its appreciation of evidence lacks coherence or it has made assumptions which are unwarranted or its evaluation of evidence is such as to shock the sense of justice and which has led to miscarriage of justice or its reasoning is unintelligible or defies logic or its conclusions are against the weight of the evidence.
8. Now, keeping in mind these views of the Hon'ble supreme Court it is to be seen if the impugned judgment in the present case can be said to be perverse. As noticed already, the respondent was tried on the allegations that on the night of 28/29-2-1996 he was intercepted in the International Departure Hall of IGI Airport at New Delhi while he was proceeding to board a plane (BA Flight No. 142) for flying to London and during the search of his baggage 1704 gms. of heroin was recovered. The learned trial Court came to the conclusion that there was non-compliance of the provisions of Section 42 of the NDPS Act since that part of the Airport where the accused was intercepted and his baggage was searched was not a 'public place' and so the provisions of section 43 were not attracted as was the submission made before it on behalf of the Custom Department. For coming to this conclusion the learned Trial Court relied upon the statement of the Search Officer PW 1 Sh. Ravi Chandran, who was the ACP (Preventive) and posted at the Departure Hall of the IGI Airport, New Delhi on the night when the respondent was apprehended, in his cross-examination, to the effect that the area where the accused was intercepted was not open to public persons without prior permission of the superior custom officers. Another witness, PW 2 Sh. Viresh was a Safai Karamchari posted at IGI Airport and was on duty at the Departure Hall on the night of 29.02.1996. In cross-examination he had also claimed that the Customs Counter where the accused was intercepted was intercepted was in the Departure Hall but one could visit that place only with a permit/pass. Referring to these answers of PW 1 and PW 2 given in their cross- examination on behalf of the accused the learned trial Judge in para 21 of the impugned judgment observed as under:
21. It is thus clear from the aforestated testimony of PW-1 and PW-2 that the custom counter of the departure hall where the accused was searched was a place which was not accessible to the public at large and entry was restricted and was permissible only by a permit or a pass or was for the departing passengers And then trial Court proceeded ahead to acquit the accused since the search officer had not complied with the mandatory requirements of section 42 of the ndps act.
9. section 42 of the ndps act reads as under:
(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 person, 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 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 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 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 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.
From a reading of this Section it is clear that the mandate of law is that the Search Officer should reduce the information received by him through a secret informer or the information which he may have from his personal knowledge about the commission of an offence punishable under the NDPS Act in writing before proceeding to conduct the search and detain any person who is suspected to have committed such an offence. This was held to be so by a three Judge Bench of the Supreme Court also in one of its judgments which is reported as , 'Sajan Abraham v. State of Kerala'. This is what was observed by the Supreme Court in para 6 of its judgment:
It is true under Section 42(1), the officer concerned, when he has reason to believe from his personal knowledge or information received from any person, he is obliged to take it down in writing if such information constitutes an offence punishable under Chapter IV of the Act and send it forthwith to his immediate superior
10. In the present case, admittedly, the Search Officer, PW-1, did not reduce into writing the information which he had about the commission of an offence under the NDPS Act by the respondent herein nor did he give any written intimation to his immediate superior about his suspicion that the respondent could be in possession of heroin etc. Before the trial Court as well as in the grounds of appeal challenging the acquittal of the respondent it was contended on behalf of the prosecution that the provisions of section 42 were not attracted in the present case since the search of the baggage and the person of the respondent was conducted at a 'public place'. The learned trial Court had, as noticed already, come to the conclusion that since the place where search was conducted was a restricted place not open to public at large Section 42 was attracted. In my view, there is no perversity in this conclusion of the learned trial Court since there was a decision of a Single Judge Bench of this Court itself, which is reported as 1997 Cri.L.J. 2741, 'Richard Thomas Wrigley v. Customs and Anr.' wherein it had been held that the customs counter at the Airport where a passenger has to go after immigration check is not a public place since that place is not open to the members of general public. In that case, the learned Single Judge of this Court while acquitting the accused of the charges under NDPS Act because of the failure of the Search Officer to comply with the mandatory requirements under section 42 of the ndps act before searching the baggage of the accused near the Customs Counter at the Airport had observed as under:
The basic difference between Section 42 and Section 43 is that while the provisions of section 42 of the Act would be attracted if it involves search of vehicles, places, premises. Section 43 applies to search and seizure at a public place. In the present case, the question would be whether Luggage Hold Area of the Customs Authorities could be described as a public place. The Luggage Hold Area is an area set apart in the departure hall after the Airlines Check-in counter and the immigration counter. When the passengers check in their luggage to be loaded into the luggage hold of the aircraft and collect their boarding cards and they thereafter pass through the Immigration Check counter and reach the customs counter. There they are checked up by the Customs Authorities and the luggage hold area is behind the customs counter which area is not open to public and the entry is restricted. In that sense that area cannot be described as a public place because the entry thereto is restricted. The luggage after check in is brought to this area before being loaded into the aircraft, in this case luggage was kept in the luggage hold area and it was brought for search and the luggage was duly opened and searched wherefrom the incriminating material was recovered. The question arises if the baggage was searched in the customs area by taking baggage out from the luggage hold area. Even the customs counters which are beyond the Immigration check counter where again members of general public cannot enter without due permissions. Therefore, that area would be covered by the provisions of section 42 of the Act. The person concerned is required to take down information in writing and forthwith send a copy thereof to his immediate superior and admittedly this was not complied with in the present case. The provisions of section 42 of the Act are mandatory.
11. In view of this decision of this Court itself the learned trial Court cannot be said to have erred in any way in concluding that the search of the baggage of the respondent not having been conducted at a public place the Search Officer was obliged to comply with the mandatory requirement of section 42 of the ndps act and that having not been done the accused was entitled to be acquitted. Thus, there being no perversity in the reasoning given by the learned trial Judge for acquitting the respondent this appeal is bound to fail and is accordingly dismissed.