Judgment:
D.G. Deshpande, J.
1. Heard Mr. Naik for the accused/appellant and Mr. Singhal, learned APP, for the State/respondent.
2. The accused before this Court was accused No.1 in the trial under the N.D.P.S. Act. Her mother Khatijabai was also charge-sheeted along with her, but Khatijabai was acquitted. The present appellant/accused is con victed by the 3rd Additional Sessions Judge, Nashik under Section 22 of the N.D.P.S. Act and is sentenced to undergo R.I. for ten years with fine and in default R.I. for one year.
3. The case against the accused was that the police inspector of Bhadrakali Police Station Mr. R.B. Korade received an information on 31.10.1987 that Mustaq Sheikh along with his wife and her mother are dealing in sale of brown sugar. A station diary note of this information was taken. Panchas were called including one lady panch. One punter was called and then a trap was laid. A note of Rs. 50 given to punter Manoj Pardeshi and he was asked to go to the house of accused and purchase brown sugar. Accordingly, the punter went to the house of accused and purchased brown sugar from her for Rs. 50 and on his signalling, the raiding party, including the aforesaid officer, entered the house of the accused and arrested the accused. A personal search of the accused was taken when 20 grams of brown sugar was found. It is in this background the accused came to be prosecuted and convicted as stated above.
4. From the arguments and the facts of the case it becomes clear that there are two parts of the prosecution story--One is of recovery of 20 grams of brown sugar from the personal search of the accused; and other is, selling of the brown sugar by the accused to the punter. Admittedly, so far as first part is concerned, i.e. recovery of 20 grams of brown sugar from the person of accused, there is no compliance to Section 50 of the N.D.P.S. Act at all. Not a single word uttered by the police officer, nor it is mentioned in the panchanama nor in the F.I.R. about the same. Therefore, that part of the prosecution case is liable to be rejected. However, Section 20 deals with possession as well as sale and, therefore, there cannot be any acquittal.
5. So far as case of the prosecution regarding sale of brown sugar by the accused to the punter is concerned, Mr. Naik submitted that firstly, on merits the case of the prosecution is liable to be rejected because the punter was a regular police witness having being prosecuted earlier, so also the panch and, therefore, they were amenable to the police or under the influence of the police. Secondly, he contended that there is no compliance to the mandatory provisions of Section 42 of the N.D.P.S. Act i.e. firstly the information was not communicated in writing to the immediate superior and secondly, it is procedural safeguard, it must be followed strictly. And thirdly, Exhibit 22 which is sought to be relied upon by the prosecution cannot be used for the purpose of showing compliance to Section 42. He relied upon two judgments in support of his contentions regarding Section 42. First judgment is of this Court reported in 2001 All MR (Cri) 1611 (Ganesh Lingam Tewar Rajan and Anr. v. The State of Maharashtra) wherein compliance to Section 42 is sought to be mandatory and communicating information orally is not considered sufficient compliance. Another judgment is of Supreme Court reported in : 1995CriLJ2662 (Saiyad Mohd. Sayiad Umar Saiyad and Ors. v. State of Gujarat) wherein the Supreme Court held that when the officer concerned has not deposed that he had followed the procedure mandated by Section 50, the court is duty bound to conclude that the accused that not had the benefit of the protection that Section 50 affords.
6. On the other hand learned APP Mr. Singhal contended that in this case there is full compliance to Section 42 of the N.D.P.S. Act. Firstly because Exhibit 18 is the station diary entry regarding the information received and, since the information was received by the officer late night, it was impossible to send the information immediately on the same day to the superior officer. In the alternative, he contended that Exhibit 22 is sufficient compliance to the provisions of Section 42(2) of the N.D.P.S. Act because before leaving the police station the police officer has despatched this to the Judicial Magistrate F.C. in the District & Sessions Judge, Sessions Court, Nasik, and to the Sub-Divnl. Police Officer, Nasik. According to learned APP, whether Section 42 is factually complied with or not has to be seen by the Court from the documents tendered and it is not necessary that particular document should refer that it is compliance of Section 42. According to him, even if the document does not show so, the prosecution can still prove that the document is in compliance to Section 42(2). Mr. Singhal relied upon a judgment of the Supreme Court reported in : 2001CriLJ4002 (Sajan Abraham v. State of Kerala) wherein it is held that even the information received by the officer was not reduced into writing but the officer had sent the copies of the F.I.R. along with other records regarding arrest of the accused-appellant and seizure of the contraband articles to his superior officer immediately after registering the said case and, therefore, in that background the Supreme Court held that there was substantial compliance and mere absence of report under Section 42 could not vitiate the trial nor it could affect the conviction.
7. It was P.W.l-Raichand Korade, P.I., who received the information at 9.30 p.m. on 31-10-1987. He reduced the information in writing by making station diary entry at Sr. No. 83 of 1987. The said entry was brought in the court and exhibited as Exhibit 18. Exhibit 18, therefore, shows that whatever information received was fully reduced into writing and, therefore, even though the recording in the station diary is not only compliance to Section 42(1) but case gets strong support by reducing the information in the station diary, because by doing so not only it was shown that the information was received but the time of receiving the information and time of reducing the same in writing can be verified from the station diaries which are maintained under the provisions of law. What is required by Section 42(1) is that he should reduce it into writing. Further Section 42 itself empowers the officer to effect a search without obtaining a warrant. This is in the proviso to Section 42(1). In the instant case P.W. 1 has stated that when information was received it was night time and it was impossible to obtain any search warrant. And therefore, even though the Section 42(1) has empowered him to carry out the search without obtaining the warrant, he made another entry which is referred as Resolution in the station diary which is at Exhibit 22 and recorded that unless the search is taken, the brown sugar cannot be seized. This Exhibit 22 is also of the same date i.e. 13-10-1987 and as per the oral evidence of P.W.I he has recorded the aforesaid Exhibit 22 under Section 42(1) to arrange for the raid without obtaining the warrant and copy of the resolution was endorsed and submitted to District & Sessions Judge, Sessions court Nasik and S.D.P.O. Nasik. There is an endorsement of Magistrate dated 1.11.1987.
8. Mr. Naik for the accused contended that by no stretch of imagination Exhibit 22 can be said to be a compliance to Section 42(2). Firstly according to him, it is a resolution passed a? per Section 165 of the Cr. PC, secondly, it is not under Section 42(2) of the N.D.P.S. Act and thirdly, it is not addressed to or sent to immediate superior officer and fourthly there is no acknowledgement of the S.D.P.O. Nashik. Lastly he contended that P.W.I has admitted in his cross examination that Dy. S.P. City Division was his superior officer.
9. At this juncture it is necessary to refer to the aforesaid Supreme Court judgment in order to find out whether Exhibit 22 could be, in the circumstances of the case, accepted as sufficient compliance to Section 42(2) of the N.D.P.S. Act. In this case Sajan Abraham v. State of Kerala PW-3 Head Constable has got information at about 71 p.m. that the accused/appellant was selling injectable narcotic drugs. When he proceeded to the police station to give this information to his immediate superior, SI of Police, PW 5, he found that P.W. 5 and police party were on patrolling duty, therefore information was communicated to him. Then all of them went towards the place where the accused was standing and apprehended him.
10. In that background of the matter it was argued on behalf of the accused that there was no recording of the information given by P.W. 3 and, therefore, there is no compliance to Section 42. Secondly, it was also argued that there is no compliance to Section 42(2). There was also no immediate communication to the immediate superior in the form of a report by the officer who made the arrest and seizure. In that case, there was an allegation that there was no compliance to Section 57. However, the Supreme Court observed and held as under:
With regard to Section 42, the submission is that PW 5 has not regarded the information given by PW 3 with respect to the appellant's involvement before proceeding to arrest him in this case. This constitutes violation of Section 42 of the Act. It is true under Section 42(1), the officer concerned, when he has reason to believe from his personal knowledge or information received from any person, is obliged to take it down in writing if such information constitutes an offence punishable under Chapter IV of the Act and send it forthwith to his immediate superior. Such an officer is empowered to search any building, conveyance and in case of any resistance, break up any door or remove any obstacle for such entry, seizure of such drug or substance and to arrest such person whom he has reason to believe to have committed any offence punishable under the said Chapter. Thereafter such officer has to send a copy of this information forthwith to his immediate superior. Submission is that PW 5 after receiving the said information had not communicated it to his immediate superior which constitutes violation of Section 42. In construing any facts to find, whether the prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with a pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply with, which the courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under, it, so that no such person escapes from the clutches of the law. The Court however while construing such provisions strictly should not interpret them so literally so as to render their compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of a mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out.
In the present case, P.W.3 Head Constable got information with reference to the appellant only at about 7 p.m. that the persons is selling injectable narcotic drugs near Blue PronicsJunction, Palluruthy. When he proceeded for Palluruthy Police Station to give this information to his immediate superior, SI of Police, PW 5, he found PW 5 along with his police party, who were on patrol duty coming these facts, we do not find any inference could be drawn that there has been violation of Section 42 of the Act, 1985, hence the said information was communication there by PW 3 to PW 5. Thereafter, PW 5 along with his police party and PW 3 immediately proceeded towards the place where the appellant was standing. Had they not done so immediately, the opportunity of seizure and arrest of the appellant would have been lost. How PW 5 could have recorded the information given by PW 3 and communicated to his superior while he was on motion, or patrol duty, in the jeep before proceeding to apprehend him is not understandable. Had they not acted immediately, the appellant would have escaped. On these facts, we do not find any inference could be drawn that there has been any violation of Section 42 of the Act.' It will be thus clear that before coming to conclusion whether the provisions of Section 42 are directly applied with or not, the Court has to have a pragmatic approach. In that background of the matter in this case it has to be held that reducing the information as per Exhibit 18 in the station diary was full compliance to Section 42(1) and reducing the information and sending it to S.D.P.O. Vide Exhibit 22 was also substantial compliance to Section 42(2). It cannot be frustrated that the information was received at 9.30 p.m. and apprehension of the officer is correctly reflected in Exhibit 22 that if any attempts are made to obtain search warrant, the search would be frustrated. It is true that in Exhibit 22 there is a reference to Section 165 of the Cr.P.C. However the question is of compliance to Section 42 and if the necessary information, reduced in Exhibit 18, was also again communicated to the superior officer than there is compliance to Section 42(2). I have no quarrel with the proposition laid down by the Division Bench of this Court in the aforesaid judgment of 2001 ALL MR (Cri) (1611) that the orally communicating information is not sufficient compliance. However, the Supreme Court case as stated above and discussed above is clear on the point as to the approach to be adopted by the Court in appreciating the evidence and facts.
11. It was also contended by Mr. Naik that on Exhibits 22 there is no endorsement or acknowledgment of the S.D.P.O. and secondly S.D.P.O. is not the immediate superior because P.W.1 has admitted that DY.S.P. was the superior officer of P.W. 11 S.D.P.O. and DY.S.P. are of the same rank. Only their nomenclature defers from the work assigned to them. Acknowledgment on Exhibit 22 is of Sr. Clerk, Distt. Court, Nasik. It is dated 1.11.1987.
12. It is also argued by Mr. Naik that P.W.I no where says about the compliance to Section 42(2) and, therefore, in the absence of any evidence of the prosecution in that regard, Exhibit 22 cannot be interpreted and accepted as the compliance to Section 42. It is not possible to accept this contention because when the prosecution now relies upon Exhibit 22 for the purpose of showing compliance to Section 42(2) it has to be seen whether the said document Exhibit 22 fulfills the requirements of Section 42(2) and when the object of Section 42 is achieved in Exhibit 22 by P.W. 1, this controversy ends. To the contrary it shows that P.W.I has taken all the necessary precautions before proceeding to raid.
13. So far as objection of Mr. Naik to the Court's placing reliance on the testimony of panch and punter is concerned, the prosecution examined one Mukund Mohadkar (PW 2) who acted as panch in this case. However, the prosecution has also examined one Manoj Pardeshi (PW 2) and one lady panch Hirabai Charaskar (PW 4). So far as this last witness PW 4 is concerned, nothing is brought on her cross examination to create suspicion about her evidence or to suspect her integrity. She has also stated that she has no animus against the accused nor anything is brought on record to show that she is a habitual witness Therefore, even if the objection of Mr. Naik is accepted so far as it relates to P.W. 2 that he acted in some earlier cases, the evidence of P.W.4 strongly supports the prosecution case. The most important witness is P.W.3 Manoj Pardeshi. His evidence was attacked by Mr. Naik on the ground that he has acted as a panch in 3/4 cases. From the cross examination of this witness-Pardeshi what appears is that apart from the present case be has acted in the case against one Rashid Ushman Pathan on 23.2.1988 and in another case on 6.3.1988 against on Nijamuddin Isamuddin Shaikh. The contention of Mr. Naik. is difficult to be accepted because acting as panch in two earlier cases, will not amount to acting as habitual panch of the police. The evidence of Manoj Pardeshi is challenged only on the ground aforesaid and since he cannot be termed as habitual witness of the police nor can be termed as professional panch, his evidence has to be accepted.
14. Therefore, even if the argument of Mr. Naik is accepted that the evidence of P.W.2, who was the habitual witness and who is also faced some prosecution, should be rejected, that in my opinion, does not affect the prosecution case.
15. To sum up the case of the prosecution regarding seizure of 20 grams of brown sugar from the person of the accused/appellant has to be rejected because there is no compliance to Section 50 of the N.D.P.S. Act. However, the case of the prosecution regarding selling of brown sugar by the accused/appellant has to be accepted and is rightly accepted by the trial Court and, therefore, even if the appellant succeeds so far as her possession of 20 grams of brown sugar is concerned, she fails. Consequently, the appeal is dismissed. The accused is on bail, her bail bond shall stand cancelled. Four weeks time or time on or before 14.1.2002 is granted to the accused to surrender before the trial Court to undergo her sentence.