# Mohd. Haleem & Ors v. State of U.P

- **Citation:** (2023) 1 ILRA 78
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-22
- **Case number:** Criminal Appeal No. 201 of 1994
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-haleem-ors-v-state-of-u-p-49680
- **Pages:** 13

## Headnote

Criminal Law
- Narcotic Drugs
and
Psychotropic Substances Act, 1985 -
Sections 8/18, 8/21, 8/22, 42 & 57 - U.P.
Narcotic
Drugs
and
Psychotropic
Substances Rules, 1986 - Rule 77 - Code
of Criminal Procedure, 1973 - Sections
100 & 105 - Appellants challenged conviction
under NDPS Act for manufacturing morphine,
alleging procedural violations. Court held: (1)
Sub-Inspector (PW-1) was not authorized
under Section 42 of NDPS Act to conduct
search, seizure, and arrest on 03.06.1986, as
Rule
77
amendment
empowering
SubInspectors was effective only from 17.10.1989,
rendering the entire process ultra
vires
(Kamlesh Pratap Singh Vs Superintendent of
District Jail, Lucknow, Habeas Corpus Petition
No. 1323 of 1987). (2) Non-compliance with
Section 42(2) was fatal, as PW-1 failed to
reduce informer's information to writing or
forward it to a superior officer despite
sufficient
time,
violating
mandatory
requirements (Karnail Singh Vs St. of Har.,
(2009) 3 SCC (Cri) 887). (3) Link evidence was
incomplete due to discrepancies in witness
St.ments
(PW-4,
PW-5,
PW-6)
regarding
sample handling, failure to produce Malkhana
register, and absence of sample seal proof (St.
of Raj. Vs Gurmail Singh, 2005 (1) JIC 844).
(4) Lack of independent witnesses and nonproduction of alleged owner or contraband
holder further weakened prosecution's case.
Conviction set aside; appellants acquitted.
(Paras 18-38)

Criminal Appeals Allowed.

List of Cases cited:

## Text

_Characters 0–39,985 of 43,232. This is a partial read: ask again with offset=39985 for what follows._

78 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 1 ILRA 78
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.12.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 201 of 1994
connected with
Criminal Appeals No. 182, 191 and 206- all of
1994

Mohd. Haleem & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
N. Mohan, A.K. Tiwari, Ayodhya Prasad
Mishra, Rashid Ahmad

Counsel for the Opposite Party:
G.A.

Criminal Law
- Narcotic Drugs
and
Psychotropic Substances Act, 1985 -
Sections 8/18, 8/21, 8/22, 42 & 57 - U.P.
Narcotic
Drugs
and
Psychotropic
Substances Rules, 1986 - Rule 77 - Code
of Criminal Procedure, 1973 - Sections
100 & 105 - Appellants challenged conviction
under NDPS Act for manufacturing morphine,
alleging procedural violations. Court held: (1)
Sub-Inspector (PW-1) was not authorized
under Section 42 of NDPS Act to conduct
search, seizure, and arrest on 03.06.1986, as
Rule
77
amendment
empowering
SubInspectors was effective only from 17.10.1989,
rendering the entire process ultra
vires
(Kamlesh Pratap Singh Vs Superintendent of
District Jail, Lucknow, Habeas Corpus Petition
No. 1323 of 1987). (2) Non-compliance with
Section 42(2) was fatal, as PW-1 failed to
reduce informer's information to writing or
forward it to a superior officer despite
sufficient
time,
violating
mandatory
requirements (Karnail Singh Vs St. of Har.,
(2009) 3 SCC (Cri) 887). (3) Link evidence was
incomplete due to discrepancies in witness
St.ments
(PW-4,
PW-5,
PW-6)
regarding
sample handling, failure to produce Malkhana
register, and absence of sample seal proof (St.
of Raj. Vs Gurmail Singh, 2005 (1) JIC 844).
(4) Lack of independent witnesses and nonproduction of alleged owner or contraband
holder further weakened prosecution's case.
Conviction set aside; appellants acquitted.
(Paras 18-38)

Criminal Appeals Allowed.

List of Cases cited:

1. Boota Singh Vs St. of Har., 2021 SCC OnLine
SC 324 (Para 24)

2. St. of Raj. Vs Babu Lal, (2009) 14 SCC 215
(Para 25)

3. Karnail Singh Vs St. of Har., (2009) 3 SCC
(Cri) 887 (Para 25)

4. Sukhdev Singh Vs St. of Har., (2013) 2 SCC
212 (Para 25)

5. Kamlesh Pratap Singh Vs Superintendent of
District Jail, Lucknow, Habeas Corpus Petition
No. 1323 of 1987 (Para 30)

6. Shyam Kumar Vs St. of U.P., 2007 SCC
OnLine All 1784 (Para 30)

7. Nandan Singh Vs The St., 2008 (3) UC 1758
(Para 31)

8. St. of Raj. Vs Gurmail Singh, 2005 (1) JIC 844
(Para 35)

9. Valsala Vs St. of Kerala, 1993 Supp (3) SCC
665 (Para 35)

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Criminal appeal No.201 of 1994
and the connected criminal appeals
No.182, 191 and 206 - all of 1994, were
heard together and a common judgment is
being passed as the appeals arise out of
same sessions trial. Criminal Appeal
No.201 of 1994 is the leading case.
1 All. Mohd. Haleem & Ors. Vs. State of U.P.
79

2. Present criminal appeals have been
preferred against the judgment and order
dated
19.4.1994
passed
by
Special
Judge/Additional
Sessions
Judge,
Barabanki in Sessions Trial No.296 of 1987
whereby the accused appellants have been
convicted and sentenced to undergo 10
years R.I. with Rs.1 lac fine in each of the
offences under sections 8/18, 8/21 and 8/22
of N.D.P.S. Act, with default provision.

3. Heard learned counsel for the
appellants and learned AGA for the State.

4. During pendency of this appeal,
appellant no. 1 and appellant no. 3 of
criminal appeal No.201 of 1994 have died
and the appeal with regard to appellant no.
1 and appellant no. 3 has already been
abated vide order dated 14.03.2013. The
Court thus proceeds to hear the appeal qua
appellant no. 2 Mohd. Habeeb and
appellant no.4 Lal Mohammad as regards
the leading criminal appeal.

Likewise, in criminal appeal
No.206 of 1994, the appellant No.2
Mohammad Kaleem has died and the
appeal qua the said appellant has abated
vide order dated 18.9.2023. Thus, the
appeal with regard to Mohammad Aneesh,
appellant No.1 is taken up for hearing
along with other criminal appeals.

5. Prosecution case is that on
03.06.1986, when the S.O. R.P. Shukla was
present in police station and at 12:15 hours
in the day, a secret informer informed that
in the house of one Mohammad Ali son of
Bhaggan, Village Tikra Usma, P.S. Jaidpur,
Barabanki, Ante through 22-25 persons are
making morphine. On this information, he
took the present police personnel namely SI
Sri Harishankar Singh, SI Sri A.K. Singh,
Sri Jagpal Singh, Constable-187 Ramkrishn
Mishra, Constable-344 Jitendra Singh,
Constable-507 Kavaldev Singh, Constable595
Dhanpat
Lal,
Constable-556
Ramashankar
Yadav,
Constable-114
Udaybhan Singh and also constables GCompany of second Batallion PAC who
were present at the police station HC-9738
Tassavur hussain Khan, Constable-9804
Ram Prasad Tiwari, Constable 9959 Ram
Kewal Singh, Constable 9794 Hardev Ram
and Jeep Driver Constable Ram Prakash
along with Govt. Jeep No. UTD-5018
reached to the house of Mohammad Ali and
entered from the west gate and on seeing
police personnel, Atik Ante son of Yaseen,
Javir son of Wahid, Moharram Ali son of
Bhaggan, Mahbube son of Moharram Ali,
Younis son of Moharram Ali ran away from
the north stairs of the house and jumped
towards eastern side. Efforts were made to
catch them, however, it went in vain. Other
accused
persons
who
were
making
morphine and were trying to escape at
about 1:05 hours were caught along with
the equipments and chemicals. Upon
questioning they told their names as (i)
Mohd. Aleem son of Sohrav, (ii) Mohd.
Haleem son of Mohd. Saleem, (iii) Mohd.
Haveev son of Shafi (iv) Abdul Mabood
son of Mohd. Mustafa, (v) Shahe Alam son
of Bhaggan, (vi) Mohd Ajeem son of
fSohrav, (vii) Mohd. Akeel son of Mohd.
Naseer, (viii) Mohd. Jaleel son of Mohd.
Saleem, (ix) Mohd. Anees son of Mohd.
Vaseer, (x) Mohd. Younis son of Cheda,
(xi) Mohd. Suleman son of Abdul Gaffur,
(xii) Mohd. Anees son of Bhaggan Sakinan
Tikra Usma, P.S. Jaidpur, Barabanki, (xiii)
Abdul Majeed son of Mod. Raseem, (xiv)
Mohd. Haneef son of Suleman, (xv) Mohd.
Kaleem son of Saleem Sakinan Tikra
Murtaza, P.S. Jiadpur Barabanki and (xvi)
Lal Mohammad son of Fakeere, P.S.
Safdarganj, Barabanki. Upon inquiry it was
informed that the morphine belongs to Atiq
80 INDIAN LAW REPORTS ALLAHABAD SERIES
@ Ante. From the spot, following recovery
was made:-

िौके से बनी हुई िावफणया, िावफणया
बनाने के उपकरण, रसायन िावफणया बनाने के
बाद बचा हुआ पदाथण, सात प्लाक्तिक के बडे
जरीकैन वजसिें से छः िें अफीि का घ ि भरा
हुआ है तथा प्लाक्तिक की पांच बडी िाक्तियां,
एक ि हे की िािी, पांच प्लाक्तिक के िब द
तसिा तािचीनी के एक तसिा तािे का एक
अल्युिूवनयि की बडी पतीिी वजसिे पानी एक
बन्टीदार ि ि पर गरि ह रहा, एक बडा
तराजू ि हे का एक वकि के द िाि पांच सौ
ग्राि के द िाि, द सौ ग्राि का एक िाि, सौ
ग्राि का एक िाि एक पीति का छ िा तराजू
एक प्लाक्तिक की कीप उन्नीस अदद कपडे के
चौक र िुकडे अफीि का घ ि छानने िािे
वजनिें अफीि िगी हुई. दस भरे ि द खािी
पैकेि वजस पर Ammonium Chloride का
िेविि िगा, उन्नीस पैकेि भरे हुए बन्द तथा
एक पैकेि खुिा हुआ आर्ा आर्ा वकि के
वजन पर Sodium Carbonate anhydrous का
िेविि िगा, ग्यारह खािी ब तिे वजन पर
Solvent ether का िेविि िगा तथा एक रबड
का कािे रंग का बडा दस्ताना वजस पर अफीि
िगी है, ग्यारह ब तिे भरी हुई सील्ड तथा द
ब ति खुिी हुई वजनिें बारह ब ति ं पर Acetic
anhydride का िेविि िगा एिं एक सील्ड
ब ति का िेविि फिा हुआ अपिनीय है। छः
ब तिे वजनिें वजनिें एक खुिी हुई वजन पर
Acetyl chloride का िेविि िगा. पाच ब तिे
Hydrochloric acid का िेविि िगी वजनिें तीन
ब तिे खुिी हुई पांच ब ति सील्ड गरी हुई वजन
पर Ammonia Solution का िेविि िगा द
प्लाक्तिक के खुिे वडब्बे वजस पर Charcoal
Activated GR का िेविि िगा एिं एक अदद
Plate bottom flask, 6000 ML का च करीब
40kg चूना एक िाि के ब रे िें बरािद हुआ।
िौके पर बनी हुई िावफया तथा िावफणया बनाने
के बाद बचे हुए पदाथण (अिशेष) तथा अफीि
क तौिा गया त िावफया ज एक पािीथीन
पेपर पर फैिाई हुई है. 16 वकि ताजी तथा निः
पायी गयी एिं िावफणया बनाने के बाद बच्चा हुआ
अिशेष ज एक प्लाक्तिक की ब री िे रखा है.
27 वकि ताजा ि नि पाया गया तथा 4 वकि
अफीि ज पािीवथन के एक थैिे िें रखी हुई है
क कब्जा पुविस िें विया गया। बरािद िावफणया
ि अफीि आवद की अनुिावनत कीित करीब 16
िाख है। िुक्तििान का यह कायण ND & PS Act
के
अन्तगणत
दण्डनीय
अपरार्
है
अतः
वगररफतारी का कारण बताते हुए बाजाफता
वहरासत पुविस िें विया गया िरािद सुदा
िावफणया िें से 100 ग्राि िावफणया ि अफीि िे से
50 ग्राि ि िावफणया बनाने के बाद अिशेष पदाथण
से 200 ग्राि बतौर निूना अिग अिग पािीवथन
के पेपर िें रखकर कपडे िें अिग अिग
सिणिुहर वकया गया तथा जरीकैन िें रखे हुए
अफीि के घ ि से बतौर निूना से थ डा थ डा
वनकाि कर एक शीशी िें सिणिुहर वकया गया
बरािद सुदा उपर क्त िाि िावफणया क
पािीवथन के पेपर िे रखकर खाद के प्लाक्तिक
के ब रे िें, अफीि क पािीवथन के पेपर िें
रखकर कपडे िें, िावफया बनाने के बाद बचे
अिशेष क प्लाक्तिक की ब री िें, अफीि के
घ ि रखे छः जरीकैन क अिग अिग सिणिुहर,
एक ब री िें दस ब ति वजनिे हाइडर क्ल ररक
एवसड ि अि वनया अल्यूशन ि द प्लाक्तिक के
Charcoal Activated GR वडब्बे क रखकर एक
ब रे िे खािी ब तिे ईथर की ि एक रबड का
दस्ताना रखकर एक ब रे िें Sodium carbonate
anhydrous ि Ammonium chloride के पैकेि
रखकर एक ब रे िें Acetic Anhydride की
बारह ब ति ि एक ब ति फिे हुए िेवबि का
तथा छः ब तिे Acetyl chloride की रखकर एक
ब रे िें तराजू, कीप, िाि, ि ि रखकर एक
ब री िे अफीि का घ ि छानने के कपड क
रखकर एिं एक ब रे िे तसि ं ि पतीिी क
रखकर, चूने की उसी ब रे िें ही रखकर अिग
1 All. Mohd. Haleem & Ors. Vs. State of U.P.
81
अिग सिणिुहर कर निूना ि हर तैयार वकया
गया। चूंवक ग्राि विकरा ि उसके आस पास के
अवर्कतर ि ग अफीि की तस्करी िें विप्त
रहते हैं वजनका संगवित वगर ह है तथा इनका
क्षेि िें काफी प्रभाि ि आतंक है। इस कारण
क ई भी पेज फिा के िािजूद भी गिाही देने के
विए तैयार नही हुआ। फदण िुस्ति कर िाद
सुनाने िजिून फदण अिािात आिाकति
अवर्कारी ि किणचारीगण बनिाये जा रहे है।
संिग्नक फदण बरािदगी 2 िकण 51/- आर०पी०
शुक्ला So 3.6.80 ि हररशंकर वसंह सo So
3.6.86, अरूण कुिार वसंह So 3.6.86 राि
आसरे वसंह So 3.6.86 जयराि वसंह So ि C/
वजतेन्द्र वसंह ि कििदेि वसंह, राि प्रकाश
तसपुर हुसैन खां उदय भान वसंह, िजरंगी वसंह
यादि दििीर वसंह यादि, हरदेि राि रािकेिि
वसंह, C/ र्नपत िाि, रािशंकर यादि,
रािप्रसाद वतिारी, वशि ि हन पाण्डेय, रािकृष्ण
विश्रा, शाहे आिि वन०अ० ि ० हिीि, वन०अ०
ि ० अिीि, ि ० अजीि, ि ० अनीस, ि ०
अकीि वन०अ०ि० हनीफ ि ० युसुफ, ि ०
जिीि, ि ० अनीस, सुिेिान हबीस अब्दुि
िाबूद अब्दुि िजीद, ि ० अनीस ४० िाि
ि हम्मद उदूण िें।

न ि- Note िुक्तििान के फदण की
नकि दी गई ज फाडकर फेंक वदये।

Sd. आर०पी०शुक्ला So 3.6.86

न ि- िै HIM प्रिावणत करता हूं वक
नकि फदण वचक हस्ताक्षर अंवकत की गई।"

6. Recovery memo was prepared
which is exhibited as Ex. Ka-1. On the
basis of recovery memo, first information
report was lodged which is exhibited as Ex.
Ka-2. The I.O. prepared the site plan which
is exhibited as Ex. Ka-15. The recovered
opium and morphine was sent for chemical
examination.
The
opium
examination
report is exhibited as Ex. Ka-16, Ka-17,
Ka-18
and
Ka-19. After
completing
formalities and recording the statement of
the witnesses, the investigating officer
submitted charge sheet.

7. Since the matter was triable by
sessions, hence, committal order was
passed on 12.08.1987 and charges were
framed by 6th Additional District and
Sessions Judge, Barabanki on 23.02.1988
against the accused Alim, Mohd. Habib,
Abdul Mabeed, ShahAlam, Mohd. Azim,
Mohd. Halim, Mohd. Akeel, Mohd. Jalil,
Mohd.
Anis,
Mohd.
Yusuf,
Mohd.
Suleman, Mohd. Anis son of Mohd.
Bashir, Mohd. Hanif, Abdul Majid, Mohd.
Kalim and Lal Mohd.

8. Prosecution to prove its case has
produced six witnesses. PW-1 Ramesh
Prasad Shukla, Station Officer Incharge
and S.I. as well as the complainant. PW-2
A. K. Singh hamrahi(associate) who is fact
witness. PW-3 Teerath Raj Pandey, Head
Constable who has proved chick FIR, PW4
Constable-595
Dhanpat
Lal
who
prepared docket and took the sample for
examination to Gazipur, PW-5 Constable545 Triyogi Narain Pandey who prepared
docket and took sample to Gazipur where
sample was not deposited and he took it
back. PW-6 Ram Vilas Singh,
the
investigating officer.

9. The accused in his defence has also
produced DW - Mohammad Yasin.

10. Statements of the accused persons
namely Suleman, Habib, Mabood, Haleem,
Aleem, Ajeem, Lal Mohammad, Anees,
Mohd. Haneef, Shah Alam, Kaleem, Mohd.
Anees, Mohd. Akeel and Yousuf under
Section 313 Cr.P.C. were recorded where
their case was of total denial and false
implication due to enmity.
82 INDIAN LAW REPORTS ALLAHABAD SERIES

11. PW-1 in his examination-of-chief
has repeated the prosecution version as
narrated in the recovery memo and the
F.I.R. In cross-examination, he has stated
that at the time of search, seizure and
arrest, his rank was of Sub-Inspector. After
receiving information, he went to Tikra
Village and prior to that he did not go with
any officer nor took any authority letter.
Information received from the informer
was not reduced into writing. He further
stated that reference of the same was
entered into GD by him and apart from that,
he has not reduced anything else into
writing. He further stated that GD has not
been produced before the Court. He took
the search without any search warrant and
no search memo was prepared.

He further stated that the on the
samples which were brought by him to the
police station, no seal was affixed of police
station. Sample and the mall (seized
contraband) remained at police station
which was sent to the Court along with the
accused. Thereafter it remained deposited
in the Malkhana of police station. It was
not deposited in Sadar Malkhana as no
permission was taken by the magistrate for
depositing the alleged contraband. He
denied the suggestion that to show good
work, false story was made and innocent
people have been implicated.

12. PW-2 S.I. A.K. Singh has also
repeated the same prosecution version as
narrated in the recovery memo and the
F.I.R. In the cross, he has stated that he
does not remember as to who had put seal
on the contraband. He does not remember
that SO (PW-1) had put any seal or not. He
further stated that he had no search warrant.

13. PW-3 Teerath Raj Pandey, Head
Constable has stated that on the basis of the
recovery memo dated 03.06.1986, an F.I.R.
bearing No. 62 was registered as case crime
No. 101/1986, under Section 8/18/21/82
NDPS Act. In the cross, he has stated that
rawanagi of R.P. Shukla and other police
personnel took place on 03.06.1986 at
12:30 hours in the day and was written by
A.K. Singh SI in GS.

14. PW-4 is Constable-595 Dhanpat
Lal who has stated that while he was posted
as Constable at P.S. Jaidpur, he got
prepared the docket of sample of Mall
along
with
SI
Jagmail
Singh
for
examination after producing it before CJM
Barabanki. The docket is exhibited as
Ex.Ka-4. He deposited it into Gazipur
factory on 24.07.1986 which is exhibited as
Ex. Ka-5. In the cross, he has stated that
sample of the contraband remained with
him and not with the Sub Inspector.

15. PW-5 Triyogi Narayan Pandey in
his statement has stated that he took sample
of contraband (maal) after receiving it from
the police station and went to the CJM for
preparing docket and after producing it
before the Court, docket was prepared. On
that day since it was late, the contraband
was deposited in the police station. On
19.06.1986 again he took maal along with
docket and sample seal from the police
station and went to FSL laboratory Gazipur
along with Hamrahi SI Sri Harishankar
Singh. He went to Gazipur for examination
of the maal where it was examined. On
23.06.1986, he returned from Gazipur and
deposited maal along with sample seal and
docket in the police station. He further
stated that sample was in his possession
and was not tampered. In the cross, he has
admitted that sample seal is not in the
Court record. He was directed by the CJM
to take sample to Gazipur since it was late
and without any order, he along with said
1 All. Mohd. Haleem & Ors. Vs. State of U.P.
83
Inspector deposited Maal in the police
station and from their on 19.06.1986, he
received sample mall, docket and sample
seal. He further stated that sample seal is
not on the record before the CJM. Maal
was not opened. Only sample was opened
and the same was again sealed by the CJM.

16. PW-6 is I.O. who conducted
inspection of the place of occurrence for
chemical examination. Maal was produced
in the Court, however, docket could not be
prepared. On 03.07.1986, S.I. Hari Shankar
Singh got prepared the docket for chemical
examination at Agra. On 18.07.1986 again,
for preparing the docket, a report was given.
On 21.07.1986, the maal was directed to be
examined by the commissioner in Gazipur
factory again. On 23.07.1986 after preparing
docket from the CJM, he took it to Gazipur,
but no examination could be done. He filed
charge sheet. In the cross, he has stated that
there was no time to take search warrant for
the place wherefrom recovery was made. He
has not taken any document relating to that
house. Villagers told him that this is house of
Moharram Ali. He does not know the name
of villager who told this. He denied the false
implication.

17. DW-1 Mohammad Yaseen has
stated that at about 12-12:30 hours in the
day, four constables came in the village. He
was sitting at his door. He sustained some
injury in his leg. He was called by them and
Haneef was also called by them whose
house is in front of his house and they were
taken to the north side of the village where
some persons were already sitting. All of
them were taken to the police station. Since
his left leg was injured, therefore, he was not
taken.

18. Learned counsel for the appellants
submits that search and seizure was
effected
on
03.06.1986
by
Sub
Inspector/PW-1 of the Police Station on the
basis of the information received from the
secret informer. It has been submitted that
PW-1 was not authorized under Section 42
of NDPS Act read with Rule 77 of UP
NDPS Rules 1986. It has been submitted
that
only
Inspector
of
Police
was
authorized to conduct search and seizure as
per rules framed on 08.10.1986.

It is further submitted that Sub
Inspector was not authorized to make
search and seizure under NDPS Act.
Provisions of Section 42 of NDPS Act have
not been complied with at all which vitiates
the trial. There is gross violation of Section
57 of NDPS Act.

It
is
further
submitted
that
Sections 100 and 105 Cr.P.C. has also been
violated. He further argued that link
evidence is not complete. Sample was not
drawn according to Rule 81 of the U.P.
Narcotic and Drug Control Rules, 1986
read with Section 282 of U.P. Excise
Manual. Maalkhana register was not
produced by the prosecution before the
Court. No docket was prepared before the
Court and duplicate sample or sample or
seal along with original seal was not
produced before the Court. No independent
witness has been examined. Owner of the
house Moharram Ali and owner of the
alleged contraband Atik @ Ante have not
been produced by the prosecution.

19. Per contra Shri Alok Tewari,
learned A.G.A. has opposed the submission
advanced by learned counsel for the
appellant submitting that information was
reduced into writing in the Ravanagi GD. It
is a heinous offence. The accused persons
have been caught from the spot. Slight
defect in the investigation will not be
beneficial for the accused.
84 INDIAN LAW REPORTS ALLAHABAD SERIES

20. The following questions fall for
consideration:-

i) Whether prior information
received by PW-1 was reduced by him in
writing and the same was forwarded to his
superior officers?

ii) Whether PW-1 who was S.I. at
the relevant time was empowered and
authorized under Section 42 of NDPS Act
read with U.P. NDPS Rules, 1986 Rule-77?

iii) Whether link evidence is
complete?

21. Section 42 of NDPS Act
empowers notified officers of Central Govt.
or the State Govt. to entry, search, seizure
and arrest. The said section 42 of NDPS
Act is extracted below:-

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

(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 oany other department of the
Central
Government
including
paramilitary 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
StateGovernment 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 byany 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 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
1 All. Mohd. Haleem & Ors. Vs. State of U.P.
85
under the proviso thereto, he shall within
seventy-two hours send a copy thereof to
his immediate official superior.]

22. Perusal of sub section (2) of
Section 42 of NDPS Act shows that the
officer has to take down information
received by him in writing under sub
section (1) of Section 42 and within 72
hours shall send a copy thereof to his
immediate officer superior.

23. A perusal of the statement of PW1 who has received the information on that
day i.e. on 03.06.1986 at about 11 am at
police station shows that in his chief he has
stated that he has not reduced information
into writing, though, he has said that he has
mentioned it into general diary of the police
station and that general diary has not been
filed in the Court. Thus, it is clear that
information received by PW-1 under
proviso to sub section (2) of Section 42
NDPS Act has not been reduced into
writing. PW-1 also nowhere has stated that
such information received by him has been
forwarded to his superior officer.

24. Supreme Court in Boota Singh v.
State of Haryana, 2021 SCC OnLine SC
324, has held that total non-compliance of
Section 42 cannot be accepted. Para 14 of
the said judgment is extracted below:-

"14. What Section 42(2) requires
is that where an officer takes down an
information in writing under sub-section
(1) he shall send a copy thereof to his
immediate
officer
senior.
The
communication Ext. P-15 which was sent to
the Circle Officer, Nohar was not as per the
information recorded in Ext. P-14 and Ext.
P-21. Thus, no error was committed by the
High Court in coming to the conclusion
that there was breach of Section 42(2).

25. Likewise in "State of Rajasthan
v. Babu Lal, (2009) 14 SCC 215, it was
held by the Supreme Court that since the
provisions of Section 42 sub section (2) of
NDPS Act were not complied with,
therefore, the Supreme Court refused to
entertain the appeal of the State Govt.
against the acquittal order passed by the
High Court and order of the High Court
was affirmed.

In "Karnail Singh Vs. State
Haryana, reported in (2009) 3 SCC (Cri)
887", in para 35-C and 35-D, it was held
by the Supreme Court that compliance of
section 42(1) and 42(2) of NDPS Act with
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 where there
are emergent situations, the relaxation of
postponing the said action by the police
officer for a reasonable period was given,
however, it was held that the total noncompliance of requirement of sub section
(1) and sub section (2) of section 42 of
NDPS Act is impermissible. The relevant
para no. 35-C and 35-D are extracted
below:-

35(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.
86 INDIAN LAW REPORTS ALLAHABAD SERIES

(d) While total non-compliance
with requirements of sub-sections (1) and (2)
of Section 42 is impermissible, delayed
compliance with satisfactory explanation
about
the
delay
will
be
acceptable
compliance with 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 of 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.

The Supreme Court in "Sukhdev
Singh v. State of Haryana, (2013) 2 SCC
212" in para 25 has held that where there is
total non-compliance of Section 42 of
NDPS Act, it is a patent illegality in the
case of prosecution and also held that such
illegality is incurable. Relevant para 25 is
extracted below:-

25. There is patent illegality in the
case of the prosecution and such illegality
is incurable. This is a case of total noncompliance, thus the question of substantial
compliance would not even arise for
consideration of the Court in the present
case. The twin purposes of the provisions
of Section 42 which can broadly be stated
are that: (a) it is a mandatory provision
which ought to be construed and complied
with strictly; and (b) compliance of
furnishing information to the superior
officer should be forthwith or within a very
short time thereafter and preferably postrecovery (sic prior to recovery).

26. Thus, from perusal of the
prosecution case and the statement of PW1, it is clear that neither the information
received by PW-1 in the police station at 11
am was reduced into writing nor the same
was sent to any officer superior to PW-1.
Hence, in view of the Constitution Bench
judgment in the case of Karnail Singh
(supra) as well as other judgments referred
herein above, it can be safely said that on
this ground alone, the judgment of the trial
court is liable to be set aside.

27. It is significant to note that
Section 42 sub section (1) empowers any
officer being superior rank to peon, sepoy
or constable of the various departments of
central Govt. or of any revenue, drugs
control, excise, police or other departments
of a State Govt. as is empowered in this
behalf by general or special order of the
State Govt. to enter, search, seize and arrest
in the NDPS Act. However, in this case, as
argued
by
learned
counsel
for
the
appellants, there was no general/special
order of the State Govt. in that regard
authorizing PW-1 to enter, search, seize and
arrest the accused persons.

28. A perusal of the statements of PW1 shows that when he took the search and
made the arrest, he was Sub Inspector. The
incident took place on 03.06.1986; the
State Govt. promulgated the Uttar Pradesh
1 All. Mohd. Haleem & Ors. Vs. State of U.P.
87
N.D. Rules, 1986 on 8.10.1986, however,
vide amendment made on 17.10.1989, Rule
77 was amended and for the first time Sub
Inspector of Police Department of State of
U.P was authorized to act under Section 42
of the Act. Rule 77 of 1986 Rules is
extracted below:-

"77. Power of entry, search,
seizure and arrest without warrant or
authorisation.- Any Officer of the Excise or
Police Department not below the rank of
Inspector or of the Police Department not
below the rank of Sub-Inspector or of the
Drug Control Department not below the rank
of Inspector or of the Revenue Department
not below the rank of Tahsildar may exercise
the powers under Section 42 of the Act."

29. The amendment made in 1989 by
the State Govt. in Rule 77 of 1986 Rules
being prospective in nature makes it clear that
PW-1 who was Sub Inspector at the time of
incident which took place on 03.06.1986 was
not authorized under 1986 Rules to act under
Section 42 of NDPS Act. Thus, the entire
search, seizure as well as arrest is vitiated
since the beginning in this case.

30. In Kamlesh Pratap Singh Vs.
Superintendent of District Jail, Lucknow
and others, Habeas Corpus petition No. 1323
of 1987, this court, vide its judgment and
order dated 12.08.1988 has held that Sub
Inspector before the amendment of Rule 77
of 1986 Rules was not empowered to act
under Section 42 of NDPS Act. This
preposition of law has been followed by
another Bench of this Court in "Shyam
Kumar v. State of U.P., 2007 SCC OnLine All
1784". Relevant para 12 of the judgment is
extracted below:-

12. Therefore, only the rank of
Inspector in police department was
authorised to take search and seizure
under section 42 of N.D.P.S. Act at the
time of alleged incident. P.W. 3 S.O. who
was arresting officer, was admittedly subinspector, his companions were also subinspector and head constable and homeguards etc., they were not authorised to
take search of the appellant at the time of
alleged incident under section 42 of,
N.D.P.S. Act. Therefore, such search and
seizure was illegal. It was also held by
Hon. Mr. Justice Kamleshwar Nath, judge
of this Court. Lucknow Bench in case of
Kamlesh Pratap Singh v. Superintendent
of District Jail, Lucknow that "SubInspector of Police, not competent to
arrest for offences under sections 8 and
20, whether covered by section 42 or 43
Cr. P.C. 197, sections 4(2) and 5Constitution of India, Article 21." After
delivering this decision, amendment was
made in Rule 77 which was applicable
since 8.10.86. It is not applicable with
retrospective effect. Therefore, above
decision in case of Kamlesh Pratap Singh
v.
Superintendent
of
District
Jail,
Lucknowis fully applicable in the case
and Sub-Inspector of police was not
competent to arrest for the offence as
above and he was also not competent to
make search and seizure regarding
contraband article. There fore, contention
of learned Counsel for the appellant has
great force.

31. The judgment in Kamlesh Pratap
Singh (supra) was further relied in the
judgment of Uttrakhand High Court in
Nandan Singh Vs. The State, reported in
2008 (3) UC 1758.

32. In the opinion of this Court, for
launching prosecution or for initiating the
proceedings under Section 42 of the NDPS
Act, PW-1 who was Sub Inspector at that
time was not an empowered officer as
88 INDIAN LAW REPORTS ALLAHABAD SERIES
mentioned therein to act under Section 42
NDPS Act. It is only after the amendment
in Rule 77 of 1986 Rules on 17.10.1989 for
the first time, the Sub Inspector was
empowered. Rule 77 of 1986 Rules being
not retrospective in nature; rather it is
prospective makes the search, seizure and
arrest of the person contrary to the NDPS
Act.

33. From perusal of the evidence on
record, it is alleged by the prosecution that
sample was drawn on spot on 03.06.1986.
It is further alleged that it was deposited in
Malkhana
along
with
recovered
contraband. It was sent to the Court at the
time of remand, however, perusal of the
statement of PW 6 at page 44 of the paper
book shows that although the contraband
was produced before the Court, however,
the docket could not be prepared. Again the
docket was prepared on 18.06.1986 in the
Court of CJM and after taking the sample
Sub Inspector Harishankar Singh along
with mall and docket went Gazipur for
chemical examination of the sample. He
returned back on 30.06.1986 and told that
in Gazipur, only afeem is examined. On
03.07.1986, again docket was prepared for
examination
at Agra
and
again
on
23.07.1986, the docket was prepared and
was taken for examination and he came
with the examination report on 25.07.1986.

34. On the contrary, PW-5 at page no.
39 has stated that on 17.06.1986 docket
was prepared and was again taken from the
concerned P.S. The contraband along with
docket and sample seal was taken to the
laboratory for chemical examination and
returned on 23.06.1986 and sample was not
deposited.

On the other hand PW-4 Dhanpat
Rai at page No. 36 has stated that the
docket was prepared on 23.07.1986 and
was deposited on 24.07.1986 at the
examination centre and on 25.07.1986, the
report was given and he returned on
26.07.1986 to the police station and
deposited it at the police station.

Thus statements of all three
witnesses PW-4, PW-5 and PW-6 are quite
contrary. No link evidence has been
produced. Although the incident is of
03.06.1986, the sample has been sent for
chemical laboratory on 24.07.1986, that too
after inordinate delay. The Malkhana
Register is neither signed nor proved. It has
also not been proved as to on what
occasions, the sample was drawn and when
it was deposited. The sample seal has also
not been proved. The original seal has
neither been given to the independent
witnesses nor it has been deposited in the
Malkhana.

35. In State of Rajasthan Vs Gurmail
Singh reported in 2005 (1) JIC 844
(relevant in para 3), it was held by the
Supreme
Court
that
since
Malkhana
register was not produced and no sample of
seal along with sample of excise laboratory
was sent for comparison, link evidence was
missing and therefore, the acquittal order
passed by the High Court was upheld.
Relevant para 3 is extracted below:-

"3. We have perused the judgment
of the High Court. Apart from other
reasons recorded by the High Court, we
find that the link evidence adduced by the
prosecution was not at all satisfactory. In
the first instance, though the seized articles
are said to have been kept in the malkhana
on 20-5-1995, the malkhana register was
not produced to prove that it was so kept in
the malkhana till it was taken over by PW 6
on 5-6-1995. We further find that no sample
of the seal was sent along with the sample
1 All. Mohd. Haleem & Ors. Vs. State of U.P.
89
to the Excise Laboratory, Jodhpur for the
purpose of comparing with the seal
appearing on the sample bottles. Therefore,
there is no evidence to prove satisfactorily
that the seals found were in fact the same
seals as were put on the sample bottles
immediately
after
seizure
of
the
contraband.
These
loopholes
in
the
prosecution case have led the High Court
to acquit the respondent."

Similarly in "Valsala v. State of
Kerala, 1993 Supp (3) SCC 665" (para 4),
it was held by the Supreme Court that the
seized articles have not been kept in proper
custody and proper form so that the Court
can be sure that what was seized only was
sent to the chemical examination. Big gap
and the missing links were also noted while
setting aside the conviction of the accused
under Section 21 of the NDPS Act. Para 4
of the said judgment is extracted below:-

4. We have seen the report of the
Chemical Examiner and there no doubt it is
mentioned that one sealed parcel was
received containing a powder and it was
analysed to be brown sugar. But from the
records it is clear and it is also noted by
both the courts below that the seized article
was produced in the court only on January
14, 1988 i.e. after a period of more than
three months and there is no evidence
whatsoever at all to show with whom the
seized article was lying and even assuming
that it was in the custody of PW 6, the
Officer in charge of the police station who
seized it, there is again nothing to show
whether it was sealed and kept there. The
learned counsel for the State no doubt
argued that the provisions of Section 55 of
the Act are not mandatory but only
directory. We need not go into this legal
question in this case. Suffice it to say that
the article seized appears to have been not
kept in proper custody and proper form so
that the court can be sure that what was
seized only was sent to the Chemical
Examiner. There is a big gap and an
important missing link. In the mahazar Ex.
P-2 which is immediately said to have been
prepared, there is nothing mentioned as to
under whose custody it was kept after
seizure. Unfortunately for the prosecution
even PW 6 does not say that he continued
to keep it in his custody under seal till it
was produced in the court on January 14,
1988. The evidence given by PW 6 Police
Sub-Inspector, who seized the article is
absolutely silent as to what he did with the
seized article till it was produced in the
court. As a matter of fact he did not
produce it in the court. PW 3, A.S.I. is
supposed to have produced the same in the
court. But PW 3 does not say anything
about this. It is only PW 7 the Circle
Inspector who comes into the picture at a
later date, who admitted in the crossexamination that the seized article was sent
by PW 3 (A.S.I.) to the court and PW 7 in
his cross-examination further admitted that
he did not even see if the recovered
material object was sealed but still he
claims that he made the necessary
application for sending the material object
for chemical examination and it is only
through
PW
7
that
the
Chemical
Examiner's report is marked. PW 7 further
admitted that he did not even know when it
reached the court. We are constrained to
say that the investigation in this case has
been perfunctory and on important aspects
the evidence of the concerned officers is
highly discrepant and unconvincing and
does not throw much light. Therefore the
evidence adduced is wholly insufficient to
conclude that what was seized from the
appellant alone was sent to the Chemical
Examiner.