N. V. Dabholkar, J.
1. These two appeals are by two accused who were tried together before the Court of Special Judge for Greater Bombay. In. N.D.P.S. Case No. 196 of 1995 the two accused were charged and tried for offences punishable under Sections 21 r/w 8(c) as also Section 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'). Having held that conspiracy is not proved, the learned Special Judge acquitted both the appellants, as far as offence punishable under Section 29 of the Act. However, both the accused appellants are held guilty for unlawful possession of heroin and therefore both of them are sentenced to suffer rigorous imprisonment for 10 years, to pay a fine of Rs. 1 lac in default further rigorous imprisonment for one year. Being in custody since 1st August, 1995 they are also given set off towards under trial detention.
This conviction and sentence is being challenged in two appeals by the two accused.
2. As per prosecution story Kandivili unit of Narcotics Cell, on 1st August, 1995 at 1015 Hrs. in the morning received information. It was received by P.S.I. Landge through one informant. The information was that one Shabbir Khan (accused No. 1) r/o. Nai Abadi Bhaisuda Mandi (M.P.), an associate of drug trafficker Umraosingh of Bhavani Mandi (Rajasthan) had brought heroin to Bombay. He has supplied the same to drug peddler Abdul Rehman @ Khanssab (accused No. 1) (For the sake of brevity appellants are being referred to their status in the Trial Court as accused No. 1 and accused No. 2). It was further informed that Abdul Rehman (r) Khanssab would be coming near the entrance of Bandra Railway Terminus compound for delivering heroin to street drug peddlers at about 1.30 to 2.00 P.M.
Prosecution claims to have complied with all the formalities as required by Section 42 of the Act and also having taken precaution for search and seizure, as required under the provisions of Code of Criminal Procedure. The raiding party consisting of Police Inspector Shri Mehla, P.S.I. Shri Landge (P.W.1), P.S.I. Shri Wahadankar (RW. 4), three head-constables, couple of panchas and informant proceeded to the spot at about 11.35 A.M.
At about 1.50 P.M. accused No. 1 arrived and was identified by the informant. He was nabbed after watching his activities for short time. In the personal search, carried out after complying formalities as required by Section 50 of the Act, as also provisions of Code of Criminal Procedure, 150 Cms. material was recovered from the right side pocket of his Kurta and was confirmed to be heroin on testing by Drug Identification Kit carried out by the raiding party. Prosecution claims to have withdrawn two samples. Thereafter the contraband, two samples, empty container and cash recovered from accused No. 1 were packed separately and sealed with paper seals signed by police and panchas.
Accused No. 1 is said to have expressed his willingness to point out the person from whom he had received the contraband. While accused No. 1 was leading the party towards lodge in Naupada area, accused No. 2 was seen coming out from the building and was identified by accused No. 1. Accused No. 2 was apprehended. On his search, again after compliance of all legal formalities, 350 gms. material was recovered from him and the same was confirmed to be heroin on testing it by Drugs Identification Kit. Again two samples were withdrawn from this stock. The stock, two samples empty polythene bag and the cash recovered on the person of the accused were separately packed and sealed.
All the occurrences beginning with call for panchas and preparation for, till completion of search and seizure from both accused arc recorded in the form of a panchanama.
After recoveries from both the accused persons, accused and the seized articles were brought to Kandivili Office of the Narcotics Cell, whereP.S.I. Shri Landge lodged F.I.R. It was recorded by P.W. 4 P.S.I, Shri Wahadankar.
Two samples marked as A1 and B1 were sent to forensic laboratory by P.I. Shri Menta on 2nd August, 1995.
3. In the elaborate judgment paragraphs 18 to 21 are devoted by the learned Trial Judge in recording reasons for his findings. The learned Judge found the evidence of two police witnesses viz. P.S.I. Landge and P.S.I. Wahadankar, supported by panch witness Salim Khan (P.W.3) to be quite reliable. The learned Judge is of the view that in spite of lengthy and searching cross-examinations, defence has not been able to penetrate through their evidence.
Relying upon Exhibit 17-A extract of information, the learned Judge found provisions of Section 42(1) duly complied with. The Judge has repelled the defence argument that this information does not bear signature of the person recording it, by observing that it was recorded in a book maintained in the usual course of official business and therefore was supported by presumption under Section 114 of the Indian Penal Code. Version of P.W. 4 P.S.I. Wahadankar that information was immediately communicated to D.C.P. Shri Sanjay Pandey by sending an extract of the information through lady police constable is accepted as substantial compliance of requirement of Section 42(2) of the Act. Although the ladyconstable is not examined the learned Judge is of the view that after evidence of P.W. 4, if defence had any doubts it could have summoned the lady constable as its witness.
On the point whether seizure of property from the possession of the two accused is duly proved by the prosecution, the learned Judge felt convinced by evidence of P. W. 1. P.W. 4 and P.W. 3 viz. P.S.I. Landge. P.S.I. Wahadankar and panch witness Salim Khan.
As far as compliance of Section 50 is concerned the Judge was again emphasised on the evidence of there witnesses, who have deposed that when apprehended, each accused was informed by P.I. Mehta of his right to be searched in presence of a Gazetted Officer or a Magistrate and that they were likely to be searched for the suspicion of possession of narcotics. Having felt the evidence of these three witnesses convincing on the aspect, the learned Judge observed that requirement of Section 50 was duly complied with.
Discrepancies in the evidence of three witnesses about topography of location, according to learned Trial Judge, could have occurred since the witnesses were being examined after a long time gap.
Having held that there is no evidence regarding conspiracy the learned Judge acquitted both accused as far as offence under Section 29 of the Act and convicted them only for possession of contraband.
4. When two or more persons agree to do or cause to be done an illegal act or an act which is not illegal, by illegal means, such an agreement is designated as criminal conspiracy as per section 120A of Indian Penal Code. Thus criminal conspiracy presupposes an agreement between two persons to commit an illegal act or an offence.
Accepting the prosecution case unrebutted, so far as relationship between the two accused is concerned, prosecution-only claims that after apprehension, accused No. 1 stated that the contraband seized from his custody, was brought by him from one Shabbir Khan and he would lead the police to said Shabbir Khan, staying at Naupada, Bandra. Beyond this the prosecution has no other material to throw light upon relationship between accused Nos. 1 and 2, although initial information was that accused No. 2 had brought contraband to Bombay and supplied it to accused No. 1. It was also said that he was to distribute heroin to street peddlers. But it does not speak any agreement that accused No. 1 was to render assistance to accused No. 2 in distributing all the contraband brought by him to Bombay, much less there is any evidence to establish such an agreement.
The Trial Judge therefore was justified in holding that the charge of criminal conspiracy was not established.
5. It was contended on behalf of accused No. 1 that there is no compliance of Section 50, since accused was not informed that he was being searched on suspicion of possession of narcotics.
Reliance was placed on the observations in para 14 of the judgment of Division Bench of this High Court in Illan Pierre v. State,. In this matter, it was observed:-
'There was breach of Section 50 by the search officer also because the accused was not informed that he was to be searched for drugs. From theevidence on record, it appears that there was thought process in the mind of search officer for searching accused on apprehension that he might be carrying narcotic drugs, but the search officer never disclosed the accused that he intended to search the accused for drugs. Section 50 of N.D.P.S. Act mandates that the search officer must inform the person, to be searched that he intends to search him for drugs. Lack of such information being given to the accused by search officer would definitely be violative of Section 50 and lead to the conclusion that there was non-compliance of Section 50.'
In the present case challenge regarding non-compliance of Section 50 is limited and that is because Panch witness has not deposed that P.I. Mehta informed the accused that he was being searched for narcotic drugs.
On reference to evidence of P.S.I. Landge as well as P.S.I. Wahadankar, both have asserted that P.I. Mehta informed the accused that his person was to be searched on the suspicion of possession of narcotics. On reference to panchanama Exhibit 12 it is recorded that both accused were informed of the search being due to suspicion of possession of narcotics. In the light of evidence of two police witnesses and especially the recording of event in the panchanama, prosecution story need not be disbelieved on this aspect, merely because panch witness has failed to refer to it. Hence I am not inclined to uphold the contention of the learned counsel for the appellant-accused No. 1 that there was non-compliance of Section 50 by failure to disclose to the accused the intent of search.
6. Both the appellants have challenged the conviction on the ground that requirements of section 42 of the N.D.P.S. Act, 1085 which are mandatory were not duly complied. This challenge is two fold. Firstly, it is contended that, a copy of the information was not sent but, only an extract of the information is claimed to have been sent. Section 42(2) requires a copy of information received and recorded under section 42(1) to be sent forthwith to the immediate superior. Both the appellants claim that the prosecution had failed to prove that the copy was dispatched 'forthwith' and there is no evidence to show as to when it was received by immediate superior.
This challenge is tried to be met with by learned A.P.P. Ms. Kantharia also by a two-fold argument. She submitted that the search and seizure in case of both appellants was carried out in a public place. Accused No. 1 was searched in an open space near railway station, whereas accused No. 2 was searched on the street. In view of search and seizure being in a 'public place' section 43 of N.D.P.S. Act, 1985 governs the case and section 42 is not at all attracted. In the alternate, she has claimed that the requirements of section 42 were duly complied with, by the State.
In order to substantiate her argument that in the facts and circumstances of the case, it is governed by section 43 and section 42 is not applicable. Ms. Kantharia has placed reliance on a few Judicial pronouncements.
In the case Ganga Bahadur Thapa v. State of Goa, the appellant-accused had booked a room in a hotel. He had opened the room with a key in his possession, when he was called upon by officers of the NarcoticsBureau to do so. Charas was recovered from a bag pointed out by him, which also contained his clothes. This recovery was at 6.30 p.m. and after sunset.
In view of explanation to section 48, the Hon'ble Apex Court was pleased to hold that merely because a customer was allowed to occupy a room in a hotel, it would not cease to be a hotel or a public place as contemplated by section 43 of the Act. Contention of the appellant/accused was therefore rejected and appeal against conviction was dismissed. Contention of the appellant-accused was that, because the raid was effected after sunset and without recording the grounds as contemplated by section 42, the search was illegal and the evidence regarding the recovery pursuant to that illegal search was not admissible.
Mohammed Zafar v. State of Maharashta, is a decision of Nagpur Bench of this Hon'ble Court. Information received was that a person Mohammed Zafar i.e. the accused was selling heroin to specific customers at Mominpura Masum Shala Takia in front of Hafiz Bakery. The information received was claimed to have been communicated to A.C.P., only on telephone. Accused was found near an electric pole in front of the bakery. Conviction was confirmed with following observations about the challenge regarding non-compliance of section 42 :-
'From the facts and circumstances, it cannot be said that section 42 would be attracted to the case. On the other hand, it will be section 43 of the N.D.P.S. Act, which would govern the field. As it provides for power of seizure and arrest in public places by any officer of any of the departments mentioned in section 42. Under section 43, such officer may seize in any public place or in transit, any narcotic drug or psychotropic substance, for which he has reason to believe that an offence under Chapter IV has been committed and it also authorises such officer to detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV .....'.
'We have no hesitation to hold that police-party which conducted the raid, search and seizure of the contraband from the appellant- accused were not required to follow the procedure- laid down under section 42 of the N.D.P.S. Act and therefore prosecution case does not suffer from any such illegality of non-compliance of section 42 of the N.D.P.S. Act.'
Longman and another v. State of Maharashtra, is a matter in which similar view is taken by another Bench of the Bombay High Court. Information was received at 7 p.m. that two persons were carrying a suit case containing large quantity of narcotic drugs at Pune S.T. Stand and would shortly leave Pune by bus for Goa. Only intimation was sent to P.I. and raid was successfully effected. While dismissing the appeal against conviction, it was observed :-
'We, therefore, hold that in the instant case, even if the officer had information or prior information, was not required to record the same or reduce it into writing because, information received by him was that the accused were carrying or were in possession of charas or contraband under the N.D.P.S. Act at the S.T. Bus Stand Pune, which was a open place, or an public place and consequently it cannot be held that there is non-compliance on the part of the officer for which the accused can claim benefit of acquittal.'
The defence, has placed reliance on Mom'ndar Kumar v. State Panaji, Goa, wherein Hon'ble Apex Court was pleased to observe that, from the stage, officer had reason to believe that accused persons are in custody of narcotic drugs, he was under an obligation to proceed further in the matter in accordance with the provisions of N.D.P.S. Act. It was further observed that if the search was carried out between sunset and sunrise, he must record the grounds of his belief as required by section 42(2). In this matter, search and seizure took place at about 8 p.m. i.e. after sunset. In this matter, a white plastic bag was found lying by the side of accused Mohinderkumar which contained two polythene packets of charas like substance, but this was inside the house.
In K. Razak v. State of Kerala, P.W. 1 S.I. had got reliable information in the evening that one man was selling brown sugar near Sarda Mandiram bus stop. Admittedly, he did not reduce the information into writing nor did he inform his superior officers about it. Their Lordships of the Apex Court were pleased to allow the appeal against conviction by observing as follows :-
'We are of the considered view that in the light of his non-compliance with provisions of section 42(1) and (2) of the Act, besides non-compliance with requirement in section 50, it is difficult to sustain the conviction and sentence of the appellant.'
7. Since the distinction between Sections 42 and 43 and applicability of either in peculiar facts and circumstances of the case is under consideration, the Sections are reproduced hereinbelow for ready reference by excluding limited part which is not required for the purpose.
'42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) Any such officer (***) of the Departments ..... as isempowered in this behalf by general or special order by the Central Government, or any such officer (***) of the Revenue ..... department of a StateGovernment 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, in respect of which an offence punishable under Chapter IV has been committed OR any document or other article which may furnish evidence of the commission of such offence 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 Chapter IV relating to such drug or substance: 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 Chapter IV relating to such drug or substance:
Provided 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 sub-section(1)or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.
43. Power of seizure and arrest in public places.- Any officer of any of the departments mentioned in Section 42 may -
(a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed and. along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document of other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance:
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation.- For the purposes of this section, the expression 'public place' includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.'
8. Section 42 can be analysed into following parts :-
The title indicates that the Section pertains to powers (of authorised officers) of entry, search, seizure and arrest without warrant/ authorisation.
Opening part of Section 42(1) prepares a list of authorised/empowered officers, who can take action under this Act in certain circumstances. It also indicates that such officer can act on the basis of his reasonable belief from personal knowledge OR on the basis of information given by any person and taken down in writing.
The latter half of Section 42(1) is regarding the nature of information, on the basis of which he can act. It may be mentioned here that this part regarding the nature of information makes no reference to a person or individual, but the information is regarding drug, psychotropic substances in respect of which offence is committed, documents or other article likely to furnish evidence, being kept or concealed in any building, conveyance or enclosed place. Enclosed place is not distinguished either as public enclosed place or a private enclosed place.
Hereinafter clauses (a) to (d) indicate the nature of action authorised officer can take. In other words these clauses enlist and analyse the powers of authorised officer regarding entry, search, seizure, detention and arrest, when information of the nature in Section 42(1) is received and recorded in writing.
However these powers can be exercised only while acting during day time between sunrise and sunset. This is evident from the proviso, which requires the authorised officer to form a reasonable belief, as to why he is required to act without waiting for a search warrant, at night hours i.e., after sunset and before sunrise, and record the grounds for such belief, that if he is to await for a search warrant or authorisation, he cannot do so without affording an opportunity for concealment of the evidence or facilitating escape of an offender.
Sub-section (2) casts a duty on the authorised officer to send forthwith a copy, to his immediate superior. This is required to be done in two cases, where the officer takes down any information in writing under sub-section (1) AND where he records grounds for his belief as contained in proviso to section 42(1).
9. Section 43 for the purposes of convenience and complete understanding can be considered in four parts. The opening part inclusive of the title indicates that the Section pertains to powers of seizure and arrest by the authorised officers in public place.
Clause (a) is regarding seizure of narcotic drugs or psychotropic substance in respect of which offence punishable under Chapter IV appears to have been committed, also regarding any animal or conveyance or article liable to confiscation under the Act and any document or other article likely to furnish evidence of commission of offence punishable under Chapter IV relating to such drug or substance found in any public place or transit. The clause indicates that the authorised officer has powers to seize such material.
Clause (b) is about a person or individual. In case authorised officer believes such person to have committed an offence punishable under Chapter IV and has any narcotic drugs or psychotropic substance in his possession which appears to be unlawful, the authorised officer is empowered to detain, search and even effect arrest of such person. It may be mentioned that word 'public place' which finds place in the title part of Section 43 as also in clause (a) is conspicuously absent in clause (b).
Lastly, the explanation offers assistance to decide whether particular place is a public place as contemplated by the Section or not.
10. When we consider Sections 42 and 43 together, it can be seen that the two sections have distinguished region of operation. Section 42 operates when the authorised officer has personal knowledge or prior information given by any person and taken down in writing. As against this Section 43 does not refer either to personal knowledge of the authorised officer or to any information given by any person and taken down in writing by him. Thus Section 43 comes into play when the authorised officer stumbles over objectionable articles or comes across the person indulging into an offence punishable under Chapter IV without prior knowledge or any information. To this extent there is no region, where the two Sections can be said to have overlapping effect, that is there is no situation when section 42 can operate without personal belief or prior information nor there is any zone when Section 43 may come into play although there is prior knowledge of information.
11. Applicability of Section 43 and inapplicability of Section 42 is pleaded by the learned A.P.P. Ms. P. H. Kantharia, by contending that Section 42 operates when objectionable material documents or other article likely to give evidence or any individual indulging into commission of offence under Chapter IV is/are found in any building, conveyance or enclosed place. According to her, Section 42 has no applicability, if the person is not found in any building or enclosed place. This proposition cannot be said to be wholly correct, inasmuch as explanation to Section 43 includes within it some enclosed place also such as hotel, shop etc. Thus place being enclosed or open is not the strict basis for determining zone of applicability of two Sections. I shall come to exceptional circumstances in which even Section 42 may come into play, in spite of individual being found in an open place, while considering repeated use of phrase 'he has reason to believe' in these two sections.
Building or enclosed place referred to in Section 42 does not make any distinction between public place and private place and therefore, although collocation 'public place' appears twice in Section 43, the place being public place or private place strictly cannot be the criteria separating the zones of applicability of these two sections. A public place if a building or enclosed place is within the clutches of section 42. At the same time an enclosed place such as hotel or shop is covered by Section 43. Thus, it can be said that the two sections have overlapping effect regarding certain zone i.e. 'enclosed public place.'
12. The phrase 'he has reason to believe' finds place on five occasions in section 42 and at three places in Sections 43. In the ordinary course, this phrase indicates that the authorised officer is required to form certain belief, on the basis of material before wim, which may include narcotic drug, psychotropic substance, document or other article, animal or conveyance as also an individual. When we see the portion immediately suffixing the use of phrase 'he has reason to believe', at all the locations in the two sections, it can reasonably be inferred that the phrase appears for such a situation, when new material (not known earlier) has come before the authorised officer and he is required to form his opinion/belief thereupon.
For the first time phrase appears in opening part of Section 42 immediately after enlisting the authorised officers and before description of nature of information. Apart from information given by any person personal knowledge of the authorised officer is also one source of information upon which, he can act as contemplated by Section 42. The phrase 'he has reason to believe' requires the officer to form an opinion on the basis of his personal knowledge that what he has known is an information of the type described in latter half of Section 42(1), only after such belief/opinion he can spring into action.
The phrase appears twice in clause (c) of Section 42(1). First appearance of this phrase in clause (c) is prefixed by words 'all materials used in the manufacture thereof and any other article and any animal or conveyance'. It is pertinent to note that the material described in this prefixed part does not find place in the opening part of Section 42(1), which describes the nature of information, which is restricted to drug or psychotropic substance and document or article likely to furnishevidence. It can therefore be said that the material described in the clause prefixing phrase 'he has reason to believe' is the material about which there was no information and has come to the knowledge of authorised officer on the spot and spur of moment. Such an inference stands confirmed when the clause suffixing the phrase is considered i.e. 'to be liable to confiscation under this Act'. Considering opening part of Section 42(1) r/w part of clause (c) discussed so far it is evident that authorised officer is empowered to seize the additional material described in this clause, although that may not have been part and parcel of the information received and recorded.
The phrase used on the second occasion in clause (c) appears to have been prefixed and suffixed by repeating the contents from the opening part of Section 42(1). The phrase is prefixed by 'and any document or other article which ' and suffixed by ' ..... may furnish evidence of the commission of any offence punishable under Chapter IV . . ... '. Such description finds place as second type of information said to have been given by a person and taken down in writing, in opening part of Section 42(1) which is reproduced hereinbelow for convenient comparison' . . ... or any documents or other article which may furnish evidence of commission of such offence .....' The words 'such offence' here mean an offence punishable under Chapter IV.
The two types of informations described in opening part of Section 42(1), one relating to narcotic drug or psychotropic substance and other relating to any document or other article are linked by conjunction OR. As against this in clause (c) narcotic drug or psychotropic substance and other material described prior to first use of phrase 'has reason to believe' are linked by conjunction AND. The description of documents or other article which occurs before the after second use of phrase 'he has reason to believe' is expanded by the terminal clause 'relating to such drug of substance' thereby indicating that document or article recovered, and likely to furnish evidence of commission of any offence under Chapter IV is relating to drug or substance that is recovered in the same raid, irrespective of the fact whether there was/was not prior information regarding probability of recovery of such document or other article.
Section 42(1) while separating the two types of informations by word 'OR' leaves it open that information may be of the first type or of the second type. In that case if the information was only relating to narcotic drug or psychotropic substance, the authorised officer would have found himself to be lacking in powers to seize other material, including documents or other article likely to provide evidence, but for incorporation of reference to those in clause (c) and in the manner incorporated in clause (c) i.e. by conjunction 'AND' and added by a tail piece 'relating to such drug or substance'. Thus clause (c) by use of phrase 'he has reason to believe covers the material coming across the authorised officer on the spot and which is beyond the scope of information received and empowers him to seize the same, if he is able to form a reasonable belief, as required.
In clause (c) phrase 'he has reason to believe' is used in connection with a person. As already pointed out while analysing Section 42, two types of information contemplated by Section 42(1) do not make any express reference of information pertaining to an individual/person. If atall, informed possibility of a person or individual being found is implied in clause 'in respect of which an office punishable under Chapter IV has been committed', used suffixing information regarding narcotic drug/ psychotropic substance. Therefore, it can be said that clause (d) covers an individual/person found present during the raid, although such probability might not have been converted in the information received and reduced to writing. Phrase 'he has reason to believe' makes imperative on the part of authorised officer to form reasonable belief on all the material recovered during the raid, that the person found present has relation with the offence under Chapter IV and then only he is empowered to detain, search and arrest such person/individual.
Discussion above sufficiently illustrates that clauses (c) and (d) are drafted in such a manner that authorised officer is not handicapped due to lack of power, merely because something beyond information received and recorded is found on the spot and spur of moment and such a situation should cover an individual found around the building or enclosed premises being searched under information, with linking material or circumstances indicating that he is the person having committed an offence punishable under Chapter IV relating to such drug or substance. If such an interpretation is not accepted and Section 42 is taken as a compartment of enclosed place and section 43 as a compartment of public place, an individual found in open private place may go escort free as authorised officer having no powers to detain, search and arrest him. Such a situation cannot be considered to have been postulated by the legislation. Of course, such a situation is taken care of by explanation to section 43 and especially the part 'or other place intended for use, by or accessible to, the public.'
The phrase 'he has reason to believe' appears thrice in Section 43. Since Section 43 deals with the case of seizure and search without prior information, it requires no discussion to say that authorised officer is required to form an opinion on the basis of facts and circumstances, material and person which he comes across on the spur of moment. 13. Pursuant to discussion above the zones of operation of Section 42 and Section 43 can be crystallized as follows :
Section 42
(i) Belief on the basis of personal knowledge or information given by any person and taken down in writing.
(ii) Narcotic drug/psychotropic substance or document/other article informed to be kept or concealed in any building, conveyance or enclosed place (private as well as public).
(iii) Materials used in the manufacture thereof and any other article and any animal of conveyance liable to confiscation,
document or other article furnishing evidence relating such drug or substance to an offence under Chapter IV,
all these materials are such which were not part and parcel of the information received.
(iv) Any person reasonably believed to have committed offence under Chapter IV (irrespective whether his presence was/was not part of information received).
Section 43
(i) No previous information at all;
(ii) Narcotic drug/psychotropic substance, which can be believed to be related to offence under Chapter IV;
any animal or conveyance or article liable to confiscation;
any document or other article which can be believed to furnish evidence of an offence under Chapter IV;
all found in public place or transit.
(iii) Person about whom belief can be formed of having committed offence under Chapter IV or having narcotic drug/psychotropic substance in his possession (either found in public place or private place accessible to the public).
14. Considering the zones of operations of two sections as crystallized above, it can be seen that two sections considered together do not leave authorised officer powerless in any situation that can be contemplated but there can be seen zones regarding which the two sections overlap and such zones are as follows :-
(i) Any building, conveyance or enclosed place may incorporate public building, public conveyance or public enclosed place. Although Section 43 specifically uses the word 'in any public place or transit', in Section 42 there is no express indication excluding public building, conveyance or enclosed place. On the contrary public place contemplated under Section 43 is limited to hotels and shops, as far as buildings and enclosed places are concerned.
(ii) All material used in the manufacture and any other article and any animal or conveyance liable for confiscation and document or other articles which were not subject matter of information but found on the spot.
(iii) Any person on the spot whose presence was not reported in the information.
When there are overlapping zones in two sections, those cannot provide proper guide to determine whether Investigating Officer was required to comply with Section 42(2) of the N.D.P.S. Act, 1985. Whether there was prior information or not is the criteria about which there is no clash between Sections 42 and 43. Therefore, it is felt, prior information or no information should be the sole criteria to determine whether compliance of Section 42(2) of the N.D.P.S. Act, 1985 was imperative or not, isolated reading of Section 42(2) fully justifies such an interpretation. I am fortified in expressing such a view by the decision of the Supreme Court in Mohinder Kumar's case reported in : 1995CriLJ2074 , which lays down that from the stage he (Investigating Officer) had reason to believe that accused persons were in custody of narcotic drugs, he was under an obligation to proceed further in the matter, in accordance with the provisions of N.D.P.S. Act.
15. Requirement of sending forthwith, a copy of information received: to immediate superior incorporated in Section 42(2) of the N.D.P.S. Act, although not pari materia, is analogous to requirement in Section 157 of Code of Criminal Procedure, 1973. That provision casts a duty upon an officer in charge of a police station, who forms an opinion on the basis of information received, regarding commission of an offence which can be investigated under Section 156 of the Code of Criminal Procedure, to send forthwith, a report of the same to the Magistrate empowered to take cognizance. The object of such a report under this Section is to enable a Magistrate to have early information of every serious crime so that he may be in a position to act under Section 159, if required and deemed proper. Sending of such report to immediate superior also enables the superior to decide whether investigation deserves to be entered into, by ascertaining if there is truth in the information or otherwise. It also serves the purpose of eliminating possibility of tampering or manipulating with the information. More over when there is information in advance, if the same is taken down in writing and copy communicated to immediate superior, it serves as a guard against the scope of allegations of subsequent manipulation by the prosecution, and therefore it can justifiably be said that at least in the regions where Sections 42 and 43 overlap, whether authorised officer has swung into action on the basis of information received or has stumbled across the contraband should govern the requirement of compliance of Section 42(2).
16. In view of the discussion above this Court will be justified in holding that in the case at hands it was imperative upon the prosecution to comply with the requirement of Section 42(2) in view of admitted position that prosecution had received and recorded the information. Such a conclusion is fortified by observations of Hon'ble Supreme Court in K. Razak v. State of Kerala, wherein there was prior information, compliance of Section 42(2) was held necessary although search of accused for brown sugar was near Sarda Mandiram bus stop 'a public and open place'. It may be stated here that decision in K. Razak's matter being dated 24th February. 2000 is later in lime as against the case of Ganga Bahadur Thapa v. State of Goa,.
17. Coming to the facts and having held that there being information received and recorded, prosecution cannot claim that compliance of Section 42(2) was not mandatory, in spite of the fact that two accused were searched in an open and public place, now it is required to consider whether prosecution has complied with the requirement of Section 42.
Section 42(1) requires that the information received should be reduced to writing and a copy thereof should forthwith be sent to immediate superior. On reference to page 100 it can be seen that information was reduced to writing in a book maintained for the purposes. This fact is also deposed by PSI Landge as also PSI Wahadankar, Although the information book was not produced with the charge-sheet and prosecution failed in not producing the same when PSI Landge was examined, who was the scribe of the information, PSI Wahadankar brought the information book and during his cross-examination has stated that he had seen this entry while Mr. Landge was writing the same. Consequently the recording of information in the record book is duly proved, although the evidence about the same was not placed before the Court by the prosecution with the expected promptitude.
From the evidence of Mr. Landge it can be seen that informant had narrated the information in Hindi. However, the same was translated and recorded in English by M/s. Mehta & Landge and accordingly recorded in the information book by Mr. Ladge. The defence had taken an exception to this translation. The section does not prescribe any mode or manner in which and place, such as any register etc. where an information given by any person is to be taken down in writing. That being so, merely because information was translated and recorded in English, it cannot be said that prosecution has failed to comply with the requirement of section 42(1).
The objection that recorded information is not attested by signature either of P.I. Mehta or P.S.I. Landge was also, hence, rightly turned down by the Trial Court.
As far as compliance of Section 42(2) i.e. forthwith sending a copy to immediate superior, the defence has raised a two-fold objection. Referring to Exhibits 17A and 18, it was pointed out that what is dispatched to immediate superior is an extract of the information and not the information as it was recorded. On perusal of the text of Exhibit 17A and Exhibit 18, it can be verified that opening part 'P.I. Mehta reports that' is the only part that is missing from Exhibit 18. The remaining portion in the extract is verbatim as Exhibit 17A. Considering this factual aspect it cannot be said that some cryptic extract was submitted to immediate superior instead of information received. Exhibit 18 can very well be termed as a copy of Exhibit 17A and mere title 'extract of the information book' shall not takeaway the character 'copy of information' from Exhibit 18.
18. Learned Counsel for the appellants, have seriously attacked the contention of prosecution that information was forthwith submitted to immediate superior. Although the prosecution claims that P.I. Mehta gave the information to D.C.P. Shri Pandey on telephone the same is not sufficient to comply with requirement of Section 42(2). According to defence instead of simply relying upon the deposition of P.S.I. Landge that extract of information was immediately sent to D.C.P. Pandey by a messenger, a lady constable, prosecution could and ought to have established the fact of receipt of information by immediate superior as due compliance of Section 42(2). According to defence, prosecution could have examined P.I. Mehta under whose signature it was forwarded. Outward register of Kandivili office could have been produced to show that it was entered the same day for dispatch, messenger lady police constable could have been examined as to when she collected it and as to when she reached the same to D.C.P. office. Police constable Tawade who is said have received it in the D.C.P. office was a witness available for establishing the receipt as well as date and time of receipt of information by immediate superior. Inward register of superior office is also not placed before the Court. Lastly, the superior himself could have entered into the witness box to confirm the receipt of information.
According to the learned A.P.P., evidence of P.W.4 P.S.I. Wahadankar who is Investigating Officer in the matter, is sufficient to establish the compliance of sub-section (2) of Section 42. As regard the date and time of dispatch she has relied upon outward numbers of Exhibits 10, 18, 19 and 21. Exhibit 10 is a letter under which samples were forwarded to Chemical Analyser, the letter is dated 2nd August, 1995 and its outward number is 441 of 1995. Exhibit 18 is the extract/copy of the information.it is dated 1st August. 1995 and outward number is 436 of 1995. Exhibit 19 is the report by P.I. Mehta, under which the seized articles were tendered at the police station. This was immediately after the raid. This letter is dated 1stAugust, 1995 and bearing outward number 438 of 1995. Exhibit 21, outward No. 437/95 dated 1.8.1995 is special report to superior on completion of search, seizure, arrest etc. Ms. Kantharia urged that taking into consideration the outward numbers, it could be said that the extracts were submitted to immediate superior on 1stAugust, 1995 and before proceeding for the raid in view of its outward numbers 436 preceding outward number of the letter under which the seized articles were tendered to the police station.
Section 42(2) of N.D.P.S. Act, 1985 reads as follow :-
'Where an officer lakes down any information in writing in sub-section (1) or records ground for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.
Although the word used is 'send', the word should be read as 'reach'. As already discussed in para 15 above, sending of a copy of information received and recorded is a safety measure and precaution. It saves prosecution from accusation of tampering. It rules out the possibility of any manipulation and also enables the superior officer to take appropriate decision in the given set of circumstances. In view of this, mere sending or dispatch is not sufficient, but, the officer who receives and records the information has to ensure that the same reaches immediate superior, without any delay.
What is the impact of non-compliance or delayed compliance of requirement of Section 42(2) is laid down by Hon'ble Apex Court in the case of Balbir Stngh v. State of Punjab, After observations in para 15 Honble Court has recorded its conclusions in para 25. The relevant conclusion is at serial No. 3, which reads as follows :-
'Under Section 42(2) such empowered officer who taken down anyinformation in writing or records the grounds under proviso to Section 42(1)should forthwith send a copy thereof to his immediate official superior. Ifthere is total non-compliance of this provision the same affects the prosecutioncase. To that extent it is mandatory . But if there is delay whether it was undueor whether the same has been explained or not will be a question of fact ineach case,'
In the present case the appellants have relied upon certain omissions on the part of prosecution and pleaded that requirement of Section 42(2) was not at all, complied and if at all the copy was not sent to superior, forthwith. The circumstances relied upon by the appellants are already enunciated in para 17 above, followed by the effort on the part of the learned A.P.P., to demonstrate that extract was dispatched at the earliest possible in view of the fact that outward number of the extract (Exhibit 18) is 436 dated 1st August, 1995, special report (Exhibit 21) submitted to D.C.P. (N) on completion of the raid being outward No. 437 dated 1st August. 1995, Exhibit 19 being outward No. 438 also dated 1stAugust. 1995 by which the seized articles were deposited in the safe custody of Inspector of Police and Exhibit 10 being outward No. 441 dated 2ndAugust, 1995 by which the samples A1 and B1 were sent to the Chemical Analyser. The chronology relied upon Ms. Kantharia establishes the order in which the respective letters were registered in the outward register. This may not provide time of its dispatch and reaching to the authority to whom it is addressed. Exhibit 18 and endorsement upon the same by police constable Tawade is the only piece of evidence, which confirms that this extract of the information book reached the office of D.C.P. (Narcotic Cell), On perusal of original Exhibit-18 from the record of Trial Court, it appears that it bears signature of Mr. Tawade alongwith stamp of the office of D.C.P. (Narcotic Cell). This particular endorsement therefore cannot be lightly brushed aside. It certainly establishes that the extract of information book reached office of D.C.P. (Narcotic Cell).
Objection was raised to identification of signature of Mr. Tawade by PW 4. As can be seen from the record, signature of Mr. Tawade alongwith stamp of office also appears again on Exhibit 21 i.e. office copy of special report submitted on completion of raid. It thus appears that in the usual course of business Inspector Mr. Wahadankar had opportunity to know the signature of Mr. Tawade, in acknowledgment of dispatch from Kandivili Office to Head Office.
Unfortunately Mr. Tawade has neither endorsed the date, nor the time of receipt of Exhibit 18, while signing the same in acknowledgement of original. His endorsement is thus incapable of fixing the date and time of receipt of the same by D.C.P. office. It certainly cannot be denied that prosecution by not examining the lady police constable who carried the extract to the office of A.C.P. has denied itself of the best evidence on the point. However, taking into consideration the chronology of the correspondence relied upon by the learned A.P.P., it can be seen that on the same day i.e. on 1st August. 1995 outward No. 437 (Exhibit 21) special report on completion of the raid was also due for dispatch to the office of A.C.P. Eventually this special report is also acknowledged by Mr. Tawade without putting date and signature. Regard being had to common course of events and human conduct and possibly the two letters could have travelled together, if Exhibit 18 was not sent earlier. Subsequent letter being outward No. 441 addressed to Chemical Analyzer is dated 2nd August, 1995 and from the report of Chemical Analyser it appears to have been despatched and reached the Chemical Analyser on the same day i.e. 2nd August, 1995 (Exhibit 20). Taking into consideration the course of action followed relating to Chemical Analyser's report it can be inferred that outward Nos. 436 and 437 also must have been dispatched with due urgency.
Eventually P,W. 4 Mr. Wahadankar was cross-examined on this point, when he has stated that copy of this information was sent by Mr. Mehta some time in between 10.30 and 10.45 A.M. through lady police constable.
In view of this it can be said that copy of the information was reached to the immediate superior without undue delay.
As observed in Balbir's case the mandatory requirement is of reaching the copy of information to immediate superior which is complied with. Prosecution evidence, although inadequate to establish exact time when it was reached, there is enough material on record to infer that at least there was no undue delay. Presuming it for the sake of argument therewas some delay in sending the copy to immediate superior, there is no material on record to arrive at a conclusion that it had resulted in any prejudice to the accused. Hence it cannot adversely affect the weight that can be attached to the prosecution evidence. The testimony of a witness is not to be doubted merely because he happens to be an official.
It was argued on behalf of the appellants that possibility cannot be denied that such extract, and acknowledgment could have been prepared even after trial commenced. Such possibility stands ruled out by chronology of outward numbers. Untenability of such an argument can be visualised if we stretch the logic to its extreme. If officers can fabricate an extract and acknowledgement from superior office, nobody could have prevented them from placing the case before the Court as if it was case without any information, which situation absolved them of any responsibility to establish compliance of Section 42(2).
In view of the reasons above the acknowledgment signature of Mr. Tawade establishes compliance of Section 42(2) and marginal delay if any incompliance of the same has not caused any prejudice to the accused and hence trial cannot be said to have been vitiated.
19. The report of The Chemical Analyser faced multi pronged attack from learned Counsel for accused No. 1 which was also subscribed by learned Counsel for accused No. 2.
It was argued that colour of the material seized is described in a discrepant manner in the prosecution evidence and therefore it is difficult to believe that samples from the material allegedly recovered from two accused persons had reached the Analyser and were analysed by him. In the first information report (F.I.R.) Exhibit-8 the contraband recovered from the two accused is described to be of yellowish colour. Panchanama Exhibit- 12 also states the colour of contraband recovered from both accused persons to be yellowish. P.S.I. Shri Wahadankar (P.W. 4) has narrated the colour of material recovered from accused No. 1 to be yellowish whereas the material recovered from accused is described by him as brown sugar. P.S.I. Shri Landge has narrated the colour of material recovered from accused No. 1 to be brown powder and that recovered from accused No. 2 to be yellow brown.
As against this Chemical Analyser's report Exhibit-20, described the sample as 'brownish powder packed in two small polythene bags wrapped in wrappers separately A1 and B1 respectively.' The learned Counsel Shri Keshwani, relying, upon this variation in the description of colour pleaded that it cannot be said with certainty that what samples were examined by Chemical Analyser were from the contraband allegedly recovered from the possession of accused persons.
The learned A.P.P. has placed reliance upon Jagdish Purohit v. State of Maharashtra, and especially paragraph 4 of the same. In this matter two prosecution witnesses had described the substance seized and sent to laboratory to be of white colour. But in the reports of Chemical Analyser colour of the samples was stated grey. Their Lordships of the Hon'ble Supreme Court were pleased to observe that the evidence established that samples were received by the Chemical Analyser in a sealed condition and they were intact. The samples were in a fit condition for testing, therefore, no doubt was left about the materials seized from the factory and examined by the Chemical Analyser being the same.
In the matter at hands the Analyser has reported to have received the two parcels with seals intact. There is nothing in the Analyser's report to suggest that samples were not in a condition fit for testing. It is needless to repeat the evidence of two Sub-Inspectors, carrier Ramesh Gosavi and supporting panch witness Salim Khan, which establish that samples were duly sealed under paper seals signed by panchas and police on the spot itself. There is no material on record to believe or suspect that the samples were tampered. It is therefore not possible to accept the argument advanced by the learned Counsel for the appellants that the report of analysis cannot be linked to the material recovered from the accused persons.
From the prosecution evidence it appears that two samples which were ultimately sent to chemical analyser were retained by P.I. Mehta and were not deposited at the Head Office with other articles. It was argued that this leaves a room for possibility of tampering. As can be seen, the muddemal was sent and deposited at Bombay Head Office on 1st August, 1998 after 6.30 P.M. when the raiding party returned to Kandivili Office. It is also matter of evidence that police constable Ramesh Gosavi took the samples from P.I. Mehta and reached those to the Chemical Analyser on the same day. This explains retention of two samples by Mr. Mehta with himself who was the head of raiding party.
Reliance was placed by appellants on State v. Jagdish Shah, and especially observations in para 7 which are as follows:-
'The accused in such circumstances is entitled not only to a question but to challenge the evidence that is rendered against him and for so doing he will require the authority concerned, viz, the Chemical Analyser to be produced as a witness so that he can assert the correctness of the Chemical Analyser's report. An attempt has been made in this case to produce that report through the Investigating Officer and 1 have already held that such a procedure is impermissible.'
In view of the observations by Hon'ble Apex Court in couple of judicial pronouncements referred herein below, I am afraid the contention of learned defence Counsel is unsustainable.
In Himachal Pradesh Administration v. Om Prakash, which was a murder trial and case governed by Code of Criminal Procedure, 1898, an exception was taken to the report of 'Finger Print Expert' that it did not furnish the reasons for the opinion that finger prints belong to the accused, In para 16 the Hon'ble Apex Court was pleased to observe as follows :-
'The report regarding the finger print is that of the Director of Finger Print Bureau which under Section 510 of the Cr.P.C.. 1898 (provisions analogous to present section 293 of Cr.P.C. 1973) can be used as evidence in any enquiry or trial without examining the person who gave the report just in the same way as the report of The Chemical Analyser or of the Chief Inspector of Explosives. Under sub-section 12) however the Court may, if it thinks fit. and shall on the application of the prosecution or the accused, summon and examine any such person as to the subject matter of his report,'
In Tulsiram v. State, following were the observations regarding requirement of examination of the Chemical Analyser :-
'In ordinary circumstances there could be nothing wrong in taking the reports of the Chemical Analyser and Imperial Serologist on record without examining those persons as witnesses, as permitted by the Code of Criminal Procedure.'
The Code of Criminal Procedure permits, introducing the report without examination of Analyser. It is always open for the Court on its own or upon the demand of either party to summon the Chemical Analyser and examine him as a witness for satisfying that report is acceptable.
The learned Counsel for the appellants on enquiry have conceded that, the examination of Chemical Analyser as a witness was not demanded before the Trial Court, by the accused.
Lastly reliance was placed on Division Bench judgment of this Court in Illan Pierre v. State,. By relying upon observations in paragraph 8 it was contended for appellants that the report of Chemical Analyser in the present case is merely conclusion/opinion. The report does not contain the details of methods applied, observations during such tests and the grounds on which such opinion is based. It was therefore, contended that the expert's opinion cannot provide sufficient basis to the Court as proof of the fact that what was recovered from the possession of accused was a contraband.
In the reported case Senior Scientific. Offer in Central Forensic Laboratory was examined as a witness. In the matter before this Court the Chemical Analyser was not examined and examination of Chemical Analyser as a witness was neither found essential by the Trial Court nor demanded by the appellants.
In Jagdish Purohit v. State of Maharashtra, relied by learned A.P.P. in response, admissibility of reports of Chemical Analyser as also weight to be attached to those was under challenge. Although the reports did not contain any data regarding the tests applied by the Chemical Analyser for finding out the contents of the samples, the same were found acceptable by the Hon'ble Supreme Court because reports showed that a qualitative test was followed by the Analyser. Moreover with the help of drug identification kit, the raiding party had also tested and found the material to be methaqualone tablets as reported by the Chemical Analyser. The challenge to the admissibility of report as well as weight to be attached to the same therefore did not find favour with the Hon'ble Supreme Court.
In the case before this Court also, raiding party had tested the material with the help of drug identification kit, and confirmed the same to be heroin. Thus Analyser's report is not isolated piece of evidence to prove the material seized from accused persons to be heroin. Theobservations as many are available on record arc capable of indicating that qualitative analysis was carried out and the Analyser has reported that diacetyl morphine was detected in both the samples. Although percentage of heroin is not stated in the report, the Analyser has opined that samples fall under Section 2(xvi)(e) of N.D.P.S. Act, 1985 thereby indicating that percentage of heroin was exceeding 0.2%. Infact on reference to section 2(xvi) definition of opium derivatives in clause (d) also includes diacetyl morphine. Analyser having reported that the material falls under Section 2(xvi)(e), it need not be doubted that the sample did contain heroin exceeding 0.2%
In Phool Kumar v. Delhi Administration, which was a case under section 397 of I.P.C. one of the two eye-witnesses had not identified the appellants at all and other identified him at the 4th or 5th round. The clinching evidence against the appellant was his thumb impression on the 'kunda' of the cash box. It was conclusively proved to be his on the opinion of the expert. The report was used as evidence by the prosecution without examining the expert in the Court.
While dealing with the challenge of the appellants to the report of the expert being used without examining him, the Hon'ble Supreme Court observed :-
'Neither the Court thought it fit nor the prosecution or the accused filed any application to summon and examine the expert as to the subject matter of his report. The Court was bound to summon the expert if the accused would have filed any such application for his examination. That not having been done the grievance of the appellants apropos the report of the expert being used without his examination in Court made in the High Court and repeated in this Court had no substance.'
Admittedly there was no application on the part of defence for examining the Chemical Analyser as the witness in the Trial Court. Hence in view of the observations of the Hon'ble Supreme Court, challenge to Analyser's report cannot now be entertained.
Following observations of Hon'ble Supreme Court in para 16 of Himachal Pradesh Administration v. Om Prakash, may also be usefully referred to, insofar as this challenge by the learned Counsel for appellants, to report of Chemical Analyser is concerned :-
'..... The reason why report of the Director of the Finger Print Bureauis treated as evidence without examining the person giving the report is that the comparison and identification of Finger Prints has now developed into a science and the results derived therefrom have reached a stage of exactitude. As long as the report shows that the opinion was based on observations which lead to a conclusion that opinion can be accepted, but should there be any doubt it can always be decided by the calling of the person making the report....'
There is no reason why these observations should not apply to forensic laboratory and reports coming from any of the departments of the said laboratory since forensic science itself is a well developed science.
20. To sum up the prosecution cannot claim that the case is covered by Section 43. However, mandatory requirement of Section 42(2) appears to have been complied with. So far as challenge to the admissibility of report of Analysis and acceptance of opinion, the same is unsustainable for The reasons discussed in para 19 above.
The appeals therefore deserve to be dismissed and are accordingly dismissed.