M. PRABHULALversusTHE ASSISTANT DIRECTOR, DIRECTORATE OF REVENUE INTELLIGENCE

A                               M. PRABHULAL
                                        v.
                     THE ASSISTANT DIRECTOR,
               DIRECTORATE OF REVENUE INTELLIGENCE

                             SEPTEMBER 19, 2003
B
              {Y.K. SABHARWAL AND B.N. AGRAWAL, JJ.]

         Narcotic Drugs and Psychotropic Substances Act, 1985

C         Sections 8(c), 8(1), 18, 21, 29 & 67: Conviction based on statements
    made under Section 67 before Officers of Department-Allegation of
    torture and harassment in obtaining the statement making it involuntary--
    Delay in recording the statement put forth as one of the reasons to show
    that statement was involuntary-Accused making no complaint of torture
D   before the Magistrate-Vague stand of torture taken before Trial Judge
    under Section 313 Cr.P. C.-ln such circumstances, the confessional
    statement was voluntary-Also, accused failed to establish that any
    prejudice was caused.

E         Recovery of the contraband in the presence of independent witnesses-
    Not examined to prove the recovery-However, recovery proved by
    examining the police witnesses-Whether conviction vitiated-No, particu-
    larly having regard to the confessional statements of accused having been
    held to be voluntary.

F        Section 41 (1 )-Scope of-Only a Gazetted Officer can be empowered
    by the Central Government or the State Government-Empowered Officer
    can either himself make an arrest or conduct a search or authorize an
    Officer subordinate to him-However, such subordinate officer has to be
    superior in rank to a Peon, Sepoy or a Constable.
G
         Section 41(3)-Scope of-Vests all the powers of an Officer acting
    under Section 42 on three types of Officers mentioned in Section 41 (I) and
    41(2).

H        Section 42-Scope of-Empowered Officer-Has the power of entry
                                       958
M. PRABHULAL 1·.ASSTL DIRECTOR DIRECTORA1E OF REVENUE JN1ELLIGENCE    959

into and search of any building, conveyance or place, break open door, A
remove obstruction, seize contraband, detain, search and arrest any person
between sunrise and sunset in terms provided under Section 42(1)-ln
emergent situation above powers can be exercised between sunset and
sunrise without obtaining a search warrant as provided in proviso to
Section 42(1).                                                             B
     Sections 4 I (2), 42 and 43-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-Sections 42 and 43 do not require an
Officer to be a Gazetted Officer whereas Section 4 I (2) requires an Officer C
to be so.

     Section 50-Right under-Held : gives a right to a person about to
be searched to ask for being searched in presence of a Gazetted Officer.

     On 15th May, 1993 a truck and a car were apprehended and D
heroin weighting 66.t Kg. was seized from Accused No. 2, 3 and 6 at
the Customs House between 6 to 9 p.m. Accused No. 1, the main
Kingpin, was brother of Accused No. 2. Father of Accused No. l and
2 used to cultivate opium. The consignment in question was to be
received and sold with the help of Accused No. 3 for ultimate export E
to Sri Lanka through Accused No. 6. In all 11 accused were tried for
various offences under Section 8(c), 29 read with Sections 8(1), 29 read
with Section 21 of the Narcotics Drugs and Psychotropic Substance
Act, 1985 (hereinafter referred to as the "Act"). Six were convicted by
the Special Judge. Two of the convicted accused succeeded in Appeal F
and in respect of the remaining four conviction and sentence has been
upheld by the High Court. The original Accused Nos. 1, 2, 3 and 6 filed
Appeal for Special Leave before this Court.

      It was contended by the Appellants that their statements made
under Section 57 of the Act on which the Appellants have been found G
guilty were not voluntary; that the statements of Officers of Department
of Revenue Intelligence who were not Police Officers within the
meaning of Section 25 of the Evidence Act, 1872 and Confessional
statement before such Officers are not admissible; that no independent
witnesses of the recovery have been examined; that non-compliance of
    960                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A Section 42 of the NDPS Act vitiated the conviction.

          Dismissing the Appeals, the Court

          HELD : I. It has been established that the Customs Office was
B about 20 kms. from the place where 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,
C   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
    Cr.P.C. that a vague stand about the torture was taken. Under these
D   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. [964-E-GJ

          2. No allegation about meddling with the contraband by the
E Officers of the Directorate of Revenue Intelligence has been made by
    the Appellant. 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 affecting the seizure at the office of the
    Customs Department, the Appellants having failed to establish that
F   any prejudice was caused to them. (966-A, 8)

          Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra,
    [1995) 4 sec 255, distinguished.

          Khet Singh v. Union of India, (2002) 4 SCC 380 and Pooran Mal
G   v. Director ofInspection (!Nvestigation), New Delhi & Ors., (1974) 1 sec
    345, referred to.

          3.1. Under Section 41(2) of the Act the Central Government or
    State Government, as the case may be, can only empower an officer
H   of a gazetted rank who can either himself make an arrest or authorize
M. PRABHULAL 1·.ASSIT. DIRECTOR DIRECTORATE OF REVENUE INTELLIGENCE   961

a Subordinate Officer to do so but that Subordinate Officer has to be A
superior in rank to a Peon, a Sepoy or a Constable. [970-G)

     3.2. An empowered Gazetted Officer has also all the powers of
Section 42 of the Act including power of seizure. Section 42 provides
for procedure and power of entry, search, seizure and arrest without B
warrant or authorization. An empowered officer has the power of
entry into and search 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 C
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
mandatory provision. In terms of this provision a copy of information
taken down in writing under sub-section (I) or ground recorded for
the belief under proviso thereto, is required to be sent by the officer D
to his immediate official superior. [971-A-C)

      3.3. 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 E
sub-section (I) 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 (I) thereof and
not to a Gazetted Officer contemplated by sub-section (2) of Section F
41, when such Gazetted Officer himself makes an arrest or conducts
search and seizure. [971-D-F)

     3.4. 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 G
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 the NDPS Act which gives a right to a person about H
    962                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A to be searched to ask for being searched in presence of a Gazetted
    Officer. The conclusion of the High Court 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, is right. (971-F-H, 972-A]
B        3.5. Thus 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 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
c   as noticed hereinbefore becomes inconsequential and, therefore, it is
    not necessary to examine it. (972-C]

       State of Punjab v. Balbir Singh, (1994] 3 SCC 299; Abdul Rashid
  Ibrahim Mansuri v. State of Gujarat, (2000] 2 SCC 513 and Beckoden
D Rahiman v. State of Kera/a, [2002] 4 sec 229, referred to.
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    486 of 2003.

E        From the Judgment and Order dated 1.8.2002 of the Madras High
    Court in Crl.A. No. 760 of 1997.

          WITH

          Cr!. A. Nos. 487, 488 and 489 of 2003.
F
         R.K. Jain, Ranjan Dwivedi, R.S. Sharma, Ajay Bhalla, F. Ahmad,
    Rajiv Singh and A. Mehrotra for the Appellant.

      Kailash Vasdev, Rajiv Nanda, K.C. Kaushik and B.K. Prasad for the
G Respondent.
          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'),
H   tried 11 accused for various offences. Six were convicted. Two of the
M. PRABHULAL •.ASSTT. DIRECTOR DIRECTORATlf OF REVENUE INTELLIGENCE [SABHARW AL, I.]   963
convicted accused succeeded in the criminal appeal and the remaining four A
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 B
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 C
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. D
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 ofTrichirappali. 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 E
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, F
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 G
from accused No .. I/appellant No. I.

     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 H
    964                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A found guilty are not voluntary and thus their conviction cannot be
  sustained. The statements of the appellants have been recorded by officers
  of Department 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
B 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
C 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
D apprehended on the spot on 15th May, 1993 whereas accused No. I 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.

E         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
F   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
G   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
H   recovery of the contraband having not been examined and only police
M. PRABllU'-AL '·ASS TT DIRECTOR DIRECTORATE OF REVENUE INTELLIGENCE [SABHARWAL, J.]   965

 witnesses having been examined, the recovery becomes doubtful. Reliance A
 is placed upon the decision in Pradeep Narayan Madgaonkar and Ors. v.
 State ofMaharashtra, [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 B
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 C
 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 D
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 E
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 F
regard, reference may also be made to Khet Singh v. Union ofIndia, [2002]
4 SCC 380, a case under NDPS Act where decision of the Constitution
Bench in Pooran Mal v. Director of Inspection (investigation), New Delhi
& Ors., [ 1974] I SCC 345 was noticed for the proposition that courts in
India and England have consistently refused to exclude relevant evidence G
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 H
    966                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A 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
B   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
C 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
D that where an officer takes down any information in writing under sub-
  section (I) 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
E on 2nd October, 2001, Section 42(2) was amended whereunder the
   information taken down in writing under sub-section (!) 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
F 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
G 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,
H Section 42(2) is not applicable when an empowered Gazetted Officer
M. PRABHULAL •.ASSTT. DIRECTOR DIRECTORATE OF REVENUE INTELLIGENCE [SABHARWAL, !.]   967
conducts the arrest search and seizure. Counsel submits that there was no A
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 comvlied with.

     The High Court in the judgment impugned was held that, on facts B
found, Section 41 of the NDPS Act alone was applicable and Section 42(2)
was not attr11cted 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 C
officer started to act reads as under :

          "One Prabhulal of Anna Nagar, Trichy, his brother Shivanarain
          ofTrichy, 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 D
          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 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 gd 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 primafacie.
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
    968                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.!l.

A 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 compli-
    ance of Section 42(2) was filed by the respondent only after the decision
B   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
C   which read as under :

             "41. Power to issue warrant and authorisation--{I) a Metropoli-
             tan Magistate or a Magistrate of the First Class or any Magistrate
             of the Second Class specially empowered by the State Govern-
D            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
E
             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
F            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
G            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,
H            or psychotropic substance in respect of which any offence pun-
M. PRABHULAL •.ASSTT. DIRECTOR DIRECTORATE OF REVENUE INTELLIGENCE [SABHARWAL, J]   969

          ishable under Chapter JV has been committed or any document A
          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 B
          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 (I) is
          addressed and the officer who authorised the arrest or search or
          the offcer who is so authorised under sub-section (2) shall have                c
          all the powers of an officers acting under Section 42.

              42. Power of entry, search, seizure and arrest without
          warrant or authorisation.- (I) Any such officer (being an officer
          superior in rank to a peon, sepoy or constable) of the departments D
          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 E
          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 F
          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,-
                                                                                          G
                (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;                           H
    970                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A                  (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
B
                       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
c                      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
D            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.

E                 (2) Where an officer takes down any information in writing
             under sub-section (I) or records grounds for his belief under the
             proviso thereto, he shall forthwith send a copy thereof to his
             immediate official superior."

F       Section 41 (I) 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 Gaz.etted Officer can be empowered by the Central Government
  or the State Government. Such empowered officer can either himself make
G 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 (I) is addressed, (ii) the officer who authorized
H the arrest or search under sub-section (2) of Section 41, and (iii) the officer
M. PRABHULAL v.ASSTT. DIRECTOR DIRECTORATE OF REVENUE INTELLIGENCE [SABHARWAL, I.)   971

who is so authorized under sub-section (2) of Section 41. Therefore, an A
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, B
detain, search and arrest any person between sunrise and sunset in terms
provided in sub-section (I) 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 (I) of Section 42. Sub-section 2 of Section 42
is a mandatory provision. In terms of this provision a copy of information C
taken down in writing under sub-section (I) 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 D
subordinate on the terms stated in the Section. Under sub-section (I) 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 (I) of Section 42, there are additional
checks and balances as provided in the proviso and also provided in sub- E
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 (!)
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 F
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 G
been differently dealt with and more trust has beP.n 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 H
   972                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A accused and seized the contraband, he was acting u.nder 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 ofKera/a, (2002] 4 SCC 229, on the aspects under
B consideration are neither relevant no~ 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 fmther contention of Mr. Jain that an attempt was made by
  the respondent to fill up lacuna to show compliance of Section 42(2) of
C 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
D cannot be faulted. Thus, sustaining the conviction and sentence of the
    appellants, the appeals are dismissed.

    R.K.S.                                              Appeals dismissed.