# Raj Kumar Savita v. Union of India (Govt. of India)

- **Citation:** (2021) 3 ILRA 951
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-02
- **Case number:** Criminal Appeal No. 943 of 2013
- **Bench:** Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-savita-v-union-of-india-govt-of-india-47004
- **Pages:** 29

## Headnote

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 374 - Appeals
from Convictions - Section 313 Cr.P.C. -
statements
of
appellants
recorded
-
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 - Section 20 (b) (ii)
(C) - convicted and sentenced for ten
years rigorous imprisonment with a fine -
Sections 42, 50, 51,52, 53, 55 & 57 - Only
on account of minor irregularities in
search and seizure proceedings or sending
the samples for chemical examinations,
the prosecution case cannot be held
doubtful, unless and until it is proved by
the defence that prosecution witnesses
were biased and prejudice with the
appellants accused and due to which
failure of justice was caused. (Para - 64)

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 465 - Finding
or sentence when reversible by reason of
error, omission or irregularity - any error
or illegality will not effect the merit of
finding, sentence and order passed by the
Court of competent jurisdiction unless in
the opinion of the Court failure of justice
was caused to the accused.(Para - 39)

(C) Criminal Law - non-production of
independent witnesses - settled principle
of law - statement of prosecution
witnesses found reliable - only on ground
of non-production of independent or other
official witnesses, prosecution case story
cannot be held doubtful. (Para - 61)

Appellants intercepted by D.R.I. team - Huge
quantity of Hashish (Charas) transported - by
two persons in Maruti 800 car white colour -
search and recover the said contraband charas -
contacted two public witnesses - disclosed the
said information - accompany the team as
witnesses in the proposed action of interception
and recovery of the charas - both of them
agreed - During inquiry, both the appellants
admitted that charas had been kept and
secreted in the said Maruti car.

HELD:- Testimony of the prosecution witnesses
is wholly reliable and trust worthy. All the
mandatory provisions of N.D.P.S. Act, have been
complied with by the prosecution witnesses. All
the evidence, proved by prosecution, leads to
only conclusion that said contraband charas was
being illegally transported and possessed by the
appellants. The prosecution has proved its case
beyond reasonable doubt. Impugned judgment
and order passed by the trial Court is affirmed.
(Para - 65,66)

Criminal Appeal dismissed. (E-6)

List of Cases cited:

## Text

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3 All. Raj Kumar Savita Vs. Union of India (Govt. of India)
951
----------
(2021)03ILR A951
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.03.2021

BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 943 of 2013
Connected
Criminal Appeal No. 688 of 2013

Raj Kumar Savita ...Appellant
Versus
Union of India (Govt. of India)
 ...Opposite Party

Counsel for the Appellant:
S.R.Yadav, Ayodhya Prasad Mishra, Randhir
Singh

Counsel for the Opposite Party:
I.B.Singh

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 374 - Appeals
from Convictions - Section 313 Cr.P.C. -
statements
of
appellants
recorded
-
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 - Section 20 (b) (ii)
(C) - convicted and sentenced for ten
years rigorous imprisonment with a fine -
Sections 42, 50, 51,52, 53, 55 & 57 - Only
on account of minor irregularities in
search and seizure proceedings or sending
the samples for chemical examinations,
the prosecution case cannot be held
doubtful, unless and until it is proved by
the defence that prosecution witnesses
were biased and prejudice with the
appellants accused and due to which
failure of justice was caused. (Para - 64)

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 465 - Finding
or sentence when reversible by reason of
error, omission or irregularity - any error
or illegality will not effect the merit of
finding, sentence and order passed by the
Court of competent jurisdiction unless in
the opinion of the Court failure of justice
was caused to the accused.(Para - 39)

(C) Criminal Law - non-production of
independent witnesses - settled principle
of law - statement of prosecution
witnesses found reliable - only on ground
of non-production of independent or other
official witnesses, prosecution case story
cannot be held doubtful. (Para - 61)

Appellants intercepted by D.R.I. team - Huge
quantity of Hashish (Charas) transported - by
two persons in Maruti 800 car white colour -
search and recover the said contraband charas -
contacted two public witnesses - disclosed the
said information - accompany the team as
witnesses in the proposed action of interception
and recovery of the charas - both of them
agreed - During inquiry, both the appellants
admitted that charas had been kept and
secreted in the said Maruti car.

HELD:- Testimony of the prosecution witnesses
is wholly reliable and trust worthy. All the
mandatory provisions of N.D.P.S. Act, have been
complied with by the prosecution witnesses. All
the evidence, proved by prosecution, leads to
only conclusion that said contraband charas was
being illegally transported and possessed by the
appellants. The prosecution has proved its case
beyond reasonable doubt. Impugned judgment
and order passed by the trial Court is affirmed.
(Para - 65,66)

Criminal Appeal dismissed. (E-6)

List of Cases cited:

1. St. of Punj. Vs Balbir Singh, (1994) SCC (Cri) 634,

2. Ritesh Chakarvarti Vs St. of M.P., (2007) 1
SCC (Cri) 744,

3. Karnail Singh Vs St. of Har., (2009) 8 SCC 539,

4. Rajinder Singh Vs St. of Har., (2011) 8 SCC
130,

5. Sukhdev Singh Vs St. of Har., (2013) 2 SCC
212,
952 INDIAN LAW REPORTS ALLAHABAD SERIES
6. St. of Rajasthan Vs Jagraj Singh Alias Hansa,
(2016) 11 SCC 687,

7. St. of Rajasthan Vs Babu Lal, 2009 (3) JIC
612 (SC),

8. Makhan Singh vs St. of Har., (2015) 12 SCC
247,

9. Mohinder Kumar Vs St., Panji, Goa, (1998) 8
SCC 655,

10. St. of Punj. Vs Gurnam Kaur & ors., 2009
(2) JIC 267 (SC),

11. St. of Rajasthan Vs Tara Singh, 2011 (11)
SCC 559,

12. Noor Aga Vs St. of Punj. & anr., 2008 (2)
EFR 707,

13. Loknath Sarkar & anr. Vs St. of W.B., 2018
Crl. L. J. 1885,

14. Krishan Ch& Vs St. of H.P., 2019 (91) JIC 36
(SC),

15. U.O.I. Vs Bal Mukund & Ors., 2009 (2) EFR
218,

16. Sattan Paswan & anr. Vs St. of Bih., 2018
Crl. L. J. 3762,

17. St. of Rajasthan Vs Gurmail Singh, (2005) 3
SCC 59,

18. Central Bureau of Narcotics Vs Bahadur
Singh, (2010) 15 SCC 111

19. Tofan Singh Vs St. of T.N., AIR 2020 SC
5592.

20. St. of Punj. Vs Baldev Singh (1999) 3 SCC
977,

21. Vijaysing Ch&ubha Jadeja Vs St. of Guj.
(2011) 1 SCC 609,

22. St. of Punj. Vs Baljinder Singh (2019) 10
SCC 473,

23. Jeet Ram Vs Narcotics Control Bureau,
Ch&igarh, AIR 2020 SC 4313
24. Mukesh Singh Vs Stae St. (Narcotics Branch
of Delhi), AIR 2020 SC 4794.

25. Sajan Abraham v. St. of Kerala, (2001) 6
SCC 692,

26. Koluttumottil Razak Vs St. of Kerala, (2000)
4 SCC 465,

27. Abdul Rashid Ibrahim Mansuri Vs St. of Guj.,
(2000) 2 SCC 513,

28. St. of Punj. Vs Baldev Singh, (1999) 6 SCC
172

29. St. of Punj. Vs Balbir Singh, (1994) 3 SCC
299

30. Mohen Lal Vs St. of Raj., 2015 (6) 222,

31. Raveen Kumar Vs St. of H.P., AIR 2020 SC
5375,

32. Rajesh Dhiman Vs St. of H.P., (2020) 10
SCC 740,

33. Mukesh Singh Vs St. (Narcotics Branch of
Delhi), AIR 2020 SC 4794

34. Gurbax Singh Vs St. of Har., (2001) 3 S.C.C.
28

35. Bahadur Singh Vs St. of Har., 2010 (4) SCC
445

(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. Both the Criminal Appeals have
been filed under Section 374, Code of
Criminal Procedure, 1973 (hereinafter
referred to as 'Code'), against the judgment
and order dated 01.04.2013, passed by the
Additional Sessions Judge, Court No.8,
Lucknow, in Criminal Case No.431 of
2010 (Union of India Through Shri
Brijendra Singh Sodhi, Intelligence Officer,
Directorate
of
Revenue
Intelligence,
Lucknow Zone vs. Raj Kumar Savita and
another), whereby the appellant-Raj Kumar
3 All. Raj Kumar Savita Vs. Union of India (Govt. of India)
953
Savita of Criminal Appeal No.943 of 2013
and the appellant-Gopal Verma @ Teetu of
Criminal Appeal No.688 of 2013 have been
convicted and sentenced for ten years
rigorous imprisonment with a fine of Rs.
One Lakh, each for offence under Section
20 (b) (ii) (C) of the Narcotic Drugs and
Psychotropic
Substances
Act,
1985
(hereinafter referred to as N.D.P.S. Act)
with further direction that in default of
payment of fine the appellants have to
undergo
one
year
each
further
imprisonment.

2 Since both the criminal appeals
have been filed against the same judgment
and order passed by the trial Court, both the
appeals have been heard together and are
being decided by this common judgment.

3. The prosecution case, in a nutshell,
is that on 20.6.2010, at about 3.00 p.m., a
secret information was received by Sunil
Kumar Singh, Deputy Director, Directorate
Revenue
Intelligence,
Zonal
Unit,
Lucknow
(hereinafter
referred
to
as
'D.R.I.") that huge quantity of Hashish
(Charas) was being transported from
Raxaul (Bihar) to Bharthana (Etawah, U.P.)
by two persons in Maruti 800 car white
colour, bearing registration no.U.P.80/AE
6792. The said information was conveyed
to Ravindra Kumar Tewari (P.W.-2),
Intelligence Officer, D.R.I. and Karunesh
Srivastava (P.W.-1), Intelligence Officer,
D.R.I. and a team, comprising of Ravindra
Kumar
Tewari
(P.W.-2),
Karunesh
Srivastava
(P.W.-1),
Ashutosh
Dixit,
Intelligence Officer, D.R.I. and Ajeet
Kumar, Sepoy D.R.I., was constituted with
direction to intercept the said Maruti car, in
order to search and recover the said
contraband charas, transported in the said
car. The team, headed by P.W.-1, also
contacted two public witnesses, Sri Sajid
Ali and Rinku Kumar Yadav, present near
the main gate of City Montessory School
near D.R.I. office and disclosed the said
information to them and requested to
accompany the team as witnesses in the
proposed
action
of
interception
and
recovery of the charas, whereupon both of
them agreed. Thereafter, the team, headed
by P.W.-1 along with aforesaid officers of
D.R.I. and public witnesses, reached at 4.15
p.m. near Babu Banarsi Das Engineering
College, at Faizabad Road, Lucknow
(hereinafter referred to as B.B.D.) in a
private hired taxi, stopped it near speed
breaker and began to wait the said Maruti
car. At about 8.30 p.m. on 20.06.2010,
white colour Maruti 800 car was seen,
coming from Faizabad side and when the
said car as slowed down due to speed
breaker, it was seen and found to be Maruti
car bearing registration No.U.P.-80/AE
6792.
Thereafter,
the
said
car
was
intercepted and signaled to stop by P.W.-1
and other officers. As and when the car
slowed down and stopped, P.W.-1 and
other officers rushed towards the said car
and found that two persons were sitting in
it, they were informed by P.W.-1 and other
officers of D.R.I., the purpose of their
interception and it was also disclosed to
them that since a secret information had
been received that they were transporting
huge quantity of charas, secreted in the said
Maruti car, search of the car was to be
conducted. Upon query the driver of the
said Maruti car introduced himself as Raj
Kumar Savita son of late Arun Kumar
whereas other co-passenger introduced
himself as Gopal Verma @ alias Teetu son
of Jagdish Narayan Verma, both resident of
Bharthana District- Etawah.

4. During inquiry, both the appellants
admitted that charas had been kept and
secreted in the said Maruti car. Before
954 INDIAN LAW REPORTS ALLAHABAD SERIES
conducting the search, the appellants were
apprised their rights by written notice/letter
(Ex.Ka.-1 and Ex.Ka.-2) as to whether they
want their search before any Magistrate or
Gazetted Officer, both the appellants
expressed their unwillingness for their
search before any Magistrate or Gazetted
Officer and they consented and authorize
P.W-1 and other officers of D.R.I. for their
search. Upon their consent, the D.R.I. team
brought the appellants along with the said
car, in view of safety and security aspect as
the crowd started gathering, to D.R.I.
office, situated at 2/31, Vishal Khand,
Gomti Nagar, Lucknow, at about 9.30 p.m.
Thereafter search of the said Maruti car
was conducted by D.R.I. team in presence
of public witnesses and at the instance and
disclosures of appellant Gopal Verma @
Teetu, 73 rectangular shaped Bars (Battis)
(Material Ex.-1 to Material Ex.-73) of
charas (each Bar of approximate 500
Grams in weight) were recovered, which
were secreted behind the panel cover of
four doors, doors of dickey, back side cover
of back seat and also from secret space,
created in the back portion of the hand
brake of the said car, which, on weighing,
was found as 36 kgs. Small quantity of
charas was scratched by knife from each
recovered charas Bar in uniform process,
mixed thereafter and four representative
samples, each of 25 grams approximately,
were drawn and sealed with D.R.I seal on
packets, which was signed by both the
appellants, D.R.I. officers and independent
witnesses. The remaining charas was also
sealed in other bag with D.R.I. seal and was
also signed by the appellants, D.R.I.
officers and independent witnesses.

5. Upon personal search of appellant
Gopal Verma Rs.500/- and from appellant
Raj Kumar Savita Rs.300/- were also
recovered, which were returned to them.
Appellant Gopal Verma @ Teetu had also
told that he was by profession a goldsmith
and one Babloo, resident of Bharthana
District- Etawah, had told him that there
might be huge profit in smuggling of charas
from Nepal. He further stated that Babloo
had also advised him to go to Raxaul to
smuggle charas and he would cause it sold.
He further stated that he had also gone with
said Babloo, four months ago to Raxaul
and met there with a person named
Muslim, who had provided his mobile,
bearing no. 9807223995 and assured him
that whenever he want for delivery of
goods (charas) he may talk with him. He
further stated that by arranging the money
he had reached on 19.6.2020 to Raxaul,
met with said Muslim at 8.00 a.m. and had
given Rs.45,000/- to him. He further stated
that thereafter the said Muslim took his
Maruti 800 car and went towards Raxaul
border, assuring him that he would
handover the car with loaded mall (charas)
on 20.6.2010. He further stated that the said
Muslim on fixed date, time and place,
handed over the car after showing the
charas concealed/secreted behind the door
panels and hand brake of the car. He further
stated that thereafter he and appellant Raj
Kumar Savita arrived Lucknow from
Raxaul via Sogauli, Motihari, Gopalganj
and Gorakhpur, but they were caught by
the D.R.I. team.

6. From the search of the said Maruti
car, insurance paper (Ex.Ka.4), registration
certificate
(Ex.Ka.5),
driving
licence
(Ex.Ka.6) were also recovered. According
to which owner of the car was Sri Narayan
Singh Chahar and said car was insured and
driving licence was issued in favour of
appellant Raj Kumar Savita. Karunesh
Srivastava (P.W.-1) prepared recovery
memo (Ex.Ka.-3), arrest memos (Ex.Ka-7
and Ex.Ka.-8).
3 All. Raj Kumar Savita Vs. Union of India (Govt. of India)
955

7. Representative samples of the said
contraband charas were also sent for
chemical
examination
to
the
Opium
Factory, Gazipur and Central Revenue
Control Laboratory (CRCL), New Delhi
along with required test memos along with
request letter (Ext.Ka.9 to Ex.Ka.-12),
prepared by P.W.-1 at the time of recovery.
In addition to above, in compliance of
Section 57 of the N.D.P.S. Act and
information/letter (Ex.Ka.-13) was also
sent to the Senior Intelligence Officer,
D.R.I., Lucknow. Inventory of ceased
contraband charas (Ex.Ka.14) was also
prepared and the appellants were produced
before Pramod Kumar (P.W.-3), Senior
Intelligence
Officer,
D.R.I.
for
their
statements under Section 67 of the
N.D.P.S. Act, who recorded the statements
of appellant Gopal Verma @ Teetu
(Ex.Ka.-16) and statement of appellant Raj
Kumar Savita (Ex.Ka.17). The contraband
goods along with appellants were produced
before the concerned Additional Sessions
Judge, Lucknow on 21.06.2010.

8. Investigation was entrusted to
Brijendra Singh Sodhi (P.W.-4), who
during investigation inspected the place of
occurrence, recorded the statement of
witnesses as well as appellants and also
perused the chemical examinations reports
(Ex.Ka.21
and
Ex.Ka.22)
and
after
conclusion
of
investigation,
filed
a
complaint (Ex.Ka.23) against the appellants
before the trial Court.

9. Charges under Section 20 (b) (ii)
(C) N.D.P.S. Act were framed against the
appellants to which they denied and
claimed for trial.

10. The prosecution in order to prove
its case examined Karunesh Srivastava,
Intelligence
Officer,
D.R.I.
(P.W.-1),
Ravindra
Kumar
Tewari,
Intelligence
Officer, D.R.I. (P.W.-2), Pramod Kumar,
Senior
Intelligence
Officer
(P.W.-3),
Brijendra Singh Sodhi, Superintendent
Custom and Excise (P.W.-4), A.P. Singh,
Inspector, Central Custom Excise Duty
(P.W.-5).

11. After conclusion of prosecution
evidence, statements of appellants under
Section 313 Cr.P.C. were recorded wherein
they denied the prosecution story and
evidence and stated that they were innocent
and had been falsely implicated.

12. In defence the appellants did not
produce any evidence.

13. Upon conclusion of trial, the trial
Court, vide impugned judgment and order,
convicted and sentenced the appellants as
above. Aggrieved by the said judgment and
order, the appellants have preferred these
appeals.

14. I have heard Sri A.P. Mishra,
learned counsel for the appellants and Sri
Digvijay Nath Dubey, learned counsel for
the D.R.I./respondents.

15. Learned counsel for the appellants
has submitted that appellants are innocent
and have been falsely implicated. Learned
counsel further submitted that the said
recovery has been made in gross violation
of Sections 42, 50, 52, 55 and 57 of the
N.D.P.S. Act.

16. Learned counsel further submitted
that according to prosecution story, on
telephonic information, instruction was
received by P.W.-2 at about 3.00 p.m. on
20.6.2010 but it was not reduced in writing
whereas search was made at about 8.30
p.m. and continued afterward. Learned
956 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel further submitted that before the
search of said car, reasons and grounds of
the search was also neither recorded by
P.W.-2 nor was sent to his immediate
superior officer. Learned counsel further
submitted that superior officer i.e. Deputy
Director of D.R.I. Department who got the
information and gave direction to P.W.-2 to
constitute a team and raid there, was also
not examined by the prosecution. Learned
counsel further submitted that mandatory
provisions of Section 50 was also violated
as the appellants were not apprised their
legal right to be searched before any
Gazetted officer or Magistrate because in
the consent memo it has not been
mentioned that appellants had right to be
searched
before
Gazetted
officer
or
Magistrate. Further, learned counsel also
submitted that signatures of independent
witnesses were also not taken on the
consent memo. Learned counsel further
submitted that independent witnesses Sajid
and Rinku Kumar Yadav were professional
witnesses, they were taken into the
company of D.R.I. team, nearby D.R.I.
office and no independent witnesses were
taken nearby all the places of search and
interception.
Learned
counsel
further
submitted that the independent witnesses
were also not examined. Learned counsel
further submitted that the provision of
Section 57 of the N.D.P.S. Act was also not
complied with because if any report was
sent to S.I.O. (Senior Investigating Officer)
prosecution has to produce him to prove
that report.

17. Learned counsel further submitted
that the recovered charas was deposited in
Malkhana on 23.06.2010 whereas the
recovery was made on 20/21.6.2010 and
P.W.-2 had admitted that after recovery of
charas it was handed over to office peon of
the
D.R.I.
Learned
counsel
further
submitted that provisions of Section 53 of
the N.D.P.S. Act was also not complied
with. Learned counsel further submitted
that prosecution has also failed to prove as
to when the recovered charas was sent to
Malkhana because Malkhana register and
Malkhana Incharge was not produced.

18. Learned counsel further submitted
that at the time of recovery Karunesh
Srivastava (P.W.-1) and Ravindra Kumar
Tewari (P.W.-2), both were present but
whole
proceeding
of
recovery
was
conducted only by Karunesh Srivastava
(P.W.-1), which shows that Ravindra
Kumar Tewari (P.W.-2) was not present at
the time of occurrence and did not make
any
efforts
to
co-operate
in
the
proceedings.

19. Learned counsel further submitted
that sample seal was required to be sent
separately and not with the sample of
contraband recovered charas, to chemical
laboratory for analysis whereas in this case
sample seal along with the sample of
recovered
charas
was
sent
together.
Learned counsel further submitted that
photography of the vehicle/car was also
conducted but neither car nor the said photo
was produced before the trial Court.

20. Learned counsel further submitted
that learned trial Court did not consider the
evidence available on record in proper and
legal manner and passed the impugned
judgment and order in very cursory and
casual manner, which is liable to be setaside.

21. Per contra, learned counsel
appearing for respondent/D.R.I. (Union of
India) vehemently opposed and submitted
that the prosecution has proved its case
beyond reasonable doubt. Learned counsel
3 All. Raj Kumar Savita Vs. Union of India (Govt. of India)
957
further submitted that alleged huge quantity
of the contraband charas was recovered
from the car driven and possessed by the
appellants.
Learned
counsel
further
submitted that no contraband material has
been recovered from personal search of the
appellants whereas the alleged search was
made only after apprising the right as
provided under Section 50 of the N.D.P.S.
Act, to the appellants. Learned counsel
further submitted that in this case provision
of section 50 of the N.D.P.S. Act is not
applicable as no contraband charas was
recovered from the personal search of the
appellants whereas huge quantity of charas,
secreted in the said car, was recovered.

22.

Learned
counsel
for
respondent/D.R.I. further submitted that
due information, as required under Section
42 of the N.D.P.S. Act, was given to the
superior
officer
by
P.W.-1.
Learned
counsel further submitted that all the
mandatory provisions of the N.D.P.S. Act
was fully complied with by the prosecution
whereas
the
appellants
have
neither
produced any evidence in their defence nor
stated any thing as to whether any prejudice
was caused to them by irregularity, if any,
committed by the prosecution witnesses.

23.

Learned
counsel
further
submitted that the prosecution witnesses
are fully reliable and trustworthy and
they have fully supported the prosecution
story, nothing have come out in their
cross examination which creates any
doubt in prosecution story. Learned
counsel
further
submitted
that
prosecution story cannot be disbelieved
only on account of non production of
independent witnesses and other official
witnesses.
Learned
counsel
further
submitted that the impugned judgment
and order is legal, well reasoned, well
discussed and it requires no interference
whereas the appeal is liable to be
dismissed.

24. In support of the aforesaid
submissions, Sri A.P. Mishra, learned
counsel for the appellants, placed reliance
on law laid down by Hon'ble Supreme
Court in State of Punjab Vs. Balbir
Singh, (1994) SCC (Cri) 634, Ritesh
Chakarvarti Vs. State of M.P., (2007) 1
SCC (Cri) 744, Karnail Singh Vs. State
of Haryana, (2009) 8 SCC 539, Rajinder
Singh Vs. State of Haryana, (2011) 8
SCC 130, Sukhdev Singh Vs. State of
Haryana, (2013) 2 SCC 212, State of
Rajasthan
Vs.
Jagraj
Singh
Alias
Hansa, (2016) 11 SCC 687, State of
Rajasthan vs. Babu Lal, 2009 (3) JIC
612 (SC), Makhan Singh vs State of
Haryana, (2015) 12 SCC 247, Mohinder
Kumar vs. State, Panji, Goa, (1998) 8
SCC 655, State of Punjab vs. Gurnam
Kaur and others, 2009 (2) JIC 267 (SC),
State of Rajasthan vs. Tara Singh, 2011
(11) SCC 559, Noor Aga vs. State of
Punjab and another, 2008 (2) EFR 707,
Loknath Sarkar and another vs. State of
West Bengal, 2018 Crl. L. J. 1885,
Krishan Chand vs. State of H.P., 2019
(91) JIC 36 (SC), U.O.I. vs. Bal Mukund
& Ors., 2009 (2) EFR 218, Sattan
Paswan and another vs. State of Bihar,
2018 Crl. L. J. 3762, State of Rajasthan
vs. Gurmail Singh, (2005) 3 SCC 59,
Central Bureau of Narcotics vs. Bahadur
Singh, (2010) 15 SCC 111 and Tofan
Singh vs. State of Tamil Nadu, AIR 2020
SC 5592.

25. Since the severe punishment has
been provided for the offence under
N.D.P.S. Act, some provisions, in order to
check the misuse of N.D.P.S. Act by the
concerned official, has also been provided.
958 INDIAN LAW REPORTS ALLAHABAD SERIES

26. Since the learned counsel for the
appellant also submitted that provisions of
Sections 42, 50, 52, 53, 55, 57 of the
N.D.P.S. Act was not complied with,
before any discussion on the merit of the
case, it would be relevant to discuss the
provisions contained in Sections 42, 50, 52,
53, 55 and 57 of the N.D.P.S. Act, which
are as under :-

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 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 subsection (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.
3 All. Raj Kumar Savita Vs. Union of India (Govt. of India)
959

50.
Conditions
under
which
search of persons shall be conducted.

(1)
When
any
officer
duly
authorised under section 42 is about to
search any person under the provisions of
section 41, section 42 or section 43, he shall,
if such person so requires, take such person
without unnecessary delay to the nearest
Gazetted Officer of any of the departments
mentioned in section 42 or to the nearest
Magistrate.

(2) If such requisition is made, the
officer may detain the person until he can
bring him before the Gazetted Officer or the
Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the
Magistrate before whom any such person is
brought shall, if he sees no reasonable
ground for search, forthwith discharge the
person but otherwise shall direct that search
be made.

(4) No female shall be searched by
anyone excepting a female.

(5) When an officer duly authorised
under section 42 has reason to believe that it
is not possible to take the person to be
searched to the nearest Gazetted Officer or
Magistrate without the possibility of the
person
to
be
searched
parting
with
possession
of
any
narcotic
drug
or
psychotropic
substance,
or
controlled
substance or article or document, he may,
instead of taking such person to the nearest
Gazetted Officer or Magistrate, proceed to
search the person as provided under section
100 of the Code of Criminal Procedure, 1973
(2 of 1974).

(6) After a search is conducted
under sub-section (5), the officer shall
record the reasons for such belief which
necessitated
such
search
and
within
seventy-two hours send a copy thereof to
his immediate official superior.

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.

(e) 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 subsection (2) or sub-section (3) shall, with all
convenient despatch, take such measures as
may be necessary for the disposal according
to law of such person or article.

53. Power to invest officers of
certain departments with powers of an
officer-in-charge of a police station.

(1) The Central Government,
after
consultation
with
the
State
Government, may, by notification published
in the Official Gazette, invest any officer of
960 INDIAN LAW REPORTS ALLAHABAD SERIES
the department of central excise, narcotics,
customs, revenue intelligence 1[or any
other
department
of
the
Central
Government including para-military forces
or armed forces] or any class of such
officers with the powers of an officer-incharge of a police station for the
investigation of the offences under this Act.

(2) The State Government may,
by notification published in the Official
Gazette,
invest
any
officer
of
the
department of drugs control, revenue or
excise or any other department or any class
of such officers with the powers of an
officer-in-charge of a police station for the
investigation of offences under this Act.

55. Police to take charge of
articles seized and delivered- An officer-incharge of a police station 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 officer-in-charge of the police
station.

57. Report of arrest and seizure -
Whenever any person makes any arrest or
seizure, under this Act, he shall, within
forty-eight hours next after such arrest or
seizure, make a full report of all the
particulars of such arrest or seizure to his
immediate official superior."

27. From perusal of aforesaid
provisions, it transpires that basic purpose
of the N.D.P.S. Act is that the search and
seizure, made by any authorized officer,
must be either in execution of any warrant
issued
by
the
Magistrate
or
prior
authorization of the Gazetted officer or in
the presence of Gazetted officer or
Magistrate, if required by the accused in
the matter of his personal search. Further,
information regarding search and seizure
must be within the knowledge and
cognizance of superior officer within the
prescribed time, as provided in the Act.
Further, the ground of arrest must be
communicated
to
accused,
recovered
contraband drugs be deposited in Malkhana
without any delay and representative
sample be sent for chemical examination
immediately.

28. Law relating to compliance of
Sections 42, 50 and other provisions of
N.D.P.S. Act, regarding search and seizure,
has now been settled by the larger
bench/constitutional
bench of
Hon'ble
Supreme Court in Karnail Singh case
(Supra), Balbir Singh case (Supra), State
of Punjab vs. Baldev Singh (1999) 3 SCC
977, Vijaysing Chandubha Jadeja vs.
State of Gujrat (2011) 1 SCC 609, State of
Punjab vs. Baljinder Singh (2019) 10 SCC
473, Jeet Ram vs. Narcotics Control
Bureau, Chandigarh, AIR 2020 SC 4313
and Mukesh Singh vs. Stae State (Narcotics
Branch of Delhi), AIR 2020 SC 4794.

29. Constitutional Bench of Hon'ble
Supreme Court in Karnail Singh case
(Supra) while discussing the scope of
Sections 42 (1) & (2) i.e. statutory
requirement of reducing to record the
information and reason of belief and
conveying it to superior officer, held that
no straight jacket formula in this regard
could be evolved and in view of invention
of cellular phones and wireless services in
India, the same may differ from facts and
3 All. Raj Kumar Savita Vs. Union of India (Govt. of India)
961
circumstances
of
each
case.
Hon'ble
Supreme Court, while considering earlier
law laid down in Sajan Abraham v. State of
Kerala, (2001) 6 SCC 692, Koluttumottil
Razak Vs. State of Kerala, (2000) 4 SCC
465, Abdul Rashid Ibrahim Mansuri Vs.
State of Gujarat, (2000) 2 SCC 513, State
of Punjab Vs. Baldev Singh, (1999) 6 SCC
172 and State of Punjab Vs. Balbir Singh,
(1994) 3 SCC 299 on the point of Section
42 of the Act, upholding the validity of law
laid down in Sajan Abraham case (Supra)
where the non compliance of Section 42
was held non fatal to the prosecution, has
observed as under :-

"32. Under Section 42(2) as it
stood prior to the amendment, such
empowered officer who takes down any
information in writing or records the
grounds under the proviso to Section 42(1)
should forthwith send a copy thereof to his
immediate official superior. If there is total
non-compliance with this provision the
same
would
adversely
affect
the
prosecution case and to that extent it is
mandatory. But if there is delay, whether
it was undue or whether the same has
been explained or not, will be a question
of fact in each case, it is to be concluded
that the mandatory enforcement of the
provisions of Section 42 of the Act noncompliance with which may vitiate a trial
has been restricted only to the provision of
sending a copy of the information written
down by the empowered officer to the
immediate official superior and not to any
other condition of the section.

33.Abdul Rashid [(2000) 2 SCC
513 : 2000 SCC (Cri) 496] had been
decided on 1-2-2000 but thereafter Section
42 has been amended with effect from 2-102001 and the time of sending such report of
the required information has been specified
to be within 72 hours of writing down the
same. The relaxation by the legislature is
evidently only to uphold the object of the
Act.
The
question
of
mandatory
application of the provision can be
answered in the light of the said
amendment. The non-compliance with the
said provision may not vitiate the trial if it
does not cause any prejudice to the
accused.

34. The advent of cellular
phones and wireless services in India has
assured certain expectation regarding the
quality, reliability and usefulness of the
instantaneous messages. This technology
has taken part in the system of police
administration and investigation while
growing
consensus
among
the
policymakers about it. Now for the last
two decades police investigation has gone
through a sea change. Law enforcement
officials can easily access any information
anywhere even when they are on the move
and not physically present in the police
station or their respective offices. For this
change of circumstances, it may not be
possible all the time to record the
information which is collected through
mobile phone communication in the
register/records kept for those purposes in
the police station or the respective offices
of the authorised officials in the Act if the
emergency of the situation so requires. As
a result, if the statutory provision under
Sections 41(2) and 42(2) of the Act of
writing
down
the
information
is
interpreted as a mandatory provision, it
will disable the haste of an emergency
situation and may turn out to be in vain
with regard to the criminal search and
seizure. These provisions should not be
misused by the wrongdoers/offenders as a
major ground for acquittal. Consequently,
these provisions should be taken as a
962 INDIAN LAW REPORTS ALLAHABAD SERIES
discretionary measure which should check
the misuse of the Act rather than
providing an escape to the hardened drug
peddlers.

35. In conclusion, what is to be
noticed is that Abdul Rashid [(2000) 2 SCC
513 : 2000 SCC (Cri) 496] did not require
literal compliance with the requirements of
Sections 42(1) and 42(2) nor did Sajan
Abraham [(2001) 6 SCC 692 : 2001 SCC
(Cri) 1217] hold that the requirements of
Sections 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
register concerned 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
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 nonsending 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
3 All. Raj Kumar Savita Vs. Union of India (Govt. of India)
963
strengthened with the amendment to
Section 42 by Act 9 of 2001."
 (Emphasis supplied)

30. In Balbir Singh case (Supra), three
judges Bench of Hon'ble Supreme Court
while considering the nature and scope of
Sections 41, 42 and 50 of the Act has held as
under :

"25. The questions considered
above arise frequently before the trial courts.
Therefore we find it necessary to set out our
conclusions which are as follows:

(1) ..........

(2-A) ...........

(2-B) ..............

(2-C) Under Section 42(1) the
empowered officer if has a prior information
given by any person, that should necessarily
be taken down in writing. But if he has
reason to believe from personal knowledge
that offences under Chapter IV have been
committed or materials which may furnish
evidence of commission of such offences are
concealed in any building etc.