Supreme Court of India
HAMIDBHAI AZAMBHAI MALIKversusSTATE OF GUJARAT
- Citation
- 2009 INSC 17
- Decided
- 12 January 2009
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
Section 42(2) is not mandatory when information arises during an investigation, and the officer’s compliance with the precautionary steps sufficed; therefore the conviction stands.
Summary
Hamidbhai Azambhai Malik was convicted under Section 20(b)(ii) of the NDPS Act for possession of charas after a police raid on his house. The raid was conducted after a police sub‑inspector, investigating a separate offence, received information that Malik also dealt in contraband and reported it in writing to his superiors before the search. The appellant challenged the conviction on the ground that Section 42(2) of the NDPS Act, which requires an empowered officer to forward such information to a superior, was not complied with, and that the searching officer was not empowered. The Supreme Court held that Section 42 is only mandatory when a search is based on prior information; when the information arises during an ongoing investigation, the statutory conditions need not be strictly followed, and in this case the officer had taken adequate precautions. Consequently, the conviction was upheld and the appeal dismissed.
Issues considered
- Whether Section 42(2) of the NDPS Act mandatorily requires forwarding of information to a superior before a search when the information is obtained during the investigation of another offence.
- Whether the officer who conducted the raid was an empowered officer under the NDPS Act.
- Whether non‑compliance with Section 42(2) vitiates the conviction.
Legislation cited
- Code of Criminal Procedures. 100, s. 165
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 20(b)(ii), s. 41, s. 42, s. 43, s. 50, s. 52, s. 57
Subjects
NDPS ActSection 42search and seizurecontrabandcharasempowered officerprocedural compliancecriminal appeal
Judgment
[2009] 1 S.C.R. 166
A HAMIDBHAI AZAMBHAI MALIK
v. ,,
STATE OF GUJARAT
(Criminal Appeal No. 164 of 2002)
JANUARY 12, 2009
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
Narcotic Drugs and Psychopropic Substances Act, 1985
c - ss. 20 (b) (ii) and 42 - Information about possession of
contraband articles by accused, in the course of an
investigation against him - Search of the house of accused
after intimation to higher officers - Conviction by courts below
- Plea of non-compliance with the requirements of s. 42 (2)
D - Held: Conditions incorporated in s. 42 not applicable where
information about possession of contraband articles comes
to notice during investigation - However, in the present case
the conditions were complied with by the complainant.
In the course of investigation of an offence
E
committed by the appellant, the complainant (police
official) came to know that the appellant also possessed
and used to sell contraband articles at his residence.
Before affecting the raid, the complainant informed the
higher officer by a written report, about having received ...
F such information. Raid was affected in the presence of
Panchas and other officers. 'Charas' was seized. Trial
court found the appellant guilty u/s. 20 (b) (ii) of Narcotic
Drugs and Psychotropic Susbtances Act, 1985.
Conviction was upheld by High Court.
G
In appeal to his court appellant contended inter alia
that there was non-compliance with the requirement of
s. 42 (2) of the Act.
H 166
HAMIDBHAI AZAMBHAI MALIK v. STATE OF GUJARAT 167
Dismissing the appeal, the Court A
HELD: 1.1. Section 42 of Narcotic Drugs and
Psychotropic Substances Act, 1985 will be invocable only
if the search is made by the police officer or the
concerned authority, upon the prior information. When 8
such an information or intimation or knowledge comes
to the notice of the Investigating officer in course of the
regular patrolling or an investigation of some other
offence, it is not necessary to follow in all cases the
conditions incorporated in Section 42. [Para 11] [177-C]
c
1.2. In the instant case, by way of abundant
precaution, the complainant, though he was investigating
the offence registered under the Act, upon receipt of an
intimation or information about the present offence, also
noted down such an information taken down in writing, D
which is produced at Exh. 30, and such infGrmation was
transmitted through a messenger immediately to the
higher officers. Not only that this part of the procedure,
by way of abundant precaution, exercised and followed
by the complainant, is also manifestly recorded in the E
complaint at Exh.32. [Para 12] [177-D-E]
State of Punjab v. Baldev Singh 1999(6) SCC 172,
referred to.
Case Law Reference: F
1999(6) sec 112 Referred to. Para 10
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 164 of 2002.
G
From the final Judgment and Order dated 31.7.2000 of the
High Court of Gujarat at Ahmedabad in Criminal Appeal No.
145 of 1997.
Rishi Malhotra and Prem Malhotra for the Appellant.
H
168 SUPREME COURT REPORTS (2009] 1 S.C.R.
A Hemantika Whai, K. Enatoli Serna, Pinky Behra and
Somnath for the Respondent. ~
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J.1. Challenge in this appeal is to
B the judgment of the Division Bench of the Gujarat High Court
upholding the conviction of the appellant for offence punishable
under Section 20 (b)(ii) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (in short the "NDPS Act"). The learned
Additional Sessions Judge, Bharuch had found him guilty under
C the aforesaid provision for having committed the offence under
Section 8(c) of the NDPS Act. Minimum sentence of 10 years'
rigorous imprisonment and a fine of Rs.1,00,000/ - with default
stipulation was imposed.
D 2. The appellant, who is the original accused in Sessions
Case No. 84 of 1996, was charged for having committed
offence punishable under Section 20(b) (ii) of the NDPS Act,
on the basis of a complaint lodged by one PSI KD Pandya,
LCB Branch, Aharuch District, Complainant in Course of
E investigation of one snottier offence, registered vide CR No, II
135 of 1995, under the NDPS act, came to know that accused
is also possessing and selling the contraband articles at his
residence. Upon such information he and other Officers started
for raid.
F 3. Initially, he informed about having received such
information to the higher officers, namely D.S.P. and Circle
Inspector of Bharuch District, by writing a report in a sealed
envelope, and sent it through one Police Constable.
G 4. On the basis of the said report, entry came to be
recorded in Jambusar Police Station Diary at SL. No.17 of
1995 at about 2.30 P.M., the raid was effected on 15. 12.1995
after calling panchas and other officers and a photographer, and
after undertaking other exercise required under law.
H 5. The raiding party led by Mr. Pundya, PSI, went to the
HAMIDBHAI AZAMBHAI MALIK v. STATE OF GUJARAT 169
[DR. ARIJIT PASAYAT, J.]
residence of accused, bearing Bharuch Municipal House No, A
3132. The door of the house was open, and one person
standing there was questioned, who replied that his name was
Hamidbhai Azambhai Malik, the accused and the appellant
before us. After introducing himself, he prepared a
memorandum, to the effect as to whether, accused would like B
his house to be searched in presence of an Executive
Magistrate or a Gazetted Officer, to which, accused replied in
the nagative. Since, accused had no objection, before starting
search, PSI Pandya, took the signature of the accused on the
memorandum, produced at Exh. 29. c
6. Thereafter, the house was searched in presence of -
Panchas, and a ladies purse containing 17 closed plastic small
bags were found out, containing small tablets. Out of 17, the
16 small plastic bags contained the same weight. Plastic bags
were opened and verified and weighed in presence of panchas, D
photographs were taken and again they were placed in the
plastic bags. It was apprehended that on account of the
unpleasant odour and smell, it seemed to be contraband
articles like 'Charas'. The necessnry procedure for seizure was
undertaken and after the procedure was followed, the seal of E
LCB Branch, Hharuch was applied on the cover. The total weight
of the contraband articles, like charas came to 4,900 mgs. The
sealed mudammal contraband articles charas thereafter was
forwarded to the Director of Forensic Science Laboratory, for
examination and report, who upon examination reported, it to F
be falling within the prohibited and contraband article under the
NDPS Act i.e. 'Charas'. The FSL authority had, also, verified
the seal and it tallied with the forwarding letter and the item sent.
Upon the basis of the report, the accused came to be charged
as stated above. G
7. In support of the prosecu.tion case, the prosecution
placed reliance on as many as nine prosecution witnesses and
also on 21 documents. The defence of the accused was of total
denial. No defence evidence was led. Upon the analysis and H
170 SUPREME COURT REPORTS [2009] 1 S.C.R.
A appraisal of the evidence of the prosecution, the learned Addi.
.
Sessions Judge found accused guilty for having committed an
offence punishable under Section 20(b) (ii) of the NDPS Act,
and after hearing on the quantum of sentence, awarded
minimum sentence prescribed i.e. 10 years rigorous
B imprisonment and a minimum fine of Rs.1,00,000/ - and in
default, to undergo further simple imprisonment of one year
more.
8. The accused preferred an appeal before the high Court
which was dismissed as aforestated. Primary stand was that
.c the officer who conducted the search was not authorized and
was not an empowered officer. It was pleaded that there was
non-compliance with the requirement of Section 42(2) of the
Act.
D 9. Learned counsel for the respondent-State on the other
hctnd supported the judgment of the trial court and affirmed by
the High Court.
10. Before dealing witL the factual aspect certain
observations made by this Court in State of Punjab v. Baldev
E
Singh [1999(6) sec 172] need to be noted:
"9.Sub-section (1) of Section 42 lays down that the
empowered officer, if has a prior information given by any
person, he should necessarily take it down in writing and
F where he has reason to believe from his personal
knowledge that offences under Chapter IV have been
committed or that materials which may furnish evidence of
commission of such offences are concealed in any building
etc. he may carry out the arrest or search, without a warrant
G between sunrise and sunset, and he may do so without
recording his reasons of belief.
10. The proviso to sub-section (1) lays down that if the
· empowered officer has reason to believe that a search
warrant or authorisation cannot be obtained without
H
HAMIDBHAI AZAMBHAI MALIK v. STATE OF GUJARAT 171
[DR. ARIJIT PASAYAT, J.)
affording opportunity for the concealment of evidence or A
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. Vide sub-section (2) of Section 42,
the empowered officer who takes down information in B
writing or records the grounds of his belief under the
proviso to sub-section (1 ), shall forthwith send a copy of
the same to his immediate official superior. Section 43
deals with the power of seizure and arrest of the suspect
in a public place. The material difference between the c
provisions of Section 43 and Section 42 is that whereas
Section 42 requires recording of reasons for belief and for
taking down of information received in writing with regard
to the commission of an offence before conducting search
and seizure, Section 43 does not contain any such
0
provision and as such while acting under Section 43 of the
Act, the empowered officer has the power of seizure of the
article etc. and arrest of a person who is found to be in
possession of any narcotic drug or psychotropic substance
in a public place where s.uch possession appears to him
to be unlawful.
E
17. The trial court in those cases had acquitted the
accused on the ground that the arrest, search and seizure
were conducted in violation of some of the "relevant and
mandatory" provisions of the NDPS Act. The High Court F
declined to grant appeal against the order of acquittal. The
State of Punjab thereupon filed appeals by special leave
in this Court. In some other cases, where the accused had
been convicted, they also filed appeals by special leave
questioning their conviction and sentence on the ground G
that their trials were illegal because of non-compliance with
the safeguards provided under Section 50 of the NDPS
Act. A two-Judge Bench speaking through K. Jayachandra
Reddy, J. considered several provisions of the NDPS Act
governing arrest, search and seizure and, in particular, the H
172 SUPREME COURT REPORTS (2009) 1 S.C.R.
A provisions of Sections 41, 42, 43, 44, 49, 50, 51, 52 and
..
57 of the NDPS Act as well as the provisions of the Code
of Criminal Procedure relating to search and seizure
effected during investigation of a criminal case. Dealing
with Section 50, it was held that in the context in which the
B right had been conferred, it must naturally be presumed that
it is imperative on the part of the officer to inform the person
to be searched of his right that if he so requires he shall ,I,.
be searched before a gazetted officer or Magistrate and
on such request being made by him, to be taken before
c the gazetted officer or Magistrate for further proceedings.
The reasoning given in Balbir Singh case1 was that to
afford an opportunity to the person to be searched "if he
so requires to be searched before a gazetted officer or a
Magistrate" he must be made aware of that right and that
could be done only by the empowered officer by informing
D
him of the existence of that right. The Court went on to hold
that failure to inform the person to be searched of that right
. and if he so requires, failure to take him to the gazetted
officer or the Magistrate, would mean non-compliance with
the provisions of Section 50 which in turn would "affect the
E prosecution case and vitiate the trial". The following
conclusions were arrived at by the two-Judge Bench in
State of Punjab v. Balbir Singh [1994 (3) SCC 299] (SCC
pp. 320-22, para 25) "
F "25. 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 NDPS
G Act makes a search or arrests a person in the
normal course of investigation into an offence or
suspected offences as provided under the
provisions of CrPC and when such search is
completed at that stage Section 50 of the NDPS
H
HAMIDBHAI AZAMBHAI MALIK v. STATE OF GUJARAT 173
[DR. ARIJIT PASAYAT, J.]
Act would not be attracted and the question of A
t-
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 B
officer who should thereafter proceed in
accordance with the provisions of the NDPS 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 c
provisions of the NDPS Act.
(2-A) 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 D
-f
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 E
if carried out would be illegal. Likewise only
empowered officers or duly authorized officers as
enumerated in Sections 41 (2) and 42(1) can act
under the provisions of the NDPS Act. If such arrest
""' or search is made under the provision,s of the F
NDPS Act by anyone other than such officers, the
same would be illegal.
(2-B) Under Section 41 (2) only the empowered
officer can give the authorisation to his subordinate
G
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.
(2-C) Under Section 42(1) the empowered officer H
174 SUPREME COURT REPORTS [2009] 1 S.C.R.
A if has a prior information given by any person, that i
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
B 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
c 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
D 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)
E 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
F f
same has been explained or not, will be a question
of fact in each case.
(4-A) If a police officer, even if he happens to be
an 'empowered' officer while effecting an arrest or
search during normal investigation into offences
G purely under the provisions of CrPC fails to strictly
comply with the provisions of Sections 100 and 165 .
CrPC including the requirement to record reasons,
such failure would only amount to an irregularity.
H (4-8) If an empowered officer or an authorised
HAMIDBHAI AZAMBHAI MALIK v. STATE OF GUJARAT 175
[DR. ARIJIT PASAYAT, J.]
officer under Section 41 (2) of the Act carries out a A
search, he would be doing so under the provisions
of CrPC namely Sections 100 and 165 CrPC and
if there is no strict compliance with the provisions
of CrPC then such search would not per se be
illegal and would not vitiate the trial. B
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.
(5) On prior information the empowered officer or c
authorised officer while acting under Sections 41 (2) or 42
should comply with the provisions of Section 50 before the
search of the person is made and such person should be
informed that if he so requires, he shall be produced
before a gazetted officer or a Magistrate as provided D
--+
' thereunder. It is obligatory on the part of such officer to
inform the person to be searched. Failure to inform the
person to be searched and if such person so requires,
failure to take him to the gazetted officer or the
Magistrate, would amount to non-compliance of Section E
50 which is mandatory and thus it would affect the
prosecution case and vitiate the trial. After being so
informed whether such person opted for such a course or
_-.;
not would be a question of fact.
-I
F
(6) The provisions of Sections 52 and 57 which deal
with the steps to be taken by the officers after making
arrest or seizure under Sections 41 to 44 are by
themselves not mandatory. If there is non-compliance or if
there are lapses like delay etc. then the same has to be
examined to see whether any prejudice has been caused G
-..,; to the accused and such failure will have a bearing on the
appreciation of evidence regarding arrest or seizure as
well as on merits of the case."
23. lri Mohinder Kumar v. State, Panaji, Goa [(1998) 8 H
176 SUPREME COURT REPORTS [2009] 1 S.C.R.
A SCC 655] a three-Judge Bench (to which one of us, Sujata
V. Manohar, J., was a party) once again considered the
requirements of Sections 42 and 50 of the Act. In that case
the police officer "accidentally" reached the house while
on patrol duty and had it not been for the conduct of the
B accused persons in trying to run into the house on seeing
the police party, he would perhaps not have had any
occasion to enter the house and effect search. But when
the conduct of the accused persons raised a suspicion,
he went into the house and effected the search, seized the
c illicit material and caused the arrest. The Court opined that
in the facts and circumstances of the case, when the -
investigating officer accidentally stumbled upon the
offending articles and himself not being the empowered
officer, then on coming to know that the accused persons
were in possession of illicit articles, then from that stage
D
onwards he was under an obligation to proceed further in
the matter only in accordance with the provisions of the Act.
On facts it was found that the investigating officer did not
record the grounds of his belief at any stage of the
investigation, subsequent to his realising that the accused
E persons were in possession of charas and since he had J
made no record, he did not forward a copy of the grounds
to his superior officer nor did he comply with the provisions
of Section 50 of the Act, inasmuch as he did not inform
the person to be searched that if he required, his search
F could be conducted before a gazetted officer or a
Magistrate. The Bench held that for failure to comply with
the provisions of Sections 42 and 50, the accused was
entitled to an order of acquittal and consequently the
appeal was allowed and the order of conviction and
G sentence against the accused was set aside."
11. Coming to the factual background it has to be noted .,.
as follows:
The search was made by the raiding party at about 4.30
H
HAMIDBHAI AZAMBHAI MALIK v. STATE OF GUJARAT 177
[DR. ARIJIT PASAYAT, J.]
* P.M. on 15. 12.1995. Section 42 will be invocable only ifthe A
search is made by the police officer or the concerned authority,
upon the prior information. If such a person has reason to
believe from personal knowledge or information given by any
person and obliged to take down in writing as such the
information about the accused having possessed of and B
dealing with contraband article like 'charas' came to be
appraised of by the concerned PSI Mr. K.D. Pandya, LCB
Branch of Bharuch Police Station, in course of his investigation
of an offence, registered vide CR No.11-135of1995. Therefore,
it is settled proposition of law when such an information or c
intimation or knowledge comes to the notice of the Investigating
. officer in course of the regular patrolling or an investigation of
some other offence, it is not necessary to follow in all cases
the conditions incorporated in Section 42.
12. However, it may also be noted that by way of abundant D
precaution, the PSI Mr. Pandya though he was investigating the
offence registered with CR No. 135 of 1995 under the NDPS
Act, upon receipt of an intimation or information about the
present offence, also noted down such an information taken
- down in writing, which is produced at Exh. 30, and such E
information was transmitted through a messenger immediately
to the higher officers. Not only that this part of the procedure,
by way of abundant precaution, exercised and followed by the
"
PSI, is also manifestly recorded in the complaint at Exh.32.
F
13. Additionally, the question as to whether the officer who
conducted the proceedings was empowered officer or not was
not raised before the trial court and the High Court and,
therefore, that plea cannot be entertained.
14. The appeal is without merit, deserves dismissal which G
we direct.
K.K.T. Appeal dismissed.
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