http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

CASE NO.:

Appeal (crl.) 486 of 2003

PETITIONER:

M. PRABHULAL

RESPONDENT:

ASSISTANT DIRECTOR, DIRECTORATE OF REVENUE INTELLIGENCE

DATE OF JUDGMENT: 19/09/2003

BENCH:

Y.K. SABHARWAL & B.N. AGRAWAL

JUDGMENT:

JUDGMENT

2003 Supp(3) SCR 958

The Judgment of the Court was delivered by

Y.K. SABHARWAL, J.: The Special Judge, Salem under narcotics Drugs and

Psychotropic Substances Act, 1985 (for short 'the NDPS Act'), ried 11

accused for various offences. Six were convicted. Two of the convicted

accused succeeded in the criminal appeal and the remaining four whose

conviction and sentence has been maintained by the High Court by the

impugned judgment are appellants before us. They are original accused Nos.

1, 2, 3 and 6. The trial judge convicted accused Nos. 1, 2 and 3 for

offences under Section 8(c), 29 read with Section 18 and Section 8(1), 29

read with section 21 of the NDPS Act and awarded on each appellant the

sentence of 10 years' rigorous imprisonment and also fine amount of Rs.

1 lakh and in default of payment fine for each offence, they were directed

to undergo further rigorous imprisonment for two years. The substantive

sentences were, however, directed to run concurrently. Accused Nos. 6 was

also found guilty for offence under Sections 8(c), 29 read with Section 21

of the NDPS Act and sentenced to undergo 10 years' rigorous imprisonment

and fine of Rs. 1 lakhs and in default of payment of fine, to undergo

further rigorous imprisonment for two years.

In brief, the case of the prosecution is that on 15th May, 1993, a truck

and car were apprehended. Accused No. 6 was in truck and accused Nos.

2 and 3 were in car. From them heroin weighing 66.1 kg. was seized.

Accused No. 1, the main kingpin, is the brother of accused No. 2. Both were

resident of Trichirappali. Accused No. 1 has been receiving narcotics from

Mandasore, Madhya Pradesh, a place to which he belonged. Another brother of

accused No. 1 named Durga Shankar was staying in the village Khonti in

Mandasore District, Madhya Pradesh along with his parents. The father of

accused Nos. 1 and 2 used to cultivate opium and their brother Durga

Shankar used to get opium and heroin and send the same to Trichy. The

consignment in question was to be received and sold with the help of

accused No. 3 for ultimate export to Sri Lanka through accused No. 6, Mohd.

Sabeer. The High Court in appeal having confirmed the conviction and

sentence of accused Nos. 1,2,3 and 6, they are in appeal on grant of leave.

The conviction of the appellants is based primarily on their statements

recorded under Section 67 of the NDPS Act as also on the recovery except

from accused No. 1/appellant No. 1.

Assailing, therefore, the statements made by each of the appellant under

Section 67, It was vehemently contended by Mr. R.K. Jain, Senior Advocate

that the statements on basis whereof the appellants have been found guilty

are not voluntary and thus their conviction cannot be sustained. The

statements of the appellants have been recorded by officers of Department

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

of Revenue Intelligence who are not police officers within the meaning of

Section 25 of the Evidence Act, 1872. The confessional statements recorded

by such officers are admissible in evidence. Learned counsel though not

questioning the admissibility of the said statements contends that the same

were obtained by torture and harassment and are involuntary and, therefore,

the conviction of the appellants cannot be sustained. The delay in

recording of the statements of the appellants is put forth as one of the

reasons to support the contention that the statements were involuntary.

Learned counsel submits that after apprehending truck and the car on the

road at about noon time on 15th May, 1993, the seizure of the narcotics had

taken place between 6 to 9 p.m. at the Customs House and the statements of

accused Nos. 2, 3 and 6 were recorded on the next day i.e. 16th May, 1993

and the statement of accused No. 1 was recorded on 17th May, 1993. It may

be noted that accused Nos. 2, 3 and 6 were apprehended on the spot on 15th

May, 1993 whereas accused No. 1 was arrested on 16th May, 1993. The courts

below on appreciation of evidence have neither doubted the recovery nor has

found the statements to be involuntary.

It has been established that the Customs Office was about 20 kms. from the

place were the truck and the car were apprehended. Having regard to the

large quantity of the heroin, the said vehicles with accused Nos. 2, 3 and

6 were brought to the Customs Office. Further accused Nos 1 and 2 did not

know Tamil. A Hindi knowing officer had to be arranged. There was under the

circumstances no delay in recording the statements of the appellants.

Further, it is also to be borne in mind that the appellants did not make

any complaint before the Magistrate before whom they were produced

complaining of any torture or harassment. It is only when their statements

were recorded by the trial judge under Section 313 of Code of Criminal

Procedure that a vague stand about the torture was taken. Under these

circumstances, the confessional statements cannot be held to be

involuntary. The statements were voluntarily made and can, thus, be made

the basis of appellants' conviction.

Next, learned counsel contends that the independent witnesses of the

recovery of the contraband having not been examined and only police

witnesses having been examined, the recovery becomes doubtful. Reliance is

placed upon the decision in Pradeep Narayan Madgaonkar and Ors. v. State of

Maharashtra, [1995] 4 SCC 255. In the decision relied upon while observing

that prudence dictates that evidence of police witnesses need to be

subjected to strict scrutiny, it was also observed that their evidence

cannot be discarded merely on the ground that they belong to police force

and are either interested in the investigating or prosecuting agency, but

as far as possible, corroboration of their evidence in material

particularly should be sought. In that case the observations were made in

the light of the fact that the police officials made an attempt to create

an impression on the court that the two witnesses were witnesses of

locality and were independent, knowing fully well that one of the witnesses

was under the influence of the police and available to police as he had

been joining the raids earlier also and other witness was a close associate

of the said already available witness. The friendship between the two

witnesses developed during the days of gambling when the police having

admittedly conducted a raid at their den. It was observed that the very

fact that the police officer joined the said two witnesses creates a doubt

about the fairness of investigation coupled with the manner in which the

statements had been recorded in that case. The observations relied upon

have no applicability to the facts and circumstances of the present case

particularly having regard to the confessional statements of the appellants

which we have held were voluntary. On the facts of the case, recovery

cannot be doubted for want of non-examination of independent witnesses.

The search and seizure was also faulted for the reason of the same having

taken place not on spot but in the customs office. The reason why it had

taken place in the customs office has been noticed earlier. In this regard,

reference may also be made to Khet Singh v. Union of India, [2002] 4 SCC

380, a case under NDPS Act where decision of the Constitution Bench in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

Pooran Mal v. Director of Inspection (investigation), New Delhi & Ors.,

[1974] 1 SCC 345 was noticed for the proposition that courts in India and

England have consistently refused to exclude relevant evidence merely on

the ground that it is obtained by illegal search or seizure. The Court

declined in that case to exclude relevant evidence merely on the ground

that it is obtained by illegal search or seizure. Further, in the said case

though the mahazar was not prepared at the spot but at the office of the

Customs Department, it was found that the accused were very much present

throughout and there was no allegation or suggestion that the contraband

article was, in any way, meddled with by the officers. The position in the

present case is also same. Here too, no allegation about meddling with the

contraband has been made, in our view, on the facts of the case, there is

no illegality in the seizure of the contraband either on account of non-

examination of the independent witnesses or by effecting the seizure at the

office of the Customs Department, the appellants having failed to establish

that any prejudice was caused to them.

Now, we come to the last and rather more serious objections raised on

behalf of the appellants regarding the non-compliance of Section 42 of the

NDPS Act vitiating the conviction which looks quite formidable but only at

the first impression and not on its deeper examination. The contention of

Mr. R.K. Jain is that the view of the High Court that when a Gazetted

Officer himself conducts a search it is not necessary to comply with

Section 42(2) of the Act, is clearly erroneous. Section 42(2) provides that

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. This was

the statutory provision at the relevant time. By the Narcotic Drugs and

Psychotropic Substances (Amendment) Act, 2001 which came into force on 2nd

October, 2001, Section 42(2) was amended whereunder the information taken

down in writing under sub-section (1) or grounds of belief recorded under

proviso thereto are required to be sent within seventy-two hours to

officers' immediate official superior. The contention is that the officer

who searched and seized the contraband did so on information received by

him as per Ex. Pw-1 but the said information was not forwarded to his

superior officer as contemplated in Section 42(2) of the NDPS Act, thus

vitiating the entire prosecution. Further argues the counsel that the

respondent after grant of bail to the appellants by the High Court taking

into consideration the non-compliance of Section 42(2) has tried to fill in

the lacuna with a view to show the compliance of this mandatory provision,

The officer who conducted the arrest, search and seizure was an empowered

Gazetted Officer of the department. This fact is not in dispute. According

to Mr. Vasudev, learned senior counsel for the respondent, Section 42(2) is

not applicable when an empowered Gazetted Officer conducts the arrest

search and seizure. Counsel submits that there was no obligation on the

officer to comply with the requirement of Section 42(2) of the NDPS Act. It

was also contended, in the alternative, that Section 42(2) of the NDPS Act

was complied with.

The High Court in the judgment impugned was held that, on facts found,

Section 41 of the NDPS Act alone was applicable and Section 42(2) was not

attracted and, therefore, the judgments rendered under Section 42(2) of the

NDPS Act relied upon by the appellants have no relevance.

The gist of intelligence reduced into writing and on basis whereof the

officer started to act reads as under :

"One Prabhulal of Anna Nagar, Trichy, his brother Shivanarain of Trichy,

Mohammed Shabir of Madhya Pradesh and Loganathan of Dindigul are engaged in

dealing in narcotic drugs. Intelligence gathered indicates that Shivanarain

and Loganathan are likely to proceed to Salem and stay in National Hotel,

Salem and are likely to receive huge quantity of Heroin from Mahammed

Shabir of Madhya Pradesh on 15.5.1993 who is accompanying the said

consignment in a lorry from North India. Shivanarain and Loganathan are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

likely to travel in a car bearing Registration No. TNB 9346 to meet the

lorry earring the contraband Heroin at the outskirts of Salem, if this car

is followed from national Hotel, Salem we may be able to seize the

contraband."

A xerox copy of the gist of intelligence was furnished to the appellants

during the proceeding under the preventive detention law through the

Superintendent, Central Prison, Salem on 22.6.1993. A learned Single Judge

of the High Court considering this writing to be a definite information

about the definite commission of the offence under the NDPS Act with

reference to car number, persons, lorry expected to arrive at that place

and holding that Section 42 of the NDPS Act was squarelly applicable and

that it being a mandatory provision not having been complied with,;the

petitioners were entitled to be released on bail. The view expressed in the

order, deciding bail application was of course prima facie. In the

background, the further contentiion of Mr. Jain is that if Section 42(2)

had been complied with, it would have been so pleaded by the respondent

before the High Court when bail application came to be considered and the

respondent would also have filed the requisite docu-ment along with challan

to show compliance of Section 42(2) of the NDPS Act. The learned counsel

submits that the document in purported compliance of Section 42(2) was

filed by the respondent only after the decision of the bail application

with a view to fill up the lacuna as a result of the observations made by

the High Court in the order granting bail.

To consider the contention about the applicability of Section 42(2) where

arrest, search and seizure is made by an empowered Gazetted Officer, it is

necessary to analyse Sections 41 and 42 of the NDPS Act which read as under

:

"41. Power to issue warrant and authorisation -(1) a Metropoli-tan

Magistate or a Magistrate of the First Class or any Magistrate of the

Second Class specially empowered by the State Govern-ment 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 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 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, convey-ance 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 officers

acting under Section 42.

42. Power of entry, search, seizure and arrest without warrant or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

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 a 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 beileve 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 substances; 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."

Section 41(1) which empowers a Magistrate to issue warrant for arrest of

any person whom he has reason to believe to have committed any offence

punishable under the NDPS Act or for search, has not much relavence for the

purpose of considering the contention. Under Section 41 (2) only a Gazetted

Officer can be empowered by the Central Government or the State Government.

Such empowered officer can either himself make an arrest or conduct a

search or authorize an officer subordinate to him to do so but that

subordinate officer has to be superior in rank to a Peon, a Sepoy or a

Constable. Sub-section (3) of Section 41 vests all the powers of an officer

acting under Section 42 on three types of officers (i) to whom a warrant

under sub-section (1) is addressed, (ii) the officer who authorized the

arrest or search under sub-section (2) of Section 41, and (iii) the officer

who is so authorized under sub-section (2) of Section 41. Therefore, an

empowered Gazetted Officer has also all the powers of Section 42 including

power of seizure. Section 42 provides for proceedure and power of entry,

search seizure and arrest withuot warrant or authorization. An empowered

officer has the power of entry into and search of any building, conveyance

or place, break open door, remove obstruction, seize contraband, detain,

search and arrest any person between sunrise and sunset in terms provided

in sub-section (1) of Section 42. In case of emergent situation, these

powers can also be exercised even between sunset and sunrise without

obtaining a search warrant or authorization, in terms provided in the

proviso to sub-section (1) of Section 42. Sub-section 2 of Section 42 is a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

mandatory provision. In terms of this provision a copy of information taken

down in writing under sub-section (1) or ground recorded for the belief

under proviso thereto, is required to be sent by the officer to his

immediate official superior. It is clear from Section 41(2) that the

Central Government or State Government, as the case may be, can only

empower an officer of a gazetted rank who can either himself act or

authorize his subordinate on the terms stated in the Section. Under sub-

section (1) of Section 42, however, there is no restriction on the Central

Government or the State Government to empower only a Gazetted Officer. But

on an officer empowered under sub-section (1) of Section 42, there are

additional checks and balances as provided in the proviso and also provided

in sub-section (2) of Section 42. It is clear from the language of sub-

section (2) of Section 42 that it applies to officer contemplated by sub-

section (1) thereof and to a Gazetted Officer contemplated by sub-section

(2) of Section 41, when such Gazetted Officer himself makes an arrest or

conducts search and seizure. It would be useful to also notice Section 43

which relates to power of seizure and arrest in public place. Any officer

of any of the departments mentioned in Section 42 is empowered to seize

contraband etc. and detain and search a person in any public place or in

transit on existence of ingredient stated in Section 43. It can, thus, be

seen that Sections 42 and 43 do not require an officer to be a Gazetted

Officer whereas Section 41(2) requires an officer to be so. A Gazetted

Officer has been differently dealt with and more trust has been reposed on

him can also be seen from Section 50 of he NDPS Act which gives a right to

a person about to be searched to ask for being searched in presence of a

Gazetted Officer. The High Court is, thus, right in coming to the

conclusion that since the Gazetted Officer himself conducted the search,

arrested the accused and seized the contraband, he was acting under Section

41 and, therefore, it was not necessary to comply with Section 42. The

decisions in State of Punjab v. Balbir Singh, [1994] 3 SCC 299, Abdul

Rashid Ibrahim Mansuri v. State of Gujarat, [2000] 2 SCC 513 and Beckodan

Abdul Rahiman v. State of Kerala, [2002] 4 SCC 229, on the aspects under

consideration are neither relevant nor applicable.

In view of our conclusion that Section 42(2) is not applicable when search

seizure etc. is conducted by a Gazetted Officer under Section 41(2) and

(3), the further contention of Mr. Jain that an attempt was made by the

respondent to fill up lacuna to show compliance of Section 42(2) of the

NDPS Act as a result of observations made in the order granting bail to the

appellants as noticed hereinbefore becomes inconsequential and, therefore,

it is not necessary to examine it.

For the foregoing reasons, the impugned judgment of the High Court cannot

be faulted. Thus, sustaining the conviction and sentence of the appellants,

the appeals are dismissed.