Supreme Court of India
Najmunisha Etc vs The State Of Gujarat on 9 April, 2024
Author: Aniruddha Bose
Bench: Aniruddha Bose
2024 INSC 290
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 23192320 OF 2009
1. SMT. NAJMUNISHA ….SOLE APPELLANT IN
CRIMINAL APPEAL NO.2319/2009
2. ABDUL HAMID CHANDMIYA
ALIAS LADOO BAPU ...SOLE APPELLANT IN
CRIMINAL APPEAL NO.2320/2009
VERSUS
1. THE STATE OF GUJARAT
2.NARCOTICS CONTROL BUREAU ... RESPONDENTS
JUDGMENT
AUGUSTINE GEORGE MASIH, J.
Signature Not Verified
1. The instant criminal appeals arise out of SLP
Digitally signed by
Nirmala Negi
Date: 2024.04.09
(Criminal) No(s). 74197420 of 2009 assailing the
17:48:02 IST
Reason:
Criminal Appeal No(s). 231920 of 2009 Page 1 of 54
Common Impugned Judgment dated 16.03.2009
of the Division Bench of Gujarat High Court in
Criminal Appeal Nos. 1702 of 2004 and 2097 of
2004 moved by the Original Accused No. 01 (Smt.
Najmunisha – Appellant in Criminal Appeal No.
1702 of 2004 before the High Court) and Original
Accused No. 04 (Abdul Hamid Chandmiya alias
Ladoo Bapu – Appellant in Criminal Appeal No.
2097 of 2004 before the High Court).
2. Smt. Najmunisha (hereinafter referred to as
“Accused No. 01”) was originally convicted
under Sections 29 read with 20(b)(ii)(c) and 25
of the Narcotics Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as
“NDPS Act 1985”). The Trial Court had
sentenced her to ten years of rigorous
imprisonment and fine of INR 30,000/ (Rupees
Thirty Thousand only) for the charge under
Section 29 read with Section 20(b)(ii)(c) of the
NDPS Act 1985 and in default, she had to
undergo one year of simple imprisonment. No
separate sentence was imposed under Section
Criminal Appeal No(s). 231920 of 2009 Page 2 of 54
25 of the NDPS Act 1985. This sentence was
subsequently modified by the High Court of
Gujarat while partly allowing her appeal to the
effect that her fine was enhanced to the
minimum prescribed fine of INR 1,00,000/
(Rupees One Lakh only) and reduced the
sentence in default of paying the fine from
simple imprisonment of oneyear to simple
imprisonment of three months.
2A. Abdul Hamid Chandmiya alias Ladoo Bapu
(hereinafter referred to as “Accused No. 04”) is
the husband of Accused No. 01 who was
originally convicted under Section 29 read with
20(b)(ii)(c) of the NDPS Act 1985 and sentenced
to thirteen years of rigorous imprisonment and
fine of INR 1,00,000/ (Rupees One Lakh only).
The same was affirmed by the High Court of
Gujarat while also dismissing his appeal.
3. Accused No. 05 (Nazir Ahmed alias Nazir
Bazara) was convicted under Section 20(b)(ii)(a)
of the NDPS Act 1985 and was sentenced to six
Criminal Appeal No(s). 231920 of 2009 Page 3 of 54
months of rigorous imprisonment along with
fine of INR 5,000/ (Rupees Five Thousand only)
which he completed during the trial and
therefore did not prefer any appeal before the
High Court of Gujarat.
4. The facts leading to the present set of appeals
are that on 10.12.1999 at about 06:30 PM, the
PW02 Mrs Krishna Chaube (Intelligence
Officer/Inspector) (hereinafter referred to as
“Mrs Chaube”) had received a secret information
that the Accused No. 04 would be carrying
narcotic substances in an auto rickshaw
bearing registration number GJ9T2355 at
about 07:00 AM on 11.12.1999 and shall be
passing through one Shahpur Darwaja. The said
secret information was recorded by her and
reported to her superior officer (PW03), namely
Mr Pawan Singh Tomar – who was the Zonal
Officer (hereinafter referred to as “Mr Tomar”).
5. Thereby, on 11.12.1999, it is submitted by the
prosecution that on directions of Mr Tomar,
Criminal Appeal No(s). 231920 of 2009 Page 4 of 54
they assembled at about 06:30 AM near the
raiding point and arranged for the panchas and
waited for the Accused No. 04 at different points
of the raiding route. When the Accused No. 04
showed up in the said vehicle as per the
information, they attempted to stop the auto
rickshaw, instead it sped away at a high speed.
Therefore, the members of the raiding party
arranged for and chased the said auto rickshaw
which was eventually, after covering a certain
distance, found abandoned near a road and the
Accused No. 04 was said to have escaped. On
conducting the search of the said auto
rickshaw, the raiding party found a driving
license of one Shri Abdulgafar Gulamali Shaikh
alias Rajubhai in addition to charas to the tune
of 1.450 Kilograms.
6. As Accused No. 04 had run away, the raiding
party eventually was led to the house of
Accused No. 04 wherein the Accused No. 01 was
already present. Thereinafter, the son of
Accused No. 01 and Accused No. 04 – namely
Abdul Rajak (hereinafter referred to as “Accused
Criminal Appeal No(s). 231920 of 2009 Page 5 of 54
No. 02”) – came inquiring. Eventually the
raiding party conducted a search of the said
house wherein in the open kitchen there was a
cement bag which had yellow coloured wires
beneath which they are said to have found one
bundle wrapped in newspaper which was
fastened with a linen thread inside which a
transparent plastic bag contained 2.098
Kilograms of substance of which turned out to
be charas. Thereafter, the necessary formalities
were completed and Accused No. 01 and
Accused No. 02 were arrested. Eventually, the
panchnama was also recorded with two
independent witnesses.
7. The statements of Accused No. 01 and Accused
No. 02 were recorded under Section 67 of the
NDPS Act 1985 wherein it was stated that
Accused No. 01 aids the business of drug
trafficking as conducted by Accused No. 04 –
who was absconding. Eventually, Accused No.
04 is also said to have been arrested on
26.06.2000 and per his statement under
Section 67 of the NDPS Act 1985 he had
Criminal Appeal No(s). 231920 of 2009 Page 6 of 54
confessed to be transporting and selling the
contraband which he sold regularly to Accused
No. 05.
8. Eventually, the charges were framed and a total
of five prosecution witnesses were examined
with PW01 being one of the panch witnesses,
PW02 to PW04 being members of the raiding
party, and PW05 being the FSL expert. Per
contra, the defence had examined a total of
seven witnesses in their favour.
9. The trial of Accused No. 01 to Accused No. 05
was concluded by the Additional Sessions Judge
in Sessions Case No. 143 of 2000 and Sessions
Case No. 295 of 2000 vide judgment dated
28.01.2004, whereby while the Accused No. 02
and Accused No. 03 were acquitted, Accused
No. 01, Accused No. 04 and Accused No. 05
were convicted as aforementioned.
9A. Since both the Accused No. 01 and Accused No.
04 had moved in respective appeals before the
High Court of Gujarat their conviction stood
affirmed, while the fine imposed on Accused No.
Criminal Appeal No(s). 231920 of 2009 Page 7 of 54
01 was enhanced as aforementioned and the
default sentence was reduced. As stated above,
Accused No. 05 did not prefer any appeal.
10. The High Court of Gujarat had observed that
the statements of the appellants herein under
Section 67 of the NDPS Act 1985 were prima
facie voluntary and without inducement, threat
or coercion and the statement of Accused No. 01
refers to dealing of narcotic substances by
Accused No. 04 for a long period of time in
which she aided as well. Therefore, there exists
a presumption in favour of the prosecution
under Section 114 of the Indian Evidence Act,
1872 (hereinafter referred to as “IEA 1872”).
None of the accused had either retracted the
said statements or they had moved any
complaints alleging perversity. The defence,
despite leading evidence, could not establish
their version that the officers had come
inquiring about house of Accused No. 04 and
eventually arrested Accused No. 01 and
Accused No. 02 as against all legalities.
Furthermore, there was consistency in the
Criminal Appeal No(s). 231920 of 2009 Page 8 of 54
statements of prosecution witnesses and that no
specific unreliability was established in the
panchnama by the defence. As to the necessary
compliance laid down in the provisions of the
NDPS Act 1985, the procedure established
under Section 52A of the NDPS Act 1985 was
not to be considered and that there was no
requirement of any authorization under Section
41 of the NDPS Act 1985. Since Mr Tomar,
being a Gazetted Officer, had accompanied the
raiding party pursuant to the information
communicated by Mrs Chaube on 10.12.1999,
defence has also not raised any contention as to
breach of Section 36 or Section 53 of the NDPS
Act 1985.
11. The High Court of Gujarat had also observed in
paragraph number 36 of its judgment that there
is compliance of Section 57 of the NDPS Act
1985 as established from the reports (Ex. 87
and Ex. 112) submitted to the Zonal Officer.
Furthermore, it rejected the defence that the
prosecution failed to prove documentary
evidence as the defence did not raise any
Criminal Appeal No(s). 231920 of 2009 Page 9 of 54
objection to the exhibiting of said documents,
including arrest reports recorded in compliance
of Section 57 of the NDPS Act, arrest memo of
Accused No. 04 and Accused No. 01 and
intimation given to the next kin of the accused
persons.
12. The High Court of Gujarat was of the opinion
that except two minor inconsistencies, namely,
apropos who called the panchas and the
recording of statement of Accused No. 02, there
was no reason to question the veracity of the
depositions of the members of the raiding party.
Those minor fallacies in the statements of the
prosecution witnesses do not go to the root of
the matter. Thereafter, while acquitting Accused
No. 02, the High Court believed that there was
no evidence implicating him to the criminality
involved. In the same breath, the Court
observed that such finding of acquittal does not
throw prosecution’s case as against other
accused persons, inter alia, Accused No. 01 and
Accused No. 04, which is established beyond
any reasonable doubts.
Criminal Appeal No(s). 231920 of 2009 Page 10 of 54
13. With respect to the objection that no
independent witnesses were examined to prove
joint possession of house by Accused No. 01
and Accused No. 04, the High Court of Gujarat
placed reliance on the depositions of Defence
Witness (brother of Accused No. 04), who
testified that the said accommodation was
occupied by the accused persons to entertain
their guests. The fact of possession of the house
by Accused No. 01 and Accused No. 04 is
bolstered by their own confessional statements
and corroborated by the testimony of an
independent witness PW01. Thereupon,
perusing the statements of Mrs Chaube and
PW05, the High Court held that there was no
infirmity regarding the receipt of muddamal
with seals intact on the goods being sent to the
Forensic Science Laboratory for examination.
14. Delving into the question of compliance of
Section 42(2) of the NDPS Act 1985, the High
Court was inclined to accept the argument of
the prosecution that the statement of Mrs
Criminal Appeal No(s). 231920 of 2009 Page 11 of 54
Chaube with respect to recording of secret
information and conveying it to her superior
officer stood established by consistent
testimonies of Mrs Chaube and Mr Tomar and
clarified that the testimony of the former cannot
be thrown on the premise that there was
variation on the point that who called the panch
witness. Considering the aforementioned,
theHigh Court of Gujarat affirmed the case of
conviction of the Accused No. 01 and Accused
No. 04.
15. The learned Counsel for the appellants herein
contends that the statement of the
appellants/accused in the instant case recorded
under the provision of Section 67 of the NDPS
Act 1985 was not admissible and ought not to
have been the basis of conviction of the Accused
No. 01 and Accused No. 04. It has been brought
to our attention that the High Court has
critically scrutinized the said statements of
Accused No. 01 to Accused No. 04 and has
observed that the same being voluntary in
nature and having been corroborated by other
Criminal Appeal No(s). 231920 of 2009 Page 12 of 54
evidence can form the basis of their conviction.
For this purpose, reliance has been placed on
the decision in Tofan Singh v. State of Tamil
Nadu (2021) 4 SCC 1 whereby it has been
categorically held that a statement recorded
under Section 67 of the NDPS Act 1985 is
inadmissible in evidence. The majority opinion
herein had held that power of recording of
statement under Section 67 of the NDPS Act is
limited in nature and conferred upon subject to
the safeguards as set out in Sections 41 to 44 of
the NDPS Act 1985 for the purpose of entry,
search, seizure and arrest without warrants and
for conducting of only an enquiry and not in the
course of investigation. It is for the initiation of
an investigation or enquiry under the NDPS Act
1985 and it does not meet the threshold of a
confessional statement.
16. It is submitted that the secret information
received by Mrs Chaube was only related to the
auto rickshaw wherein the Accused No. 04 was
to be carrying the contraband – which was
eventually seized. However, there existed no
Criminal Appeal No(s). 231920 of 2009 Page 13 of 54
secret information apropos the house wherein
the subsequent search/raid was conducted by
the raiding party. The latter was totally out of
the scope of the information received and
recorded and thereby the search therein was
absolutely illegal and in violation of the
provisions of Section 42 of the NDPS Act 1985.
The learned Counsel has further drawn our
attention to the fallacies and inconsistencies in
the panchnama recorded by the raiding party in
addition to the depositions of the prosecution
witnesses.
17. The learned Counsel further relies on Darshan
Singh v. State of Haryana (2016) 14 SCC
358 which deals with scope of Sections 41(1)
and (2) of the NDPS Act 1985 and the need of
their independent compliance against each
other. This Court herein went on to hold that
mere registration of FIR at the instance of the
SHO and its subsequent communication to the
Superintendent of Police would not amount to
sufficient compliance with Section 42(2) of the
NDPS Act 1985. For this purpose, reference is
Criminal Appeal No(s). 231920 of 2009 Page 14 of 54
made to paragraph number 13 of the said
judgment at Page 364 as follows:
“13. Having given our thoughtful
consideration to the submission
advanced at the hands of the learned
counsel for the respondent, we are of the
view that the mandate contained in
Section 42(1) of the NDPS Act, requiring
the recording in writing, the details
pertaining to the receipt of secret
information, as also, the communication
of the same to the superior officer are
separate and distinct from the procedure
stipulated under the provisions of the
Criminal Procedure Code. Subsection (1)
of Section 41 of the NDPS Act provides
that a Metropolitan Magistrate or a
Magistrate of the First Class or any
Magistrate of Second Class specially
empowered by the State Government
may issue a warrant for the arrest of any
person whom he has reason to believe to
have committed any offence punishable
under Chapter IV. Subsection (2) of
Section 41 refers to issuance of
authorisation for similar purposes by the
officers of the Departments of Central
Excise, Narcotics, Customs, Revenue
Intelligence, etc. Subsection (1) of Section
42 of the NDPS Act lays down that the
empowered officer if he has a prior
information given by any person, should
necessarily take it down in writing, and
where he has reason to believe from his
personal knowledge, that offences under
Chapter IV have been committed or that
materials which may furnish evidence ofCriminal Appeal No(s). 231920 of 2009 Page 15 of 54
commission of such offences are
concealed in any building, etc. he may
carry out the arrest or search, without
warrant between sunrise and sunset and
he may do so without recording his
reasons of belie. The two separate
procedures noticed above are exclusive of
one another. Compliance with one, would
not infer compliance with the other. In the
circumstances contemplated under
Section 42 of the NDPS Act the mandate
of the procedure contemplated therein
will have to be followed separately, in
the manner interpreted by this Court
in Karnail Singh case [Karnail
Singh v. State of Haryana, (2009) 8 SCC
539 : (2009) 3 SCC (Cri) 887] and the
same will not be assumed, merely
because the Station House Officer
concerned had registered a first
information report, which was also
dispatched to the Superintendent of
Police, in compliance with the provisions
of the Criminal Procedure Code.”
18. The aforesaid reference places its reliance on a
judgment of the Constitution Bench of this
Court, i.e., Karnail Singh v. State of
Haryana (2009) 8 SCC 539 which is also relied
upon by the learned Counsel for the appellants.
It is a well celebrated judgment on the statutory
requirement of writing down and conveying
information to the superior officer prior to entry,
Criminal Appeal No(s). 231920 of 2009 Page 16 of 54
search and seizure as per Section 42(1) and (2)
of the NDPS Act 1985, requiring a literal or
substantial compliance. The learned Counsel
has brought our attention to paragraph number
35 of the judgment at page 554 which dealt with
effect of the decisions in Abdul Rashid
Ibrahim Mansuri v. State of Gujarat (2000) 2
SCC 513 and that in Sajan Abraham v. State
of Kerala (2001) 6 SCC 692. By virtue of this,
it was observed that while a total non
compliance of Section 42 of the NDPS Act 1985
would be impermissible, a delayed compliance
with satisfactory explanation about the said
delay could be an acceptable compliance of
statutory requirements under Sections 42(1)
and (2). For a better clarity of the judgment,
paragraph number 35 is reproduced as follows:
“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 beCriminal Appeal No(s). 231920 of 2009 Page 17 of 54
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 subsection (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 officer, should
normally precede the entry, search
and seizure by the officer. But in
special circumstances involving
emergent situations, the recording ofCriminal Appeal No(s). 231920 of 2009 Page 18 of 54
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.
(d) While total noncompliance with
requirements of subsections (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 in writing the information
received, before initiating action, or
nonsending 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 substantialCriminal Appeal No(s). 231920 of 2009 Page 19 of 54
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.”
19. Per contra, the learned Counsel for the
Respondent No. 02 herein contents that there is
no infirmity in the concurrent findings of the
Trial Court and the High Court. There has been
well recorded compliance of the statutory
requirements and the evidences have been
sufficiently appraised by the Courts below.
Moreover, there has been no material
contradiction in the testimonies of the
prosecution witnesses and the same aspires
confidence. It is a settled law that the
concurrent findings of the facts must not
ordinarily be interfered with unless there exists
a prima facie perversity or absurdity in light of
the observation in paragraph number 26 in the
decision delivered in Balak Ram v. State of
Uttar Pradesh (1975) 3 SCC 219.
20. It is further submitted by the learned Counsel
for the Respondent No. 02 that there has been
Criminal Appeal No(s). 231920 of 2009 Page 20 of 54
substantial compliance of the statutory
requirements under Section 42 of the NDPS Act
1985 as Mrs Chaube recorded the secret
information in writing and conveyed the same to
her superior officer namely, Mr Tomar prior to
the raid conducted as against Accused No. 04
and Accused No. 01. It is contended that the
search undertaken at the residence of Accused
No. 04 whereby Accused No. 01 was also
present, was in continuation of the action taken
on the basis of the said secret information. For
this, the learned Counsel has brought to our
attention the testimonies of Mrs Chaube (PW
02) and Mr Tomar (PW03). Alternatively, even
assuming that the said latter part of the
raid/search at the house of the Accused No. 01
and Accused No. 04 was not in continuation of
the action taken towards Accused No. 04 as per
the secret information, there has still been
appropriate compliance of Section 42 of the
NDPS Act 1985 for the reason that the same
was based on the personal knowledge of Mr
Tomar, who is a Gazetted Officer. It is further
Criminal Appeal No(s). 231920 of 2009 Page 21 of 54
contended that the provision of Section 42(2) of
the NDPS Act is to be read disjunctively and
henceforth there is no requirement to take down
the information in writing where it emanates
from the personal knowledge of the superior
officer. To further this argument, the learned
Counsel has distinguished the facts of the
present case from the ratio in decisions in
State of Punjab v. Balbir Singh (1994) 3 SCC
299 and Karnail Singh (supra) as they refer
only to the process to be followed upon receipt
of information from any person and not to
“personal knowledge” of the officer.
21. Furthermore, it is submitted that there has
been a substantial compliance of Section 42(1)
of the NDPS Act 1985 as during the action being
taken against the Accused No. 04 and his
absconding therefrom, an emergent situation
arose which necessitated the search in his
house – which was nearby to the place where
auto rickshaw was abandoned. There was a
grave possibility that if the Accused No. 04 was
at his house then he might run away and/or if
Criminal Appeal No(s). 231920 of 2009 Page 22 of 54
there was any further amount of contraband at
his residence, he would have appropriated that
as well. Thence, the raiding party had their
hands tied down to necessarily carry out the
said search at the house of Accused No. 04 in
light of the ratio in Karnail Singh (supra) not
necessitating literal compliance rather
substantial compliance contingent on the facts
of each case.
22. The learned Counsel for the Respondent No. 02
further contends that the scope of Section 50 of
the NDPS Act 1985 is limited to the search on
the person of an individual and does not include
adherence to the search made on any
premise(s). Reliance is placed on State of
Himachal Pradesh v. Pawan Kumar (2005) 4
SCC 350 wherein it was held that presence of a
Gazetted Officer is required only at the time of
the search which is on the person and is not
applicable during search of premises. To
bolster this argument, it is submitted that the
said interpretation fits into the reading of
Criminal Appeal No(s). 231920 of 2009 Page 23 of 54
Section 42 of the NDPS Act 1985 as Section
42(1)(a) of the NDPS Act 1985 comprehends
search of a building or conveyance or place
while Section 42(1)(d) of the NDPS Act 1985
contemplates for search of a person.
23. Apropos, the presumption pertaining to the
recovery of contraband, the learned Counsel for
the Respondent No. 02, submits that once the
recovery of the contraband has been made from
the possession of an individual, there arises a
rebuttable presumption as per Section 54 of the
NDPS Act 1985 that the said individual has
committed an offence under the NDPS Act 1985.
To further build this contention, the learned
Counsel has brought our attention to the
decision in Madan Lal v. State of Himachal
Pradesh (2003) 7 SCC 465 whereby at
paragraph numbers 22 to 26 of the judgment, it
was has been laid down that the aforesaid
possession of contraband includes constructive
possession and it need not be only an actual
possession of the contraband. On the basis of
Criminal Appeal No(s). 231920 of 2009 Page 24 of 54
these above recorded submissions, he prays for
dismissal of the instant appeals.
24. Before we delve into the factual analysis based
on the legal principles and jurisprudence
existing in each contention, it is pertinent to
refer to the heart and soul of the Constitution of
India, 1950 (hereinafter referred to as
“Constitution of India”) – Article 21 –
necessitates a just and fair trial to be a
humane and fundamental right and actions of
the prosecution as well as the authorities
concerned within the meaning of the NDPS Act
1985 must be towards ensuring of upholding of
the rights of the accused in order to allow to
have a fair trial. The harmonious balance
between the Latin maxims salus populi suprema
lex (the safety of the people is the supreme law)
and salus republicae suprema lex (safety of the
State is the supreme law) is not only crucial and
pertinent but lies at the core of the doctrine that
welfare of an individual must yield to that of the
community subject to the State being right,
Criminal Appeal No(s). 231920 of 2009 Page 25 of 54
just, and fair as was iterated in the decision of
Miranda v. Arizona (1966) 384 US 436.
25. The NDPS Act 1985 being a special law with the
purpose to curtail the drug menace in the
republic necessitated the comprehensive control
in favour of the authorities. The same is well
reflected in the decisions of this Court across
the last couple of decades. Accordingly, the key
provisions to be contemplated for the purpose of
appraising the present factual matrix are
Sections 41, 42, and 67 of the NDPS Act 1985.
The same are thereby analysed herein after.
26. Having heard the learned Counsels for both the
parties, we deem it appropriate to refer to the
jurisprudence of Section 6 of the IEA 1872. It is
to be observed that it deals with relevancy of
facts forming part of same transaction and
therefore, it is crucial to refer the bare provision
which reads as follows:
“6. Relevancy of facts forming part
of same transaction.––Facts which,
though not in issue, are so connected
with a fact in issue as to form part of the
same transaction, are relevant, whetherCriminal Appeal No(s). 231920 of 2009 Page 26 of 54
they occurred at the same time and place
or at different times and places.”
27. This court has laid down the test for “acts
forming part of same transaction” in Gentela
Vijyvardhan Rao and Anr. v. State of
Andhra Pradesh (1996) 6 SCC 241, wherein it
has been held that it is based on spontaneity
and immediacy of such statement or fact in
relation to the fact in issue. Provided that if
there was an interval which ought to have been
sufficient for purpose of fabrication then the
said statement having been recorded, with
however slight delay there may be, is not part of
res gestae. The same was adopted by a 3
Judges’ Bench in the decision of Dhal Singh
Dewangan v. State of Chhattisgarh (2016)
SCC OnLine SC 983.
28. In the present factual matrix, having perused
the material it appears that the attempt towards
raiding/searching the residence of Accused No.
04 was not explicitly in pursuance of detaining
the said accused but the testimonies of the
Criminal Appeal No(s). 231920 of 2009 Page 27 of 54
members of the raiding party showcase the idea
of search of the house to be an afterthought
with an admitted time gap of 4045 minutes
between having raided the auto rickshaw which
was alleged to be abandoned by the driver and
Accused No. 04 and subsequent search of the
house of Accused No. 04, wherein Accused No.
01 was present. Moreover, it appears from the
record that even the idea to search the house
was for the purpose of recovery of more
contraband and not to apprehend the said
absconded accused at the first instance.
Thence, it can be safely concluded that the
search conducted at the residence of the
Accused No. 04 is not a continuance of action of
the raiding party towards the search of the auto
rickshaw based on the secret information
received by Mrs Chaube. Accordingly, it does
not appropriately fulfill the requirements of the
test laid down in Gentela Vijyvardhan Rao
(supra).
29. Having reached the conclusion that the
searches of the abandoned auto rickshaw, and
Criminal Appeal No(s). 231920 of 2009 Page 28 of 54
at the house wherein Accused No. 01 was
present, to be different transactions, the
subsequent consideration is apropos necessary
statutory safeguards enlisted in the NDPS Act
1985. Henceforth, we shall further delve into
the legal analysis of relevant provisions of the
NDPS Act 1985.
30. The next issue that falls for our consideration is
with respect to the compliance of Section 42 of
the NDPS Act 1985. For the said purposes, an
analysis of the bare text of Section 42 of the
NDPS Act 1985 is undertaken hereinafter.
Section 42 of the NDPS Act 1985 is worded as
follows:
“42. Power of entry, search, seizure
and arrest without warrant or
authorisation.—
(l) Any such officer (being an officer
superior in rank to a peon, sepoy or
constable) of the departments of central
excise, narcotics, customs, revenue
intelligence or any other department of
the Central Government including para
military forces or armed forces as is
empowered in this behalf by general or
special order by the Central Government,
or any such officer (being an officer
superior in rank to a peon, sepoy orCriminal Appeal No(s). 231920 of 2009 Page 29 of 54
constable) of the revenue, drugs control,
excise, police or any other department of
a State Government as is empowered in
this behalf by general or special order of
the State Government, if he has reason to
believe from personal knowledge or
information given by any person and
taken down in writing that any narcotic
drug, or psychotropic substance, or
controlled substance in respect of which
an offence punishable under this Act has
been committed or any document or other
article which may furnish evidence of the
commission of such offence or any
illegally acquired property or any
document or other article which may
furnish evidence of holding any illegally
acquired property which is liable for
seizure or freezing or forfeiture under
Chapter VA of this Act is kept or
concealed in any building, conveyance or
enclosed place, may between sunrise
and sunset,—
(a) enter into and search any such
building, conveyance or place;
(b) in case of resistance, break open
any door and remove any obstacle
to such entry;
(c) seize such drug or substance and all
materials used in the manufacture
thereof and any other article and
any animal or conveyance which he
has reason to believe to be liable to
confiscation under this Act and any
document or other article which he
has reason to believe may furnish
evidence of the commission of any
offence punishable under this Act or
furnish evidence of holding anyCriminal Appeal No(s). 231920 of 2009 Page 30 of 54
illegally acquired property which is
liable for seizure or freezing or
forfeiture under Chapter VA of this
Act; and
(d) detain and search, and, if he thinks
proper, arrest any person whom he
has reason to believe to have
committed any offence punishable
under this Act:
[Provided that in respect of holder of a
licence for manufacture of manufactured
drugs or psychotropic substances or
controlled substances granted under this
Act or any rule or order made thereunder,
such power shall be exercised by an
officer not below the rank of sub
inspector:
Provided further that] 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.
(2) Where an officer takes down any
information in writing under subsection
(1) or records grounds for his belief under
the proviso thereto, he shall within
seventytwo hours send a copy thereof to
his immediate official superior.”Criminal Appeal No(s). 231920 of 2009 Page 31 of 54
31. From the perusal of provision of Section 42(1) of
the NDPS Act 1985, it is evident that the
provision obligates an officer empowered by
virtue of Section 41(2) of the NDPS Act 1985 to
record the information received from any person
regarding an alleged offence under Chapter IV of
the NDPS Act 1985 or record the grounds of his
belief as per the Proviso to Section 42(1) of the
NDPS Act 1985 in case an empowered officer
proceeds on his personal knowledge. While the
same is to be conveyed to the immediate official
superior prior to the said search or raid, in case
of any inability to do so, the Section 42(2) of the
NDPS Act provides that a copy of the same shall
be sent to the concerned immediate official
superior along with grounds of his belief as per
the proviso hereto. This relaxation contemplated
by virtue of Section 42(2) of the NDPS Act 1985
was brought about through the Amendment Act
of 2001 to the NDPS Act of 1985 wherein prior
to this position, the Section 42(2) mandated the
copy of the said writing to be sent to the
immediate official superior “forthwith”.
Criminal Appeal No(s). 231920 of 2009 Page 32 of 54
32. The decision in Karnail Singh (supra) has
been extensively referred by the learned Counsel
for the Appellants and at the cost of repetition,
it is observed that absolute noncompliance of
the statutory requirements under the Section
42(1) and (2) of the NDPS Act 1985 is verboten.
However, any delay in the said compliance may
be allowed considering the same is supported by
wellreasoned explanations for such delay. This
position adopted by the instant 5Judges’ Bench
of this Court is derived from the ratio in the
decision in Balbir Singh (supra) which is a
decision by a 3Judges’ Bench of this Court.
33. Another 3Judges’ Bench while dealing with
compliance of Section 42 of the NDPS Act 1985
in Chhunna alias Mehtab v. State of Madhya
Pradesh (2002) 9 SCC 363 dealt with criminal
trial wherein there was an explicit non
compliance of the statutory requirements under
the NDPS Act 1985. It was held that the trial of
the PetitionerAppellant therein stood vitiated.
Criminal Appeal No(s). 231920 of 2009 Page 33 of 54
For a better reference, the judgment is quoted
below as:
“1. The case of the prosecution was that
at 3.00 a.m. a police party saw opium
being prepared inside a room and they
entered the premises and apprehended
the accused who was stated to be
making opium and mixing it with
chocolate.
2. It is not in dispute that the entry in
search of the premises in question took
place between sunset and sunrise at
3.00 a.m. This being the position, the
proviso to Section 42 of the Narcotic
Drugs and Psychotropic Substances Act
was applicable and it is admitted that
before the entry for effecting search of the
building neither any search warrant or
authorisation was obtained nor were the
grounds for possible plea that if
opportunity for obtaining search warrant
or authorisation is accorded the evidence
will escape indicated. In other words,
there has been a noncompliance with
the provisions of the proviso to Section 42
and therefore, the trial stood vitiated.
3. The appeals are, accordingly, allowed.”
34. In Dharamveer Parsad v. State of Bihar
(2020) 12 SCC 492, there was non
examination of the independent witness without
any explanation provided by the prosecution
Criminal Appeal No(s). 231920 of 2009 Page 34 of 54
and even the panchnama or the seizure memo
were not prepared on the spot but after having
had reached police station only. Since the
vehicle was apprehended and contraband was
seized in noncompliance of the Section 42 of
the NDPS Act 1985 – conviction and sentence of
the appellant therein was set aside. Apart from
the said reasons there were various suspicious
circumstances that inspired the confidence of
the Court to set aside the conviction affirmed by
the High Court therein. Paragraph numbers 05
and 06 are reiterated below for reference:
“5. In the present case PW 1, who is the
investigating officer, in his deposition has
stated that the information i.e. the
contraband was being carried from the
IndoNepal border identified in a vehicle,
details of which had also been provided,
had been received in the evening of 27
2007. PW 1 has further stated that on
receipt of this information, he had formed
a team and had moved to Raxaul from
Patna, which place they had reached by
2.00 a.m. in the morning of 372007. The
vehicle in question had been
apprehended and the contraband seized
at about 6.00 a.m. of 372007. No
explanation has been offered why the
statement had not been recorded at any
anterior point of time and the same was
so done after the seizure was made.
Criminal Appeal No(s). 231920 of 2009 Page 35 of 54
6. Even if we were to assume that the
anxiety of the investigating officer was to
reach Raxaul which is on the
international border and therefore, he did
not have the time to record said
information as per requirement of Section
42 of the Act, the matter does not rest
there. There are other suspicious
circumstances affecting the credibility of
the prosecution case. Though, the
investigating officer has stated that he
had moved to Raxaul along with a team
and two independent witnesses, the said
independent witnesses were not
examined. No explanation is forthcoming
on this count also. That apart from the
materials on record it appears that no
memos including the seizure memo were
prepared at the spot and all the papers
were prepared on reaching the police
station at Patna on 472007.”
35. The case presented by the prosecution appears
to be primarily standing on the fact that
initially, Accused No. 04 – who was identified by
Mr Tomar to be sitting inside the auto rickshaw
which was part of the secret information – had
absconded, leaving behind the contraband
which was eventually seized by members of the
raiding party. It is furthermore admitted that a
Driving License was also recovered from the
Criminal Appeal No(s). 231920 of 2009 Page 36 of 54
said auto rickshaw. However, it has never been
their case that neither the owner of the auto
rickshaw was attempted to be identified nor the
person whose driving license was found therein
was searched for by the authorities for the
purpose of the instant case. It is never
explained by Mr Tomar how he was able to
identify the face of the Accused No. 04 sitting on
the passenger seat inside the auto rickshaw
while it was being driven at high speed. It is also
not their case that any previous photographic
identification for the Accused No. 04 was
provided as part of the said information or as to
how did he know the face of the Accused No. 04.
36. Even further, it is an admitted fact by the PW
01 – the alleged independent witness of the
recovery – that the panchnama was not
prepared at the time of actual recovery from the
auto rickshaw. Same is affirmed by the
testimonies of the members of the raiding party,
namely, PW02 to PW04. It is furthermore
intriguing to note that the panchnama which is
timed “0930” was prepared and the PW01
Criminal Appeal No(s). 231920 of 2009 Page 37 of 54
states as part of his crossexamination that he
left for his office taking an auto rickshaw after
the incident. However, the testimony of Mrs
Chaube reveals that the PW01 and the other
panch were present in the NCB Office after the
incident and even deposes to the effect that
they, being present in the said office, ended up
inscribing their signatures on the statements
taken by them.
37. It does not transpire from the material on record
as to exactly how the Accused No. 04 came into
the fiasco here except for the claim by Mr Tomar
of having identified him as the auto rickshaw
per the secret information fled the scene. It
creates a doubt in the mind of the Court
apropos the case presented by the prosecution.
38. Adopting the words of V. Ramasubramanian, J.,
while speaking for the Bench in Ramabora
alias Ramaboraiah & Anr. v. State of
Karnataka (2022) SCC OnLine SC 996
referred to the mythological Swan, Hamsa and
drew an analogy with the following observations
Criminal Appeal No(s). 231920 of 2009 Page 38 of 54
made in the decision in Arvind Kumar alias
Nemichand & Ors. v. State of Rajasthan
(2021) SCC OnLine SC 1099:
49. The principle that when a witness
deposes falsehood, the evidence in its
entirety has to be eschewed may not
have strict application to the criminal
jurisprudence in our country. The
principle governing sifting the chaff from
the grain has to be applied. However,
when the evidence is inseparable and
such an attempt would either be
impossible or would make the evidence
unacceptable, the natural consequence
would be one of avoidance. The said
principle has not assumed the status of
law but continues only as a rule of
caution. One has to see the nature of
discrepancy in a given case. When the
discrepancies are very material shaking
the very credibility of the witness leading
to a conclusion in the mind of the court
that is neither possible to separate it nor
to rely upon, it is for the said court to
either accept or reject.
39. It becomes difficult to accept the case presented
against the Accused No. 04 by the prosecution
and it is not acceptable to state that the same
has been proved beyond a reasonable doubt.
The inconsistencies in the testimonies and lack
of observation of due process of law by the
Criminal Appeal No(s). 231920 of 2009 Page 39 of 54
investigating agency has severely impacted the
case of the prosecution.
40. The subsequent and alternate contention put
forth by the learned Counsel for the Respondent
No. 02 pertains to the nonrequirement of the
compliance of Section 41 of the NDPS Act 1985.
To appreciate the said contention,
jurisprudential aspect ought to be dealt with.
Section 41 of the NDPS Act 1985 deals with the
power to issue warrant and authorization to
both a Magistrate and an Officer of Gazetted
rank as applicable and the same is reproduced
below as follows:
“41. Power to issue warrant and
authorisation.—
(1) A Metropolitan Magistrate or a
Magistrate of the first class or any
Magistrate of the second class specially
empowered by the State Government in
this behalf, may issue a warrant for the
arrest of any person whom he has
reason to believe to have committed any
offence punishable under this Act, or for
the search, whether by day or by night,
of any building, conveyance or place in
which he has reason to believe any
narcotic drug or psychotropic substance
or controlled substance in respect of
which an offence punishable under this
Act has been committed or any documentCriminal Appeal No(s). 231920 of 2009 Page 40 of 54
or other article which may furnish
evidence of the commission of such
offence or any illegally acquired property
or any document or other article which
may furnish evidence of holding any
illegally acquired property which is liable
for seizure or freezing or forfeiture under
Chapter VA of this Act is kept or
concealed:
(2) Any such officer of gazetted rank of
the departments of central excise,
narcotics, customs, revenue intelligence
or any other department of the Central
Government including the paramilitary
forces or the armed forces as is
empowered in this behalf by general or
special order by the Central Government,
or any such officer of the revenue, drugs
control, excise, police or any other
department of a State Government as is
empowered in this behalf by general or
special order of the State Government if
he has reason to believe from personal
knowledge or information given by any
person and taken in writing that any
person has committed an offence
punishable under this Act or that any
narcotic drug or psychotropic substance
or controlled substance in respect of
which any offence under this Act has
been committed or any document or other
article which may furnish evidence of the
commission of such offence or any
illegally acquired property or any
document or other article which may
furnish evidence of holding any illegally
acquired property which is liable for
seizure or freezing or forfeiture under
Chapter VA of this Act is kept orCriminal Appeal No(s). 231920 of 2009 Page 41 of 54
concealed in any building, conveyance or
place, may authorise any officer
subordinate to him but superior in rank
to a peon, sepoy or a constable to arrest
such a person or search a building,
conveyance or place whether by day or
by night or himself arrest such a person
or search a building, conveyance or
place.
(3) The officer to whom a warrant under
subsection (1) is addressed and the
officer who authorised the arrest or
search or the officer who is so authorised
under subsection (2) shall have all the
powers of an officer acting under section
42.”
41. In the instant case, we are primarily affected by
virtue of the jurisprudence of Section 41(2) of
the NDPS Act 1985, which begins from the
power of search and seizure conferred by the
State upon its executive or administrative arms
for the protection of social security in any
civilized nation. Such power is inherently
limited by the recognition of fundamental rights
by the Constitution as well as statutory
limitations. At the same time, it is not legitimate
to assume that Article 20(3) of the Constitution
of India would be affected by the provisions of
search and seizure. It is a settled law that the
Criminal Appeal No(s). 231920 of 2009 Page 42 of 54
statutory provisions conferring authorities with
the power to search and seize are a mere
temporary interference with the right of the
accused as they stand well regulated by
reasonable restrictions emanating from the
statutory provisions itself. Thence, such a power
cannot be considered as a violation of any
fundamental rights of the person concerned.
The same is iterated in MP Sharma v. Satish
Chandra Sharma, District Magistrate, Delhi
1954 SCR 1077.
42. In light of the aforementioned constitutional
backdrop, provisions of general search warrants
and seizure were incorporated for the first time
in Code of Criminal Procedure, 1882,
thereupon, in Sections 96, 97, 98, 102, 103,
105, 165 and 550 of the Code of Criminal
Procedure, 1898 and presently, in the Code of
Criminal Procedure, 1973 under Sections 93,
94, 100, 102, 103 and 165. Upon perusal of
Section 41(1) of the NDPS Act 1985, it is evident
that the said provision empowers a Magistrate
to issue search warrant for the arrest of any
Criminal Appeal No(s). 231920 of 2009 Page 43 of 54
person or for search, whom he has reason to
believe to have committed any offence under the
provisions of the NDPS Act 1985. Section 41(2)
of the NDPS Act 1985 further enables a
Gazetted Officer, so empowered in this regard
by the Central Government or the State
Government, to arrest or conduct a search or
authorize an officer subordinate to him to do so,
provided that such subordinate officer is
superior to the rank of a peon, sepoy or
constable. It is pertinent to note that the
empowered Gazetted Officer must have reason
to believe that an offence has been committed
under Chapter IV of the NDPS Act 1985, which
necessitated the arrest or search. As per Section
41(2) of the NDPS Act 1985, such reason to
believe must arise from either personal
knowledge of the said Gazetted Officer or
information given by any person to him.
Additionally, such knowledge or information is
required to be reduced into writing by virtue of
expression “and taken in writing” used therein.
Criminal Appeal No(s). 231920 of 2009 Page 44 of 54
43. The learned Counsel of the Respondent No. 02
presents an alternate argument that the
expressions “personal knowledge” and “and
taken in writing” contemplated by Section 41(2)
of the NDPS Act 1985 ought to be read
disjunctively, thereby eliminating the
requirement of taking down information in
writing when it arises out of the personal
knowledge of the Gazetted Officer. We are not
inclined to accept this interpretation. The
position for recording the reasons for
conducting search and seizure are well
established through the ratio in paragraph
number 25 (2C) in Balbir Singh case (supra)
as mentioned below:
“(2C) Under Section 42(1) the
empowered officer if has a prior
information given by any person, that
should necessarily be taken down in
writing. But if he has reason to believe
from personal knowledge that offences
under Chapter IV have been committed or
materials which may furnish evidence of
commission of such offences are
concealed in any building etc. he may
carry out the arrest or search without a
warrant between sunrise and sunset and
this provision does not mandate that he
should record his reasons of belief. But
Criminal Appeal No(s). 231920 of 2009 Page 45 of 54
under the proviso to Section 42(1) if such
officer has to carry out such search
between sunset and sunrise, he must
record the grounds of his belief.
To this extent these provisions are
mandatory and contravention of the
same would affect the prosecution case
and vitiate the trial.”
44. Applying the aforesaid legal position to the
present factual matrix, we do not find force in
the submission that the raiding party proceeded
to conduct search at the house on personal
knowledge of the Gazetted Officer, Mr Tomar.
Foremost, the fact that the secret information
received by Mrs Chaube was limited to
anticipation of Accused No. 04 carrying
contraband from a particular route in an auto
rickshaw, remains unchallenged. Accordingly,
there was no prior information to the raiding
party, including Mr Tomar (Gazetted Officer)
that there is contraband in the house of
Accused No. 04, thereby necessitating search
for the same. Additionally, it is deposed by the
PW01 that he was asked to accompany the
raiding party to the house of Accused No. 04,
which was located nearby for the purpose of
Criminal Appeal No(s). 231920 of 2009 Page 46 of 54
carrying out a search thereof and admits of
having no knowledge about any written
information with the raiding party for
conducting raid at the said house. Further, Mrs
Chaube in her examination in chief stated that
upon the directions of Mr Tomar that the house
of Accused No. 04 was nearby, they proceeded
to conduct raid thereof. Per contra, in her
crossexamination, she admits that the raiding
team proceeded to the house of Accused No. 04
for the purpose of search of the contraband
pursuant to the discussions carried by them
and not particularly on the personal knowledge
of Mr Tomar.
45. She further goes on to admit that it was
obligatory for her to obtain a written
authorization from her superior officer – which
was Mr Tomar in this case. She omitted seeking
the said authorization on the premise that there
was an emergent need to conduct search at the
house. Such major inconsistency as to the
‘source’ of information of existence of
contraband at the house of Accused No. 04
Criminal Appeal No(s). 231920 of 2009 Page 47 of 54
weakens the case of the prosecution.
Furthermore, the testimony of Mr Tomar has
some glaring irregularities apropos his personal
knowledge of having contraband at the house of
Accused No. 04. Mr Tomar, on one hand in his
testimony admits that the officers of raiding
party together decided to conduct raid at the
house of Accused No. 04 post recovery from the
auto rickshaw, however, on the other hand
admits of having knowledge of the residential
address of Accused No. 04 from the secret
information. However, Mr Tomar nowhere in his
depositions stated that he proceeded to conduct
raid at the house on his personal knowledge.
46. From the aforementioned, we are of the view
that the raid/search conducted at the house of
the Accused No. 01 and Accused No. 04 was not
based on the personal knowledge of Mr Tomar,
rather it was an action on the part of raiding
party bereft of mandatory statutory compliance
of Section 41(2) of the NDPS Act 1985.
47. Furthermore, even if the learned Counsel for the
Respondent No. 02 would justify the raid at the
Criminal Appeal No(s). 231920 of 2009 Page 48 of 54
house on account of “reason to believe from ….
information given by any person and taken down
in writing” as per Section 41(2) of the NDPS Act
1985, still the prosecution is not able to
establish its case beyond reasonable doubts.
Because the secret information, as received by
Mrs Chaube in the present facts was limited to
the apprehension that Accused No. 04 was to
carry contraband via an auto rickshaw from a
particular route. There is no reference to the
apprehension of existence of contraband in the
house of the Accused No. 04 in the said
recorded information. Thence, the raid at the
house of the Accused No. 01 and Accused No.
04 is in violation of the statutory mandate of
Section 41(2) of the NDPS Act 1985 and the
ratio in the precedent of Balbir Singh (supra)
and Karnail Singh (supra). Consequently, the
conviction of Accused No. 01 premised on the
recovery of 2.098 kilograms of charas from the
house is not in consonance with the mandatory
statutory compliance of Section 41(2) of the
NDPS Act 1985.
Criminal Appeal No(s). 231920 of 2009 Page 49 of 54
48. While the facts and evidences are appreciated in
the instant case, the testimonies of the PW01
and the members of the raiding party do not
present such a compliance of the information of
rights to the Accused No. 01 herein. While a
claim is made to this effect, nothing has come
up from the perusal of the panchnama or the
deposition of the PW01 to this effect.
Accordingly, the authorities have further failed
to protect the inherent rights granted to the
Accused No. 01 by virtue of the statutory
safeguards.
49. Thereinafter, a significant reliance was placed
by the High Court on the statements of the
accused wherein a categorical admission was
substantiated by them, especially Accused No.
01 and Accused No. 04. To begin with, Section
67 of the NDPS Act 1985 reads:
“67. Power to call for information,
etc.—
Any officer referred to in section 42 who
is authorised in this behalf by the Central
Government or a State Government may,
during the course of any enquiry inCriminal Appeal No(s). 231920 of 2009 Page 50 of 54
connection with the contravention of any
provision of this Act,—
(a) call for information from any
person for the purpose of
satisfying himself whether there
has been any contravention of the
provisions of this Act or any rule
or order made thereunder;
(b) require any person to produce or
deliver any document or thing
useful or relevant to the enquiry;
(c) examine any person acquainted
with the facts and circumstances
of the case.”
50. The evidentiary value of confessional statements
recorded under Section 67 of the NDPS Act
1985 was dealt with by this Court in the case of
Tofan Singh (supra). As per the majority
verdict delivered by 3Judges’ Bench in this
case has held that the powers conferred on the
empowered officers under Section 41 and 42 of
the NDPS Act 1985 read with Section 67 of the
NDPS Act 1985 are limited in nature conferred
for the purpose of entry, search, seizure and
arrest without warrant along with safeguards
enlisted thereof. The “enquiry” undertaken
under the aforesaid provisions may lead to
initiation of an investigation or enquiry by theCriminal Appeal No(s). 231920 of 2009 Page 51 of 54
officers empowered to do so either under
Section 53 of the NDPS Act 1985 or otherwise.
Thus, the officers empowered only under the
aforesaid provisions neither having power to
investigate nor to file a police report meet the
test of police officer for the purpose of Section
25 of the IEA 1872. Consequently, the bar
under Section 25 of the IEA 1872 is not
applicable against the admissibility of
confessional statement made to the officers
empowered under Section 41 and 42 of the
NDPS Act 1985.
51. Furthermore, it was also held by this Court that
Section 67 is at an antecedent stage to the
investigation, which occurs after the empowered
officer under Section 42 of the NDPS Act 1985
has the reason to believe upon information
gathered in an enquiry made in that behalf that
an offence under NDPS Act 1985 has been
committed and is thus not even in the nature of
a confessional statement. Hence, question of its
being admissible in trial as a confessional
statement against the accused does not arise.
Criminal Appeal No(s). 231920 of 2009 Page 52 of 54
52. The same, therefore, cannot be considered to
convict an accused person under the NDPS Act
1985. A reference at this stage may be made to
the majority view in the 3Judges’ Bench
decision wherein it was held as follows in
paragraph number 158:
“158. We answer the reference by
stating:
158.1. That the officers who are invested
with powers under Section 53 of the
NDPS Act are “police officers” within the
meaning of Section 25 of the Evidence
Act, as a result of which any confessional
statement made to them would be barred
under the provisions of Section 25 of the
Evidence Act, and cannot be taken into
account in order to convict an accused
under the NDPS Act.
158.2. That a statement recorded under
Section 67 of the NDPS Act cannot be
used as a confessional statement in the
trial of an offence under the NDPS Act.
53. By virtue of the decision in Tofan Singh
(supra), the benefit is to be granted to the
appellants herein in regard to the
inadmissibility of their statements under
Section 67 of the NDPS Act 1985.
Criminal Appeal No(s). 231920 of 2009 Page 53 of 54
54. In the light of the above, these appeals are
allowed by setting aside the impugned judgment
of the High Court as well as that of the Trial
Court. The appellants are acquitted of the
charges framed against them by giving benefit of
doubt.
55. Pending applications, if any, stand disposed of.
………….…………………………J.
(ANIRUDDHA BOSE)
…………..…………………………J.
(AUGUSTINE GEORGE MASIH)
APRIL 09, 2024;
NEW DELHI
Criminal Appeal No(s). 231920 of 2009 Page 54 of 54