By TIOL News Service

NEW DELHI, SEPT 05, 2015: THE issue before the bench - Whether as per Sec 42, IOs have a duty to write down information on basis of which raid or search is planned and forward the same to Superior Officer, preceding search and seizure. YES is the answer.

Facts of the case

The assessee was arrested near ISBT, Sarai Kale Khan, and was found to be in possession of four bags containing a total of 61.49 kg ganja. The prosecution case was that, while HC Som Pal Singh (PW.1), Ct. Gurvinder Singh (PW.3), SI Shivraj Bisht (PW.4) and Ct. Prakash (PW.6) were on patrolling duty on 6/8/2009, were informed at about 5:30 PM by a Secret Informer that one person was sitting near ISBT, Sarai Kale Khan, with contraband and if raid was conducted immediately, he could be apprehended. The aforesaid information was communicated by SI Shivraj Bisht (PW.4) to the ACP, Operation Cell, where after direction was given to undertake the raid. His request to four public persons to become witnesses in the search and seizure proceedings was refused. Assessee was found sitting on two red coloured bags. He was holding the strings of other two bags in his hands. He was apprehended and was told about the information which the Police party had about him. He was made aware of his legal rights to be search in the presence of a Gazetted Officers or a Magistrate by way of a written notice u/s 50, but the assessee refused to exercise such option. The refusal was taken down in the hand writing of assessee, he was also offered to search the members of the raiding team before he was searched, but that to be was refused. The four bags contained, in all, 61.49 kg ganja. SI Shivraj Bisht (PW.4) drew out samples of ganja from each of the four bags and gave serial numbers to the same. They were packed in separate cloth pullandas and were also sealed affixing the seal of SSB. FSL form was also prepared on the spot, on which also the same seal was affixed. The seal, after its use was given to HC Som Pal Singh (PW.1). SI Shivraj Bisht (PW.4), prepared a rukka and sent the same to PS Hazarat Nizammudin through Ct. Gurvinder Singh (PW.3). He was also entrusted with the sealed pullandas, FSL form and seizure memo for being given to the SHO. Charge-sheet was filed against the assessee on 29/10/2009, where upon cognizance was taken u/s 20(b) (ii) (c). Prosecution had relied upon 10 witnesses who were examined on its behalf to bring home the charges against assessee.

Held that,

++ the FSL report clearly states, after giving the description of the parcels that the seals on the four parcels marked as S1 to S4 were intact and tallied with the specimen seals as per the forwarding letter (FSL form). Thus one of the arguments on behalf of the assessee viz. the FSL form was not sent along with the sealed samples to the FSL is incorrect. It can safely be presumed that PW.9 inadvertently missed in stating about the FSL forms also being sent to the FSL along with sealed samples. In Abdul Rashid Ibrahim Mansuri vs. State of Gujarat: (2000) 2 SCC 513, a three judge bench of SC held that compliance with the Section 42 is mandatory and failure to take down the information in writing and forthwith send the report to the immediate Official Superior would cause prejudice to the accused. However in Sajan Abraham vs. State of Kerala: (2001) 6 SCC 692, which was also decided by a three Judge bench, it was held that Section 42 was not mandatory and substantial compliance was sufficient. Admittedly, the present case hinges on the secret information having been provided by a spy to PW.4. There is no averment in the testimony of PW.4 regarding such secret information having been reduced in writing and sent to the Superior Officer. There is no DD entry regarding such secret information having been received by PW.4. As has been decided in Karnail Singh vs. State of Haryana, the mandatory requirement is of writing down the information received and sending a copy thereof to the Superior Officer, preceding the search and seizure by the officer, which could only be relaxed in special circumstances involving emergent situations, when compliance of such requirement could be postponed by a reasonable period, i.e. after the search and seizure. Total non compliance with requirement of Section 42 has been held to be impermissible. It has been reiterated a number of times by SC that the consequences of non compliance of Section 42 of NDPS Act are grave. The stringent provisions of the NDPS Act cast a duty upon the prosecution to strictly follow the procedure and comply with all its safe guards;

++ the SC in Sukhdev Singh vs. State of Haryana, 2007-TIOL-104-SC-NDPS; has observed that the provisions of Section 42 are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the Investigating Officer. He is obliged to furnish the information to his superior officer forthwith. That obviously means without any delay. But there could be cases where the investigating officer instantaneously, for special reasons to be explained in writing, is not able to reduce the information in the writing and send the said information to his superior officers, but could do it later and preferably prior to the recovery. Compliance of Section 42 of NDPS Act is mandatory and there cannot be an escape from it strict compliance". Though there has been delay of one and half months in sending the sample to FSL, which is in violation of the standing instructions of the NCB, nonetheless there is nothing on record to suggest or to come to the opinion that while the sealed samples were kept in the malkhana, they were tampered with. From the deposition of the witnesses, it becomes very clear that the samples were sent to the FSL, Rohini in proper and in untampered condition. It is normally expected, that there should not be any delay in dispatching the sample to the laboratory to avoid any suspicion, but in every instance of delay in such dispatch, the prosecution case cannot be thrown overboard. The last limb of the argument on behalf of the appellant is that there are only police witnesses and no serious effort was made for joining public witnesses. It has been submitted that ISBT is a crowded area and there could have been many willing persons to become a witness to the search, seizure and later arrest of the appellant. In this context, reference is made to testimony given by PW.3, wherein it has been admitted that no public witness was asked to join such proceedings. Similarly PW.4 has also admitted that no public person was requested to witness the search. However such statement was qualified by saying that no one was available at the time of search. In Ajmer Singh vs. State of Haryana:(2010) 3 SCC 746, the Supreme Court has held that joining of public persons is not an inviolable rule and there could not be any acquittal merely because no independent person was produced; nonetheless the requirement of independent persons joining the investigation and deposing before the Trial Court was not undermined wholly;

++ this Court finds that in most of the NDPS cases investigated by the police, there is a routine statement that persons who are asked to join the investigations declined to become witnesses. In the case in hand, this Court is not convinced that any sincere effort was made by the raiding party to associate public witnesses. The names and addresses of such persons have also not been noted. From the deposition of the witnesses also, it is hardly established that anybody was asked to join the proceedings. This failure on the part of the police, by itself, may not have been sufficient for discarding the prosecution case all together but from the conspectus of the totality of circumstances namely: (i) Complete non compliance of Section 42 of the NDPS Act; (ii) Arrest having been affected at a busy public place; (iii) The appellant being in possession of four bags containing 61.49 kg of ganja, which is a huge quantity and which cannot be easily transported; (iv) No statement with regard to the origin and source of such contraband and from which place was such contraband being carried by the appellant and to which destination, and (v) Delay of one and half months in dispatching the seized sample to the FSL, the non-joining of public persons has assumed great significance. Thus, to tie the strings together, there has not been even a delayed compliance of the provisions of Section 42 of NDPS Act, which is a mandatory safeguard engrafted in this statute and despite the recovery of contraband being of huge quantity and that also from a public place, no serious effort has been made by the police for joining the investigation. Based on the above findings, it is difficult to uphold the conviction. For the reasons afore-recorded, the appeal is allowed and the appellant is directed to be released forthwith from custody, if not wanted in any other case. Trial Court record to be returned. Two copies of the judgment be sent to the Superintendent of the concerned jail for record as well as compliance. In view of the appeal having been allowed, this bail application has become infructuous.

(See 2015-TIOL-2033-HC-DEL-NDPS)