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IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.137 of 1992 Chhoti @ Rama Chandra @ Ramesh Chandra Patri …. Appellant Mr. A.K. Beura, Amicus Curiae -versus- State of Odisha …. Respondent Mr. C.K. Pradhan, AGA COROM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No 11. 1. This matter is taken up through Hybrid Mode.
Decision
ORDER 20.01.2025 2. Heard learned counsel for the parties. 3. The present Appeal has been filed inter alia challenging order of conviction and sentence passed by the learned Additional Sessions Judge, Puri in S.T. Case No.16/185 of 1989 dated 04.02.1992. Vide the said judgment, appellant was convicted and sentenced to undergo R.I. for (1) one year and pay a fine of Rs.10,000/- in default R.I. for 3 (three) months for the offence under Section 27 of the NDPS Act. 4. It is contended that the present appeal along with 3 (three) others faced the Trial before the learned 1st Additional Sessions Judge, Puri in S.T. // 2 // Case No.16/185 of 1989 for the offence U/s.21/27 of the N.D.P.S., Act. 4.1. Learned Trial Court without proper appreciation of the stand taken by the present Appellant and the plea raised regarding non- compliance of Section 42 of the NDPS Act though acquitted the appellant for the offence U/s.21 of the NDPS Act, but held him guilty for the offence U/s.27 of the NDPS Act. While holding the appellant guilty of the charges U/s.27 of the NDPS Act, the appellant was convicted to undergo R.I. for 1 year and to pay a fine of Rs.10,000/- in default R.I. for 3 (three) months vide the impugned judgment dtd.04.02.1992. 4.2. Learned counsel for the appellant contended that nothing was seized from the possession of the appellant and he was also in custody for the period from 11.04.1989 to 26.09.1989 on the face of the judgment passed to undergo R.I. for one year and to pay a fine of Rs.10,000/-. It is contended that since statutory provisions contained under Section 42 of the NDPS Act was never followed, the order of conviction and sentence passed against the appellant is not sustainable in the eye of law. It is accordingly contended that the impugned judgment needs interference of this Court. 4.3. Learned counsel for the appellant with regard to non-compliance of Sec.42 of the NDPS Act relied Page 2 of 6 // 3 // on a decision of the Hon’ble Apex Court in the case of Karnail Singh Vrs. State of Haryana, reported in (2009) 8 SCC 539. Hon’ble Apex Court in Para-2 and 35 of the judgment has held as follows:- “2. In view of the conflicting opinions regarding the scope and applicability of Section 42 of the Act in the matter of conducting search, seizure and arrest without warrant or authorisation, these appeals were placed before the Constitution Bench to resolve the issue. xxxx xxxx xxxxx 35. In conclusion, what is to be noticed is that Abdul Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC (Cri) 1217] hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. In other words, the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. the compliance with superior thereof officer, the (c) to Page 3 of 6 // 4 // in writing the (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.” 5. Learned Addl. Govt. Advocate on the other hand while supporting the impugned judgment contended that taking into account the materials placed and the non-compliance of the provisions contained U/s.42 of the NDPS Act, present appellant was acquitted along with other accused persons for the offences U/s.21 of the NDPS Act. 5.1. However, basing on the materials placed by the prosecution, all the accused persons including the present appellant were convicted and sentenced to undergo R.I. for one year and pay a fine of Rs.10,000/- and in default R.I. for 3 (three) months for the offence U/s.27 of the NDPS Act. 5.2. It is contended that since the learned Trial Court after due consideration of the materials Page 4 of 6 // 5 // placed before it, while acquitting the appellant for the offence U/s.21 of the Act, convicted him for the offences U/s.27 of the Act, it needs no interference. 6. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that the present appellant along with 3 (three) other accused persons faced the trial before the learned 1st Addl. Sessions Judge, Puri for the offences U/s.21/27 of the NDPS Act. As found, no materials having been found, all the accused persons including the appellant were acquitted for the offences U/s.21 of the NDPS Act. This Court after going through the materials placed and the decision of the Hon’ble Apex Court relied on by the learned counsel for the appellant in the case of Karnail Singh as cited (supra), is of the view that the appellant has been rightly convicted for the offence U/s.27 of the NDPS Act. However, considering the period of custody undergone by the appellant during trial for the period from 11.04.1989 to 26.09.1989, this Court while interfering with the sentence, reduce the sentence of 1 year to the period already undergone. Appellant also stands discharged from the bail bond. 7. The appeal accordingly stands disposed of. While appreciating the submission of the learned Amicus Curiae, this Court fix his fees at Page 5 of 6 // 6 // Rs.10,000/-. Registry is directed to pay the amount on proper identification. Judge (Biraja Prasanna Satapathy) Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Jan-2025 18:34:21 Page 6 of 6