Jayanti @ SonM Bai v. W^i

Shri Prafull Bharat, counsel for the appellant. Mr. Gary Mukhopadhyay, Panel Lawyer, for the State. Sinale Bench: Hon'ble Goutam Bhaduri J. ORAL ORDER (20.12.2013) 1

1. This is an appeal against the Judgment/order dated 10th Juipe, 1997 passed by the Special Judge, Bastar, Jagdalpur (C.G)|in Sessions Trial No.57/1996 whereby the appellant has been convicted under section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act") and sentenced|to undergo R.l. for 1 year and to pay a fine of Rs.1000/-, in default|of payment offine, to further undergo R.l., for six months.

2. The prosecution case in brief is that the Station House Officer (P.W.5) on receipt of information that one lady was sitting |at Farasgaon Passengers Waiting Hall with contraband Ganja recordled such information vide Ex.P-5 and after giving notice to the accus'ed 1 vide Ex.P-1 searched the bag kept with her. On such search bei|ng made, one Kilogram Ganja was recovered from her possession, out| pf which, 20 grams of Ganja was collected as sample for examinatibn and was sealed and the remaining quantity of Ganja was seized. Subsequently the said sample was sent to the FSL, Raipur, •^sffk^^ "^^ /y^ • ""^" ^"'1., %:,.,.^a^\ •;m&^-i;i I. j, 1 2- Y.JK where the report was received vide Ex.P-9, according which, sample article was found to be Ganja. Thereafter, the charge shpet was filed u/s 20(b)(i) of the NDPS Act. i

3. During the course of trial, the prosecution has examined 5 witnesses and the learned court below after hearing the parties and evaluating the evidence on record convicted and sentenced ?:he accused as aforesaid. hfence, this appeal.

4. Learned counsel for the appellant submits that there is gross non-compliance of mandatory provisionsof section 42 which provides certain requirements to be complied with by the Investigating Officer. He refers to the documents marked as Ex.P-6 and submits that according to the statute, before making search, the 1.0., was unjjer legal obligation to record the reasons/grounds of his beliefthat in case search is deferred for want of authorization or permission, there vj/as possibility of escape of the offender and concealment of evidence.|He further refers to the statements of the independent seizure witnesfees P.W.1 Smt. Devki Bai, P.W.3 Sukhranjan, P.W.4 Pappu Patel and submits that these witnesses have not supported the case prosecution. He also submits that even the person namely Teji|am who was examined as P.W.2 has deposed that he was called to police station where he weighed the contraband and therefore !the case of prosecution is not supported by any witness. His further submission is that the police officer while sending the information \jride Ex.P-6 should have recorded the reasons of his belief since he \A/as available in the police station itself at the relevant time and therefore non-compliance of mandate of Section .42(1) would lead to gross violation of the statute which is not permissible under the Act. :"\ Y, 3

5. Per contra, the • learned State Counsel supports judgmenVorder passed by the learned Court below and submits that the order is wetl merited which do not call for any interference.

6. I have heard learned counsel for the parties at length and perused the documents.

7. Section 42 of the NDPS Act 1985 provides that if the officer has reason to believe that 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 sunriseafter recording the grounds of his belief.

8. In this case, P.W.5 K.K. Nag, who is 1.0., has stated that on

31.08.1996, he had received the secret information to the effect that one passenger was standing in the pgssengers waiting room| at Farasgaon and was possessing contraband cannabis which vyas recorded in the Rosnamcha Sanha vide Ex.P-5. Subsequently, | T-^ has stated that the said information was given to Higher Officials| Ex. P-6 and thereafter the police party along-with other staff went to the waiting room of Farasgaon .and interrogated the accused and served her with notice Ex.P-9 vide Ex.P-1. After having obtained consent, the bag which was in her possession was searched and Ganja was found therein. Thereafter, it was weighed, To/ Panchnama was prepared vide Ex.P-2 and it was found to be 1 kg., Ganja. Out of that, 20 grams of Ganja was collected ancl was seized and the re^t of the quantity was seized by seizure memo vide Ex.P-3. Subseque^itly, he has stated that thereafter they came back to the police station ^nd FIR was registered vide Ex.P-7 and the samples were sent to IfSL :'"^^, ^ ^; j vide Ex. P-8. The FSL by its report dated 18.09.1996 confirmed the contraband to be that of Ganja. Ex.P-6 is said to becompliance of Section 42 of NDPS Act.

9. Ex.P.6 purports that the 1.0 (P.W.5) had received the information that a lady is sitting in the passenger waiting hall with Ganja. The said information was sent to the SDOP, Kondagaon.) A perusal of Ex.P-6 does not disclose that before proceeding to search, he had recorded the reasons/grounds of his belief that in case the same is deferred for want of permission, the accused could have fled from the scene or concealed the evidence. Hon'ble the Supre(ne Court in State of Orissa Vs. Laxman Jena (2009) 16 SCC 322 has held as under: S5. There is no dispute that Section 42 has two pa^t's. The first part deals with the recording of the information and second with the conduct of the search. Again first part of first dealing with the recording of section has two limbs, information received and .the other relating to the belief of ^e \he \he \he officer based upon his personal knowledge. Any informatipn recorded in terms of sub-section (1) of Section 42 is required\ to to the superior officer of the person recording ^he be sent information as mandated by sub-section (2) of Section f2. Second part of Section 42(1) deals with the power of the offieer regarding entry, search, seizure and arrest without warrant\or authorisation. The authorised officer has the power to enter ii^to and search any building, conveyance or place and in case resistance, break open any door and remove any obstacle \to such entry. He has power to seize the drug or substance and materials used in the manufacture thereof and any other artible \all and any animal or conveyance which he has reason to believe\ |to be liable to confiscation under the Act and to detain and sean ^, if he thinks proper, and arrest any person whom he has reas'pn to believe to have committed any offence punishable under Chapter IV relating to such drug or substance. \ ^

6. However, in exercising a power under the second part ofSection 42(1) the designated officer is undera legal obligation to comply with the mandate of the proviso to sub-section (1) providing for recording of grounds of his belief to make the search in terms of the powers conferred upon hlm. In the instant case the High Court has found on facts that before making the search, the officer concerned had not recorded reasons or grounds for his belief to make the search in terms of the proviso to Section 42(1) oftheAct. 7- The mandate oflaw, as incorporated under the Act, required to be strictly complied with in view of the grave consequences which are likely to be followed on proof of illicit article under the Act The legislature had enacted and provided certain safeguards in various provisions of Sections 42 and 50, in all cases, which must be proved to have been strictly followed. The harsh provisions ofthe Act cast a duty upon the prosecution fo strictly follow the procedure and compliance with the saf^guards. A Constitution Bench of this the Act including ' Court in State ofPunjab v. Baldev Singh (1999) 6 SCC 172 has held: (SCC pp. 183-84, para 4)

4. Prior to the passing of the NDPS Act, 19ft5 control over narcotic drugs was being generally exerci^ed through certain Central enactments thoughsome of States also had enacted certain statutes with a view to d'^al with illicit traffic in drugs. The Opium Act, 1857 related mainly to preventing illicit cultivation of poppy, cultivation of poppy and manufacture ofopium. The Opi^im Act, 1878 supplemented the Opium Act, 1857 and m^de regulati.ng possession, opium also an offence. The Dangerous Drugs Act, 1930, import, export, sale, etc. transportation, was enacted with a view to suppress traffic in contrabsipd and abuse of dangerous drugs, particularly derived from Indian hemp and coca leaf, etc. The Act prescribpd opium, maximum punishment of imprisonment for three years wfth or without fine, insofar as the. first offence is concerned ^pd for the second or the subsequent offence the punishment could go up to fouryears' Rl. These Acts, however, failed\ to \ control illicit drug traffic and drug abuse on the other ha'nd exhibited an upward trend. New drugs of addiction kno^n as psychotropic substances also appeared on the sc^ne '":1-»... posing serious problems. absence of comprehensive law to enable effective control It was noticed that there was an over psychotropic substances in the manner envisaged\by the International Convention on Psychotropic Substances,

1971. The need for the enactment ofsome comprehensive legislation on narcotic drugs and psychotropic substances was, therefore, felt Parliament with a view to meet a social challenge of great dimensions, enacted the NDPS Act, 1985 to consolldate and amend existing provisions relating to control over drug abuse, etc. and to provide for enhanced penalties particularly for trafficking and variqus other offences. The NDPS Act, 1985 provides string^nt penalties for various offences. Enhanced penalties are prescribed for the second and subsequent offences. The NDPS Act, 1985 was amended in 1988 w.e.f 9-5-1989. Minimum punishment of 10 years' imprisonment which may extend up to 20 years and a minimum fine of Rs 1 which may extend up to Rs 2 lakhs have been provided\for most of the offences under the NDPS Act, 1985. For the second and subsequent offences, minimum punishment of imprisohment is 15 years which may extend to 30 years while minimumfine is Rs 1.5 lakhs which may extend to \Rs 3 lakhs. Sectipn 31 (a) ofthe Act, which was inserted by AmendmentAct of 1988, has even provided that for cert^in offences, after previous convictions, death penalty shall imposed, wHhout leaving any discretion in the court award imprisonment for life in appropriate cases. Anot^er amendment of considerable importance introduced by ^e Amendment Act, 1988 was that all the offences under ^e Act were madetriable by a Special Court. Section 36 of ^e Act proyides for constitution 6f Special Courts manned by a person who is a Sessions Judge or an Additional Sessiqns Judge. Appeals from the orders of the Special Courts //e> to the High Court. Section 37 makes all the offences un^er the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail. Howe^er, despite the stringent provisions of the NDPS Act, 1985\as amended in 1988 drug business is booming; addicts are rapidly rising; crime with its role in narcotics is gallopmg is ever-growing. While and drug trafficking network interpreting various provisions of the statute, the objecf\ of .. -7- the legislation has to be kept in view but at the same time 1 the interpretation has to be reasonable and fair."

10. Further, in Karnail Singh Vs. State ofHaryana reported in (2009) 8 SCC 539 Hon'ble the Supreme Court while laying down the principles about the compliance of section 42(1) & 42(2) held thus in para 35: