# Ram Charan Jatav (In Jail) v. State of U.P

- **Citation:** (2020) 6 ILRA 390
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-30
- **Case number:** Criminal Appeal No. 733 of 2013
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-charan-jatav-in-jail-v-state-of-u-p-45838
- **Pages:** 13

## Headnote

A. Criminal Law - The Narcotics Drugs And
Psychotropic
Substances
Act,
1985-
Section 42, Section 51- Indian Evidence Act-
Section 3- Seizure and Recovery- Witnesses only
Police Officers- The law with regards to recovery
not supported by public witness or nonavailability of public witness has been clarified
time and again by the Supreme Court and it has
been held that the statement of police witness
cannot be discarded only because of his being a
police and if his statement is trustworthy,
conviction can be based.
Recovery by police officers and absence of
independent witnesses of the same would not
vitiate the recovery if the statements of the
Police Officers are trustworthy, credible and
reliable.
The
Narcotics
Drugs
And
Psychotropic
Substances Act, 1985- Section 50- Compliance-
No personal search- Since, personal search of
accused has not been conducted nor there is
any evidence to that effect, this case is not
covered under section 50 of NDPS Act.
There is no requirement of complying with the
provisions of Section 50 of the Act where the
illegal contraband is not recovered from the
personal search of the accused.

Criminal Law - The Narcotics Drugs And
Psychotropic
Substances
Act,
1985-
Section
293
(4)-
Code
of
Criminal
Procedure-
Report
of
Chemical
Analyst-
Because, both brown sugar and heroine are
illegal contraband, it makes no difference if the
recovered article was mentioned as brown
sugar.
Even if the Substance reported by the Chemical
Examiner may be different from the one said to
be recovered, the same would make no
difference since the recovered and reported
Substances,
though
different,
are
both
contraband.

Criminal Law - The Narcotics Drugs And
Psychotropic
Substances
Act,
1985Section 42- Recovery Memo- The recovery was
made from the house of appellant in the
midnight without obtaining warrant. The legal
procedure is that the recovery memo so
prepared should be read over and explained to
the accused and his signature should be
obtained on the memo. Section 42(2) requires
that where an officer takes down information in
writing under sub-Section (1) he shall send a
copy thereof to his immediate officer senior who
is Circle Officer. In the present case, there is no
case that any ground for belief as contemplated
by proviso to sub-section (1) of Section 42 or
6 All. Ram Charan Jatav Vs. State of U.P.
391
Sub-section (2) of Section 42 was ever
recorded. Since reasons to believe have not
been recorded, therefore, under Section 42(2) it
is not found on record that copy thereof has
been sent to the senior officials. In a case based
on recovery of illegal drug, recovery memo
forms the basis of prosecution and if same has
not been prepared according to legal procedure,
it amounts to serious infirmity.
A search of a private place between sunset and
sunrise without a warrant and without recording
the grounds of belief of such an Officer, would
vitiate the search and if the recovery memo of

## Text

_Characters 0–39,690 of 45,353. This is a partial read: ask again with offset=39690 for what follows._

390 INDIAN LAW REPORTS ALLAHABAD SERIES
manifest illegality in allowing the appeal
and setting aside the order dated order
dated 26.2.2011 passed by the trial court
rejecting the application of respondent to
set aside ex-parte judgment and decree
dated 13.9.2005. Accordingly, judgement of
Uttarakhand High Court at Nainital in the
case of Pradeep Kumar (supra) does not
come to the aid of the respondent.

42. Thus, for the reasons given above,
the order of the Appellate Court dated
8.11.2011 passed in Misc. Appeal No. 26 of
2011 (Kalyan Singh Vs. Brajpal) is set
aside. The writ petition is allowed. There
shall be no order as to costs.
----------
(2020)06ILR A390
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.04.2020

BEFORE

THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 733 of 2013

Ram Charan Jatav ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Meraj Ahmad Khan, Sri Arvind K.
Pandey, Sri Jai Prakash Prasad, Sri Manish
Kumar Pandey, Sri Mirza Ali Zulfaqar, Sri
Vichitra Kumar Chandel, Sri Rajesh Kumar
Yadav

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - The Narcotics Drugs And
Psychotropic
Substances
Act,
1985-
Section 42, Section 51- Indian Evidence Act-
Section 3- Seizure and Recovery- Witnesses only
Police Officers- The law with regards to recovery
not supported by public witness or nonavailability of public witness has been clarified
time and again by the Supreme Court and it has
been held that the statement of police witness
cannot be discarded only because of his being a
police and if his statement is trustworthy,
conviction can be based.
Recovery by police officers and absence of
independent witnesses of the same would not
vitiate the recovery if the statements of the
Police Officers are trustworthy, credible and
reliable.
The
Narcotics
Drugs
And
Psychotropic
Substances Act, 1985- Section 50- Compliance-
No personal search- Since, personal search of
accused has not been conducted nor there is
any evidence to that effect, this case is not
covered under section 50 of NDPS Act.
There is no requirement of complying with the
provisions of Section 50 of the Act where the
illegal contraband is not recovered from the
personal search of the accused.

Criminal Law - The Narcotics Drugs And
Psychotropic
Substances
Act,
1985-
Section
293
(4)-
Code
of
Criminal
Procedure-
Report
of
Chemical
Analyst-
Because, both brown sugar and heroine are
illegal contraband, it makes no difference if the
recovered article was mentioned as brown
sugar.
Even if the Substance reported by the Chemical
Examiner may be different from the one said to
be recovered, the same would make no
difference since the recovered and reported
Substances,
though
different,
are
both
contraband.

Criminal Law - The Narcotics Drugs And
Psychotropic
Substances
Act,
1985Section 42- Recovery Memo- The recovery was
made from the house of appellant in the
midnight without obtaining warrant. The legal
procedure is that the recovery memo so
prepared should be read over and explained to
the accused and his signature should be
obtained on the memo. Section 42(2) requires
that where an officer takes down information in
writing under sub-Section (1) he shall send a
copy thereof to his immediate officer senior who
is Circle Officer. In the present case, there is no
case that any ground for belief as contemplated
by proviso to sub-section (1) of Section 42 or
6 All. Ram Charan Jatav Vs. State of U.P.
391
Sub-section (2) of Section 42 was ever
recorded. Since reasons to believe have not
been recorded, therefore, under Section 42(2) it
is not found on record that copy thereof has
been sent to the senior officials. In a case based
on recovery of illegal drug, recovery memo
forms the basis of prosecution and if same has
not been prepared according to legal procedure,
it amounts to serious infirmity.
A search of a private place between sunset and
sunrise without a warrant and without recording
the grounds of belief of such an Officer, would
vitiate the search and if the recovery memo of
the contraband is not prepared in a legal
manner then the recovery would result in a
serious infirmity. The provisions of Section 42 of
the Act are mandatory and absolute noncompliance of the said provisions cannot be
countenanced.

Criminal Law - The Narcotics Drugs And
Psychotropic
Substances
Act,
1985-
Sections 42, 50 and 57- The purpose of these
provisions is to provide due protection to a
suspect against false implication and ensure that
these provisions are strictly complied with to
further
the
legislative
mandate
of
fair
investigation and trial. In a crime based on
recovery of illegal drugs for which stringent
provision in terms of procedure and punishment
has been provided in the NDPS Act, it is
necessary to ensure free and fair investigation
without
any
objectionable
features
and
infirmities. Fairness and purity in investigation is
so necessary for criminal justice administration
that without it fair trial will become a mockery
and will result in miscarriage of justice.
The compliance of the provisions of Sections 42,
50 and 57 of the Act is mandatory and have
been provided by the Legislature to afford
safeguards and ensure fair investigation and
trial.
The search team did not comply with the
mandatory provision of section 42 of NDPS Act;
the recovered drug was not weighted and on
the basis of guess work the quantity was
mentioned; the recovery was made from the
house of appellant in the midnight without
obtaining warrant from the magistrate and
without recording grounds of belief as required
under the Proviso of section 42 and the legal
procedure in preparing the recovery memo was
not followed and the signature of the accused
was not obtained after preparing the same. The
learned trial court has ignored the shortcomings
and lapse in the prosecution version, recovery
process and evidence and the finding of the
learned trial court is perverse and illegal. The
impugned judgement convicting and sentencing
the accused is not sustainable under law and is
liable to be set aside. (Para 11, 12,14, 17, 18,
21, 25, 27, 32, 33, 34)

Appeal allowed. (E-3)

Case law relied upon/discussed:-

1. Jarnail Singh Vs St. of Punj., (2011) CRLJ
1738 SC,

2. Ajmer Singh Vs St. of Har., (2010) 3 SCC 746,

3. St. of Punj. Vs Makhan Chand, AIR (2004) SC
306

4. Dharam Pal Singh Vs St. of Punj., (2010) 71
ACC 548 SC

5. Gian Chand Vs St. of Har., AIR (2013) SC
3395

6. Krishna Kunwar Vs St. of Raj., (2004) 2 SCC
608

7. Sekhar Suman Verma Vs N.C.B., (2016) 11
SCC 1

8. Dire. of Rev. Vs Mohd. Nisar Halia, (2008) 2
SCC 370

9. K.S. Puttaswamy Vs U.O.I, (2017) 10 SCC 1

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

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

12. Saiyad Mohd. Saiyad Umar Saiyed Vs St. of
Guj., (1995) 3 SCC 610

13. Mohan Lal Vs St. of Raj., (2015) CRLJ 2811
SC

14. Abdul Rashid Ibrahim Mansuri Vs St. of Guj.
(2000) 2 SCC 513
392 INDIAN LAW REPORTS ALLAHABAD SERIES
15. Sajan Abraham Vs St. of Ker. (2001) 6 SCC
692

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

17. Kishan Chand Vs St. of Har. (2013) 2 SCC
502

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

1. Heard Sri Jai Prakash Prasad,
Advocate
learned
counsel
for
the
appellant and Sri Ravi Kant Kushwaha,
learned AGA for the State.

2. This criminal appeal has been
filed against the impugned judgement
dated 16.1.2013 passed by Additional
Sessions Judge, Court No.3, Jyotibha
Phule Nagar in ST No.256 of 2002,
Crime No. 62 of 2002, Police Station
Amroha Nagar, District J.P. Nagar, by
which
the
accused-appellant
Ram
Charan Jatav has been convicted and
sentenced under Section 18/20 of NDPS
Act for 10 years RI and Rs. 1,00,000/-
fine and in default for additional one year
imprisonment.

3. The brief prosecution case is that
on 1.2.2002 Sub Inspector K.P. Sharma
(Incharge SOG), J.P. Nagar with constable
Rajendra Singh, constable Jai Prakash,
constable Abhimanyu, constable Laxman
Singh and constable driver Harender Singh,
on the basis of information received from
arrested accused Ram Kunwar Verma from
Gandhi Murti Tiraha with brown sugar and
on his information expecting recovery of
brown sugar from the house of Ram Charan
Jatav resident of Jai Om Nagar, Amroha
went near Madho Cinema. There, In-charge
Inspector Ram Bachan Singh, SI Jitendra
Singh,
constable
Gul
Haider
Jaidi,
constable Paramjeet Singh with constable
driver
Sabban
Khan
met
on
their
Government jeep. The police party tried to
search out some public witness but it was
night and no witness could be traced. The
police party conducted search of each other
to ensure that they are not carrying any
illegal narcotics substance. They tried to
inform the Gazetted Officer, but, they
could not contact him. Along with accused
Ram Kunwar, the police party reached the
house of Ram Charan Jatav at about 12:30
in the mid night, Accused Ram Kunwar
knocked the door and the door was opened
by a person. Accused Ram Kunwar said
that he is Ram Charan Jatav from whom he
purchased brown sugar. On being asked,
the person disclosed his name to be Ram
Charan Jatav son of Sukhi Singh resident of
Jai Om, Police Station Amroha Nagar. On
being asked he said that he had given 100
gram brown sugar for selling the same and
he is having about half kg of brown sugar
in his possession. He was asked whether he
would like to be searched before any
Gazetted
Officer
or
the
Magistrate
whereupon he responded that he believed
on the police party and permitted search.
Instead, he said that he would himself give
the brown sugar and he picked out about
500 gm brown sugar packed in a polythene
from a black colour bag, which was
hanging on the wall. The police personnel
opened the same and smelled the same and
found it to be brown sugar and the same
was taken into possession by the police. In
the light of torch, 50 gm of brown sugar
was picked out from the recovered brown
sugar as sample and was kept in polythene
packet. The samples and remaining brown
sugar was separately kept in a plastic
packet and was sealed in white cloth and
samples seal was pasted. Accused Ram
Charan Jatav was asked about the person he
obtained brown sugar and he informed that
he obtained brown sugar from Tika Ram,
6 All. Ram Charan Jatav Vs. State of U.P.
393
resident of Jabdi and Rehan resident of
Katkui, Amroha. He also told that they are
still in possession of more brown sugar
which they have kept in their house. He
offered that he can show their house. The
accused Ram Charan Jatav was informed
about the offence he committed and was
taken into custody. The recovery memo
was prepared in the light of torch and after
reading and hearing the same, the signature
of the police personnel was obtained and a
copy thereof was given to the accused. On
the basis of the recovery memo, on
1.2.2002 at 3:30 AM, offence against
accused Ram Charan Jatav was registered
under the aforesaid section, chik was
prepared and entry thereof was made in the
GD. The offence was investigated by the
police and Investigating Officer M.P. Tyagi
recorded the statements of the witnesses,
prepared site plan of place of recovery and
after obtaining the report from the Forensic
Science Laboratory, on the basis of
evidence collected by him, he filed a
charge sheet against the accused under
Section 18/20 of NDPS Act. The charge
was framed against the accused who denied
the charge and claimed trial.

4. The prosecution examined as
many as three witnesses. The statement
of accused Ram Charan Jatav was
recorded under Section 313 CrPC, who
put forward the case of denial and
stated that the prosecution case is false
and he has been implicated on the basis
of enmity and the police has filed a
wrong charge sheet against him. He is
innocent.

5. After hearing prosecution and
defence and perusing the evidence on
record, the learned trial court passed the
impugned judgement and convicted and
sentenced the accused-appellant.

6. Aggrieved by the impugned
judgement, the accused appellant filed
this appeal and has challenged the
impugned judgment on the ground that
the
mandatory
requirement
under
Sections 50 and 57 of the NDPS Act was
not complied with and the recovered
contraband was not weighted at the time
of recovery. The recovered contraband
was alleged to be brown sugar but in
chemical examination the same has been
reported to be heroine, the recovery
memo was not signed by the accusedappellant and the same is false and
fabricated. The information of his arrest
was not given to his wife although the
contraband was recovered from his
house. No independent witness or public
witness of recovery was present at the
time of recovery and the police party did
not comply the provision of Section 100
of the Criminal Procedure Code and
section 42, 50 and 57 of NDPS Act and
no information of arrest of accused was
given to superior officer. The conviction
of the accused-appellant is against the
weight of evidence on record and is
against law and the sentence awarded is
too severe. Therefore, the appeal is liable
to be allowed and the accused-appellant
is entitled for acquittal.

7. Learned AGA submits that the
accused-appellant was found to be in
possession of contraband in commercial
quantity and on the basis of evidence on
record, the learned trial court has rightly
convicted and sentenced the accusedappellant.

8. In view of the rival argument of
both the sides, the evidence given by the
prosecution is required to be analysed to
examine the legality of the impugned
judgement.
394 INDIAN LAW REPORTS ALLAHABAD SERIES

9. PW-1 SI K.P. Sharma and PW-2 SI
Bachchan Singh have been examined as
witness of recovery and they have proved
the
recovery
memo
and
recovered
contraband as Ext. Ka-2, Ext. Ka-3, Ext.
Ka-4, Ext. Ka-5, Ext. Ka-6, Ext. Ka-8, Ext.
Ka-9, Ext. Ka-10, Ext. Ka-11 and Ext. Ka12. PW-3 SI Madan Pal (Investigating
Officer) is the formal witness and he has
proved the police papers such as site plan
Ext. Ka-16, charge-sheet Ext. Ka-17, FSL
report Ext. Ka-18, chik FIR Ext. Ka-18A,
GD report Ext. Ka-19.

10. The submission of the learned
counsel for the accused-appellant is that
despite the presence of Gazetted Officer
and the Magistrate near the place of
recovery, the police party did not inform
the accused about his legal right and just to
complete formality, it was written in the
memo that the accused said that he believes
on police party and does not want to be
searched before any superior officer and
the police party may take his search.
Further submission is that the recovery
team did not ensure compliance of Section
50 of NDPS Act, which is mandatory. It
has been further submitted that 500 gram of
brown sugar was said to have been
recovered from the accused-appellant but
the same was found to be heroine by
Forensic
Science
Laboratory.
Further
submission is that the police was well
informed that the accused-appellant is in
possession of contraband but no effort was
made for his search before Gazetted Officer
or the Magistrate. The information was
neither
reduced
in
writing
nor
communicated to immediate superior and
as such, the requirement of section 42 (2)
and 50 was not complied. Within 48 hours
from the recovery, the superior officers
were not informed and as such Section 57
of NDPS Act was not complied with. The
wife of the accused-appellant was also not
informed. No signature of the accusedappellant was obtained on recovery memo.

11. From the reading of the statement
of the recovery officer PW-1 SI K.P.
Sharma and other witness of recovery PW2 SI Ram Bachan Singh, it is clear that they
have proved the version of recovery memo
and FIR. The recovery was made in the
midnight and despite the efforts made, no
public witness could be traced. The law
with regards to recovery not supported by
public witness or non-availability of public
witness has been clarified time and again
by the Supreme Court and it has been held
that the statement of police witness cannot
be discarded only because of his being a
police and if his statement is trustworthy,
conviction can be based. Thus, in Jarnail
Singh v State of Punjab, 2011 CRLJ
1738(SC), Ajmer Singh v State of
Haryana, (2010) 3 SCC 746, State of
Punjab v Makhan Chand, AIR 2004 SC
306 and Dharam Pal Singh Vs. State of
Punjab, 2010(71) ACC 548 (SC), it has
been held by the Supreme Court that the
obligation
to
take
public
witnesses(independent
witness)
is
not
absolute. If after making efforts which the
court considers in the circumstances of the
case reasonable the police officer is not
able to get public witnesses to associate
with the raid or arrest of the culprit, the
arrest and the recovery made would not be
necessarily vitiated. The court will have to
appreciate the relevant evidence and will
have to determine whether the evidence of
the police officer is believable after taking
due care and caution in evaluating their
evidence.

12. Again, in Gian Chand v State of
Haryana, AIR 2013 SC 3395, it was held
that mere non-joining of an independent
6 All. Ram Charan Jatav Vs. State of U.P.
395
witness
where
the
evidence
of
the
prosecution witnesses may be found to be
cogent, convincing, creditable and reliable,
cannot cast doubt on the version forwarded
by the prosecution if there seems to be no
reason on record to falsely implicate the
appellants.
The
legal
maxim
omnia
praesumuntur rite it dowee probetur in
contrarium solenniter esse acta i.e., all the
acts are presumed to have been done rightly
and regularly, applies. When acts are of
official nature and went through the
process of scrutiny by official persons, a
presumption arises that the said acts have
regularly been performed. In view of the
above, on facts and circumstances of this
case, I do not find any force in the
contention of defence regarding nonavailability of public witness.

13. I find that during crossexamination PW-1 S.I. K.P. Sharma has
stated that there was no recovery from
accused Ram Charan Jatav from his cloths
and the recovery was made from the bag,
which was hanging on the wall. PW-2 SI
Ram Bachan Singh has also stated that on
the voice raised by Ram Kunwar, accused
Ram Charan opened the door and the
moment the door was opened, he was
caught. It also appears from the reading of
the statement of PW-1 and PW-2 that after
Ram Charan Jatav was caught, he was
informed that Ram Kunwar has said that he
used to take brown sugar from him and
before personal search the accused Ram
Charan Jatav told that he was having brown
sugar. The brown sugar was not recovered
from personal search but was recovered
from the bag, which was hanging on the
wall. Prior to that there was no recovery
from him. Since, personal search of
accused has not been conducted nor there is
any evidence to that effect, this case is not
covered under section 50 of NDPS Act.
Therefore, the plea of appellant regarding
non-compliance of section 50 NDPS Act
has no force.

14. PW-1 has admitted that he has not
written the colour of the contraband so
recovered. It has been submitted that the
case of prosecution was about recovery of
brown sugar and on chemical examination
the same was found to be heroine. It makes
the recovery doubtful. Because, both brown
sugar and heroine are illegal contraband, it
makes no difference if the recovered article
was mentioned as brown sugar. However, I
am of the view that merely because the
witness has admitted that the heroine,
smack and brown sugar are different kind
of narcotic substance, it cannot be said the
recovery of contraband was suspected and
it also falsified the whole prosecution case.

15. The bag from which the
contraband was recovered was 8 to 10 steps
away from the main door and the door in
between was open and the wife of the
accused was in the house. The submission
of the learned counsel to the appellant is
that no information was given to the wife. I
however find that Ext. Ka-4 is on record
from the perusal of which it is clear that the
information was prepared in writing and a
copy thereof was given to the wife of
accused.

16. It has been submitted by learned
counsel for the appellant that the chik FIR
has not been proved by the scriber and it
has been proved by PW-2 as secondary
witness, which is not admissible in
evidence. A close reading of the evidence
shows that PW-2 has stated that the chick
was prepared by HM Indradeo Shukla who
had been posted with him and he had seen
him writing and is acquainted with his
writing and signature. Therefore, the
396 INDIAN LAW REPORTS ALLAHABAD SERIES
subission on the admissibility of chick does
not appear to be sound.

17. It has been submitted by the
learned counsel to the appellant that the
signature of the accused was not obtained
on the recovery memo and the same is a
tainted document. I find that PW-1 has also
admitted that after preparation of memo
and before supplying the copy thereof to
the accused-appellant, his signature was not
obtained and the signature was obtained
only after providing the copy. The legal
procedure is that the recovery memo so
prepared should be read over and explained
to the accused and his signature should be
obtained on the memo. In a case based on
recovery of illegal drug, recovery memo
forms the basis of prosecution and if same
has not been prepared according to legal
procedure, it amounts to serious infirmity.

18. it has been also submitted that the
recovered drug was not weighted and
weight of the recovered drug is essentially
required to ascertain whether the recovery
was of commercial quantity or otherwise.
In the recovery memo it has not been
mentioned that the recovered drug was
weighted. PW-1 who led the search team
has not said in his examination-in-chief
even that the recovered drug was weighted
whereas PW-2 has stated that the recovered
charas was not measured and the quantity
has been written by way of guess work. In
the cross-examination, PW-1 has said that
the recovered drug was weighted by
weighing machine which was kept in the
police-jeep. No such statement has been
given by him to the IO. It appears to be an
improvement in his statement to cover the
lapse and which is clear from the statement
of PW-2 who has categorically stated that
the weight of the recovered drug was just a
guess work and the same was not weighted.

19. It has been argued that the search
has been conducted in violation of the
provision of section 42 NDPS Act and the
search has been conducted in the midnight
without any search warrant. Under Section
41 of the Act, the Magistrate has been
authorized to issue warrant for the arrest of
any person whom he has reason to believe
to have committed any offence punishable
under the Act, for the search, irrespective
of time, of any building conveyance, place.
In terms of Section 41(2) of the Act, some
sort of relaxation is found with regard to
status of the officers being that of gazetted
one. Section 42 the NDPS Act is 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
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
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
6 All. Ram Charan Jatav Vs. State of U.P.
397
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:"

20. Thus, section 42 provides that the
officer of designated rank may enter in a
building, conveyance or place and conduct
search of a illegal drug etc and seize the
same and in case of resistance, may break
open the door etc and may also detain or
arrest
any
person
who
might
have
committed or suspected to have committed
any offence under the Act. The second
proviso to section 42(1), however, provides
as follows:

"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."

Section 42 (2) further provides:

"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 seventytwo hours send a copy thereof to his
immediate official superior."

21. Section 42 is a mandatory
provision as held in Krishna Kunwar v
State of Rajasthan, (2004) 2 SCC 608 and
it has two components. One relates to the
basis
of
information,
from
personal
knowledge and information given by a
person and taken down in writing.
Secondly, the information must relate to
commission of an offence punishable under
Chapter IV of the Act and/or keeping or
concealment of document or article in any
building, conveyance or enclosed place
which may furnish evidence of commission
of such offence. Section 42 is applicable
only when search is made by a police
officer or authority concerned. It has been
held in Sekhar Suman Verma v Narcotics
Control Bureau, (2016) 11 SCC 1 that
compliance of section 42 is not necessary
where search and seizure has been
conducted by a gazetted officer himself
acting under section 41.

22. Section 42 is not applicable in
case of search of public place. Public place,
as mentioned in Explanation to section 43,
includes 'public conveyance, hotel, shop or
other place intended for use by, or
accessible to, the public'. It has been held in
Directorate of Revenue v Mohd. Nisar
Halia, (2008) 2 SCC 370 that a room in a
398 INDIAN LAW REPORTS ALLAHABAD SERIES
hotel is a public place but occupied by a
guest may not be so in view of the right of
privacy available to such person and the
authority has restricted power to infringe
the right of privacy. In K.S. Puttaswamy v
Union of India, (2017) 10 SCC 1, it has
been remarked that right to privacy is a
fundamental right and is not lost in public
places, but attaches to the person.

23. In State of Punjab v Balbir
Singh, (1994) 3 SCC 299, referring to
the provision of section 42 (1) and (2),
the Supreme Court has laid down that
the arrest and seizure may be carried
out between sunrise and sunset and for
that there is no need of warrant. But, if
the search is to be conducted in between
sunset to sunrise, a warrant is required.
But the exception is that if the officer
conducting search has reason to believe
that a warrant cannot be obtained
without affording an opportunity of
concealment or escape to the offender
and he must record in writing his reason
for such belief. The warrant is also not
needed if the arrest and search is being
affected by a gazetted officer as held in
Sekhar Suman Verma v NCB, (2016)
11 SCC 368.

24. The question of effect of noncompliance or delayed compliance of
section 42 has been considered by the
Supreme Court in several cases. Thus, in
Karnail Singh vs. State of Haryana
(2009)8 SCC 539 held that total noncompliance requirements of Sub-section 1
and 2 of Section 42 of the Act is
impermissible,
however,
delayed
compliance with satisfactory explanation
about
the
delay
will
be
acceptable
compliance of Section 42 of the Act. From
the evidence, it is evident that none of the
prosecution witnesses, more particularly
PW-1 and PW-2, who played a vital role,
spoke regarding compliance of the Section
42(2) of the NDPS Act.

25. The NDPS Act happens to be a
Special Act providing severe punishment
and on account thereof, there happens to be
consistent view that all the requirements, so
prescribed thereunder, is to be strictly
followed. In case of failure on the part of
prosecution, the same is bound to give
adverse impact irrespective of nature of
evidence having produced in order to
substantiate its case. From perusal of the
case record, it is apparent that there
happens to be serious lapses on the part of
the prosecution in complying with the
mandatory provisions of the law and that
being so, the order impugned would not
survive. In this case, none of the police
personnel conducting search and arrest
have claimed themselves to be a Gazetted
Officer. Therefore, the case has to be
examined keeping in view whether the
recovery officer has recorded reason in
writing for his belief that obtaining warrant
will afford the accused opportunity to
conceal the contraband and to escape in
view of proviso to section 42(1) of the
NDPS Act and the matter was reported to
the superior officer within 72 hours in
terms of section 42(2).

26. In State Of Punjab vs. Balbir
Singh, 1994 (3) SCC 299, the Supreme
Court has made the following observations:

"The object of NDPS Act is to
make stringent provisions for control and
regulation of operations relating to those
drugs and substances. At the same time, to
avoid harm to the innocent persons and to
avoid abuse of the provisions by the
officers, certain safeguards are provided
which in the context have to be observed
6 All. Ram Charan Jatav Vs. State of U.P.
399
strictly. Therefore these provisions make it
obligatory that such of those officers
mentioned
therein,
on
receiving
an
information, should reduce the same to
writing and also record reasons for the
belief while carrying out arrest or search
as provided under the proviso to Section
42(1). To that extent they are mandatory.
Consequently the failure to comply with
these
requirements
thus
affects
the
prosecution case and therefore vitiates the
trial."

To
the
similar
effect
are
the
observations of this Court in Saiyad Mohd.
Saiyad Umar Saiyed vs. The State of
Gujarat, (1995) 3 SCC 610.

27. What Section 42(2) requires is
that
where
an
officer
takes
down
information in writing under sub-Section
(1) he shall send a copy thereof to his
immediate officer senior who is Circle
Officer. There appears to be no evidence on
record that the information taken from
accused Ram Kunwar was reduced in
writing. It is not disputed that the search
was conducted after sunset and before
sunrise. Prior to conducting search in such
situation, it is provided that the officer
conducting search should record in writing
the grounds for belief and within 72 hours,
the same should be communicated to the
immediate superior. The scheme indicates
that in event the search has to be made
between sun set and sun rise, the warrant
would be necessary unless officer has
reasons to believe that a search warrant or
authorisation cannot be obtained without
affording the opportunity for escape of
offender which grounds of his belief has to
be recorded. In the present case, there is no
case that any ground for belief as
contemplated by proviso to sub-section (1)
of Section 42 or Sub-section (2) of Section
42 was ever recorded by PW-1. He simply
incorporated in the recovery memo that
there is possibility of concealment and
escape. He has also not stated any such
facts in his statements that he has
conducted any proceedings in regard to
compliance of proviso of Section 42(1).
Since reasons to believe have not been
recorded, therefore, under Section 42(2) it
is not found on record that copy thereof has
been sent to the senior officials. In the
statement, he has said that he did not
inform to the Kotwali, Amroha. He has
stated that on his information to Kotwali,
Amroha Incharge SI Bacan Singh came.
Bachan Singh has been examined as PW-2,
but he has also not stated about any such
communication and moreover he is also
equally ranked.

28. In Mohan Lal v State of Rajasthan,
2015 CRLJ 2811 (SC), the court referred to the
decision in Karnail Singh v. State of Haryana
(2009) 8 SCC 539, wherein the issue emerged
for consideration is whether Section 42 of the
NDPS Act is mandatory and failure to take
down the information in writing and forthwith
sending a report to his immediate officer
superior would cause prejudice to the accused.
The Court was required to reconcile the
decisions in Abdul Rashid Ibrahim Mansuri
v. State of Gujarat (2000)2 SCC 513 and
Sajan Abraham v. State of Kerala (2001) 6
SCC 692. The Constitution Bench explaining
the position opined that Abdul Rashid (supra)
did not require about literal compliance with the
requirements of Section 42(1) and 42(2) nor did
Sajan Abraham (supra) held that requirement
of Section 42(1) and 42(2) need not be fulfilled
at all. The larger Bench summarized the effect
of two decisions which the Court reproduced as
below:

"(a) The officer on receiving the
information of the nature referred to in
400 INDIAN LAW REPORTS ALLAHABAD SERIES
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
Section 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 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."

29. Earlier, in Rajinder Singh v.
State of Haryana (2011) 8 SCC 130,
placing reliance on the Constitution Bench,
it has been opined that total non-
compliance with the provisions of subsections (1) and (2) of Section 42 of the Act
is impermissible but delayed compliance
with satisfactory explanation for the delay
can, however, be countenanced.

30. Learned counsel for the appellant
has also contended that there has been noncompliance of Section 57 of the NDPS Act,
which reads as follows:

"Report of arrest and seizure -
Whenever any person makes any arrest or
seizure under this Act, he shall, within
fortyeight hours next after such arrest or
seizure, make a full report of all the
6 All. Ram Charan Jatav Vs. State of U.P.
401
particulars of such arrest or seizure to his
immediate official superior."

31. I find that in Sajan Abraham
(supra), placing reliance on State of Punjab v.
Balbir Singh (1994)3 SCC 299, it has been
held that Section 57 is not mandatory in nature
and when substantial compliance is made, it
would not vitiate the prosecution case. In
Kishan Chand v. State of Haryana (2013) 2
SCC 502, the Court while dealing with the
compliance of Sections 42, 50 and 57, has
opined thus:

"When there is total and definite
non- compliance with such statutory
provisions, the question of prejudice loses
its significance. It will per se amount to
prejudice.
These
are
indefeasible,
protective rights vested in a suspect and
are incapable of being shadowed on the
strength of substantial compliance."

32. It is pertinent to mention that the
purpose of these provisions is to provide
due protection to a suspect against false
implication and ensure that these provisions
are strictly complied with to further the
legislative mandate of fair investigation and
trial. It will be opposed to the very essence
of criminal jurisprudence, if upon apparent
and admitted non-compliance with these
provisions in their entirety, the court has to
examine the element of prejudice. The
element
of
prejudice
is
of
some
significance where provisions are directory
or are of the nature admitting substantial
compliance. Where the duty is absolute, the
element of prejudice would be of least
relevance.

33.