Ashok Agarwal
1. The present appeal is filed by the original accused, who in the instant case has styled himself as Mohomed Hussain. He seeks to impugn the judgment and order passed by the learned Additional Sessions Judge, Greater Bombay on 11th October, 1993 convicting him under section 21 read with section 8(c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter, for short, referred to N.D.P.S. Act) and sentencing him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/- in default to suffer further rigorous imprisonment for six months.
2. At the trial petitioner was charged for offence punishable under section 29 read with sections 8(c), 21, 23, and 30 of the N.D.P.S. Act as also under section 135A of the Customs Act. Since the charge, as framed, has been challenged in the appeal, as being illegal, it will be convenient at this stage to reproduce the same: :
'I, S.K. Shah, Addl. Sessions Judge/Special Judge for Greater Bombay hereby charge you :
Mohd. Hussain Farah as follows :-
FIRST : That you alongwith Abdiwal @ Abdivoor Siad and other unknown, at Bombay, during Jan. 1988 to 22-6-1988 conspired to commit or abetted the commission of offences under NDPS Act, to wit acquire, possess, store, conceal, transport, or export narcotic drugs out of India and you thereby committed an offence punishable under section 29 read with 8(c), 21 and 23 of NDPS Act, 1985 and within my cognizance;
SECOND : That you in pursuance of the said conspiracy on or about 22-6-88 at Bombay acquired and/or possessed in your custody or control, 3.800 Kgs. of a preparation containing 18.6% and 17.9% of Morphine covered by section 2(xvi)(e) of NDPS Act, and which was recovered from 2 Polythene bags found in Room No. 201 in Embassy Hotel, V.T. Bombay and you thereby committed an offence punishable under section 21 of NDPS Act, 1985 and within my cognizance;
THIRD : That you in pursuance of the said conspiracy and during the course of the same transaction, on or about 22-6-88 at Bombay made preparation to export the said narcotic during sic drug and the circumstances showed that you were determined to carry out your intention but were prevented by circumstances independent of your will and you thereby committed an offence punishable under section 30 of NDPS Act, 1985 and within my cognizance.
FOURTH : That you in pursuance of the said conspiracy and in course of the same transaction, on or about 22-6-1988 at Bombay made preparation to export the said narcotic drug out of India and the circumstances showed that you were determined to carry out your intention but prevented by circumstances independent of your will and you thereby committed an offence punishable under section 135A of Customs Act, 1962 and within my cognizance.And I direct that you be tried by me on the said charges.Bombay, this dated 16th June, 1993.'
3. Complainant in the instant case is one S.M. Sawant (P.W. 1). He, at the relevant time, was an Intelligence Officer in the Directorate of Revenue Intelligence Office (D.R.I.). P.W. 2 Krishnakumar was, at the material time, working as Assistant Director of D.R.I. He was, thus, superior officer of Shri Sawant. P.W. 3 - Anthony Fernandes was the Manager of Embassy Hotel, which is located behind Capital Theatre, opposite V.T. Railway Station where the offence in question was detected. P.W. 4 Domnic Martin Nunes is an employee in the aforesaid Embassy Hotel working in its Bar. He has acted as a panch to the panchanama (Exhibit 40) in respect of the search and seizure from Room No. 201, located on the ground floor of the aforesaid Embassy Hotel. P.W. 5 Chothirakumnil Itty Mathew is an Intelligence Officer, D.R.I., who is connected with an earlier offence with which the present accused was charged. He was also present at the time of search and seizure in respect of the present prosecution. P.W. 6 Homigar Adi Mohta is a Manager of another Hotel Sahil, where the accused had stayed prior to his stay in Hotel Embassy. P.W. 7 Bhikki Ram Verma is a Chemical Analyser working in Bombay. P.W. 8 - Rameshchandra Lalaram Verma is an Assistant Chemical Analyser working under Bhikki Ram Verma. P.W. 9 Suresh Chandra Johri is a Chemical Analyser in the Central Revenues Control Laboratory, Delhi.
4. The case of the prosecution as unveiled from the evidence led is as follows:
P.W. 1 Sawant, at the material time, was working as Intelligence Officer in the Directorate of Revenue Intelligence Office (D.R.I.). On 22nd of June, 1988 at about 5.00 p.m. he received an information on telephone that one Mohd. Hussain Farah is staying in Embassy Hotel. This accused had earlier been arrested in another drug case in the year 1987. As per the information furnished, this accused had booked himself in the aforesaid Embassy Hotel in an assumed name D' Jama. The said person was trafficking in drugs and was likely to export drugs through courier. The informer, therefore, called upon the officer to keep surveillance at the hotel, apprehend the person and search his room for finding of drugs, foreign currency, Indian currency etc. On receipt of the information Sawant reduced it to writing (Exhibit 7) and handed over the same to P.W. 2 Krishnakumar, who was then the Assistant Director of D.R.I. The information was discussed with Krishnakumar, Shri Mathew and others. Krishnakumar, thereafter, proceeded to make an endorsement on the information furnished by Sawant authorising him to carry out the necessary operation in respect of the information furnished. On directions issued by Krishnakumar, Sawant and Shri Rathod kept watch in the vicinity of Embassy Hotel. Sawant and Rathod were familiar with the accused on account of the previous case lodged against him. That case related to seizure of drugs from his person at the airport. Accused had been released on bail in that case but he later on had jumped bail. The officers had, in their custody, the passport as also the photograph of the accused and hence were familiar with him. They were, therefore, in a position to identify him.
5. While the officers were keeping surveillance in the vicinity of Embassy Hotel from 6.30 p.m. onwards they noticed the accused entering the hotel premises. Finding him to be the same person about whom they had received information, they followed him. Accused climbed the stair case of the hotel and had started making a telephone call at the reception counter. The officers approached the accused and apprehended him. They disclosed their identity. On this, the accused tried to push the officers and tried to run away. A scuffle followed. The accused went to the extent of picking up a glass of water. He broke the same and threatened the officers with the broken glass. Officers, however, were successful in overpowering him. Since, it was difficult to keep him under control, the accused was removed to the Azad Maidan Police Station, where he was detained. Sawant, informed of the incident and about the apprehension of the accused to Krishnakumar on telephone. Sawant, thereafter, came to the Embassy Hotel along with the accused and other officers of the D.R.I. At the hotel he contacted P.W. 3 Anthony Fernandes, the Manager of the hotel. Fernandes informed Sawant that the accused was staying in Room No. 201 on the ground floor and that he had registered himself in the name of D' Jama. In the meanwhile, Krishnakumar also proceeded to the hotel alongwith Agarkar, Mathews, Sunil Suneja and others all of the Directorate of Revenue Intelligence and reached to the hotel at about the same time. Agarkar and Mathews who had handled the earlier case of seizure made from the accused, and they, therefore, identified him as being the same person.
6. Two panchas were, thereafter, called. One of them was P.W. 4 Domnic Martin Nunes an employee in the Embassy Bar. The aforesaid officers offered their personal searches to the accused but the accused declined to take search. The raiding party, thereafter proceeded to Room No. 201 on the ground floor. Manager Fernandes opened the room with the key available with him. In the search which was taken in the presence of panchas, two polythene bags were recovered from under the bed sheets. The polythene bags were containing brown sugar. The same were tested with the help of field testing kit. The brown powder showed positive result for heroin. The same weighed 1.800 Kgs. Four samples of powder from each of the polythene bags, each weighing 5 gms. were collected in small polythene bags and were sealed and were kept in separate sealed envelope with the D.R.I. seal after obtaining signatures of the panchas, accused and one of the officers of the D.R.I. During the search, the officers also recovered foreign currency $ 2700 (U.S. Dollars) and Indian Currency Rs. 64,500/-. They also recovered some incriminating documents as also a black coloured carona bag having false bottom which could be used for concealing contraband. Seized documents included international certificates of vaccination, photographs as also passports issued by different countries and in different but names having the photograph of the accused. The aforesaid articles were accordingly seized under panchanama (Exhibit 38 & 40). The panchanama has been duly signed by the panchas, officer Suneja and Assistant Director Krishnakumar. The same was also signed by the Manager - Fernandes in token of receiving a copy of the panchanama. Thereafter, the accused and the seized property were taken to the D.R.I Office.
7. On the 23rd of June, 1988 Sawant prepared and submitted a report in respect of the seizure to Krishnakumar. The same is at Exhibit 8. The samples from the contraband seized, were thereafter sent to Chemical Analyser at Bombay as also Delhi and the report (Exhibit 13, 15-A and 15-B) showed that the contraband was found to be heroin containing more than 0.2% Morphine. After completing the investigation, the accused was charge-sheeted for the offences under the aforestated provisions of Narcotic Drugs & Psychotropic Substances Act, 1985.
8. At the trial the accused pleaded not guilty. His defence was one of the total denial.
9. On perusal of the evidence adduced by the prosecution, the learned Judge of the trial Court has proceeded to record an order of conviction and sentence, which is impugned by the accused in the present appeal.
10. Shri Lalla, the learned Advocate appearing in support of the appeal has vehemently challenged the order of conviction on four grounds. He first contended that the charge framed is defective. He pointed out that the charge nowhere makes a reference to section 8(c) of the Act under which the accused has been found guilty. It is submitted that the second charge for which the accused is found guilty merely refers to section 21 which is the penal section. It nowhere makes reference to section 8(c), breach whereof is made punishable under section 21. We, however, find that though section 8(c) has not been specifically mentioned, the ingredients of section 8(c) have been specifically mentioned in the charge. The charge specifically provides that on or about the 22nd of June, 1988 the accused acquired and possessed in his custody or control 3.800 Kgs. of morphine which is covered by section 2(xvi)(e) of the Act and which was recovered from two polythene bags found in Room No. 201 in Embassy Hotel. Hence, the accused has been given sufficient notice of the allegation in regard to his unlawful possession in respect of the narcotic drug which was found in his possession. In the circumstances, we do not find that accused has, in any way, been prejudiced by the mere non mention of the provision of section 8(c) in the charge. The accused has understood the charge and has effectively cross-examined each of the witnesses on the basis of the charge. No prejudice, therefore, can be said to have ensued. In the circumstances, the first contention raised on behalf of the accused is rejected.
11. It is contended on behalf of the accused that whereas the seizure in respect of the contraband was made on the 22nd of June, 1988 the same has been sent to the Chemical Analyser after a delay of about seven days. Whereas the seizure was made on the 22nd of June, 1988 samples were sent to the Chemical Analyser on the 29th of June, 1988. Reliance is placed on the provisions of section 52(2), (3) of the Act which provides that every person arrested and article seized under section 41, 42, 43 or section 44 shall be forwarded without unnecessary delay to (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under section 53. Further reliance is placed on sub-section (4) of section 52 which requires the authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) to, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article. Reliance is also placed on a decision of this Court in the case of ' Mohd. Hussain Babamiyan Ramzan v. State of Maharashtra - and Hiralal Ramlal Sharma v. State of Maharashtra, 2 1994 CCR 1223' to which one of us (Agarwal, J., was a party), where, on facts of that case, the delay in sending the samples to the Chemical Analyser was found to be suspect and the benefit was given to the accused.
12. On this point, a reference to the evidence of P.W. 1 Sawant can usefully be made. In para 15 (wrongly shown as para 13) of his deposition he has stated that - after the seizure the raiding party had gone to their office and he had kept the drug sample packet and the currency in his custody and under his lock and key. In para 16, he had proceeded to add that on 24th June, 1988 a letter under the signature of Shri Krishnakumar was addressed to Assistant Collector of Customs, R. & I., New Customs House, requesting him to accept the seized goods for keeping them in the Customs Warehouse. A copy of the letter is to be found at Exhibit-9. The same bears the signature of Shri Krishnakumar. On the basis of this letter, Assistant Collector of Customs allotted file bearing No. 'S/14-1-27/88-P'. Thereafter, on the 29th of June, 1988 Intelligence Officer Shri Mathew prepared a forwarding memo addressed to the Warehouse Keeper. Sawant and Mathews escorted the seized drugs to the Customs Warehouse and deposited the same under Entry No. R & I, 56/88 dated 29th of June, 1988. The Godown Keeper has issued a receipt. The forwarding memo dated the 29th of June, 1988 is signed by Mathews and the same is to be found at Exhibit-10. The receipt of the Godown Keeper i.e. the custodian is at Exhibit-11. As far as the sample packets are concerned, the same were kept in a sealed packet under the signatures of the panchas as also the signature of the accused on the envelope. The same were placed under a lock and key of Sawant. On the 29th of June, 1988 when he carried one set representative samples to the Dy.C.C., Bombay and another set was sent to the C.R.C.L., Delhi along with a forwarding letter signed by Krishnakumar (Exhibit 14) through parcel alongwith facsimile seal. In our view, if one had regard to the aforesaid evidence, we do not find that there is room for any suspicion in regard to tampering of the samples. As far as the aforesaid decision, which is relied upon is concerned, the following observations made in para 9 of the judgment would show that it was on the facts of that particular case that the benefit was given to the accused.:
'Therefore, it is at-least clear that from 31-7-1990, till 3-8-1990 i.e. till they reached Chemical Analysers's office, they remained with P.I. Ghuge, without being noted down anywhere in the office of M.I.D.C. Unit. The forwarding letter bears a specimen seal which is to be compared by the Chemical Analyser when he received the articles which are forwarded with the forwarding letter. Admittedly, the specimen seal on the forwarding letter, which is produced before the Court, is not readable and, therefore, one does not know as to how the said specimen seal could be compared with the seal on the sample packets which were received in the office of Chemical Analyser. .....'
In view of the above observations we find that the decision relied upon is not applicable to the case in hand, in the facts and circumstances of the present case. In the circumstances, we find that the second contention raised by Shri Lalla also deserves to be rejected.
13. Shri Lalla next contended that the prosecution has failed to establish the nexus between the accused and the room from where the contraband in the instant case has been seized. He has pointed out that in the search and seizure no personal effects of the accused were found and recovered. If the accused was occupying the room, as the prosecution is seeking us to believe, surely his personal belongings such as his clothes etc. would have been found. No such belongings were found in the room. Moreover, the hotel register in respect of the entry in regard to Room No. 201 does not bear the signature of the accused. Whereas the accused, in the instant case, had been apprehended at about 7.00 p.m., the search and seizure was belatedly made at about 9.45 p.m. No explanation is forthcoming for the delay in carrying out the search and seizure. The key of the hotel, which was used for opening the room, was furnished not by the accused but by the Manager - Fernandes. The hotel record further shows that the bill in respect of the Room must have been settled at about 7.00 a.m. on the next date i.e. the 23rd of June, 1988 when the room is shown as having been vacated. If the accused was in custody from 7.30 p.m. on the 22nd of June, 1988 somebody else other than the accused must have settled the bill and vacated the room on the next day morning. These and other ancillary facts, according to Shri Lalla, shows that the accused was not in possession of the room. In any event, it cannot be said that he was in exclusive possession of the room. In support of this contention Shri Lalla has placed reliance on a decision of the Supreme Court in the case of Mohd. Alam Khan v. Narcotics Control Bureau & another, : 1996CriLJ2001 ' In para 9 of the Judgment, the Supreme Court has observed, as under :
'..... In order to invoke the aid of section 66, the prosecution should have established that the appellant is the owner and was in actual possession of the flat in question. Therefore, we are not able to accept the argument of the learned Additional Solicitor General. It is not in dispute that the appellant did not admit his signature in the agreement in question. The prosecution did not bother to produce any independent evidence to establish that the appellant was the owner of the flat in question by producing documents from concerned Registrar's office or by examining the neighbours. ......'
Shri Lalla, however, has over looked the following observations, which have been made in the very same paragraph :
'..... In this case except the retracted statements of the appellant to connect the appellant with the house in question, no other independent evidence is available to sustain the finding of the learned Special Judge extracted in the beginning and confirmed by the High Court.'
14. As far as the evidence, in the instant case is concerned, we have the evidence of Sawant in regard to the accused having entered the hotel and proceeded to the first floor hotel counter and the raiding party accosting him while he was making a telephone call. We next have the evidence of Fernandes, the Manager of the hotel. He has deposed that on 22nd of June, 1988 he was on night duty at the Elphiston Hotel when he received a call from Embassy Hotel at 6.30 p.m. He accordingly reached the Embassy Hotel at 6.45 p.m. He has stated that he was knowing the person namely the accused staying in Room No. 201. He was staying in that room in the name of D' Jama as mentioned in the register. He had identified the accused before the Court. He has stated that the accused was occupying Room No. 201 since 18th of June, 1988. He has further deposed to the scuffle which ensued after the accused was caught by Sawant. He spoke about the officers catching the accused and taking him to the Azad Maidan Police Station. He has further stated that at about 9.00 to 9.30 p.m. the officer brought the accused back to the hotel. That time, Sawant and Raghavan were accompanied by other officers of the D.R.I. The officers told him that they wanted persons to act as panchas. They, therefore, called P.W. 4 Domnic from Embassy Bar. That time, the officers along with the accused, were sitting on the first floor. After Domnic arrived, the officers explained to him that they wanted to search the Room No. 201 as they were suspicious. They asked him to bring the key of the room as they wanted to open the room. He accordingly brought the key of the room. He accordingly took the officers to Room No. 201 That time the room was closed. He opened the room with the key which was with him. After the room was opened, the officers began to search the room. In the search they recovered the contraband article, foreign and Indian currency, photographs, documents two passports etc.
15. Fernandes has produced the hotel register. Undisputedly the same has been maintained in the ordinary course of business of the hotel. At page 73 of the register an entry is found being Entry No. 871, showing the arrival of the accused at 11.00 a.m. in Room No. 201 In the entry the passport number of the passport of the accused has been noted. The entry, which is marked Exhibit 39, thus shows that the accused was allotted the aforesaid room number 201 on 18th of June, 1988 at 11.00 a.m. The entry in the register in respect of the passport has been made on the basis of the passport produced by the accused before Fernandes. The passport, on the basis of which the entry is made, is at Exhibit 16 and the same bears the photograph of the accused. The passport has been identified by Fernandes as the one on the basis of which he had made the entry in the register at Exhibit-39. Fernandes has asserted that only one person was residing in Room No. 201 and that was the accused.
16. In our judgment, the evidence of Fernandes is cogent and trustworthy. His evidence that the accused was allotted and was in use and occupation of room in question is supported by the contemporaneous entries made in the hotel register. It is further corroborated by the entry regarding the passport number of the passport of the accused. The said passport bears the photograph of the accused. The above evidence is corroborated by the evidence of P.W. 1 Sawant as also P.W. 2 Krishnakumar. It is also corroborated by the evidence of the panch witness P.W. 4 Domnic Nunes. This is further corroborated by the finding of other passports and photographs seized from the room containing the photographs of the accused. It cannot be overlooked that the accused has been apprehended in the Embassy Hotel. If he was not occupying the room in the hotel there was no reason for him to find himself in the hotel at the time when he was apprehended. The fact that the accused was apprehended in the hotel, is not disputed. No plausible explanation is forthcoming to show why he had gone to the hotel at the relevant time and day. Further more, we find no reason why the evidence of the aforesaid witnesses is not trustworthy especially when the same is supported by the attendant circumstances found at the relevant time namely finding of the entry in the hotel register, finding of passports, photographs belonging to the accused etc. In the circumstances, we have no hesitation in rejecting the third contention raised by Shri Lalla.
17. The fourth and the last contention raised by Shri Lalla is in respect of the validity of the search and seizure conducted by the aforesaid officers. It is contended by Shri Lalla that the search and seizure in the instant case is vitiated for non-compliance with the provision to section 42(1) of the Act in as much Sawant has conducted the instant raid during night time i.e. between sunset and sun rise and has omitted to record his grounds of his belief that it was not possible for him to obtain a search warrant or authorisation and, if he had waited for the said purpose the same would have afforded an opportunity to the accused to conceal the evidence or would have facilitated him to escape. Since there has been an infraction of a mandatory provision contained in the aforesaid provision, the entire prosecution and the consequent conviction is liable to be quashed.
18. In support of his contention, Shri Lalla has placed reliance on a decision of the Supreme Court in the case of State of Punjab v. Balbir Singh 1994 (1) CRIMES 753. The aforesaid decision, in so far as is relevant, provides as under:'23. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows:
1) If a police officer without any prior information as contemplated under the provisions of the N.D.P.S. Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage section 50 of the N.D.P.S. Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the N.D.P.S. Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the N.D.P.S. Act.
2A) Under section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc., when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal.Likewise only empowered officers or duly authorised officers as enumerated in sections 41(2) and 42(1) can act under the provisions of the N.D.P.S. Act. If such arrest or search is made under the provisions of the N.D.P.S. Act by any one other than such officers, the same would be illegal.
2B) Under section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention that would affect the prosecution case and vitiate the conviction.
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 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.'
3) Under section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
4A) If a police officer, even if he happens to be an 'empowered' officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr.P.C. fails to strictly comply with the provisions of sections 100 and 165 Cr.P.C. including the requirement to record reasons, such failure would only amount to an irregularity.
4B) If an empowered officer or an authorised officer under section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr.P.C. namely sections 100 and 165 Cr.P.C. and if there is no strict compliance with the provisions of Cr.P.C. then such search would not per se be illegal and would not vitiate the trial.'
'The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.' Based on the aforesaid Judgment Shri Lalla has submitted that, since no grounds have been recorded by Sawant for carrying out the raid between sunset and sunrise the entire seizure and the consequent conviction is liable to be quashed.
19. In order to appreciate the contention raised, it is to be noted that P.W. 1 Sawant, at the relevant time, was an Intelligence Officer in the Directorate of Revenue Intelligence. He had received the information from his source, which was recorded by him at Exhibit-7. He had submitted the written information to his superior officer P.W. 2 Krishnakumar, who was Assistant Director of D.R.I. Shri Krishnakumar, it is undisputed, held a rank not below the rank of a Superintendent of Police. He, in turn, made an endorsement on the note submitted by Sawant directing Sawant to carry out the operation as discussed and as directed. Based on the authorisation given by Krishnakumar, Shri Sawant proceeded to Embassy Hotel to keep surveillance for the accused. After the accused was apprehended and lodged for safe custody at the Azad Maidan Police Station, Sawant informed Krishnakumar about the same. Both thereafter, independently proceeded to Embassy Hotel. Shri Sawant reached there along with the accused and other officers of the D.R.I. Krishnakumar himself also reached independently at about the same time. It is, thereafter, that the room was opened and the search and seizure was carried out. This was done by Sawant at the direction of Krishnakumar as found in the endorsement to be found in Exhibit-7. In addition, we have the evidence of Krishnakumar, who has deposed, as under :
'....The Intelligence Officer working under me in DRI were Mr. Mathew, Mr. Sawant, Mr. Agarkar, Mr. Raghavan, and Mr. Suneja. I am shown Ex.7. This gist of information was placed before me by I. O. Mr. Sawant on 22.6.88. On this gist of information, I had given him direction for carrying out the information (investigation ) and also put my signature. This gist of information was placed before me by about 5.15 p.m. Around 8 p.m., I received telephone call from Mr. Sawant. He said that he was speaking from Azad Maidan Police Station. He told me that they had apprehended the concerned person and removed him to Azad Maiden Police Station and asked for further help for carrying out further operation. The further operation was to be carried at Embassy Hotel behind 'Capital Theatre' near V. T. Immediately, therefore, I alongwith other officers went to Embassy Hotel. I was in the office, when I received the telephone call.''We reached Embassy Hotel at about 9 to 9.30 p.m. On way to Embassy Hotel, I sent one of my officer to Azad Maidan Police Station to bring the officers at the hotel. Those officers had reached the hotel, almost the same time, when I reached the hotel. Sawant and the officers had brought there along with them, the person, who was apprehended by them.'
The above evidence of Krishnakumar shows that he had given Sawant directions for carrying out the investigation in question and the same is also borne out from the endorsement found in Exhibit-7. In addition to the above, the entire search and seizure has been carried out in the presence of Krishnakumar, who, as already noted, held the post of a rank of a Superintendent of Police at the relevant time. In fact, the panchanama in respect of the search and seizure shows that the seizure had been conducted by Krishnakumar himself.
20. In order to appreciate the contention raised it will be necessary to make a reference to section 41 and section 42 of the Act. They provide, as under:-
'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 Chapter IV, 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 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.
(2) Any such officer of gazetted rank of the departments of centrals excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force 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 Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or 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 a person or search a building, conveyance or place.
(3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officer acting under section 42.'
'42. Power of entry, search, seizure and arrest without warrant or authorisation:- (1) 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 or of the Border Security Force 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 peon, sepoy or 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, 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 of 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) Whether 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.'
Section 41, as the head note describes it, provides for the power to issue warrant and authorisation. Sub-section (1) of section 41 provides that a Metropolitan Magistrate or the Magistrate of the First Class or any Magistrate of the Second Class especially empowered by the State Government in this behalf, may issue a warrant for arrest of any person or for the search whether by day or by night of any building etc... in which he has reason to believe ... ... ... ... ...
'Sub section (2) of section 41 provides, that an officer of a gazetted rank, ... as is empowered in this behalf and if he has reason to believe, ... may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such person or search a building...whether by day or by night or himself arrest a person or search a building ... Sub section (3) of section 41 provides that a person to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search i.e. the officer who is empowered and the officer who is authorised under sub-section (2) shall have all power of an officer acting under section 42.
42
42
42
42
41(1)
41(2)
41
42
41
41
42(1)
42
41(2)
42
41
42
3(ii)
41
3(ii)
42
67
42
67
41(2)
41
42
42
42(2)
41(2)
42
42(1)
42(1)
42
41(2)
42(1)
42(2)
42(1)
42(1)
42(1)
42(1)
41
42
42
42(1)
41
42(1)
100
165
41
42
50
51
52
57
42(1)
41(2)
42(1)
41
42(1)
41(2)
42(1)
42(1)
41
41
41