Holding

The conviction under the NDPS Act stands; the High Court's acquittal is set aside.

Summary

The police raided Satrohan's house and seized 309 kg of poppy straws. He was convicted by the trial court under Sections 8(c) and 15 of the NDPS Act and sentenced to ten years' rigorous imprisonment. The Allahabad High Court acquitted him, holding that Sections 42(2) and 50 were not complied with and that his father's licence for opium covered the poppy straws. On appeal, the Supreme Court held that opium and poppy straws are distinct entries under the Act, the licence for opium does not extend to poppy straws, and the confessional statement was admissible with no retraction. It further clarified that Section 42(2) does not apply when a Gazetted Officer conducts the search under Section 41, and Section 50 was inapplicable. Consequently, the High Court's acquittal was set aside and the trial court's conviction restored.

Issues considered

Whether Sections 42(2) and 50 of the NDPS Act are applicable when a Gazetted Officer conducts the search and seizure.
Whether a licence for cultivation of opium extends to poppy straws.
Whether the confessional statement recorded under Section 67 of the NDPS Act and Section 313 of the CrPC is admissible.
Whether non‑compliance with Section 42(2) vitiates the conviction.
Whether the High Court was correct in acquitting on the ground of lack of exclusive ownership evidence.

Legislation cited

Code of Criminal Procedure, 1973s. 313, s. 57
Narcotic Drugs and Psychotropic Substances Act, 1985s. 15, s. 41(2), s. 41(3), s. 42(2), s. 50, s. 57, s. 67, s. 8(c)

Subjects

NDPS Actpoppy strawopium licenceconfessional statementSection 42Section 41seizuredrug convictionappeal

Judgment

[2008] 10 S.C.R. 888

A UNION OF INDIA
v.
SATROHAN
(Criminal Appeal No. 1145 of 2001)
JULY 14, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

Narcotics Drugs and Psychotropic Substances Act, 1985
- ss. 41, 42, 50, 57 and 67 - Recovery of 309 kgs of poppy
c straws from house of accused - Conviction and sentence of ,-
10 years RI - However, acquittal by High Court for non-com-
pliance of ss. 42(2) and 50 and father of accused had licence
for opium - On appeal, held: Opium and poppy straws are two
different entries and are not interchangeable - Plea that the
articles seized might have been covered by father's licence is
D without any basis- Jn the.confessional statement the accused
clearly stated about the ownership - There has been no re-
traction at any point of time - ss. 42(2) and 50 not applicable ·
to the instant case - Thus, order of High Court set aside.
E The Inspector of Narcotics Department along with
other officials conducted raid in the house of the respon-
dent on the basis of secret information and recovered
bags containing 309 kgs. of poppy straws. The respon-
dent could not explain legal possession of poppy straws
F and was arrested. Trial Court convicted the respondent
u/ss. B(c) and 15 of the Narcotics Drugs and Psychotro-
pic Substances Act, 1985 and sentenced to him to 10 years
rigorous imprisonment. However, High Court acquitted
the ,respondent as there was non-compliance of ss. 42(2)
G and 50, and that the respondent's father had licence for
cultivation of opium. Hence the present appeal.
Appellant-Union of India contended that the trial court
had relied. upon the confession of the accused respon-
dent; that the High Court acquitted the respondents on
H 888
UNION OF INDIA v. SATROHAN 889
+

the ground of non-examination of independent witnesses, A
lack of evidence to show exclusive ownership, and the
alleged non-compliance of ss. 42(2) and 50 of the Act; that
s. 50 is not applicable to the case~ that u/s. 57 secret in-
formation and the particulars. of seiz'ure .and arrest have
"i to be sent; that the records if asked for could have been ·s
produced; that no evidence was Jed nor any question was
asked about absence of records; and that Uie Inspector
was a Gazetted Officer and, thus, even if it is conceded
that there is any incorrect reference, the acts are covered
u/s 41 and not u/s. 42 of the Act. c·
Respondent-accused .contended that the confes-
sional statement could not have been relied upon; that
the statement was recorded by PW-2 and by the investi-
gating officer-PW-6 on 20.11.1992 whereas PW-6 was en-
.+ trusted with investigation only on 3.12.1992; that the in- D
vestigating officer was not a Gazetted Officer, since au-
thorization was obtained s. 57 comes into play; and that
the respondent's father had licence.
Allowing the appeal, the Court
E
HELD: 1. The High Court was clearly in error by set-
ting aside the judgment of the trial court. The judgment of
the High Court is set aside and that of the trial court is
restored. [Para 17] (899-E]
.-Ji
2.1 Section 2(xv) and Section 2(xviii) of the Narcot- F
ics Drugs and Psychotropic Substances Act, 1985 defines
"opium' and "poppy straws" respectively. It is the stand
of the respondent that since there was licence of opium,
there is presumption that there was licence of poppy
straws. High Court did not direct acquittal on the ground G
that there was licence for poppy straws also. The evi-
dence on record clearly shows that the expressions
"opium" and "poppy straws" are not interchangeable as
s. 2(xiv) clearly mak?s out a distinction between opium ·
and poppy straws. Opium appears at entry SI. No.92 while H
890 SUPREME COURT REPORTS [2008) 10 S.C.R.
~

A poppy straws at SI. No.110. [Paras 6 and 7] [892-F,G,G, 893-A]
2.2 With regard to the role of PW-6, it is to be noted
that there is no reference to the stand highlighted by the
High Court. The confessional statement was recorded ·on
20~11 .1992 and the statement u/s. 313 of the Code was
B ~
recorded on 6.2.1999. In the cohfessional statement the
accused has clearly stated about the ownership; Thus,
there has been no retraction at any point of time. The po-
sition is also clear from s. 57 of the Code. At the time of
production before the Magistrate, there was no allegation
c of any torture as presently submitted. [Paras 6 and 7] [893-
A,B,C,D]
Kanhaiyalal v. Union of India 2008 (1) SCALE 165; A.K.
Mehaboob v. The Intelligence Officer, Narcotics Control Bueau
JT 2001 (1) SC 614; T Thomson v. State of Kera/a and Anr.
D 'r
2002 (9) SCC 618; State, NCT of Delhi v. Malvinder Singh JT '
2007 (9) SC 283 - referred to.
2.3 The conclusion that the articles seized might have
been covered by the father's licence is a conclusion with-
E out any foundation and basis. [Para 1O] [894-G, 895-A]
2.4 Section 41 (2) deals with two situations. One is
relatable to Gazetted Officer while in the other case the
Gazetted Officer may authorize his subordinate to do the
relevant act or may do it himself. Section 41 (3) refers to )._
F the power under Section 42 which refers to subordinates.
[Para 15] [899-C,D]
M Prabhulal v. The Assistant Director, Directorate of Rev-
enue Intelligence JT 2003 (2) Supp SC 459 - referred to.
G CRIMINAL APPEALLATE JURISDICTION : Criminal Ap-
peal No. 1145 of 2001
-+
From the final Judgment/Order dated 12.7.2000 of the High
Court of Judicature at Allahabad sitting at Lucknow in Criminal
Appeal No. 593 of 1999
H
UNION OF INDIA v. SATROHAN 891
[DR. ARIJIT PASAYAT, J. ]

B.B. Singh, Madhurima Tatia,Anil Katiyarand Sushma Suri A
for the Appellant.
Ashok Kumar Sharma, H.C. Kharbanda, T.N. Saxena,
Sanjay Misra and M.P. Shorawala for the Respondent.
The Judgment of the Court was delivered by B
Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
the judgment of the acquittal passed by learned Single Judge
of the Allahabad High Court, Lucknow Bench, directing acquit-
tal of the respondent (hereinafter referred to as the 'accused')
by setting aside the judgment of conviction recorded by learned 'c
Additional District and Sessions Judge, Lucknow in Criminal
Appeal No.65 of 1993. The trial Court had convicted the re-
spondent for offences punishable under Section 8( c) and 15 of
the Narcotics Drugs and Psychotropic Substances Act, 1985
(in short the 'Act') and sentenced to undergo RI for 10 years D
and fine of rupees one lakh with default stipulation.
2. Prosecution version in a nutshell is as follows:
On the basis of secret information Sri Naseem Ahmad, an
Inspector of Narcotics Department along with other officials E
raided the house of the respondent on 20.11.1992 at about 8.00
a.m. in village Dadari Jamalpur. The house of the respondent
was searched and from his house 29 bags containing poppy
straws were recovered. The respondent could not explain legal
possession of poppy straws weighing 309 kgs. The respon- F
dent was arrested and after investigation charge sheet was
submitted against him. The respondent denied the possession
and ownership of the property in question and claimed trial.
The trial Court found the evidence adduced to be clear
and cogent and directed conviction and imposed sentence as G
afore-noted. In appeal, the High Court directed acquittal by a
practically non-reasoned order holding that there was non-com-
pliance of Sections 42(2) and 50 of the Act. It was noted that
the Narcotics Departme'lt has given licence to the father of the
respondent for cultivation of opium and ifthere had been recov- H
892 SUPREME COURT REPORTS [2008] 10 S. C.R. ;

t
A ery of poppy straws it might be relatable to the ownership of
father of the respondent.
l\-
3. Learned counsel for the appellant submitted that the trial
Court had relied upon the confession of the accused respon-
dent and the grounds on which the High Court directed acquit-
B tal are (i) non examination of independent witnesses; (ii) lack of t i•
,.
l·
evidence to show exclusive ownership; and (iii) the alleged non
compliance of Sections 42(2) and 50 of the Act.
4. It is pointed out that Section 50 is not applicable to the
c case. Additionally, under Section 57 secret information has to
be sent and the particulars of seizure and arrest have to be
sent. The records if ask:3d for could have been produced. In the
instant case there is no evidence led or not even any question
was asked aboutabsence of records. In the alternative, the in-
spector was a Gazetted Officer and, therefore, even if it is con-
D +
ceded for the sake of argument that there is any incorrect refer-
ence, the acts are covered under Section 41 and not under
Section 42.
5. Learned counsel for the respondent on the other hand
E submitted that the confessional statement could not have been
relied upon. The statement was recorded by PW-2 and by the
investigating officer (PW-6) on 20.11.1992. Th~re could not have
been any recording of statement by PW-6 as he was entrusted
with investigatibn on 3.12.1992. It is pointed out that the inves-
F tigating officer was not a Gazetted Officer. Since authorization )..
was obtained Section 57 comes into play. It is pointed out that
there is licence of the father also. Therefore, the High Court's
order does not suffer from any infirmity.
6. Section 2(xv) and Section 2(xviii) define "opium' and r
t
G "poppy straws" respectively. It is the stand of the respondent
that since there was licence of opium, obviously there is pre-
sumption that there was licence of poppy straws. As a matter of t-
fact the High Court did not direct acquittal on the ground that
there was licence for poppy straws also. The evidence on record
H clearly shows that the expressions "opium" and "poppy straws"
..,_
UNION OF INDIA v. SATROHAN 893
[DR. ARIJIT PASAYAT, J. ]

are not interchangeable as contended by learned counsel for A
the respondent, as Section 2(xiv) clearly makes out a distinc-
tion between opium and poppy straws. So far as the role of
PW-6 is concerned, it is to be noted that there is no reference
to the stand presently highlighted by the High Court.
7. Undisputedly, there are two different entries for opium 8
and poppy straws. Opium appears at SI. No.92 while poppy
straws appear at SI. No.110. The statement of the accused ..
respondent in terms of Section 67 throws considerable light on
the controversy. In the statement recorded there was no retrac,.
tion and in fact during examination under _section 313 of th~ C
Code of Criminal Procedure, 1973 (in short the 'Code') while
answering question No.4 it was stated that. there was no con ...
fession. The confessional statement was recorded on
20.11.1992 and the statement under Section 313 of the Code
was recorded on 6.2.1999. Therefore, there has been no re- D
traction at any point of time. The position is also clear from Sec-
tion 57 of the Code. At the time of production before the Mag-
istrate, there was no allegation of any torture as presently sub-
mitted. In this connection a few decisions of this Court need to
be noted. E
8. In Kanhaiyalal v. Union of India (2008 (1) SCALE 165)
at para 7 it was noted as follows:
"7. Since the appellant Kanhaiyalal was convicted on the ,
basis of the statement made by him under Section 67 of . F
the NDPS Act, a question has been raised whether such
statement made to an officer within the meaning of Section
42 of the said Act could be treated as a confessional
statement and whether the accused could be convicted
on the basis thereof in the absence of any other ' G
corroborative evidence."
9. Similarly in AK. Mehaboob v. The Intelligence Officer,
Narcotics Control Bueau (JT 2001 (1) SC 614) it was observed
as follows:
H
894 SUPREME COURT REPORTS [2008] 10 S.C.R.
t
A "4. Smt. Malini Poduval, learned counsel for the appellants
contended that Exhibit P-8 cannot be relied on for more L
than one reason. One is that the said statement had been
retracted by the accused himself. Second is that on
11.8.1994 appellant- Naushad informed the Magistrate in
8 writing that the said statement had been coaxed out from \
him. The third is that the said retracted confession had no
corroboration ;:ind therefore cannot be made the basis for
conviction.
5. There is nothing to indicate that Exhibit P-8 had been
c elicited from A-2 by any coercion, threat or force and
· therefore the learned Single Judge of the High Court had
spurned down ~hat contention. Regarding the complaint
·alleged to have been made by appellant-Naushad on
11.3.1·994 we have perused it. His case therein was that
D he offered himself to be a witness in the case and some +-
(

reward was offered for it. It was on the said offers that he
agreed to sign the said statement. It must be remembered
.that appellant-Naushad has no case that when he was
· produced before the Magistrate, immediately after his
E arrest, he made any grievance of any maltreatment
administered to him by the members of the Narcotics
Control Bureau. Wisdom downed on him (when the
complaint dated 11.3.1994 was filed) to put up an advance
defence against the statement given by him under his own
F signature. Even then he did not think it necessary to make ~

any allegation that any intimidatory tactic, much less any
third degree method had been applied on him. His case \

inthe said complaint that a reward was offered to him and
hence he agreed to sign the statement is contrary to the
present stand adopted by him that he was coerced and
G
threatened to made such a statement. The learned Single
judge had rightly repelled the contentions made on behalf
of appellant- Naushad relating to Exhibit P-8." " F
10. The inferential conclusion that the articles seized might
H have been recovered by the father's licence is a conclusion

'1
UNION OF INDIA v. SATROHAN 895
[DR. ARIJIT PASAYAT, J. ]

without any foundation and basis. A
11. So far as the fulfillment of the requirement of Section
57 of the Act is concerned it is to be noted that the legal posi-
tion was stated by this Court in T Thomson v. State of Kera/a
and Anr. (2002 (9) sec 618) and in State, NCT of Delhi v.
Malvinder Singh (JT 2007 (9) SC 283). In Malvinder Singh's 8
case (supra) at para 6, it was observed as follows:
"6. At this juncture, it would be relevant to take note of that
has been stated by this Court in T. Thomson v. State of
Kerala and Anr. At para 5 it was observed as follows: c
"5. Learned Senior counsel further argued that the
record alleged to have been prepared by PW-1 on
getting information regarding the movement of the
appellants has not been produced in court. But he
conceded that no motion was made on behalf of th'e D
appellants to call for the said record. There is no
statutory requirement that such a record should be
produced in the Court as a matt':!r of course. We are,
therefore, not disposed to upset the finding on that
score either." E
12. So far as the applicability of Section 42 is concerned
few decisions need to be noted.
13. In M. Prabhulal v. The Assistant Director, Directorate
of Revenue Intelligence (JT 2003 (2) Supp SC 459) it was F
noted as follows:
"8. Now, we come to the last and rather more serious
objections raised on behalf of the appellants regarding
the non-compliance with Section 42 of the NDPS Act
vitiating the conviction which looks quite formidable but G
only on 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 H
896 SUPREME COURT REPORTS [2008] 10 S.C.R.

A 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
B time. By the Narcotic Drugs and Psychotropic Substances
(Amendment) Act, 2001 which came into force on 2-10-
2001, Section 42(2) was amended whereunder the
information taken down in writing under sub-section (1) or
grounds of belief recorded under the proviso thereto are
c 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 Ext. PW 1 but the said
information was not forwarded to his superior officer as
contemplated in Section 42(2) of the NDPS Act, thus
D
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 with Section 42(2) has tried to fill in the lacuna
with a view to show the compliance of this mandatory
E. provision.
9. 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 Vasdev, learned
F Senior Counsel for the respondent, Section 42(2) is not
applicable when an empowered Gazetted Officer conducts
the arrest, search and seizure. The 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
G
NDPS Act was complied with.
14. 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
H the NDPS Act or for search, has not much relevance for
UNION OF JNDIA v. SATROHAN 897
[DR. ARIJIT PASAYAT, J. ]

the purpose of considering the contention. Under Section A
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 B
in rank to a peon, a sepoy or a constable. Sub-section (3)
1

of Section 41 vests all the powers of an officer acting
under Section 42 on three types of officers (1) to whom a
warrant under sub-section (1) is addressed, (it) the officer
who authorized the arrest or search under sub-section (2) C 1

of Section 41, and (iit) 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 the power of seizure. Section 42
provides for procedure and power of entry, search, seizure
0
and arrest without warrant or authorization. An empowered
officer has the power of entry into and search of any
building, conveyance or place, break open any 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 an 'E
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)
)I
of Section 42 is a mandatory provision. In terms of this F
provision a copy of information taken down in writing under
sub-section (1) or ground recorded for the belief under the
proviso thereto, .is required to be sent by the officer to his
immediate superior official. It is clear from Section 41 (2)
that the Central Government or State Government, as the G
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 H
.,,..
....

898 SUPREME COURT REPORTS [2008] 10 S.C.R.

A only a Gazetted Officer. But on an officer empqwered 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 I
of sub-section (2) of Section 42 that it applies to an officer r
B contemplated by sub-section (1) thereof and not to a
Gazetted Officer contemplated by sub-section (2) of
Section 41, when such a Gazetted Officer himself makes
an arrest or conducts search and seizure. It would be useful

c
to also notice Section 43 which relates to power of seizure
and arrest in a 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
D ~
whereas Section 41 (2) requires an officer to be so. A
Gazetted Officer has been differently dealt with and more
trust has been reposed in him can also be seen from
Section 50 of the NDPS Act which gives a right to a person
about to be searched to ask for being searched in the
E presence of a Gazetted Officer. The High Court is, thus, .j

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
F Section 42. The decisions in State of Punjab v. Balbir ~

Singh, Abdul Rashid Ibrahim Mansuri v. State of Gujarat
and Beckodan Abdul Rahiman v. State of Kera/a on the ~

aspects under consideratio11 are neither relevant nor
applicable."
G
14. Section 67 reads as follows:
"67. Power to call for information, etc. .,.
Any officer referred to in Section 42 who is authorised in
this behalf by the Central Government or a State
H
UNION OF INDIA v. SATROHAN 899
[DR. ARIJIT PASAYAT, J. ]

Government may, during the course of any enquiry in A
connection with the contravention of any provision of this
Act, -
(a) Call for information from any person for the purpose
of satisfying himself whether there has been any·
contravention of the provisions of this Act or any rule 8
or order made thereunder;
(b) Require any person to produce or deliver any
document or thing useful or relevant to the enquiry;
(c) Examine any person acquainted with the facts and 1C
circumstances of the case."
15. Section 41 (2) deals with two situations. One is relat-
able to Gazetted Officer while in the other case the Gazetted
Officer may authorize his subordinate to do the relevant act or
0
may do it himself. Section 41 (3) refers to the power under Sec-
tion 42 which refers to subordinates.
16. In the confessional statement the accused has clearly
stated about the ownership. So, there has been no retraction at
considerable length of time. E
17. Above being the position, the High Court was clearly
in error by setting aside the judgment of the trial Court. We set
aside the judgment of the High Court and restore that of the trial
Court. The appeal is allowed to the aforesaid extent.
N.J. Appeal allowed.