The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK CRLA No. 580 Of 2016 From the judgment and order dated 06.09.2016 passed by the 3rd Additional Sessions Judge, Cuttack in 2(a) C.C. Case No. 01 of 2014. ---------------------------- Parash Sing ……… Appellant -Versus- State of Orissa ……… Respondent For Appellant: - Mr. Debashis Mitra For Respondent: - Mr. Priyabrata Tripathy Addl. Standing Counsel ---------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO --------------------------------------------------------------------------------------------------- Date of Hearing and judgment: 23.02.2023 --------------------------------------------------------------------------------------------------- S.K. SAHOO, J. The appellant Parash Singh faced trial in the Court of learned 3rd Additional Sessions Judge, Cuttack in 2(a) C.C. Case No. 01 of 2014 for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’) on the accusation that on 19.01.2014 at about 7.50 a.m., he was found in unlawful possession and // 2 // transportation of 75 kgs. of Ganja (cannabis) at Khannagar, N.H.5 under Madhupatna police station, Cuttack for the purpose of illegal sale in contravention of the provision of the N.D.P.S. Act. The learned trial Court vide impugned judgment and order dated 06.09.2016 found the appellant guilty of the offence charged and sentenced him to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs.1,00,000/- (rupees one lakh), in default of payment of fine, to undergo rigorous imprisonment for one year. 2. The prosecution case, in short, is that on 19.01.2014 early in the morning at about 6.00 a.m., while P.W.5 Amarendra Kumar Jena, Inspector of Excise, E.I. & E.B., Unit-II, Cuttack along with other staff were performing patrolling and checking duty on Kathajodi river bridge on N.H.5 near Khannagar Chhak, he got a reliable information from P.W.4 Jagadish Chandra Samal, S.I. of Excise regarding transportation of huge quantity of ganja by the appellant of Pathurighat, Kolkota by a Hyundai Accent car bearing Registration No. WB-02Q-8433 and at about 6.20 a.m. they found the said car was coming towards Cuttack City and at the end of the bridge, they detained the car and found the appellant driving the vehicle and smell of ganja was Page 2 of 26 // 3 // coming through the half opened glass of the driver side door. On being asked, the appellant gave his identity and P.W.5 intimated
Legal Reasoning
the fact to his higher authority i.e. Sri Murnalakanti Das, Deputy Commissioner of Excise over phone, who directed him to search as per law. Then two local witnesses were called to remain present at the time of search. By issuing notice under section 50 of the N.D.P.S. Act, option was given to the appellant whether he wanted to be searched by an Executive Magistrate or a Gazetted Officer, but the appellant opted to be searched by P.W.5. After observing all the legal formalities of search, the car was searched and P.W.5 recovered three plastic jerry bags containing Ganja (cannabis) from the car which were marked as ‘A’, ‘B’ and ‘C’. P.W.5 tested taking samples from each jerry bag and from his own experience, he came to the conclusion that the plastic jerry bags were containing Ganja. On weighment, it was found to be 75 kgs. in total. One original D.L., one Nokia mobile handset and one R.C. book of the car were recovered from the pocket of the appellant. P.W.5 seized the articles after sealing the same affixing paper slips and putting the impression of his brass seal on the paper slips, prepared the seizure list in presence of the witnesses, served a copy of the seizure list to the appellant, handed over his brass seal in zima of P.W.1 by executing Page 3 of 26 // 4 // zimanama, prepared a rough sketch map at the spot, recorded the statements of the witnesses, arrested the appellant, produced him as well as the seized articles in the Court of S.D.J.M., Sadar, Cuttack and made a prayer to draw sample from the seized Ganja, sent the samples marked as ‘A1’, ‘B1’ and ‘C1’ collected from each of the three plastic jerry bags for chemical examination and received the chemical examination report which indicated that each sample was found to be ‘Ganja’ and on completion of investigation, P.W.5 submitted final prosecution report against the appellant for the offence under section 20(b)(ii)(C) of the N.D.P.S. Act. 3. The appellant pleaded not guilty to the charge framed against him and claimed to be tried. 4. The defence plea of the appellants was of complete denial. 5. During the course of trial, in order to prove its case, the prosecution examined five witnesses. P.W.1 Ram Rout and P.W.2 Ranjan Pradhan, who are independent witnesses, did not support the prosecution case and they were declared hostile by the prosecution. P.W.3 Kishore Chandra Rout who was working as Excise Constable attached to E.I. & E.B. Unit-II, Cuttack was one Page 4 of 26 // 5 // of the members of the patrolling party. He has proved the option letter issued to the appellant as per Ext.12/1 as well as the written consent of the appellant as per Ext.5/2. He has also proved the seizure list Ext.1/2 in respect of seizure of three bags containing ganja as well as he is a witness to the zimanama in respect of brass seal kept in zima of P.W.1 and the paper seal marked as Ext.2/2. He is also a witness to the inventory list marked as Ext.3, sketch map marked as Ext.11/1, the disclosure of ground of arrest marked as Ext.7/2 and his own statement marked as Ext.13. P.W. 4 Jagdish Chandra Samal, the Sub-Inspector of Excise attached to E.I. & E.B. Unit-II, Cuttack, was one of the members of the patrolling party stated that on getting reliable message over telephone that one white colour Hyundai Accent car bearing Regd. No.WB-02-Q-8433 loaded with ganja was coming from Bhubaneswar side and just crossed Rasulgarh, gave written information to P.W.5, which was marked as Ext.14. He has proved his statement marked as Ext.15 P.W.5 Amarendra Kumar Jena, who was the Inspector of Excise attached to E.I. & E.B. Unit-II, Cuttack is the Investigating Officer of the Case. Page 5 of 26 // 6 // The prosecution exhibited twenty five documents. Ext.1/2 is the entire proceeding of the seizure reduced to writing by P.W.5, Ext.2 and Ext.3/2 are the inventory lists, Ext.2/2 is the paper seal, Ext.3 is the statement of the appellant, Ext.4 is the compliance letter under section 50 of the N.D.P.S. Act, Ext.5 is the used brass seal, Ext.5/2 is the written consent of the appellant, Ext.6/2 is the zimanama, Ext.7 is the disclosure statement, Ext.7/2 is the disclosure of ground of arrest, Ext.8 is the statement of P.W.1, Ext.10/1 is the memo of arrest, Ext.11/1 is the sketch map, Ext.12/1 is the option letter issued to the appellant, Ext.13 is the statement of P.W.3 before police, Ext.14 is the written information to P.W.5, Ext.15 is the statement of P.W.4 before P.W.5, Exts. 16 to 18 are the C.E. reports, Ext.19 is the letter issued to Asst. Director (Tax), Ext.20 is the reply receipt, Ext.21 is the driving licence of the appellant, Ext.22 is the R.C. book of the vehicle, Ext.23 is the office copy of notice issued to the owner of the offending vehicle namely Punjab Singh, Ext.24 is the letter of P.W.5 seeking for antecedent of the appellant and Ext.25 is the antecedent report of the appellant. The defence proved the copy of seizure list supplied to the appellant as police paper marked as Ext.A. Page 6 of 26 // 7 // 6. The learned trial Court after assessing the oral as well as documentary evidence on record, has been pleased to hold that the evidence of P.Ws.3, 4 and 5 is clear, cogent and trustworthy and the evidence of the independent witnesses P.Ws.1 and 2 lend some support to the prosecution case and thereby held that the compliance of section 42 of the N.D.P.S. Act is not strictly required in the present case. The learned trial Court further held that the seizure of contraband ganja in question from the possession of the appellant is clearly established by the prosecution beyond all reasonable doubts. It was further held that there is no such material available on record to establish that the sample packets which were sealed by the Court were tampered with by any means by the I.O. before its submission for chemical examination and Court Malkhana. The contention raised that the detecting officer is also the Investigating Officer of the case and thereby, the appellant was prejudiced was turned down by the learned trial Court. Accordingly, the learned trial Court found the appellant guilty under section 20(b)(ii)(C) of the N.D.P.S. Act. 7. Mr. Debashis Mitra, learned counsel appearing for the appellant contended that the sentence of twelve years which was imposed on the appellant is illegal as the learned trial Court has Page 7 of 26 // 8 // not taken into account the provision under section 32-B of the N.D.P.S. Act. He further submitted that the learned trial Court has erroneously held in the impugned judgment that though compliance under section 42 of the N.D.P.S. Act is not strictly required in the case but the same has been complied with. It is contended that even though P.W.5, the Inspector of Excise who conducted search and seizure stated that on receipt of the reliable information from P.W.4, he recorded the same in the register of information but the said register has not been proved during trial. It is further submitted that though P.W.5 stated that he intimated the information to his higher authority Sri Muranakanti Das, Deputy Commissioner of Excise over phone, who directed him to search as per the provision laid down in the N.D.P.S. Act and Rules and further stated that on the next day, he intimated about the fact of search and seizure of the case to the Deputy Commissioner of Excise in writing, but the said writing has not been proved during trial nor the Deputy Commissioner of Excise has been examined to corroborate the evidence of P.W.5 that he received any telephonic message from P.W.5 prior to search and gave direction to P.W.5 to proceed with the search or received any written report regarding search and seizure from P.W.5. Learned counsel further submitted that Page 8 of 26 // 9 // the total non-compliance of the requirement of sub-section (1) & (2) of section 42 is impermissible and therefore, it is a fit case where the benefit of doubt should be extended in favour of the appellant. Mr. Priyabrata Tripathy, learned Addl. Standing Counsel on the other hand, placed the evidence of P.W.4 & P.W.5 and also the operative part of the impugned judgment where the learned trial Court has discussed about the compliance of section 42 of the N.D.P.S. Act and submitted that there is no illegality or perversity in the findings of the learned trial Court. 8. Adverting to the contentions raised by the learned counsel for the respective parties, let me first deal with the contention regarding the sentence imposed by the learned trial Court. (i) Whether imposition of sentence of twelve years was justified in view of section 32-B of the N.D.P.S. Act: On hearing on the question of sentence, the learned trial Court has observed as follows: “Convict, Parash Singh is produced from the jail custody. Heard the convict, his learned defence counsel so also the learned Spl. P.P. appearing for the State on the question of sentence. The learned counsel for the convict submitted that the convict is a poor and old person aged about 55 years. He further submitted that the convict Page 9 of 26 // 10 // has already repented and felt the rigour of law in the meantime by facing his trial and remaining inside the jail custody for a considerable period for which he may be leniently dealt with imposing sentence on him. On the other hand, the learned Spl. Public Prosecutor contended that the convict is a habituated in dealing with ganja in the locality so also in the State of Kolkata, he is mentally sound and he has committed the alleged heinous crime for which he is not required to be dealt with leniently in imposing the sentence and prayed that he may be punished with deterrent punishment and also fine for the interest of the society. It is the settled principle of law that, “punishment is the measurement of public abhorrence towards a criminal act which adversely affects not only the victim, but the society at large. A Court responds to the cry of the society for justice by imposing appropriate sentence. Therefore, the quantum of sentenced should commensurate with the gravity of the offence”. (Relied on a decision held by the Hon’ble Apex Court in the matter of Dhananjay Chhatarjee Vrs. State of West Bengal reported in (1994) (2) SCC 220 & Ravji Vrs. State of Rajasthan reported in 1996 (2) SCC 175. It is also settled principle of law and held by the Hon’ble Apex Court in the matter of Shyam Narain Vrs. The State of N.C.T. of Delhi reported in 2013(2) Crimes 342 (S.C) that, “primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to be nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime Page 10 of 26 // 11 // the individuals committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so the society which in that ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. Thus it is, on certain occasions opportunities may be granted to the convict for reforming himself but is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the party of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim. to on concentrate While awarding sentence, the Court is aggravating required circumstances and mitigating circumstances. In the case at hand, aggravating circumstances is that the convict was found in the public place in possession of 75 kgs. of ganja (cannabis) which is obviously for the purpose of sale as it involves mitigating commercial circumstances against him is that he is a poor and old person. quantity. The Therefore, taking into account the age of convict, the circumstances of the case, the quantity of the contraband articles recovered and seized from his possession, it appears to my considered view that imposition of more than the minimum sentence and less than the maximum sentence prescribed for the offence would meet the ends of justice in the instant case. Page 11 of 26 // 12 // Hence, the convict is sentenced to undergo Rigorous Imprisonment for 12 (twelve) years and to pay a fine of Rs.1,00,000/- (Rupees one lakh) only, in default, to suffer further Rigorous Imprisonment for 01 (one) year. The period of detention of the convict in custody, be set off under section 428 of the Code of Criminal Procedure as against the sentence imposed on him.” In case of Sambhulal Tibrewal -Vrs.- State of Odisha reported in 2017 (Supp.-II) Orissa Law Reviews 358, it is held as follows: inter alia, the N.D.P.S. Act “Section 20(b)(ii)(C) of prescribes, in that whoever, contravention of any provision of the Act or any rule or order made or condition of license granted thereunder possesses cannabis which involves commercial quantity, he shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees. Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. Section 32-B of the N.D.P.S. Act deals with factors to be taken into account for imposing higher than the minimum punishment which reads as follows:- a minimum "32-B. Where of imprisonment or amount of fine is prescribed for any offence committed under this Act, the Court may, in addition to such factors as it may deem fit, take into account the following factors for term Page 12 of 26 // 13 // the imposing a punishment higher minimum term of imprisonment or amount of fine, namely:- than (a) the use or threat of use of violence or arms by the offender; (b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence; (c) the fact that the minors are affected by the offence or the commission of an offence; and the minors are used for (d) the fact that the offence is committed in an educational institution or social service facility or in their immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities; (e) the fact that the offender belongs to organized international or any other criminal group which is involved in the commission of the offence; and (f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence." On a bare reading of this section, it is apparent that ordinarily minimum term of imprisonment or fine has to be imposed where it has been so prescribed but if the case comes under any of the clauses i.e. (a), (b), (c), (d), (e) or (f) of section 32-B or any other factors as it may deem fit then the Court may award more punishment than the minimum.” On going through the reasons assigned by the learned trial Court in the impugned judgment, it is clear that Page 13 of 26 // 14 // none of reasons falls within the category of the clauses (a), (b), (c), (d), (e) or (f). The reasons assigned were not sufficient enough to award more punishment than the minimum. It is clear that while imposing a substantive sentence of R.I. for twelve years, the learned trial Court has not kept in view the provision under section 32-B of the N.D.P.S. Act which was inserted in the N.D.P.S. Act w.e.f. 02.10.2001. The occurrence in this case took place on 19.01.2014 and therefore, at the time of imposing sentence, it was the duty of the learned trial Court to take into account the provision under section 32-B of the N.D.P.S. Act. It is the well settled principle of law that substantive provision unless specifically provided for otherwise intended by the Parliament should be held to have a prospective operation. One of the facets of rule of law is also that all statutes should be presumed to have a prospective operation only. Therefore, when the amendment has come in the N.D.P.S. Act and same has not been taken into consideration by the learned trial Court, the imposition of punishment higher than the minimum term of imprisonment is not legally sustainable. (ii) Whether compliance of section 42 of N.D.P.S. Act was necessary and if yes, whether the same is complied with: Page 14 of 26 // 15 //
Decision
The main challenge to the impugned judgment is on the basis of non-compliance of section 42 of the N.D.P.S. Act. In case of State of Punjab -Vrs.- Balbir Singh reported in (1994) 7 Orissa Criminal Reports (SC) 283, the Hon'ble Supreme Court has been pleased to hold that the object of N.D.P.S. Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore, these provisions make it obligatory that such of those officers mentioned therein, on receiving information, should reduce the same to writing and also record reasons for the benefit while carrying out arrest or search as provided under the proviso to section 42(1). To that extent, those are mandatory. Consequently, the failure to comply with these requirements thus affects the prosecution case and therefore, vitiates of the trial. In the case of Ramakrushna Sahu -Vrs.- State of Odisha reported in (2018) 70 Orissa Criminal Reports 340, it has been held that total non-compliance with the provisions under sub-sections (1) and (2) of section 42 of the N.D.P.S. Act Page 15 of 26 // 16 // is impermissible and it vitiates the conviction and renders the entire prosecution case suspect and cause prejudice to the accused. Section 42(2) of the N.D.P.S. Act states that when an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall send a copy thereof to his immediate official superior within seventy-two hours. Under section 42(1), if the empowered officer receives reliable information from any person relating to commission of an offence under the N.D.P.S. Act that the contraband articles and incriminating documents have been kept or concealed in any building, conveyance or enclosed place and he reasonably believes such information, he has to take down the same in writing. However, if the empowered officer reasonably believes about such aspects from his personal knowledge, he need not take down the same in writing. Similarly recording of grounds of belief before entering and searching any building, conveyance or enclosed place at any time between sunset and sunrise is necessary under the second proviso to sub- section (1) of section 42 of the N.D.P.S. Act if the concerned officer has reason to belief that obtaining search warrant or authorization for search during that period would afford opportunity for the concealment of evidence or facility for the Page 16 of 26 // 17 // escape of an offender. The copy of information taken down in writing under sub-section (1) or the grounds of belief recorded under the second proviso to sub-section (1) of section 42 of the N.D.P.S. Act has to be sent to his immediate superior official within seventy-two hours. In the case of Biswanath Patra -Vrs.- State of Odisha reported in 2019 (I) Orissa Law Reviews 34, it is held as follows: “8. Under section 42(1), if the empowered officer receives reliable information from any person relating to commission of an offence under the N.D.P.S. Act that the contraband articles and incriminating documents have been kept or concealed in any building, conveyance or enclosed place and he reasonably believes such information, he has to take down the same in writing. However, if the empowered officer reasonably believes about such aspects from his personal knowledge, he need not take down the same in writing. Similarly recording of grounds of belief before entering and searching any building, conveyance or enclosed place at any time between sunset and sunrise is necessary under the second proviso to sub-section (1) of section 42 of the N.D.P.S. Act if the concerned officer has reason to belief that obtaining search warrant or authorization for search during that the period would afford opportunity concealment of evidence or facility for the escape of an offender. Section 42 (2) of the N.D.P.S. Act states that when an officer takes down any information in writing under sub- for Page 17 of 26 // 18 // section (1) or records grounds for his belief under the proviso thereto, he shall send a copy thereof to his immediate official superior within seventy-two hours.” In case of State of Punjab -Vrs.- Baldev Singh reported in 1999 (II) Orissa Law Reviews (SC) 474, it is held as follows:- “10. The proviso to sub-section (1) lays down that if the empowered 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. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of his belief under the proviso to sub- section (1) to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for information belief and for taking down of received the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in in writing with regard to Page 18 of 26 // 19 // possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.” In case of State of Rajasthan -Vrs.- Jag Raj Singh @ Hansa reported in (2016) 64 Orissa Criminal Reports (SC) 827, while discussing regarding the compliance of section 42 of the N.D.P.S. Act in case of a vehicle which was seized at the public place carrying contraband articles, a Division Bench of the Hon'ble Supreme Court held that since the jeep cannot be said to be a public conveyance within the meaning of explanation to section 43 of the N.D.P.S. Act, hence, section 43 was clearly not attracted and provisions of section 42(1) proviso were required to be complied with and it was further held that the aforesaid statutory mandatory provisions having not been complied with, the High Court did not commit any error in setting aside the conviction. In the case in hand, the offending vehicle is Hyundai Accent car bearing Registration No. WB-02Q-8433 and the contraband Ganja was seized in a public place on 19.01.2014 in the morning hours. P.W.5 issued letter vide Ext.19 to the Asst. Director (Tax) to know about the ownership of the seized car and other details and received the reply vide Ext.20. He has also seized the R.C. book of the seized car vide Ext.22. The class of Page 19 of 26 // 20 // the vehicle in the reply vide Ext.20 is mentioned to be L.M.V. (CAR) and the registration date is 22.07.2003 and the registration was valid up to 21st July 2018 and the tax was paid up to 21st July 2014. When there is no evidence that the seized car comes within public conveyance and the explanation to section 43 of the N.D.P.S. Act shows that a private vehicle would not come within the expression "public place" as explained in section 43 of the N.D.P.S. Act. and the search was conducted after reliable information was received by P.W.4 which was reduced to writing vide Ext.14 and given to P.W.5 who recorded the information in his information receipt register, as stated by P.W.4 and P.W.5, therefore, even though the seizure was made in a public place during morning hours, in my humble view, as held in Jag Raj Singh @ Hansa (supra), the relevant provision would not be section 43 of the N.D.P.S. Act but compliance of the provision under section 42 of the N.D.P.S. Act is necessary. In the case of Karnail Singh -Vrs.- State of Haryana reported in (2009) 8 Supreme Court Cases 539, a five-Judge Bench of the Hon’ble Supreme Court held as follows: “26. The material difference between the provisions of sections 42 and 43 of the N.D.P.S. Act is that section 42 requires recording of reasons for belief and for taking down of Page 20 of 26 // 21 // information received in writing with regard to the commission of an offence before conducting search and seizure, section 43 does not contain any such provision and as such while acting under section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful. 35. xx xx xx xx xx (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. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior Page 21 of 26 // 22 // officer, 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. delayed (d) While total non-compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible, compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending 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.” Page 22 of 26 // 23 // There is no dispute that P.W.1 & P.W.2, who are two independent witnesses, have not supported the prosecution case for which they have been declared hostile. P.Ws.3, 4 & 5 are the official witnesses who were stated to be performing patrolling duty at Kathajori Bridge of Cuttack-Bhubaneswar road towards Cuttack side on 19.01.2014 in the morning hours. Though P.W.4 stated that he got reliable message over telephone that one white colour Hyundai Accent car bearing Regd. No.WB-02-Q- 8433 loaded with ganja was coming from Bhubaneswar side and just crossed Kathajodi Bridge and the appellant Parash Singh was driving the car and he gave the written information to the Inspector of Excise (P.W.5), but on this aspect P.W.3 is totally silent. P.W.5, on the other hand, stated that while he was performing patrolling duty along with his staff at Kathajodi river Bridge on N.H.5, he received reliable information from P.W.4 regarding transportation of huge quantity of ganja by the appellant by means of one white colour Hyundai Accent car bearing Regd. No. WB-02-Q-8433. Thereafter, he recorded the said information in the register of information, but no such register of information has been proved in the case. P.W.5 further stated that after he detained the vehicle, the appellant gave his identity and then he intimated the fact to his higher Page 23 of 26 // 24 // authority, namely, Sri Muranakanti Das, Deputy Commissioner of Excise over phone who directed him to search as per the provision laid down under the N.D.P.S. Act and Rules. The evidence of P.W.4 is completely silent regarding intimation given by P.W.5 over phone to his higher authority who is none other than the Deputy Commissioner of Excise. The evidence of P.W.3 is also silent in that respect. P.W.5 further stated that on the next day, he intimated about the fact of search and seizure of the case to Deputy Commissioner of Excise in writing, but no such document has been proved during trial. The Deputy Commissioner of Excise has not been cited as a witness in the case. Ext.15, the information which was given in writing by P.W.4 to P.W.5 indicates that it was received by P.W.5 on 19.01.2014 at 6.00 a.m. Further P.W.5 has admitted that nothing has been mentioned about the reasons to believe the information in Ext.14. The prosecution was required to prove the documentary evidence to corroborate the evidence of P.W.5 and also to examine the Deputy Commissioner of Excise to substantiate such aspect. When the evidence of other official witnesses who were performing patrolling duty is completely silent that P.W.5 recorded any such information in his register of information or intimated the fact to the Deputy Commissioner of Page 24 of 26 // 25 // Excise over phone and there is neither any oral evidence nor any documentary evidence to support the version of P.W.5 regarding compliance of section 42 of the N.D.P.S. Act, in my humble view, the learned trial Court has erroneously held that the provision under section 42 of the N.D.P.S. Act has been complied with though it is strictly not required in the case. 9. In view of the foregoing discussions, I am of the humble view prosecution has not successfully proved that there has been compliance of section 42 of the N.D.P.S. Act and therefore, the impugned judgment and order of conviction of the appellant under section 20(b)(ii)(C) of the N.D.P.S. Act and sentence passed thereunder by the learned trial Court is not sustainable in the eye of law and accordingly, the same is set aside. The appellant is acquitted of the charge under section 20(b)(ii)(C) of the N.D.P.S. Act The appellant who is stated to be in judicial custody since 19.01.2014 as per the report furnished by the Senior Superintendent of Circle Jail, Cuttack at Choudwar dated 04.02.2023 shall be released forthwith, if his detention is not required in any case. Page 25 of 26 // 26 // The trial Court records with a copy of this judgment be sent down to the learned concerned Court forthwith for information and necessary action. …………………………… S.K. Sahoo, J. Orissa High Court, Cuttack The 23rd February 2023/PKSahoo/Sipun Page 26 of 26