At the stage of grant of bail this Court is not to look into the
detailed issue as to whether there has been strict compliance to the
provision of Section 42 of the Act or not. In case there is substantial
compliance that is sufficient and the trial Court shall decide after recording
evidence in the trial whether that compliance is sufficient or the noncompliance
has resulted in vitiating the trial. I had called for the case diary
and found that an Entry No.512 has been made in which it was mentioned
that on the basis of secret information received huge quantity of codeine
was likely to be recovered from the house of the petitioner at Lankamura. It
was stated that if E.B. staff will conduct raid/search at above noted location
under leadership of the S.P (E.B) certain action could be taken. This in my
opinion is sufficient compliance with Section 42.
THE HIGH COURT OF TRIPURA
A G A R T A L A
A. B. No. 39 of 2015
Shri Sujit Dhar,
Vs
The State of Tripura,
B E F O R E
HON’BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA
Date of Judgment & Order : 9th July, 2015.
Citation; 2015 CRLJ(NOC)492 Tripura
This bail petition by the petitioner has been filed in respect of
West Agartala P.S Case No.47 of 2015 (re-numbered as Special NDPS Case
No. 13/2015) registered against the petitioner under Section 21(c) of the
NDPS Act, 1985, hereinafter referred to as the Act.
[2] The prosecution story briefly stated is that the Officer-inCharge
of the West Agartala police station received secret information in
the morning of 24.04.2015 that large amount of codeine based cough syrup
was illegally stored in the house of the petitioner. The matter was brought
to the notice of the Superintendent of Police concerned. Thereafter the
informant along with other staff went to Lankamura, identified the house of
the petitioner and on conducting raid recovered 975 bottles of phynsidol,
150 bottles reco-dex and 160 bottles of Es-kup from the hut of the
petitioner. The petitioner was thereafter arrested and the bail petition filed
before the trial Court was rejected. Hence the present bail application.
[3] Sri P. K. Biswas, learned senior counsel appearing for the
petitioner has raised two contentions before this Court. The first contention
is that the provision of Section 42 of the Act have been violated and the
second contention that the provision of Section 52A have been violated. It
is the contention of Sri Biswas that Section 42 of the Act has been violated
because the Investigating Officer has not recorded the reasons of his belief
in writing. With regard to Section 52A the contention is that the samples
have been drawn by the police officer at the spot and this is violative of the
provision of Section 52A of the Act.
[4] Section 42 of the Act reads as follows:
“42. Power of entry, search, seizure and arrest
without warrant or 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
intellegence or any other department of the Central
Government including para-military forces or armed
forces 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 persons knowledge or
information given by any person and taken down in
writing that any narcotic drug, or psychotropic
substance, or controlled substance in respect of
which an offence punishable under this Act has been
committed or any document or other article which
may furnish evidence of the commission of such
offence or any illegally acquired property or any
document or other article which may furnish
evidence of holding any illegally acquired property
which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act 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 believe 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 this Act or furnish
evidence of holding any illegally acquired
property which is liable for seizure or freezing
or forfeiture under Chapter VA of this Act; 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 this Act:
Provided that in respect of holder of a licence for
manufacture of manufactured drugs or psychotropic
substances or controlled substances, granted under
this Act or any rule or order made thereunder, such
power shall be exercised by an officer not below the
rank of sub-inspector:
Provided further 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 within
seventy-two hours send a copy thereof to his
immediate official superior.]”
[5] Sri Biswas learned senior counsel has relied upon the
judgment of the Apex Court in Sarija Banu alias Janarthani alias
Janani and another Vrs. State through Inspector of Police: (2014)
SCC 266 wherein it is held that compliance of Section 42 is mandatory and
this factor can be taken into consideration even at the time of grant of bail.
There can be no quarrel with this proposition of the law that even at the
stage of grant of bail if it is shown that section 42 has not been complied
with this Court is not powerless to grant bail.
[6] Sri P. K. Biswas also placed reliance on the judgment of the
Apex Court in Directorate of Revenue and Anotgher Vrs. Mohammed
Nisar Holia : (2008) 2 SCC 370 wherein the Apex Court held that the
Officer who received the information must record the same in writing. In
para-19 the Apex court held as follows:
“In the instant case, the statutory requirements had
not been complied with as the person who had
received the first information did not reduce the
same in writing. An officer who received such
information was bound to reduce the same in writing
and not for the person who hears thereabout.
Furthermore, in this case, apart from proving the fax
and the copy of a challan nothing else has been
proved.*****”
[7] Section 42 has been the subject of judicial interpretation by a
Constitution Bench of the Apex Court in Karnail Singh Vrs. State of
Haryana: (2009) 8 SCC 539 and after discussing the entire law on the
subject and making reference to various provisions of the NDPS Act the
Apex Court held as follows:
“21) Sub-section (1) of Section 42 of the NDPS Act
lays down that the empowered officer, if has a prior
information given by any person, should necessarily
take it down in writing and 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 warrant
between sunrise and sunset and he may do so
without recording his reasons of belief. The proviso
to sub-section (1) of Section 42 lays down that if the
empowered officer has reason to believe that a
search warrant or authorization 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.
22) Sub-section (2) of Section 42 as it originally
stood mandated that the empowered officer who
have taken down information in writing or records
the grounds of his belief under the proviso to subsection
(1), should send a copy of the same to his
immediate official superior forthwith. But after the
amendment in the year 2001, the period within
which such report has to be sent was specified to be
72 hours. Section 43 deals with the power of seizure
and arrest of the suspect in a public place.”
The concluding portion of the judgment reads as follows:
“35. In conclusion, what is to be noticed is Abdul
Rashid did not require literal compliance with the
requirements of Sections 42(1) and 42(2) nor did
Sajan Abraham hold that the requirements of Section
42(1) and 42(2) need not be fulfilled at all. The effect
of the two decisions was as follows :
(a) The officer on receiving the information (of the
nature referred to in Sub-section (1) of section 42)
from any person had to record it in writing in the
concerned Register and forthwith send a copy to his
immediate official superior, before proceeding to
take action in terms of clauses (a) to (d) of section
42(1).
(b) But if the information was received when the
officer was not in the police station, but while he was
on the move either on patrol duty or otherwise,
either by mobile phone, or other means, and the
information calls for immediate action and any delay
would have resulted in the goods or evidence being
removed or destroyed, it would not be feasible or
practical to take down in writing the information
given to him, in such a situation, he could take action
as per clauses (a) to (d) of section 42(1) and
thereafter, as soon as it is practical, record the
information in writing and forthwith inform the same
to the official superior .
(c) In other words, the compliance with the
requirements of Sections 42 (1) and 42(2) in regard
to writing down the information received and
sending a copy thereof to the superior officer, should
normally precede the entry, search and seizure by
the officer. But in special circumstances involving
emergent situations, the recording of the information
in writing and sending a copy thereof to the official
superior may get postponed by a reasonable period,
that is after the search, entry and seizure. The
question is one of urgency and expediency.
(d) While total non-compliance of requirements of
sub-sections (1) and (2) of section 42 is
impermissible, delayed compliance with satisfactory
explanation about the delay will be acceptable
compliance of section 42. To illustrate, if any delay
may result in the accused escaping or the goods or
evidence being destroyed or removed, not recording
in writing the information received, before initiating
action, or non-sending a copy of such information to
the official superior forthwith, may not be treated as
violation of section 42. But if the information was
received when the police officer was in the police
station with sufficient time to take action, and if the
police officer fails to record in writing the
information received, or fails to send a copy thereof,
to the official superior, then it will be a suspicious
circumstance being a clear violation of section 42 of
the Act. Similarly, where the police officer does not
record the information at all, and does not inform the
official superior at all, then also it will be a clear
violation of section 42 of the Act. Whether there is
adequate or substantial compliance with section 42
or not is a question of fact to be decided in each
case. The above position got strengthened with the
amendment to section 42 by Act 9 of 2001.”
[8] On behalf of the State reliance has been placed on Kuldeep
Singh Vrs. State of Punjab: 2011 AIR SCW 2553 wherein the Apex
Court held that if an Investigating Officer received secret information that
the accused is dealing in contraband while he was on patrol duty, it was not
necessary for him to take down the information in writing there and then.
In that case the officer after receipt of the information proceeded to
conduct the search and make the seizure and thereafter the information
was recorded on his return to the police station. The Apex Court held that
provisions of Section 42 had been substantially complied with.
[9] When the Constitution Bench has decided a particular matter
one need not look into other judgments at all. What the Apex Court held in
Karnail Singh’s case is that in case the empowered officer has prior
information given by any person about an offence having been committed
under the NDPS Act he should forthwith take it down in writing. The second
part of the requirement is that in case the officer has reasons to believe
from his personal knowledge that any offence under Chapter IV has been
committed or that an material which may furnish evidence of commission of
such offences are concealed in any building he may carry out the arrest or
search without warrant between sunrise and sunset even without recording
his reasons of belief. However, if the search has to be carried out after
sunset and before sunrise then the empowered officer must record his
reasons to believe that a search warrant or authorization cannot be
obtained without affording an adequate opportunity to enter and search the
building. The Apex Court has also held that when the officer receives
information of the commission of an offence as referred to Sub Section (1)
of Section 42 the same should be recorded in writing in the register
concerned and a copy of the same shall be sent to the superior official
before taking further actions.
[10] At the stage of grant of bail this Court is not to look into the
detailed issue as to whether there has been strict compliance to the
provision of Section 42 of the Act or not. In case there is substantial
compliance that is sufficient and the trial Court shall decide after recording
evidence in the trial whether that compliance is sufficient or the noncompliance
has resulted in vitiating the trial. I had called for the case diary
and found that an Entry No.512 has been made in which it was mentioned
that on the basis of secret information received huge quantity of codeine
was likely to be recovered from the house of the petitioner at Lankamura. It
was stated that if E.B. staff will conduct raid/search at above noted location
under leadership of the S.P (E.B) certain action could be taken. This in my
opinion is sufficient compliance with Section 42.
[11] As far as Section 42(1) of the Act is concerned the raid was
conducted between 12.30 to 14.10 hours i.e. after sunrise and before
sunset. Therefore, it was not necessary for the empowered officer to
comply with the first proviso to Section 42(1) of the Act. There are two
types of reasons of belief contemplated under Section 42 of the Act. In case
the investigation is not initiated on the basis of secret information received
then the empowered officer is required to record the reasons of his belief
as to why a raid should be conducted. In case the raid is being conducted
under Section 42 of the Act on the basis of secret information received
which itself discloses the commission of offence then no reasons of belief of
the investigating officer are to be recorded. If however the investigating
officer himself wants to search any premises under Section 42 and there is
no secret information which has been recorded then he must record the
reasons of his belief as to why he believes that an offence has been
committed and a search should be conducted. However such raid can be
conducted only between sunrise and sunset and if such raid has to be
conducted after sunset and before sunrise then either warrant or
authorization should be obtained or the officer should record his ground of
belief as to why it was not possible to obtain warrants or authorization.
This position is made clear from Sub Section (2) of Section 42 which clearly
lays down 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 within 72 hours sent a copy thereof to his immediate
superior officials.
[12] The present case is one of prior secret information received
and on going through the record I find that the information has been
recorded in the G. D Entry and appears to be sent to senior officials also.
There was no requirement to record any belief at this stage especially when
the raid was conducted after sunrise and before sunset.
[13] The next contention of learned senior counsel is that the
prosecution has violated the provision of Section 52A of the NDPS Act in as
much as the inventory has not been certified by the Magistrate on that day
or subsequent thereto. Section 52A reads as follows:
“52A. Disposal of seized narcotic drugs and
psychotropic substances.
—
(1) The Central Government may, having regard to
the hazardous nature of any narcotic drugs or
psychotropic substances, their vulnerability to theft,
substitution, constraints of proper storage space or
any other relevant considerations, by notification
published in the Official Gazette, specify such
narcotic drugs or psychotropic substances or class of
narcotic drugs or class of psychotropic substances
which shall, as soon as may be after their seizure, be
disposed of by such officer and in such manner as
that Government may from time to time, determine
after following the procedure hereinafter specified.
(2) Where any narcotic drug or psychotropic
substance has been seized and forwarded to the
officer-in-charge of the nearest police station or to
the officer empowered under section 53, the officer
referred to in sub-section (1) shall prepare an
inventory of such narcotic drugs or psychotropic
substances containing such details relating to their
description, quality, quantity, mode of packing,
marks, numbers or such other identifying particulars A.B No. 39 of 2015. Page 10 of 23
10
of the narcotic drugs or psychotropic substances or
the packing in which they are packed, country of
origin and other particulars as the officer referred to
in sub-section (1) may consider relevant to the
identity of the narcotic drugs or psychotropic
substances in any proceedings under this Act and
make an application, to any Magistrate for the
purpose of—
(a) certifying the correctness of the inventory
so prepared; or
(b) taking, in the presence of such Magistrate,
photographs of such drugs or substances and
certifying such photographs as true; or
(c) allowing to draw representative samples of
such drugs or substances, in the presence of
such Magistrate and certifying the correctness
of any list of samples so drawn.
(3) Where an application is made under sub-section
(2), the Magistrate shall, as soon as may be, allow
the application.
(4) Notwithstanding anything contained in the
Indian Evidence Act, 1872 (1 of 1872) or the Code of
Criminal Procedure, 1973 (2 of 1974), every court
trying an offence under this Act, shall treat the
inventory, the photographs of narcotic drugs or
psychotropic substances and any list of samples
drawn under sub-section (2) and certified by the
Magistrate, as primary evidence in respect of such
offence.”
This section was inserted into the NDPS Act by the
Amendment Act 2 of 1989 w.e.f 29.5.1989. The heading of the Section is
“disposal of seized narcotic drugs and psychotropic substances.” This
section has nothing to do with search and seizure operations or the sealing
of the contraband or drawing of samples at the time of search. Sub Section
(1) of Section 52A empowers the Central Government to specify certain
narcotic drugs, psychotropic substances, controlled substances etc. which
should soon after the seizure be disposed of by such officer in a manner
specified by the Government. Sub Section (2) of Section 52A clearly lays
down that where any contraband substances i.e. narcotic drug,
psychotropic substance, controlled substances or conveyances has been
seized and forwarded to the Officer-in-charge of the nearest police station A.B No. 39 of 2015. Page 11 of 23
11
or to the officer empowered under Section 53, the officer referred to in Sub
Section (1) of Section 52A is required to prepare an inventory of such
substance. The manner of preparation of the inventory is given. Thereafter
an application can be made to the Magistrate for certifying the correctness
of the inventory prepared by the officer. In the presence of the Magistrate
photographs of such drugs, substances, conveyances can be taken and the
Magistrate shall certify such photograph to be true. The Magistrate shall
permit drawing of representative samples of such drugs and shall certify the
correctness of the list of samples so drawn. Sub Section (4) of Section 52A
overrides the provisions of the Indian Evidence Act, 1872 and the Code of
Criminal Procedure, 1973 and where any trial under the NDPS Act is going
on the Presiding Officer is to treat the inventory, the photographs and list
of samples as certified by the Magistrate to be primary evidence of such
offence.
[14] In the State of Tripura there is some misconception that the
inventory has to be prepared by the Magistrate and that the entire sealing
has to be done in presence of the Magistrate at the first instance. This is
wholly incorrect.
[15] Of late, the menace of narcotic drugs and psychotropic
substances has assumed such alarming proportions in the country that the
elected representatives of the people could not but take note of it. Those
who use these drugs become their slaves and slowly but almost
irretrievably push themselves into graves of their own making. Trafficking in
drugs meant to amass illegal wealth in a matter of days is an act of perfidy
no society can condone. This compulsion has resulted in enacting of A.B No. 39 of 2015. Page 12 of 23
12
the NDPS Act in order to curb and, if possible, eradicate the evil so much so
that severe deterrent minimum punishments have been prescribed for
those found guilty. The laudable object enunciated above cannot and
should not be permitted to be defeated through imparting non-existent,
meaning to some mere technicality found here and there in the Act or rules.
Simulteneously care and caution has to be observed to bestow rightful
place to such provisions which the legislature has enacted, in its wisdom, to
ensure that in no case, an innocent is convicted, for the minimum sentence
laid down for most of the offences are rigorous imprisonment for ten years
extending up to twenty years besides very heavy fine.
[16] Though the Act is a Special Act under Section 51 the provision
of the Code of Criminal Procedure are applicable in so far as they are not
inconsistent with the provisions of the Act in respect of all warrants issued
and arrests, searches and seizures made under this Act. Therefore, any
search or seizure made under the Act should comply with the provisions of
the Code of Criminal Procedure unless the Act has made some specific
provision in this regard. Till 1989 Section 52A was not even a part of the
Act. Sections 51 & 52 of the Act reads as follows:
“51. Provisions of the Code of Criminal Procedure,
1973 to apply to warrants, arrests, searches and
seizures.—The provisions of the Code of Criminal
Procedure, 1973 (2 of 1974) shall apply, in so far as
they are not inconsistent with the provisions of this
Act, to all warrants issued and arrests, searches and
seizures made under this Act.
52. Disposal of persons arrested and articles
seized.—
(1) Any officer arresting a person under section 41,
section 42 section 43 or section 44 shall, as soon as
may be, inform him of the grounds for such arrest.
(2) Every person arrested and article seized under
warrant issued under sub-section (1) of section 41
shall be forwarded without unnecessary delay to the
Magistrate by whom the warrant was issued.
(3) Every person arrested and article seized under
sub-section (2) of section 41, section 42, section 43
or section 44 shall be forwarded without
unnecessary delay to—
(a) the officer-in-charge of the nearest police
station, or
(b) the officer empowered under section 53.
(4) The authority or officer to whom any person or
article is forwarded under sub-section (2) or subsection
(3) shall, with all convenient despatch, take
such measures as may be necessary for the disposal
according to law of such person or article.”
A bare perusal of sub section (2) of Section 52 of the Act
shows that whenever any article has been seized the same shall be
forwarded without any unnecessary delay to the Magistrate by whom
warrant was issued. This will only apply when the seizure has taken place
pursuant to a warrant issued by a Magistrate and sub section (2) has no
applicability in cases of search and seizures which take place under Sections
41,42,43 and 44 of the Act. In those cases sub section (3) of the Act
applies and therefore, it is the duty of the officer concerned to ensure that
the person arrested and the article seized are forwarded without
unnecessary delay to the Officer-in-Charge of the nearest police station or
to the officers empowered under Section 53 of the Act. Such an officer is
required to take action for disposal of the material in accordance with law.
[17] Under Section 53 of the Act the Central Government may
notify certain officers of other departments such as Excise, Narcotic,
Custom, Revenue, Intelligence etc..
[18] Section 55 of the Act reads as follows:
“55. Police to take charge of articles seized and
delivered.—An officer-in-charge of a police station A.B No. 39 of 2015. Page 14 of 23
14
shall take charge of and keep in safe custody,
pending the orders of the Magistrate, all articles
seized under this Act within the local area of that
police station and which may be delivered to him,
and shall allow any officer who may accompany such
articles to the police station or who may be deputed
for the purpose, to affix his seal to such articles or to
take samples of and from them and all samples so
taken shall also be sealed with a seal of the officerin-charge
of the police station.”
This section provides that the Officer-in-Charge of the police
station with whom the seized article has been deposited shall take charge
of the same and keep the same in safe custody pending the orders of the
Magistrate. He also has been given to the power to affix his seal to such
articles or to take samples of and from them. All of the samples so taken
shall be sealed with the seal of the Officer-in-Charge of police station.
[19] To sum up Chapter V of the Narcotic Act lays down the
procedure to be followed after the search and arrest of the accused.
According to Section 52(1), the person arrested is to be informed, as soon
as may be, about the grounds of arrest. Section 52(2) says that the person
arrested and articles seized are to be forwarded to the Magistrate who
issued the warrant under Section 41(1), However, in cases other than
warrants, the person arrested and articles seized are to be forwarded to the
Officer-in-Charge of the nearest Police Station or the Officer invested with
powers of Officer-in-Charge of a Police Station for the investigation of
offence under the Act (sub-section (3) of Section 52). Section 55 casts a
duty on the Officer-in-Charge to keep articles in safe custody and allow any
officer, who may be accompanying such articles, to put his seal or take
sample. Then comes Section 57 which postulates that any person making
arrest or seizure shall make full report to his immediate superior officer
within 48 hours.”
[20] The Central Government has issued a standing order No.01 of
1989 dated 13.06.1989 laying down the procedure for sampling, storage
etc. Reference may be made to Section IV of this standing order which
reads as follows:
“4.0 Where any narcotic drug or psychotropic
substance has been seized and forwarded the officerin-charge
of the nearest police station or to the
officer empowered under section 53, the officer,
referred to in paragraph No.3.3 of the order shall
prepare an inventory of such narcotic drugs or
psychotropic substances containing arch details
relating to their description, quality, quantity, mode
of packing, marks, numbers or such other identifying
particulars or the narcotic drugs or psychotropic
substances or the packing in which they are packed,
Country of origin and such other particulars as may
be considered relevant to the identity of the
aforesaid drugs in any proceedings under the Act and
make an application to any Magistrate for the
purpose of- Application to Magistrate for pre-trial
disposal
(a) Certifying the correctness & of the
inventory so prepared: or
(b) Taking, in the presence of such
Magistrate, photographs of such drugs or
substances and certifying such photographs.
(c) Allowing to 4mw representative
samples of such drugs of substances, in the
presence of such Magistrate and certifying the
correctness of any list of samples so drawn.
Magistrate to allow application.”
[21] In Noor Aga Vrs. State of Punjab: (2008) 16 SCC 417
after referring to the standing order the Apex Court held as follows:
“Logical corollary of these discussions is that the
guidelines such as those present in the Standing
Order cannot be blatantly flouted and substantial
compliance therewith must be insisted upon for so
that sanctity of physical evidence in such cases
remains intact. Clearly, there has been no substantial
compliance of these guidelines by the
investigating authority which leads to drawing of an
adverse inference against them to the effect that had
such evidence been produced, the same would have
gone against the prosecution.”
[22] Section 52A of the Act has been enacted for disposal of drugs
and it is not the job of the Magistrate to certify the inventory at the stage of
seizure. Section 52A of the Act comes into play only when an application is
made to the Magistrate that the drugs specified are to be destroyed. In
cases of prior information where the Investigating Officer proceed to search
the premises or a person on the basis of information received or on the
basis of his own belief then it is obvious that the authorized
officer/empowered officer or police officer should carry investigation kit with
him containing all necessary material such as weighing scales and material
to seal the contraband material at the spot.
[23] One of the most important aspects of any case under the
NDPS Act is that once possession of the accused is proved the burden shifts
upon him to explain his possession. Therefore a heavy burden lies upon the
prosecution to link the report issued by the Forensic Science Laboratory to
the material which was seized at the time of the search operation being
carried out. The chain has to be complete and it is the duty of the
prosecution to prove before the Court that the sample which was taken at
the spot was kept in such a condition that the same could not be tampered
with or opened till it reached the laboratory.
[24] Therefore, under Section 51 of the Act the procedure under
the code of criminal procedure will be followed in respect of search, seizure
and arrest. This procedure is laid down and as far as possible independent
witnesses should be associated with the search and seizure operations
especially when the search is conducted on the basis of prior information.
[25] Section 100 of the Cr. P.C deals with this aspect of the matter
and the provision of Section 100 Cr. P.C must be followed even in the cases
of NDPS Act. However, in cases of chance recovery or where the
information is received at such a place that it is not possible for the police
officials to collect all the necessary materials and paraphernalia which
should be part of the investigation kit then the investigating kit need not be
carried.
[26] When on search of a person or search of a place any
contraband substance is recovered it is the duty of the empowered
officer/police official to ensure that the same is sealed at the spot. The
empowered officer is also authorized to draw samples at the spot itself. In
the seizure memo he must clearly mention the identifying mark on the seal
affixed on the seized material and/or the samples, if any, drawn on the
spot. The weight of the seized material as well as weight of the samples
should be clearly mentioned in the seizure memo. In cases of bottles etc. it
is not necessary to mention the weight but the number of bottles, the
volume of material stated to be in each bottle along with other identifying
marks such as name of manufacturer, batch number etc. should be clearly
mentioned in the seizure report. After preparing the inventory the material
should be sealed at the spot itself. However, in case where the
Investigating Officer does not have investigation kit or in case of chance
recovery or sometimes when the place of seizure is so remote that there is
chance of the accused escaping if this exercise cannot be done at the spot
then the material can be taken to the police station. Even in such cases
firstly an attempt should be made that the entire seized material is sealed
in one packet and then taken to the police station or to the empowered
officer along with the person arrested, if any under Section 52A of the Act.
The material has to be produced before the Magistrate only where the
search has been conducted pursuant to search warrant issued by a
Magistrate.
[27] Thereafter when the contraband material is produced in the
police station the officer-in-charge of the police station must also ensure
that the material is resealed. In case the investigating officer has sealed the
material and drawn the samples at the spot then the Investigating Officer
can either reseal the entire material without opening the seals and he can
affix his own seals also on the sealed package prepared by the
Investigating Officer. In such an event the officer-in-charge of the police
station shall prepare the inventory on the basis of the seizure report
prepared by the Investigating Officer at the spot.
[28] In case however, Investigating Officer has not prepared
seizure report at the spot and has brought the entire material to the police
station then the Officer-in-Charge of the police station should ensure that
the same is weighed and properly identified as discussed hereinabove and
at least two representative samples are drawn out in accordance with law.
Thereafter, the entire material should be sealed and a memo should be
prepared in this regard. As far as possible independent witness should be
associated with this process. A.B No. 39 of 2015. Page 19 of 23
19
[29] Thereafter the police officer is required to deposit the seized
material i.e. the bulk seized material as well as the samples with the police
official, in-charge of the Malkhana who shall make an entry in the Malkhana
register giving the time and date and receipt of samples along with other
details such as the number of packages, number of seals, identifying mark
of the seals etc.
[30] Thereafter, the Investigating Officer or any other empowered
officer can send one of the samples drawn to the Forensic Science
Laboratory. The identity of the police officials who is deputed should be
clearly established. The Malkhana in-charge should hand over the sample
along with a certificate (sometime referred to as road certificate) giving
details of the packet containing the sample including number of seals,
identification mark of the seals, case no. etc. The police official who takes
the sample to the Forensic Science Laboratory must deposit the same with
the FSL against proper receipt. The FSL in its report should mention the
weight of the sample, the identification marks of the seized articles etc.
During trial it is the duty of the prosecution to examine each one of the
officials that is the officer who carried out the raid, the officer-in-charge of
the police station, the officer-in-charge of the Malkhana, the official who
carried the sample to the laboratory to prove that the sample was not
tampered with and could not be tampered with during this period. Only the
report of the Forensic Science Laboratory is per se admissible and it is not
necessary to examine any official from the Forensic Science Laboratory.
[31] In Tripura there is some misconception that the first inventory
of seizure has to be prepared by the Magistrate. This is totally incorrect. In
all cases as far as possible the sealing and sampling should be done at the
spot and if it cannot be done at the spot then before the police officer or
the officer empowered under Section 53. Only in those cases where the
Magistrate has issued the warrant is the seized material to be produced
before the Magistrate. The role of the Magistrate comes in only at the stage
when the police officials take a conscious decision that the contraband
material should be disposed of at the pre-trial stage. Normally all case
property has to be produced at the stage of trial. This led to problem being
faced where such dangerous material were liable to be stolen or misused
either in the police Malkhanas or in the Malkhanas attached to the Courts.
Therefore, Section 52A was incorporated with the Act.
[32] Section 52A has nothing to do with search and seizure. The
purpose of Section 52A is to ensure that the contraband substance is
disposed of under the supervision of a Magistrate and if the Magistrate
follows the mandate of Section 52A then the certificate issued by him is per
se admissible in evidence and it is not necessary for the police or the
investigating agency to produce the bulk seized material which is the case
property before the Court. The intention behind Section 52A is to ensure
destruction of such harmful material at the pre trial stage.
[33] Even when Section 52A has been resorted to the inventory
produced must be the inventory prepared by an officer empowered to do so
under sub Section (1) of Section 52A. The duty of the Magistrate is to verify
the inventory and in this regard we are clarifying the position further. In
case section 52A is not complied with and the seized material is not
destroyed then it is the duty of the prosecution to produce the same before
the trial Court during trial.
[34] Section 52A is a very important provision. Narcotic Drugs and
Psychotropic Substances are vulnerable to misuse. When huge quantities of
contraband are seized it is not possible to keep them safely in the
Malkhanas and there may be a chance of pilferage or the narcotic
substances falling in wrong hands. Therefore, the aforesaid Section was
inserted in the NDPS Act. Under sub-section (2) of the aforesaid Section
after the contraband has been produced before the empowered officer
under Section 53 of the Act the said officer is required to prepare a
inventory of the alleged Narcotic Drugs and Psychotropic Substances
containing details relating to their description, quality, quantity, mode of
packing, marks, numbers and other identifying particulars on the packing in
which they are packed. The country of origin and other particulars as
referred to in sub section (1) may also be considered relevant to identify
the narcotic drugs. Thereafter, the empowered officer can apply to any
Magistrate under Section 52A for the purpose of; certifying the correctness
of the inventory so prepared; or taking in the presence of the Magistrate,
photographs of such drugs or substances and certifying such photographs
as true and lastly allowing to draw representative sample of such drugs or
substances in the presence of the Magistrate and certifying the correctness
of any list of samples so drawn. The Magistrate is required to deal with this
application forthwith. Under sub section (4) the inventories, photographs
and list of samples certified by the Magistrate are to be treated as primary
evidence by the Court trying the offence.
[35] Thus, it is apparent that an onerous and important duty is
cast on the Magistrate. The Magistrate must ensure that the inventory
prepared by the Officer is proper. We would like to reiterate that this job
must be performed by the Magistrate himself and he cannot issue the
certificate merely on the asking of the police officer. The Magistrate must
personally and by himself verify the correctness of the inventory. Therefore,
a duty is cast upon the Magistrate to verify the number of seals, the seal
impression and he should tally the same with the sample seal impression.
The Magistrate should not blindly copy what is stated in the application filed
under Section 52A but it is his duty to ensure that he records the exact
number of seals, the seal impression, the other special markings or
identification marks on the parcels. He must ensure and write down
whether the seals are broken or intact. He must also clearly observe
whether the parcel appears to be tampered with or not. He must ensure
that the Narcotic Drugs and Psychotropic Substances are weighed in his
presence and thereafter he should certify the inventory.
[36] In case samples have to be drawn the Magistrate must ensure
that if there are more one packet then separate samples are drawn from
each packet. Obviously, he need not draw samples from the parcels stated
to be parcels of samples if drawn by the police but in case of a plurality of
bulk parcels he must ensure that separate samples are drawn from each
packet. The Magistrate should also ensure that before drawing the parcels
he makes the substance homogenous. We are not going into the details as
to how the substance has to be made homogenous but all Magistrates have
received training whereby it has been explained to them how material is
made homogenous so that a representative sample of the whole is drawn.
This is normally done by cutting the bulk into a number of smaller units
usually four, re-uniting them then cutting them again and then re-uniting
them. The Magistrate then must ensure that the samples and the bulk
drugs are again resealed in a proper manner. The order sheet of the
proceedings should reflect each and every action taken by the Magistrate.
In case photographs are taken then the Magistrate must ensure that the
same are taken in his presence. We must again reiterate that this job has to
be done by the Magistrate himself and cannot be delegated to any member
of the Court staff.
[37] In view of the above discussion, I am clearly of the view that
Section 42 has been complied with and Section 52A was not required to be
complied with in this case. Therefore, I find no merit in the bail application.
Accordingly the same is rejected.
Copy of this judgment be circulated to all judicial officers in
the State of Tripura.
CHIEF JUSTICE
Print Page
detailed issue as to whether there has been strict compliance to the
provision of Section 42 of the Act or not. In case there is substantial
compliance that is sufficient and the trial Court shall decide after recording
evidence in the trial whether that compliance is sufficient or the noncompliance
has resulted in vitiating the trial. I had called for the case diary
and found that an Entry No.512 has been made in which it was mentioned
that on the basis of secret information received huge quantity of codeine
was likely to be recovered from the house of the petitioner at Lankamura. It
was stated that if E.B. staff will conduct raid/search at above noted location
under leadership of the S.P (E.B) certain action could be taken. This in my
opinion is sufficient compliance with Section 42.
THE HIGH COURT OF TRIPURA
A G A R T A L A
A. B. No. 39 of 2015
Shri Sujit Dhar,
Vs
The State of Tripura,
B E F O R E
HON’BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA
Date of Judgment & Order : 9th July, 2015.
Citation; 2015 CRLJ(NOC)492 Tripura
This bail petition by the petitioner has been filed in respect of
West Agartala P.S Case No.47 of 2015 (re-numbered as Special NDPS Case
No. 13/2015) registered against the petitioner under Section 21(c) of the
NDPS Act, 1985, hereinafter referred to as the Act.
[2] The prosecution story briefly stated is that the Officer-inCharge
of the West Agartala police station received secret information in
the morning of 24.04.2015 that large amount of codeine based cough syrup
was illegally stored in the house of the petitioner. The matter was brought
to the notice of the Superintendent of Police concerned. Thereafter the
informant along with other staff went to Lankamura, identified the house of
the petitioner and on conducting raid recovered 975 bottles of phynsidol,
150 bottles reco-dex and 160 bottles of Es-kup from the hut of the
petitioner. The petitioner was thereafter arrested and the bail petition filed
before the trial Court was rejected. Hence the present bail application.
[3] Sri P. K. Biswas, learned senior counsel appearing for the
petitioner has raised two contentions before this Court. The first contention
is that the provision of Section 42 of the Act have been violated and the
second contention that the provision of Section 52A have been violated. It
is the contention of Sri Biswas that Section 42 of the Act has been violated
because the Investigating Officer has not recorded the reasons of his belief
in writing. With regard to Section 52A the contention is that the samples
have been drawn by the police officer at the spot and this is violative of the
provision of Section 52A of the Act.
[4] Section 42 of the Act reads as follows:
“42. Power of entry, search, seizure and arrest
without warrant or 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
intellegence or any other department of the Central
Government including para-military forces or armed
forces 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 persons knowledge or
information given by any person and taken down in
writing that any narcotic drug, or psychotropic
substance, or controlled substance in respect of
which an offence punishable under this Act has been
committed or any document or other article which
may furnish evidence of the commission of such
offence or any illegally acquired property or any
document or other article which may furnish
evidence of holding any illegally acquired property
which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act 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 believe 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 this Act or furnish
evidence of holding any illegally acquired
property which is liable for seizure or freezing
or forfeiture under Chapter VA of this Act; 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 this Act:
Provided that in respect of holder of a licence for
manufacture of manufactured drugs or psychotropic
substances or controlled substances, granted under
this Act or any rule or order made thereunder, such
power shall be exercised by an officer not below the
rank of sub-inspector:
Provided further 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 within
seventy-two hours send a copy thereof to his
immediate official superior.]”
[5] Sri Biswas learned senior counsel has relied upon the
judgment of the Apex Court in Sarija Banu alias Janarthani alias
Janani and another Vrs. State through Inspector of Police: (2014)
SCC 266 wherein it is held that compliance of Section 42 is mandatory and
this factor can be taken into consideration even at the time of grant of bail.
There can be no quarrel with this proposition of the law that even at the
stage of grant of bail if it is shown that section 42 has not been complied
with this Court is not powerless to grant bail.
[6] Sri P. K. Biswas also placed reliance on the judgment of the
Apex Court in Directorate of Revenue and Anotgher Vrs. Mohammed
Nisar Holia : (2008) 2 SCC 370 wherein the Apex Court held that the
Officer who received the information must record the same in writing. In
para-19 the Apex court held as follows:
“In the instant case, the statutory requirements had
not been complied with as the person who had
received the first information did not reduce the
same in writing. An officer who received such
information was bound to reduce the same in writing
and not for the person who hears thereabout.
Furthermore, in this case, apart from proving the fax
and the copy of a challan nothing else has been
proved.*****”
[7] Section 42 has been the subject of judicial interpretation by a
Constitution Bench of the Apex Court in Karnail Singh Vrs. State of
Haryana: (2009) 8 SCC 539 and after discussing the entire law on the
subject and making reference to various provisions of the NDPS Act the
Apex Court held as follows:
“21) Sub-section (1) of Section 42 of the NDPS Act
lays down that the empowered officer, if has a prior
information given by any person, should necessarily
take it down in writing and 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 warrant
between sunrise and sunset and he may do so
without recording his reasons of belief. The proviso
to sub-section (1) of Section 42 lays down that if the
empowered officer has reason to believe that a
search warrant or authorization 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.
22) Sub-section (2) of Section 42 as it originally
stood mandated that the empowered officer who
have taken down information in writing or records
the grounds of his belief under the proviso to subsection
(1), should send a copy of the same to his
immediate official superior forthwith. But after the
amendment in the year 2001, the period within
which such report has to be sent was specified to be
72 hours. Section 43 deals with the power of seizure
and arrest of the suspect in a public place.”
The concluding portion of the judgment reads as follows:
“35. In conclusion, what is to be noticed is Abdul
Rashid did not require literal compliance with the
requirements of Sections 42(1) and 42(2) nor did
Sajan Abraham hold that the requirements of Section
42(1) and 42(2) need not be fulfilled at all. The effect
of the two decisions was as follows :
(a) The officer on receiving the information (of the
nature referred to in Sub-section (1) of section 42)
from any person had to record it in writing in the
concerned Register and forthwith send a copy to his
immediate official superior, before proceeding to
take action in terms of clauses (a) to (d) of section
42(1).
(b) But if the information was received when the
officer was not in the police station, but while he was
on the move either on patrol duty or otherwise,
either by mobile phone, or other means, and the
information calls for immediate action and any delay
would have resulted in the goods or evidence being
removed or destroyed, it would not be feasible or
practical to take down in writing the information
given to him, in such a situation, he could take action
as per clauses (a) to (d) of section 42(1) and
thereafter, as soon as it is practical, record the
information in writing and forthwith inform the same
to the official superior .
(c) In other words, the compliance with the
requirements of Sections 42 (1) and 42(2) in regard
to writing down the information received and
sending a copy thereof to the superior officer, should
normally precede the entry, search and seizure by
the officer. But in special circumstances involving
emergent situations, the recording of the information
in writing and sending a copy thereof to the official
superior may get postponed by a reasonable period,
that is after the search, entry and seizure. The
question is one of urgency and expediency.
(d) While total non-compliance of requirements of
sub-sections (1) and (2) of section 42 is
impermissible, delayed compliance with satisfactory
explanation about the delay will be acceptable
compliance of section 42. To illustrate, if any delay
may result in the accused escaping or the goods or
evidence being destroyed or removed, not recording
in writing the information received, before initiating
action, or non-sending a copy of such information to
the official superior forthwith, may not be treated as
violation of section 42. But if the information was
received when the police officer was in the police
station with sufficient time to take action, and if the
police officer fails to record in writing the
information received, or fails to send a copy thereof,
to the official superior, then it will be a suspicious
circumstance being a clear violation of section 42 of
the Act. Similarly, where the police officer does not
record the information at all, and does not inform the
official superior at all, then also it will be a clear
violation of section 42 of the Act. Whether there is
adequate or substantial compliance with section 42
or not is a question of fact to be decided in each
case. The above position got strengthened with the
amendment to section 42 by Act 9 of 2001.”
[8] On behalf of the State reliance has been placed on Kuldeep
Singh Vrs. State of Punjab: 2011 AIR SCW 2553 wherein the Apex
Court held that if an Investigating Officer received secret information that
the accused is dealing in contraband while he was on patrol duty, it was not
necessary for him to take down the information in writing there and then.
In that case the officer after receipt of the information proceeded to
conduct the search and make the seizure and thereafter the information
was recorded on his return to the police station. The Apex Court held that
provisions of Section 42 had been substantially complied with.
[9] When the Constitution Bench has decided a particular matter
one need not look into other judgments at all. What the Apex Court held in
Karnail Singh’s case is that in case the empowered officer has prior
information given by any person about an offence having been committed
under the NDPS Act he should forthwith take it down in writing. The second
part of the requirement is that in case the officer has reasons to believe
from his personal knowledge that any offence under Chapter IV has been
committed or that an material which may furnish evidence of commission of
such offences are concealed in any building he may carry out the arrest or
search without warrant between sunrise and sunset even without recording
his reasons of belief. However, if the search has to be carried out after
sunset and before sunrise then the empowered officer must record his
reasons to believe that a search warrant or authorization cannot be
obtained without affording an adequate opportunity to enter and search the
building. The Apex Court has also held that when the officer receives
information of the commission of an offence as referred to Sub Section (1)
of Section 42 the same should be recorded in writing in the register
concerned and a copy of the same shall be sent to the superior official
before taking further actions.
[10] At the stage of grant of bail this Court is not to look into the
detailed issue as to whether there has been strict compliance to the
provision of Section 42 of the Act or not. In case there is substantial
compliance that is sufficient and the trial Court shall decide after recording
evidence in the trial whether that compliance is sufficient or the noncompliance
has resulted in vitiating the trial. I had called for the case diary
and found that an Entry No.512 has been made in which it was mentioned
that on the basis of secret information received huge quantity of codeine
was likely to be recovered from the house of the petitioner at Lankamura. It
was stated that if E.B. staff will conduct raid/search at above noted location
under leadership of the S.P (E.B) certain action could be taken. This in my
opinion is sufficient compliance with Section 42.
[11] As far as Section 42(1) of the Act is concerned the raid was
conducted between 12.30 to 14.10 hours i.e. after sunrise and before
sunset. Therefore, it was not necessary for the empowered officer to
comply with the first proviso to Section 42(1) of the Act. There are two
types of reasons of belief contemplated under Section 42 of the Act. In case
the investigation is not initiated on the basis of secret information received
then the empowered officer is required to record the reasons of his belief
as to why a raid should be conducted. In case the raid is being conducted
under Section 42 of the Act on the basis of secret information received
which itself discloses the commission of offence then no reasons of belief of
the investigating officer are to be recorded. If however the investigating
officer himself wants to search any premises under Section 42 and there is
no secret information which has been recorded then he must record the
reasons of his belief as to why he believes that an offence has been
committed and a search should be conducted. However such raid can be
conducted only between sunrise and sunset and if such raid has to be
conducted after sunset and before sunrise then either warrant or
authorization should be obtained or the officer should record his ground of
belief as to why it was not possible to obtain warrants or authorization.
This position is made clear from Sub Section (2) of Section 42 which clearly
lays down 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 within 72 hours sent a copy thereof to his immediate
superior officials.
[12] The present case is one of prior secret information received
and on going through the record I find that the information has been
recorded in the G. D Entry and appears to be sent to senior officials also.
There was no requirement to record any belief at this stage especially when
the raid was conducted after sunrise and before sunset.
[13] The next contention of learned senior counsel is that the
prosecution has violated the provision of Section 52A of the NDPS Act in as
much as the inventory has not been certified by the Magistrate on that day
or subsequent thereto. Section 52A reads as follows:
“52A. Disposal of seized narcotic drugs and
psychotropic substances.
—
(1) The Central Government may, having regard to
the hazardous nature of any narcotic drugs or
psychotropic substances, their vulnerability to theft,
substitution, constraints of proper storage space or
any other relevant considerations, by notification
published in the Official Gazette, specify such
narcotic drugs or psychotropic substances or class of
narcotic drugs or class of psychotropic substances
which shall, as soon as may be after their seizure, be
disposed of by such officer and in such manner as
that Government may from time to time, determine
after following the procedure hereinafter specified.
(2) Where any narcotic drug or psychotropic
substance has been seized and forwarded to the
officer-in-charge of the nearest police station or to
the officer empowered under section 53, the officer
referred to in sub-section (1) shall prepare an
inventory of such narcotic drugs or psychotropic
substances containing such details relating to their
description, quality, quantity, mode of packing,
marks, numbers or such other identifying particulars A.B No. 39 of 2015. Page 10 of 23
10
of the narcotic drugs or psychotropic substances or
the packing in which they are packed, country of
origin and other particulars as the officer referred to
in sub-section (1) may consider relevant to the
identity of the narcotic drugs or psychotropic
substances in any proceedings under this Act and
make an application, to any Magistrate for the
purpose of—
(a) certifying the correctness of the inventory
so prepared; or
(b) taking, in the presence of such Magistrate,
photographs of such drugs or substances and
certifying such photographs as true; or
(c) allowing to draw representative samples of
such drugs or substances, in the presence of
such Magistrate and certifying the correctness
of any list of samples so drawn.
(3) Where an application is made under sub-section
(2), the Magistrate shall, as soon as may be, allow
the application.
(4) Notwithstanding anything contained in the
Indian Evidence Act, 1872 (1 of 1872) or the Code of
Criminal Procedure, 1973 (2 of 1974), every court
trying an offence under this Act, shall treat the
inventory, the photographs of narcotic drugs or
psychotropic substances and any list of samples
drawn under sub-section (2) and certified by the
Magistrate, as primary evidence in respect of such
offence.”
This section was inserted into the NDPS Act by the
Amendment Act 2 of 1989 w.e.f 29.5.1989. The heading of the Section is
“disposal of seized narcotic drugs and psychotropic substances.” This
section has nothing to do with search and seizure operations or the sealing
of the contraband or drawing of samples at the time of search. Sub Section
(1) of Section 52A empowers the Central Government to specify certain
narcotic drugs, psychotropic substances, controlled substances etc. which
should soon after the seizure be disposed of by such officer in a manner
specified by the Government. Sub Section (2) of Section 52A clearly lays
down that where any contraband substances i.e. narcotic drug,
psychotropic substance, controlled substances or conveyances has been
seized and forwarded to the Officer-in-charge of the nearest police station A.B No. 39 of 2015. Page 11 of 23
11
or to the officer empowered under Section 53, the officer referred to in Sub
Section (1) of Section 52A is required to prepare an inventory of such
substance. The manner of preparation of the inventory is given. Thereafter
an application can be made to the Magistrate for certifying the correctness
of the inventory prepared by the officer. In the presence of the Magistrate
photographs of such drugs, substances, conveyances can be taken and the
Magistrate shall certify such photograph to be true. The Magistrate shall
permit drawing of representative samples of such drugs and shall certify the
correctness of the list of samples so drawn. Sub Section (4) of Section 52A
overrides the provisions of the Indian Evidence Act, 1872 and the Code of
Criminal Procedure, 1973 and where any trial under the NDPS Act is going
on the Presiding Officer is to treat the inventory, the photographs and list
of samples as certified by the Magistrate to be primary evidence of such
offence.
[14] In the State of Tripura there is some misconception that the
inventory has to be prepared by the Magistrate and that the entire sealing
has to be done in presence of the Magistrate at the first instance. This is
wholly incorrect.
[15] Of late, the menace of narcotic drugs and psychotropic
substances has assumed such alarming proportions in the country that the
elected representatives of the people could not but take note of it. Those
who use these drugs become their slaves and slowly but almost
irretrievably push themselves into graves of their own making. Trafficking in
drugs meant to amass illegal wealth in a matter of days is an act of perfidy
no society can condone. This compulsion has resulted in enacting of A.B No. 39 of 2015. Page 12 of 23
12
the NDPS Act in order to curb and, if possible, eradicate the evil so much so
that severe deterrent minimum punishments have been prescribed for
those found guilty. The laudable object enunciated above cannot and
should not be permitted to be defeated through imparting non-existent,
meaning to some mere technicality found here and there in the Act or rules.
Simulteneously care and caution has to be observed to bestow rightful
place to such provisions which the legislature has enacted, in its wisdom, to
ensure that in no case, an innocent is convicted, for the minimum sentence
laid down for most of the offences are rigorous imprisonment for ten years
extending up to twenty years besides very heavy fine.
[16] Though the Act is a Special Act under Section 51 the provision
of the Code of Criminal Procedure are applicable in so far as they are not
inconsistent with the provisions of the Act in respect of all warrants issued
and arrests, searches and seizures made under this Act. Therefore, any
search or seizure made under the Act should comply with the provisions of
the Code of Criminal Procedure unless the Act has made some specific
provision in this regard. Till 1989 Section 52A was not even a part of the
Act. Sections 51 & 52 of the Act reads as follows:
“51. Provisions of the Code of Criminal Procedure,
1973 to apply to warrants, arrests, searches and
seizures.—The provisions of the Code of Criminal
Procedure, 1973 (2 of 1974) shall apply, in so far as
they are not inconsistent with the provisions of this
Act, to all warrants issued and arrests, searches and
seizures made under this Act.
52. Disposal of persons arrested and articles
seized.—
(1) Any officer arresting a person under section 41,
section 42 section 43 or section 44 shall, as soon as
may be, inform him of the grounds for such arrest.
(2) Every person arrested and article seized under
warrant issued under sub-section (1) of section 41
shall be forwarded without unnecessary delay to the
Magistrate by whom the warrant was issued.
(3) Every person arrested and article seized under
sub-section (2) of section 41, section 42, section 43
or section 44 shall be forwarded without
unnecessary delay to—
(a) the officer-in-charge of the nearest police
station, or
(b) the officer empowered under section 53.
(4) The authority or officer to whom any person or
article is forwarded under sub-section (2) or subsection
(3) shall, with all convenient despatch, take
such measures as may be necessary for the disposal
according to law of such person or article.”
A bare perusal of sub section (2) of Section 52 of the Act
shows that whenever any article has been seized the same shall be
forwarded without any unnecessary delay to the Magistrate by whom
warrant was issued. This will only apply when the seizure has taken place
pursuant to a warrant issued by a Magistrate and sub section (2) has no
applicability in cases of search and seizures which take place under Sections
41,42,43 and 44 of the Act. In those cases sub section (3) of the Act
applies and therefore, it is the duty of the officer concerned to ensure that
the person arrested and the article seized are forwarded without
unnecessary delay to the Officer-in-Charge of the nearest police station or
to the officers empowered under Section 53 of the Act. Such an officer is
required to take action for disposal of the material in accordance with law.
[17] Under Section 53 of the Act the Central Government may
notify certain officers of other departments such as Excise, Narcotic,
Custom, Revenue, Intelligence etc..
[18] Section 55 of the Act reads as follows:
“55. Police to take charge of articles seized and
delivered.—An officer-in-charge of a police station A.B No. 39 of 2015. Page 14 of 23
14
shall take charge of and keep in safe custody,
pending the orders of the Magistrate, all articles
seized under this Act within the local area of that
police station and which may be delivered to him,
and shall allow any officer who may accompany such
articles to the police station or who may be deputed
for the purpose, to affix his seal to such articles or to
take samples of and from them and all samples so
taken shall also be sealed with a seal of the officerin-charge
of the police station.”
This section provides that the Officer-in-Charge of the police
station with whom the seized article has been deposited shall take charge
of the same and keep the same in safe custody pending the orders of the
Magistrate. He also has been given to the power to affix his seal to such
articles or to take samples of and from them. All of the samples so taken
shall be sealed with the seal of the Officer-in-Charge of police station.
[19] To sum up Chapter V of the Narcotic Act lays down the
procedure to be followed after the search and arrest of the accused.
According to Section 52(1), the person arrested is to be informed, as soon
as may be, about the grounds of arrest. Section 52(2) says that the person
arrested and articles seized are to be forwarded to the Magistrate who
issued the warrant under Section 41(1), However, in cases other than
warrants, the person arrested and articles seized are to be forwarded to the
Officer-in-Charge of the nearest Police Station or the Officer invested with
powers of Officer-in-Charge of a Police Station for the investigation of
offence under the Act (sub-section (3) of Section 52). Section 55 casts a
duty on the Officer-in-Charge to keep articles in safe custody and allow any
officer, who may be accompanying such articles, to put his seal or take
sample. Then comes Section 57 which postulates that any person making
arrest or seizure shall make full report to his immediate superior officer
within 48 hours.”
[20] The Central Government has issued a standing order No.01 of
1989 dated 13.06.1989 laying down the procedure for sampling, storage
etc. Reference may be made to Section IV of this standing order which
reads as follows:
“4.0 Where any narcotic drug or psychotropic
substance has been seized and forwarded the officerin-charge
of the nearest police station or to the
officer empowered under section 53, the officer,
referred to in paragraph No.3.3 of the order shall
prepare an inventory of such narcotic drugs or
psychotropic substances containing arch details
relating to their description, quality, quantity, mode
of packing, marks, numbers or such other identifying
particulars or the narcotic drugs or psychotropic
substances or the packing in which they are packed,
Country of origin and such other particulars as may
be considered relevant to the identity of the
aforesaid drugs in any proceedings under the Act and
make an application to any Magistrate for the
purpose of- Application to Magistrate for pre-trial
disposal
(a) Certifying the correctness & of the
inventory so prepared: or
(b) Taking, in the presence of such
Magistrate, photographs of such drugs or
substances and certifying such photographs.
(c) Allowing to 4mw representative
samples of such drugs of substances, in the
presence of such Magistrate and certifying the
correctness of any list of samples so drawn.
Magistrate to allow application.”
[21] In Noor Aga Vrs. State of Punjab: (2008) 16 SCC 417
after referring to the standing order the Apex Court held as follows:
“Logical corollary of these discussions is that the
guidelines such as those present in the Standing
Order cannot be blatantly flouted and substantial
compliance therewith must be insisted upon for so
that sanctity of physical evidence in such cases
remains intact. Clearly, there has been no substantial
compliance of these guidelines by the
investigating authority which leads to drawing of an
adverse inference against them to the effect that had
such evidence been produced, the same would have
gone against the prosecution.”
[22] Section 52A of the Act has been enacted for disposal of drugs
and it is not the job of the Magistrate to certify the inventory at the stage of
seizure. Section 52A of the Act comes into play only when an application is
made to the Magistrate that the drugs specified are to be destroyed. In
cases of prior information where the Investigating Officer proceed to search
the premises or a person on the basis of information received or on the
basis of his own belief then it is obvious that the authorized
officer/empowered officer or police officer should carry investigation kit with
him containing all necessary material such as weighing scales and material
to seal the contraband material at the spot.
[23] One of the most important aspects of any case under the
NDPS Act is that once possession of the accused is proved the burden shifts
upon him to explain his possession. Therefore a heavy burden lies upon the
prosecution to link the report issued by the Forensic Science Laboratory to
the material which was seized at the time of the search operation being
carried out. The chain has to be complete and it is the duty of the
prosecution to prove before the Court that the sample which was taken at
the spot was kept in such a condition that the same could not be tampered
with or opened till it reached the laboratory.
[24] Therefore, under Section 51 of the Act the procedure under
the code of criminal procedure will be followed in respect of search, seizure
and arrest. This procedure is laid down and as far as possible independent
witnesses should be associated with the search and seizure operations
especially when the search is conducted on the basis of prior information.
[25] Section 100 of the Cr. P.C deals with this aspect of the matter
and the provision of Section 100 Cr. P.C must be followed even in the cases
of NDPS Act. However, in cases of chance recovery or where the
information is received at such a place that it is not possible for the police
officials to collect all the necessary materials and paraphernalia which
should be part of the investigation kit then the investigating kit need not be
carried.
[26] When on search of a person or search of a place any
contraband substance is recovered it is the duty of the empowered
officer/police official to ensure that the same is sealed at the spot. The
empowered officer is also authorized to draw samples at the spot itself. In
the seizure memo he must clearly mention the identifying mark on the seal
affixed on the seized material and/or the samples, if any, drawn on the
spot. The weight of the seized material as well as weight of the samples
should be clearly mentioned in the seizure memo. In cases of bottles etc. it
is not necessary to mention the weight but the number of bottles, the
volume of material stated to be in each bottle along with other identifying
marks such as name of manufacturer, batch number etc. should be clearly
mentioned in the seizure report. After preparing the inventory the material
should be sealed at the spot itself. However, in case where the
Investigating Officer does not have investigation kit or in case of chance
recovery or sometimes when the place of seizure is so remote that there is
chance of the accused escaping if this exercise cannot be done at the spot
then the material can be taken to the police station. Even in such cases
firstly an attempt should be made that the entire seized material is sealed
in one packet and then taken to the police station or to the empowered
officer along with the person arrested, if any under Section 52A of the Act.
The material has to be produced before the Magistrate only where the
search has been conducted pursuant to search warrant issued by a
Magistrate.
[27] Thereafter when the contraband material is produced in the
police station the officer-in-charge of the police station must also ensure
that the material is resealed. In case the investigating officer has sealed the
material and drawn the samples at the spot then the Investigating Officer
can either reseal the entire material without opening the seals and he can
affix his own seals also on the sealed package prepared by the
Investigating Officer. In such an event the officer-in-charge of the police
station shall prepare the inventory on the basis of the seizure report
prepared by the Investigating Officer at the spot.
[28] In case however, Investigating Officer has not prepared
seizure report at the spot and has brought the entire material to the police
station then the Officer-in-Charge of the police station should ensure that
the same is weighed and properly identified as discussed hereinabove and
at least two representative samples are drawn out in accordance with law.
Thereafter, the entire material should be sealed and a memo should be
prepared in this regard. As far as possible independent witness should be
associated with this process. A.B No. 39 of 2015. Page 19 of 23
19
[29] Thereafter the police officer is required to deposit the seized
material i.e. the bulk seized material as well as the samples with the police
official, in-charge of the Malkhana who shall make an entry in the Malkhana
register giving the time and date and receipt of samples along with other
details such as the number of packages, number of seals, identifying mark
of the seals etc.
[30] Thereafter, the Investigating Officer or any other empowered
officer can send one of the samples drawn to the Forensic Science
Laboratory. The identity of the police officials who is deputed should be
clearly established. The Malkhana in-charge should hand over the sample
along with a certificate (sometime referred to as road certificate) giving
details of the packet containing the sample including number of seals,
identification mark of the seals, case no. etc. The police official who takes
the sample to the Forensic Science Laboratory must deposit the same with
the FSL against proper receipt. The FSL in its report should mention the
weight of the sample, the identification marks of the seized articles etc.
During trial it is the duty of the prosecution to examine each one of the
officials that is the officer who carried out the raid, the officer-in-charge of
the police station, the officer-in-charge of the Malkhana, the official who
carried the sample to the laboratory to prove that the sample was not
tampered with and could not be tampered with during this period. Only the
report of the Forensic Science Laboratory is per se admissible and it is not
necessary to examine any official from the Forensic Science Laboratory.
[31] In Tripura there is some misconception that the first inventory
of seizure has to be prepared by the Magistrate. This is totally incorrect. In
all cases as far as possible the sealing and sampling should be done at the
spot and if it cannot be done at the spot then before the police officer or
the officer empowered under Section 53. Only in those cases where the
Magistrate has issued the warrant is the seized material to be produced
before the Magistrate. The role of the Magistrate comes in only at the stage
when the police officials take a conscious decision that the contraband
material should be disposed of at the pre-trial stage. Normally all case
property has to be produced at the stage of trial. This led to problem being
faced where such dangerous material were liable to be stolen or misused
either in the police Malkhanas or in the Malkhanas attached to the Courts.
Therefore, Section 52A was incorporated with the Act.
[32] Section 52A has nothing to do with search and seizure. The
purpose of Section 52A is to ensure that the contraband substance is
disposed of under the supervision of a Magistrate and if the Magistrate
follows the mandate of Section 52A then the certificate issued by him is per
se admissible in evidence and it is not necessary for the police or the
investigating agency to produce the bulk seized material which is the case
property before the Court. The intention behind Section 52A is to ensure
destruction of such harmful material at the pre trial stage.
[33] Even when Section 52A has been resorted to the inventory
produced must be the inventory prepared by an officer empowered to do so
under sub Section (1) of Section 52A. The duty of the Magistrate is to verify
the inventory and in this regard we are clarifying the position further. In
case section 52A is not complied with and the seized material is not
destroyed then it is the duty of the prosecution to produce the same before
the trial Court during trial.
[34] Section 52A is a very important provision. Narcotic Drugs and
Psychotropic Substances are vulnerable to misuse. When huge quantities of
contraband are seized it is not possible to keep them safely in the
Malkhanas and there may be a chance of pilferage or the narcotic
substances falling in wrong hands. Therefore, the aforesaid Section was
inserted in the NDPS Act. Under sub-section (2) of the aforesaid Section
after the contraband has been produced before the empowered officer
under Section 53 of the Act the said officer is required to prepare a
inventory of the alleged Narcotic Drugs and Psychotropic Substances
containing details relating to their description, quality, quantity, mode of
packing, marks, numbers and other identifying particulars on the packing in
which they are packed. The country of origin and other particulars as
referred to in sub section (1) may also be considered relevant to identify
the narcotic drugs. Thereafter, the empowered officer can apply to any
Magistrate under Section 52A for the purpose of; certifying the correctness
of the inventory so prepared; or taking in the presence of the Magistrate,
photographs of such drugs or substances and certifying such photographs
as true and lastly allowing to draw representative sample of such drugs or
substances in the presence of the Magistrate and certifying the correctness
of any list of samples so drawn. The Magistrate is required to deal with this
application forthwith. Under sub section (4) the inventories, photographs
and list of samples certified by the Magistrate are to be treated as primary
evidence by the Court trying the offence.
[35] Thus, it is apparent that an onerous and important duty is
cast on the Magistrate. The Magistrate must ensure that the inventory
prepared by the Officer is proper. We would like to reiterate that this job
must be performed by the Magistrate himself and he cannot issue the
certificate merely on the asking of the police officer. The Magistrate must
personally and by himself verify the correctness of the inventory. Therefore,
a duty is cast upon the Magistrate to verify the number of seals, the seal
impression and he should tally the same with the sample seal impression.
The Magistrate should not blindly copy what is stated in the application filed
under Section 52A but it is his duty to ensure that he records the exact
number of seals, the seal impression, the other special markings or
identification marks on the parcels. He must ensure and write down
whether the seals are broken or intact. He must also clearly observe
whether the parcel appears to be tampered with or not. He must ensure
that the Narcotic Drugs and Psychotropic Substances are weighed in his
presence and thereafter he should certify the inventory.
[36] In case samples have to be drawn the Magistrate must ensure
that if there are more one packet then separate samples are drawn from
each packet. Obviously, he need not draw samples from the parcels stated
to be parcels of samples if drawn by the police but in case of a plurality of
bulk parcels he must ensure that separate samples are drawn from each
packet. The Magistrate should also ensure that before drawing the parcels
he makes the substance homogenous. We are not going into the details as
to how the substance has to be made homogenous but all Magistrates have
received training whereby it has been explained to them how material is
made homogenous so that a representative sample of the whole is drawn.
This is normally done by cutting the bulk into a number of smaller units
usually four, re-uniting them then cutting them again and then re-uniting
them. The Magistrate then must ensure that the samples and the bulk
drugs are again resealed in a proper manner. The order sheet of the
proceedings should reflect each and every action taken by the Magistrate.
In case photographs are taken then the Magistrate must ensure that the
same are taken in his presence. We must again reiterate that this job has to
be done by the Magistrate himself and cannot be delegated to any member
of the Court staff.
[37] In view of the above discussion, I am clearly of the view that
Section 42 has been complied with and Section 52A was not required to be
complied with in this case. Therefore, I find no merit in the bail application.
Accordingly the same is rejected.
Copy of this judgment be circulated to all judicial officers in
the State of Tripura.
CHIEF JUSTICE
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