Cases referred :

1. State Of Punjab v. Balbir Singh., 1994(3) S.C.C. 299.

2. Krishna Kanwar (Smt) Alias Thakuraeen v. State Of Rajasthan., 2004(2) Bom.C.R.(Cri.) (S.C.)285 : A.I.R. 2004 S.C.W. 1203.

3. Gangaram Rama Gundkar v. State of Maharashtra, 2002(Cri. Supp.) Bom.C.R. (N.B.)230 : 2002(2) B.Cri.C. 167 : 2002 All.M.R.(Cri.) 1356.

4. Beckodan Abdul Rahiman v. State Of Kerala., 2003 Bom.C.R.(Cri.) (S.C.)185 : 2002(2) S.C.C. 1810.

Advocates appeared :

N.G. Kale, for appellants.

A.V. Gorhe, A.P.P., for respondent/State.

BRAHME P.S., J.: - The appellants who were tried before learned Special Judge, Latur in Special Case No. 15 of 2000 for offence under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as NDPS Act, 1985), have preferred this appeal challenging the judgment and order of conviction passed on 19-12-2001 in which the appellants were sentenced to suffer rigorous imprisonment of 2 and half years and to pay fine of Rs. 10,000/- each, in default of fine to further suffer rigorous imprisonment for six months.

2. The prosecution case in brief was that Shri, Abdul Rahaman Asmahmadminya (P.W. 4) who was then Asstt. Superintendent of Police at Latur, while at his office on 25-8-2000 at about 5.45 p.m. received information that the appellant Vinayak Gaikwad and his associates were preparing packets of Ganja for sale in the house of one Tukammabai r/o. Kushthadham area. He immediately rushed to Gandhi Chowk Police Station within the jurisdiction of which that Kushthadham area was, and directed Police Inspector Shri Shinde to take necessary steps to carry out raid, in pursuance of the information received by him. He also directed Police Inspector Shinde to take note of the said information in Police Station diary so that the raid could be effected without warrant. He also had a talk on telephone with Superintendent of Police Latur about the information. Then after panchas arrived in the Police Station, the Asstt. Superintendent of Police Abdul Rahaman (P.W. 4) accompanied by the staff proceeded to Kushthadham area and when they reached near the house of Tukammabai, they saw one lady sitting in front of the house of the Court yard and on seeing police personnel, she ran away and then he along with other police staff entered the house and to his surprise found the appellants inside the house being engaged in preparing the packets of Ganja. They also found polythene bags as well gunny bags containing Ganja and other material. In the presence of panchas the search was taken and Ganja that was found inside the house where the appellants were found sitting came to be seized after taking sample of Ganja from each packet weighing 50 grams each, by making necessary panchanama to that effect. Then Abdul Rahaman along with accused persons returned to the Police Station and lodged complaint against appellants vide (Exh. 28). The property seized including the contraband article namely Ganja, samples were given to police authority. The offence was registered and investigation was carried out by one Shri. Rathod and Kinarwad (P.W. 5). During the course of investigation the Investigating Officer Shri, Kinarwad sent the samples to the Chemical Analyzer through constable Nagpurne along with forwarding letter vide copy (Exh. 31). After receipt of the report of Chemical Analyzer (Exh. 32) indicating that Ganja was detected in all the samples, charge-sheet came to be filed against all the appellants to stand trial for offence under section 20(b)(i) of N.D.P.S. Act, 1985 before the Special Judge.

3. The appellants pleaded not guilt to the charge (Exh. 12) and claimed to be tried. To substantiate the allegations, the prosecution examined witnesses Abdul Rahaman (P.W. 4), P.S.I. Ghume (P.W. 1) who had accompanied Abdul Rahaman (P.W. 4) on raid, both panchas P.W. 2 and P.W. 3 in whose presence raid was carried out and the contraband articles were seized from the possession of the appellants. But unfortunately both the pancha witnesses declined to support the prosecution and the Investigating Officer. The defence of the appellants was that of denial. It was contended by the appellants that some of the appellants were rickshaw drivers and that complainant Abdul Rahaman, Asstt. Superintendent of Police had anger against them, some times in the past when they were called in the Police Station. They were falsely implicated in this case. The learned Special Judge accepting the evidence of witness Abdul Rahaman being corroborated by PSI Ghume found the appellants guilty for having found in possession of contraband articles them for offence with which they were charged. Hence, this appeal challenging the conviction and sentence.

4. I have heard Shri N.G. Kale, learned Counsel for the appellants/original accused and Shri A.V. Gorhe, learned A.P.P. for the respondents/state. I have also gone through the evidence and judgment of the trial Court with the assistance of the learned Counsel for the appellants and the learned A.P.P. for the State.

5. Before we consider the submissions made by the learned Counsel for appellants, we take note of the fact that admittedly raid was carried out on the basis of the information received by Asstt. Superintendent of Police Shri Abdul Rahaman (P.W. 4) who conveyed the said information to P.S.I. Shinde who was attached to Gandhi Chowk Police Station. He also claimed that he directed P.S.I. Shinde to take note of the information in the station diary. He further claimed in his evidence that he conveyed the information, which he received on telephone to Superintendent of Police Latur, who was naturally immediate superior officer of (P.W. 4). But unfortunate part of the prosecution case is that except bare words of witness Abdul Rahaman, there is no tangible evidence to substantiate his claim that the information so received by him was conveyed immediately to his superior and P.S.I. Shinde took entry in station diary about the information as directed by him. This say so, because the prosecution did not examine P.S.I. Shinde as witness in this case though it appears that he was a person in-charge of that Police Station. It goes without saying that had the prosecution examined P.S.I. Shinde as witness in this case, his evidence would have substantiated and fortified the claim of witness Abdul Rahaman that the information that was conveyed to P.S.I. Shinde, was either reduced into writing or a note thereof was taken in the station diary. That is very material and significant and as could be seen from the provision laid down under section 42(2) of the N.D.P.S. Act of 1985 mandatory one. Section 42(2) of the N.D.P.S. Act, 1985, reads as under :-

"Section 42(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 forthwith send a copy thereof to his immediate official superior."

Under section 42(1) empowered officer if has a prior information given by any person, that should necessarily be taken down in writing.

6. The learned Counsel for the appellants submitted that independent witnesses who were called as panchas for the raid and search, have not supported the prosecution. Therefore, in the absence of any independent evidence, the trial Court should not have accepted the evidence of Police Officers namely witness Abdul Rahaman and P.S.I. Ghume (P.W. 1). The prosecution also did not make any effort to trace and arrest that lady namely Tukkamabai who was present when the raiding party reached the house belonging to her, but flayed away on seeing police party. It is submitted that when contraband articles were found in her house, she ought to have been made accused in this case along with appellants but absence of that, brings out infirmity in the prosecution against the appellants. It is also submitted that Tahsildar was also present at the time when raid was carried out. But he is not examined as a witness. In this background, it is submitted that in the absence in independent evidence no reliance could be placed on the version of Police Officers. The learned Counsel also submitted that there was no compliance of mandatory provisions contained in section 42(2) and also section 55 of the N.D.P.S. Act, 1985. Plain reading of section 55 of the N.D.P.S. Act, 1985 shows that

"An Officer-in-charge of a Police Station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that Police Station and which may be delivered to him, and shall allow any officer who may accompany such articles to the Police Station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the Police Station."

It is submitted that in the instant case, prosecution has not adduced any evidence to show that contraband articles which came to be seized, after they were handed over to the Police Officer-in-charge of the Police Station of the property had affixed his seal as required under section 55 of the N.D.P.S. Act, 1985. He, therefore, urged that the trial Court has committed an error and as such the appeal be allowed and the appellants be acquitted by setting aside the order of conviction and sentence.

7. As against that Shri A.V. Gorhe, learned A.P.P. for the respondent/State, supported the judgment of conviction and sentence passed by the Special Judge. He pointed out that there is no rule of law that when independent witnesses particularly panch witnesses have not supported the prosecution, the evidence of Police Officer alone has to be rejected. He submitted that there is no breach of mandatory provisions under the N.D.P.S. Act, 1985 and as such conviction and sentence passed by the trial Court was justified and maintainable and as such there is no reason to interfere it. He urged that the appeal be dismissed.

8. As regards the search of the house and seizure of contraband articles from the house, there is evidence of P.S.I. Ghume (P.W. 1) who had accompanied with Asstt. Superintendent of Police Abdul Rahaman who claimed to have received information as to commission of offence under the N.D.P.S. Act, 1985 by the appellants by keeping in their possession contraband articles namely Ganja, there is no gain saying that independent witnesses Kanthappa Kore (P.W. 2) and Deelip Bhise (P.W. 3) who acted as panchas for search a and seizure of contraband article have declined to support the prosecution. But then it is very difficult to accept the contention of learned Counsel for the appellants to discord the testimony of P.S.I. Ghume and Abdul Rahaman, Asstt. Superintendent of Police (P.W. 4), when their evidence is consistent on material particulars. But then the prosecution is not absolved of his duty to establish that there was necessary compliance of provisions under sections 42 and 55 of the N.D.P.S. Act, 1985. In the instant case, though the information about the commission of the offence was received by a very High Ranking of Police Officer Abdul Rahaman, Asstt. Superintendent of Police, strictly speaking, no compliance has been made of the mandatory provisions.

9. As provided under sections 42(2) of the N.D.P.S. Act, 1985 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 forthwith send a copy thereof to his immediate official superior. In this connection it is pertinent to note that as per section 42(1) of the N.D.P.S. Act, 1985, the officer designated or authorized to make entry, search, seizure and arrest without warrant, or authorisation, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, is empowered between sunrise and sunset, to enter into and search any sub building, conveyance or place and as per proviso 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. In the instant case, as rightly pointed out by the learned Counsel for the appellants, there are recitals in the panchanama, the raiding party after having reached to the house where raid is to be effected there was already sunset and it is as much clear that the house was raided and search was taken, much time after the sunset. If that was so then, Abdul Rahaman, the Asstt. Superintendent of Police (P.W. 4) was empowered by the proviso under section 42 of the N.D.P.S. Act, 1985 to search the house without warrant. But in that case it was mandatory for him to reduce into writing the complaint or information that is received by him and he has to record the reason of his belief.

10. It is crystal clear from the evidence of witness Abdul Rahaman (P.W. 4) that he himself did not reduce into writing the information received by him. It follows that he has not recorded the reasons of his belief. What he claimed in his evidence is that when he reached to Gandhi Chowk Police Station, he directed P.S.I. Shinde, to take entry in station diary about the information so received by him in respect of commission of offence by the appellants. We could have accepted this statement of Abdul Rahaman (P.W. 4), had there been any tangible evidence to that effect on record. It is significant to note that the prosecution did not take pains even to examine P.S.I. Shinde as witness, much less to bring on record the station diary entry that was said to have been made at the instance of Abdul Rahaman (P.W. 4). So the position that boils down is that neither the information received was reduced into writing by witness Abdul Rahaman (P.W. 4), nor the grounds of his reasonable belief as to the commission of the offence pursuant to the information received have been recorded. If that is so, then there is clear cut breach of mandatory provisions contained in section 42(1) and (2) of the N.D.P.S. Act, 1985.

11. It is well settled that the provisions of section 42 of the N.D.P.S. Act, are mandatory and contravention of the same would affect the prosecution case and vitiate the trial, sub-section (2) of the section 42 of the N.D.P.S. Act, 1985, gives a mandate to authorised officer to forthwith send a copy of information or the grounds of his belief to his immediate official superior. The provision of sub-section (2) of section 42 of the N.D.P.S. Act, 1985, which casts a duty upon authorised officer to send a copy of the report or the grounds of his belief to his immediate superior officer, is mandatorily in nature and non-compliance of which is fatal to the prosecution case. It has been held by the Apex Court in the case of (State Of Punjab v. Balbir Singh.)1, 1994(3) Supreme Court Cases 299 that "under section 42(2) such empowered officer, who takes down any information in writing or records the ground under proviso to section 42(1) should forthwith send a copy thereof to his immediate officer superior. If there is total non-compliance of this provision, the same affects the prosecution case. To that extent it is mandatory, sub-section (1) of section 42, therefore, given a mandate to the authorised officer, before proceeding to make search, to take down the information in writing or record his reasons and if these mandatory provisions are not complied with then the trial stands vitiated. This safeguard has been provided taking into contemplated under the Act and with a view that the innocent persons are not unduly harassed and they may not be falsely implicated later on by the Investigating Officer and, therefore, the provision has been made that it is only the authorised officer who can proceed with the search and seizure and that too only after taking down information in writing or recording his reasons of belief.

12. The learned Counsel for the appellants has rightly placed reliance on recent decision of Apex Court in a case of (Smt. Krishna Kanwar (Smt) Alias Thakuraeen v. State Of Rajasthan.)2, 2004(2) Bom.C.R.(Cri.) (S.C.)285 : A.I.R. 2004 S.C.W. 1203, wherein it is held that section 42 enables certain officers duly empowered in this behalf to enter into and search any building, conveyance or enclosed place for the purpose mentioned therein without any warrant or authorization. Under section 42(1) the method to be adopted and the procedure to be followed have been laid down. Section 42 comprises of two components. One relates to the basis of information i.e. (i) from personal knowledge, (ii) information given by person and taken down in writing. The second is that the information must relate to commission of offence punishable under Chapter IV and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist section 42 has no application. Sub-section (2) mandates that where an officer taken down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Therefore, sub-section (2) only comes into operation where the officer concerned does the enumerated acts, in case any offence under Chapter IV has been committed or documents etc. are concealed in any building, conveyance or enclosed place. Therefore, the commission of the Act or concealment of document etc. must be in any building, conveyance or enclosed place.

13. It is to be noted that on facts in that case, the constable who carried the information to Superintendent of Police and Addl. Superintendent of Police has deposed to that effect and Addl. Superintendent was examined and further witnesses have also spoken about the presence of Superintendent of Police at the spot of search. In view of that on facts, it was found that merely the despatch number was not disclosed about the conveyance of information would not corrode credibility of the evidence of the witnesses as to forwarding the information. But the fact remains that what has been laid down by the Apex Court in this case is that the compliance of the provisions under section 42 of reducing into writing the information received and conveying the same to the officer superior immediately with grounds of belief by the Police Officer who has received the information was mandatory and non-compliance of the same was very fatal to the trial.

14. This Court in (Gangaram Rama Gundkar & another v. State of Maharashtra)3, 2002(Cri. Supp.) Bom.C.R. (N.B.)230 : 2002(2) B.Cri.C. 167 : 2002 All.M.R.(Cri.) 1356, referring to the decision of the Apex Court has held that compliance of provision under section 42(1) and (2) of the N.D.P.S. Act, 1985, is mandatory and, therefore, non-compliance is fatal to the prosecution. It is specifically observed that as per the procedure taking down information in writing and sending copy thereof to the superior officer was mandatory. In that case, it was found that the information received was sent by wireless message and it was held that sending wireless message is not compliance of the provision. The case at hand stands on better footing in the sense there is cursory reference in the evidence of witness Abdul Rahaman (P.W. 4) that he has informed his superior i.e. Superintendent of Police on phone about the information received. If that was so then some evidence ought to have been brought on record to substantiate his say. That apart as stated earlier though Abdul Rahaman (P.W. 4) directed P.S.I. Shinde to take down entry in the station diary about the information received, no evidence to that effect has been adduced by the prosecution, nor P.S.I. Shinde has been examined.

15. The Apex Court in the case of (Beckodan Abdul Rahiman v. State Of Kerala.)4, 2003 Bom.C.R.(Cri.) (S.C.)185 : 2002(2) S.C.C. 1810 : 2002 All.M.R. (Cri.) 1591 (S.C.), has observed that keeping in the mind the grave consequences which are likely to follow on proof of possession of illicit articles under the N.D.P.S. Act, 1985, namely, the shifting of the onus to the accused and severe punishment to which he becomes liable, the legislature has enacted and provided certain safeguards in various provisions of the Act including sections 42 and 50 of the Act. The harsh provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and compliance of the safeguards. In that case, the violation of the mandatory provisions of the writ large. After recording the information, the witness is not shown to have complied with the mandate of sub-section (2) of section 42 of the Act. In view of the violation of the mandatory provisions of the Act, the accused was found entitled to an acquittal.

16. Apart from non-compliance of mandatory provisions of section 42 of the N.D.P.S. Act, 1985, in the instant case, what we have noticed is that there is no compliance of mandatory provisions of section 55 of the Act which provides further safeguard requiring it mandatory to Police Officer to affix his seal after the property has been received. Section 55 clearly goes to show that all samples taken from the seized material under this Act have necessarily to be sealed with the seal of an officer-in-charge, of a Police Station. This is a mandate of law and the words used are shall leaving no discretion in the hands of the concerned. Considering the severe nature of punishment provided by the Act, every provision of this Act has to be strictly construed and any non-compliance will automatically render the prosecution a suspect. In the case before hand, the evidence of P.S.I. Ghume as well as Abdul Rahaman, Asstt. Superintendent of Police (P.W. 4), it is the only evidence i.e. on which the prosecution would rest his claim for conviction, lacking in substance relating to the compliance of provisions under section 55 of the N.D.P.S. Act, 1985. In the first place, none of the witness has stated even a word about having made compliance as required under section 55 of the N.D.P.S. Act, 1985. In my opinion, absolutely it was necessary to examine the Police Officer or the officer-in-charge of the Police Station to whom the property after it was seized was handed over to ascertain that as required mandatorily the officer-in-charge of the Police Station has put his own seal so as to provide additional safeguard and also to avoid tampering of the seal that was put on the samples when the property was seized at the time of the raid. It goes without saying that non-compliance of the mandatory provisions under section 55 of the N.D.P.S. Act, 1985, casts serious doubt about the prosecution case. A bare reading of section 55 makes it clear that it is the designated superior officer who is to take charge of the articles seized, keep them in safe custody, and may allow any person, who accompanies such seized articles to the Police Station, to affix his seal on the articles or samples thereof, but there necessarily has to be the seal of the officer-incharge of the Police Station on such parcels.

17. So, having regard to the legal provisions contained in section 42(1) and (2) and section 55 of the N.D.P.S. Act, 1985, it is crystal clear that in the instant case, there has been frugal violation of the mandatory provisions which has resulted into great prejudice to the accused and therefore, the search as well as the trial is vitiated. The prosecution has, therefore, utterly failed to establish the case against the accused strictly in the eye of law. The trial Court has, therefore, committed error in convicting the appellants for the offences with which they were charged, The order of conviction and sentence cannot sustain and will have to be set aside by allowing the appeal.

18. Hence, the order.

1) Appeal is allowed.

2) The order of conviction and sentence against the appellants passed by the Special Judge, Latur in Special Case No. 15/2000, by his judgment dated 19-12-2001 is quashed and set-aside.

3) The appellants are acquitted and they are directed to be released forth with, if they are not required in any other case.

4) The amount of fine which has been deposited on 24-12-2001 by the appellants shall be refunded to them.

5) The rest of the order of disposal of the property is maintained.

Appeal allowed.