# Smt. Najmunisha v. The State of Gujarat

- **Citation:** 2024 INSC 290
- **Court:** Supreme Court of India
- **Decided:** 2024-04-09
- **Case number:** Criminal Appeal Nos. 2319-2320 of 2009
- **Bench:** Aniruddha Bose, Augustine George Masih
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/smt-najmunisha-v-the-state-of-gujarat-37582
- **Pages:** 31

## Headnote

As per the prosecution, secret information was received by PW-2
(Intelligence Officer/Inspector) as to Accused No. 4 (husband of
Accused No.1) carrying contraband from a particular route in an
auto rickshaw. Said secret information was recorded by her and
reported to her superior-PW-3, (Zonal Officer, a Gazetted Officer).
The raiding party chased the said auto rickshaw however, Accused
No.4 allegedly abandoned it fleeing away from the scene. On
conducting the search of the said auto rickshaw, the raiding party
inter alia found 1.450 Kgs charas. It eventually searched the
house of Accused No.4 and 1 and found 2.098 Kgs of charas.
The said raid/search not based on the personal knowledge of
PW-3 as regards there being contraband in the house of Accused
No.4 thereby necessitating search for the same, if was bereft of
mandatory statutory compliance of s.41(2) of the Narcotics Drugs
and Psychotropic Substances Act, 1985. Conviction of Accused
No.1 and 4, if justified.
Headnotes
Narcotics Drugs and Psychotropic Substances Act, 1985 -
s.41(2), 42 - "personal knowledge", "and taken in writing"
- Non-compliance:
Held: s.41(2) empowers a Magistrate to issue search warrant
for the arrest of any person or for search, whom he has reason
to believe to have committed any offence under the NDPS Act -
s.41(2) further enables a Gazetted Officer, so empowered to arrest
or conduct a search - The empowered Gazetted Officer must have
reason to believe that an offence has been committed under Chapter
IV, which necessitated the arrest or search- As per s.41(2), such
reason to believe must arise from either his personal knowledge
or information given by any person to him - Additionally, such
knowledge or information is to be reduced into writing by virtue
[2024] 4 S.C.R.
443
Smt. Najmunisha v. The State of Gujarat
of expression "and taken in writing" used therein - The secret
information received by PW-2 was limited to the apprehension that
Accused No.4 was to carry contraband via an auto rickshaw from
a particular route - There was no reference to the apprehension
of existence of contraband in the house of Accused No.4 in the
said recorded information - There was no prior information to the
raiding party, including PW-3 (Gazetted Officer) that there was
contraband in his house, necessitating search for the same - PW-1
deposed that he was asked to accompany the raiding party to the
house of Accused No.4, located nearby for carrying out a search
thereof and admits of having no knowledge about any written
information with the raiding party for conducting raid at the said
house - PW-2 admitted that the raiding team proceeded to the
house for the search of the contraband pursuant to the discussions
carried by them and not particularly on the personal knowledge of
PW-3 - She further admitted that it was obligatory for her to obtain
a written authorization from her superior officer, PW-3 however,
omitted seeking the said authorization on the premise that there
was an emergent need to conduct search at the house - Such
major inconsistency as to the 'source' of information of existence
of contraband at the house of Accused No.4 weakens the case
of prosecution - Plea that the expressions "personal knowledge"
and "and taken in writing" contemplated by s.41(2) ought to be
read disjunctively, eliminating the requirement of taking down
information in writing when it arises out of the personal knowledge
of the Gazetted Officer, rejected - Raid/search at the house of the
Accused No.1 and 4 was not based on the personal knowledge
of PW-3, rather it was an action on the part of raiding party bereft
of mandatory statutory compliance of s.41(2) - Conviction of
Accused No.1 premised on the recovery of 2.098 kgs of charas
from the house was not in consonance with the mandatory statutory
compliance of s.41(2)- Prosecution not able to establish its case
beyond reasonable doubt - Impugned judgment of the High Court
and Trial Court, set aside - Appellants acquitted by giving

## Text

_Characters 0–39,868 of 70,050. This is a partial read: ask again with offset=39868 for what follows._

* Author
[2024] 4 S.C.R. 442 : 2024 INSC 290
Smt. Najmunisha
v.
The State of Gujarat
(Criminal Appeal Nos. 2319-2320 of 2009)
09 April 2024
[Aniruddha Bose and Augustine George Masih,* JJ.]
Issue for Consideration
As per the prosecution, secret information was received by PW-2
(Intelligence Officer/Inspector) as to Accused No. 4 (husband of
Accused No.1) carrying contraband from a particular route in an
auto rickshaw. Said secret information was recorded by her and
reported to her superior-PW-3, (Zonal Officer, a Gazetted Officer).
The raiding party chased the said auto rickshaw however, Accused
No.4 allegedly abandoned it fleeing away from the scene. On
conducting the search of the said auto rickshaw, the raiding party
inter alia found 1.450 Kgs charas. It eventually searched the
house of Accused No.4 and 1 and found 2.098 Kgs of charas.
The said raid/search not based on the personal knowledge of
PW-3 as regards there being contraband in the house of Accused
No.4 thereby necessitating search for the same, if was bereft of
mandatory statutory compliance of s.41(2) of the Narcotics Drugs
and Psychotropic Substances Act, 1985. Conviction of Accused
No.1 and 4, if justified.
Headnotes
Narcotics Drugs and Psychotropic Substances Act, 1985 -
s.41(2), 42 - "personal knowledge", "and taken in writing"
- Non-compliance:
Held: s.41(2) empowers a Magistrate to issue search warrant
for the arrest of any person or for search, whom he has reason
to believe to have committed any offence under the NDPS Act -
s.41(2) further enables a Gazetted Officer, so empowered to arrest
or conduct a search - The empowered Gazetted Officer must have
reason to believe that an offence has been committed under Chapter
IV, which necessitated the arrest or search- As per s.41(2), such
reason to believe must arise from either his personal knowledge
or information given by any person to him - Additionally, such
knowledge or information is to be reduced into writing by virtue
[2024] 4 S.C.R.
443
Smt. Najmunisha v. The State of Gujarat
of expression "and taken in writing" used therein - The secret
information received by PW-2 was limited to the apprehension that
Accused No.4 was to carry contraband via an auto rickshaw from
a particular route - There was no reference to the apprehension
of existence of contraband in the house of Accused No.4 in the
said recorded information - There was no prior information to the
raiding party, including PW-3 (Gazetted Officer) that there was
contraband in his house, necessitating search for the same - PW-1
deposed that he was asked to accompany the raiding party to the
house of Accused No.4, located nearby for carrying out a search
thereof and admits of having no knowledge about any written
information with the raiding party for conducting raid at the said
house - PW-2 admitted that the raiding team proceeded to the
house for the search of the contraband pursuant to the discussions
carried by them and not particularly on the personal knowledge of
PW-3 - She further admitted that it was obligatory for her to obtain
a written authorization from her superior officer, PW-3 however,
omitted seeking the said authorization on the premise that there
was an emergent need to conduct search at the house - Such
major inconsistency as to the 'source' of information of existence
of contraband at the house of Accused No.4 weakens the case
of prosecution - Plea that the expressions "personal knowledge"
and "and taken in writing" contemplated by s.41(2) ought to be
read disjunctively, eliminating the requirement of taking down
information in writing when it arises out of the personal knowledge
of the Gazetted Officer, rejected - Raid/search at the house of the
Accused No.1 and 4 was not based on the personal knowledge
of PW-3, rather it was an action on the part of raiding party bereft
of mandatory statutory compliance of s.41(2) - Conviction of
Accused No.1 premised on the recovery of 2.098 kgs of charas
from the house was not in consonance with the mandatory statutory
compliance of s.41(2)- Prosecution not able to establish its case
beyond reasonable doubt - Impugned judgment of the High Court
and Trial Court, set aside - Appellants acquitted by giving benefit
of doubt. [Paras 42-47, 54]
Narcotics Drugs and Psychotropic Substances Act, 1985 -
s.42(1), (2), s.41(2) - Amendment Act of 2001:
Held: s.42(1) obligates an officer empowered by virtue of s.41(2)
to record the information received from any person regarding an
alleged offence under Chapter IV of the NDPS Act 1985 or record
the grounds of his belief as per the Proviso to s.42(1) in case an
444
[2024] 4 S.C.R.
Digital Supreme Court Reports
empowered officer proceeds on his personal knowledge - While
the same is to be conveyed to the immediate official superior
prior to the said search or raid, in case of any inability to do so,
the s.42(2) provides that a copy of the same shall be sent to the
concerned immediate official superior along with grounds of his
belief as per the proviso hereto - This relaxation contemplated
by virtue of s.42(2) was brought about through the Amendment
Act of 2001 to the NDPS Act wherein prior to this position s.42(2)
mandated the copy of the said writing to be sent to the immediate
official superior "forthwith". [Para 31]
Evidence Act, 1872 - s.6 - "acts forming part of same
transaction" - Search conducted at the residence of the
Accused No.4 if was in continuance of action of the raiding
party towards the search of the auto rickshaw based on the
secret information received by PW-2 (Intelligence Officer/
Inspector):
Held: No - The attempt towards raiding/searching the residence
of Accused No.4 was not explicitly in pursuance of detaining the
said accused - Testimonies of the members of the raiding party
showcase the idea of search of the house to be an afterthought
with an admitted time gap of 40-45 minutes between having raided
the auto rickshaw which was alleged to be abandoned by the driver
and Accused No.4 and subsequent search of the house of Accused
No.4, wherein Accused No.1 was present - Moreover, it appears
from the record that even the idea to search the house was for
the purpose of recovery of more contraband and not to apprehend
the said absconded accused at the first instance - Hence, the
search conducted at the residence of the Accused No.4 was not
a continuance of action of the raiding party towards the search
of the auto rickshaw based on the secret information received by
PW-2 - Accordingly, it does not appropriately fulfill the requirements
of the test laid down in Gentela Vijyvardhan Rao and Anr. v. State
of Andhra Pradesh - Searches of the abandoned auto rickshaw,
and at the house wherein Accused No.1 was present, were thus,
different transactions. [Paras 28, 29]
Narcotics Drugs and Psychotropic Substances Act, 1985 - s.67
- Statement of the appellants-accused recorded u/s.67 - Plea
of the appellants that same was not admissible and ought
not to have been the basis of conviction of the appellantsAccused No.1 and 4:
[2024] 4 S.C.R.
445
Smt. Najmunisha v. The State of Gujarat
Held: In Tofan Singh v. State of Tamil Nadu it was held held that
s.67 is at an antecedent stage to the investigation, which occurs
after the empowered officer u/s.42 of the NDPS Act has the reason
to believe upon information gathered in an enquiry made in that
behalf that an offence under NDPS Act has been committed and is
thus not even in the nature of a confessional statement - Hence,
question of its being admissible in trial as a confessional statement
against the accused does not arise - The same, therefore, cannot
be considered to convict an accused person under the NDPS
Act - By virtue of the decision in Tofan Singh, the benefit is to be
granted to the appellants in regard to the inadmissibility of their
statements u/s. 67. [Paras 51, 52]
Narcotics Drugs and Psychotropic Substances Act, 1985
- s.41(2) - Power of search and seizure - Limited by the
recognition of fundamental rights by the Constitution and
statutory limitations:
Held: s.41(2) begins from the power of search and seizure
conferred by the State upon its executive or administrative
arms - Such power is inherently limited by the recognition
of fundamental rights by the Constitution as well as statutory
limitations - At the same time, it is not legitimate to assume that
Article 20(3) of the Constitution of India would be affected by
the provisions of search and seizure - The statutory provisions
conferring authorities with the power to search and seize are
a mere temporary interference with the right of the accused as
they stand well regulated by reasonable restrictions emanating
from the statutory provisions itself - Such a power cannot be
considered as a violation of any fundamental rights of the person
concerned. [Para 41]
Narcotics Drugs and Psychotropic Substances Act, 1985
- Constitution of India - Article 21 - Just and fair trial, a
fundamental right - Actions of authorities within the NDPS
Act must ensure upholding the rights of the accused to have
a fair trial:
Held: Article 21 necessitates a just and fair trial to be a humane
and fundamental right and actions of the prosecution as well as
the authorities concerned within the meaning of the NDPS Act
1985 must be towards ensuring of upholding of the rights of the
accused in order to allow to have a fair trial - The harmonious
446
[2024] 4 S.C.R.
Digital Supreme Court Reports
balance between the Latin maxims salus populi suprema lex (the
safety of the people is the supreme law) and salus republicae
suprema lex (safety of the State is the supreme law) is not only
crucial and pertinent but lies at the core of the doctrine that welfare
of an individual must yield to that of the community subject to the
State being right, just, and fair. [Para 24]
Case Law Cited
Tofan Singh v. State of Tamil Nadu [2020] 12 SCR
583 : (2021) 4 SCC 1; Gentela Vijyvardhan Rao and
Anr. v. State of Andhra Pradesh [1996] Supp. 5 SCR
273 : (1996) 6 SCC 241; State of Punjab v. Balbir Singh
[1994] 2 SCR 208 : (1994) 3 SCC 299; Karnail Singh
v. State of Haryana [2009] 11 SCR 470 : (2009) 8 SCC
539 - relied on.
Darshan Singh v. State of Haryana (2016) 14 SCC
358; Abdul Rashid Ibrahim Mansuri v. State of Gujarat
[2000] 1 SCR 542 : (2000) 2 SCC 513; Sajan Abraham
v. State of Kerala [2001] Supp. 1 SCR 335 : (2001) 6
SCC 692; Balak Ram v. State of Uttar Pradesh [1975]
1 SCR 753 : (1975) 3 SCC 219; State of Himachal
Pradesh v. Pawan Kumar [2005] 3 SCR 417 : (2005)
4 SCC 350; Madan Lal v. State of Himachal Pradesh
[2003] Supp. 2 SCR 716 : (2003) 7 SCC 465; Dhal
Singh Dewangan v. State of Chhattisgarh [2016] 8
SCR 36 : (2016) SCC OnLine SC 983; Chhunna alias
Mehtab v. State of Madhya Pradesh (2002) 9 SCC
363; Dharamveer Parsad v. State of Bihar (2020) 12
SCC 492; Ramabora alias Ramaboraiah & Anr. v.
State of Karnataka [2022] 4 SCR 827 : (2022) SCC
OnLine SC 996; Arvind Kumar alias Nemichand
& Ors. v. State of Rajasthan [2021] 11 SCR 237 :
(2021) SCC OnLine SC 1099; MP Sharma v. Satish
Chandra Sharma, District Magistrate, Delhi [1954] 1
SCR 1077 - referred to.
Miranda v. Arizona (1966) 384 US 436 - referred to.
List of Acts
Narcotics Drugs and Psychotropic Substances Act, 1985; Evidence
Act, 1872; Constitution of India.
[2024] 4 S.C.R.
447
Smt. Najmunisha v. The State of Gujarat
List of Keywords
Contraband; Raid/search of house; Raiding party; "Personal
knowledge"; "and taken in writing"; Written authorization; Gazetted
Officer; Benefit of doubt; Beyond reasonable doubt; Search and
seizure; Confessional statements.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 23192320 of 2009
From the Judgment and Order dated 16.03.2009 of the High Court of
Gujarat at Ahmedabad in CRLA No. 1702 and 2097 of 2004
Appearances for Parties
Sanjay Jain, Adv. for the Appellants.
K M Nataraj, A.S.G., Ms. Deepanwita Priyanka, Ms. Swati Ghildiyal,
Ms. Devyani Bhatt, Ms. Srujana Suman Mund, Shailesh Madiyal, T
A Khan, Vatsal Joshi, Annirudh Sharma Ii, Arvind Kumar Sharma,
Advs. for the Respondents
Judgment / Order of the Supreme Court
Judgment
Augustine George Masih, J.
1.
The instant criminal appeals arise out of SLP (Criminal) No(s). 74197420 of 2009 assailing the Common Impugned Judgment dated
16.03.2009 of the Division Bench of Gujarat High Court in Criminal
Appeal Nos. 1702 of 2004 and 2097 of 2004 moved by the Original
Accused No. 01 (Smt. Najmunisha - Appellant in Criminal Appeal No.
1702 of 2004 before the High Court) and Original Accused No. 04
(Abdul Hamid Chandmiya alias Ladoo Bapu - Appellant in Criminal
Appeal No. 2097 of 2004 before the High Court).
2.
Smt. Najmunisha (hereinafter referred to as "Accused No. 01") was
originally convicted under Sections 29 read with 20(b)(ii)(c) and
25 of the Narcotics Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as "NDPS Act 1985"). The Trial Court had
sentenced her to ten years of rigorous imprisonment and fine of
INR 30,000/- (Rupees Thirty Thousand only) for the charge under
Section 29 read with Section 20(b)(ii)(c) of the NDPS Act 1985 and
448
[2024] 4 S.C.R.
Digital Supreme Court Reports
in default, she had to undergo one year of simple imprisonment. No
separate sentence was imposed under Section 25 of the NDPS Act
1985. This sentence was subsequently modified by the High Court of
Gujarat while partly allowing her appeal to the effect that her fine was
enhanced to the minimum prescribed fine of INR 1,00,000/- (Rupees
One Lakh only) and reduced the sentence in default of paying the
fine from simple imprisonment of one-year to simple imprisonment
of three months.
2A. Abdul Hamid Chandmiya alias Ladoo Bapu (hereinafter referred to
as "Accused No. 04") is the husband of Accused No. 01 who was
originally convicted under Section 29 read with 20(b)(ii)(c) of the NDPS
Act 1985 and sentenced to thirteen years of rigorous imprisonment
and fine of INR 1,00,000/- (Rupees One Lakh only). The same was
affirmed by the High Court of Gujarat while also dismissing his appeal.
3.
Accused No. 05 (Nazir Ahmed alias Nazir Bazara) was convicted
under Section 20(b)(ii)(a) of the NDPS Act 1985 and was sentenced
to six months of rigorous imprisonment along with fine of INR 5,000/-
(Rupees Five Thousand only) which he completed during the trial and
therefore did not prefer any appeal before the High Court of Gujarat.
4.
The facts leading to the present set of appeals are that on 10.12.1999
at about 06:30 PM, the PW-02 Mrs Krishna Chaube (Intelligence
Officer/Inspector) (hereinafter referred to as "Mrs Chaube") had
received a secret information that the Accused No. 04 would be
carrying narcotic substances in an auto rickshaw bearing registration
number GJ-9T-2355 at about 07:00 AM on 11.12.1999 and shall be
passing through one Shahpur Darwaja. The said secret information
was recorded by her and reported to her superior officer (PW03), namely Mr Pawan Singh Tomar - who was the Zonal Officer
(hereinafter referred to as "Mr Tomar").
5.
Thereby, on 11.12.1999, it is submitted by the prosecution that on
directions of Mr Tomar, they assembled at about 06:30 AM near the
raiding point and arranged for the panchas and waited for the Accused
No. 04 at different points of the raiding route. When the Accused
No. 04 showed up in the said vehicle as per the information, they
attempted to stop the auto rickshaw, instead it sped away at a high
speed. Therefore, the members of the raiding party arranged for and
chased the said auto rickshaw which was eventually, after covering
a certain distance, found abandoned near a road and the Accused
[2024] 4 S.C.R.
449
Smt. Najmunisha v. The State of Gujarat
No. 04 was said to have escaped. On conducting the search of the
said auto rickshaw, the raiding party found a driving license of one
Shri Abdulgafar Gulamali Shaikh alias Rajubhai in addition to charas
to the tune of 1.450 Kilograms.
6.
As Accused No. 04 had run away, the raiding party eventually was
led to the house of Accused No. 04 wherein the Accused No. 01 was
already present. Thereinafter, the son of Accused No. 01 and Accused
No. 04 - namely Abdul Rajak (hereinafter referred to as "Accused
No. 02") - came inquiring. Eventually the raiding party conducted
a search of the said house wherein in the open kitchen there was
a cement bag which had yellow coloured wires beneath which they
are said to have found one bundle wrapped in newspaper which
was fastened with a linen thread inside which a transparent plastic
bag contained 2.098 Kilograms of substance of which turned out
to be charas. Thereafter, the necessary formalities were completed
and Accused No. 01 and Accused No. 02 were arrested. Eventually,
the panchnama was also recorded with two independent witnesses.
7.
The statements of Accused No. 01 and Accused No. 02 were
recorded under Section 67 of the NDPS Act 1985 wherein it was
stated that Accused No. 01 aids the business of drug trafficking as
conducted by Accused No. 04 - who was absconding. Eventually,
Accused No. 04 is also said to have been arrested on 26.06.2000
and per his statement under Section 67 of the NDPS Act 1985 he
had confessed to be transporting and selling the contraband which
he sold regularly to Accused No. 05.
8.
Eventually, the charges were framed and a total of five prosecution
witnesses were examined with PW-01 being one of the panch
witnesses, PW-02 to PW-04 being members of the raiding party, and
PW-05 being the FSL expert. Per contra, the defence had examined
a total of seven witnesses in their favour.
9.
The trial of Accused No. 01 to Accused No. 05 was concluded by the
Additional Sessions Judge in Sessions Case No. 143 of 2000 and
Sessions Case No. 295 of 2000 vide judgment dated 28.01.2004,
whereby while the Accused No. 02 and Accused No. 03 were
acquitted, Accused No. 01, Accused No. 04 and Accused No. 05
were convicted as aforementioned.
9A. Since both the Accused No. 01 and Accused No. 04 had moved in
respective appeals before the High Court of Gujarat their conviction
450
[2024] 4 S.C.R.
Digital Supreme Court Reports
stood affirmed, while the fine imposed on Accused No. 01 was
enhanced as aforementioned and the default sentence was reduced.
As stated above, Accused No. 05 did not prefer any appeal.
10. The High Court of Gujarat had observed that the statements of the
appellants herein under Section 67 of the NDPS Act 1985 were
prima facie voluntary and without inducement, threat or coercion
and the statement of Accused No. 01 refers to dealing of narcotic
substances by Accused No. 04 for a long period of time in which
she aided as well. Therefore, there exists a presumption in favour
of the prosecution under Section 114 of the Indian Evidence Act,
1872 (hereinafter referred to as "IEA 1872"). None of the accused
had either retracted the said statements or they had moved any
complaints alleging perversity. The defence, despite leading evidence,
could not establish their version that the officers had come inquiring
about house of Accused No. 04 and eventually arrested Accused
No. 01 and Accused No. 02 as against all legalities. Furthermore,
there was consistency in the statements of prosecution witnesses
and that no specific unreliability was established in the panchnama
by the defence. As to the necessary compliance laid down in the
provisions of the NDPS Act 1985, the procedure established under
Section 52A of the NDPS Act 1985 was not to be considered and
that there was no requirement of any authorization under Section 41
of the NDPS Act 1985. Since Mr Tomar, being a Gazetted Officer,
had accompanied the raiding party pursuant to the information
communicated by Mrs Chaube on 10.12.1999, defence has also
not raised any contention as to breach of Section 36 or Section 53
of the NDPS Act 1985.
11. The High Court of Gujarat had also observed in paragraph number
36 of its judgment that there is compliance of Section 57 of the
NDPS Act 1985 as established from the reports (Ex. 87 and Ex.
112) submitted to the Zonal Officer. Furthermore, it rejected the
defence that the prosecution failed to prove documentary evidence
as the defence did not raise any objection to the exhibiting of said
documents, including arrest reports recorded in compliance of Section
57 of the NDPS Act, arrest memo of Accused No. 04 and Accused
No. 01 and intimation given to the next kin of the accused persons.
12. The High Court of Gujarat was of the opinion that except two minor
inconsistencies, namely, apropos who called the panchas and the
[2024] 4 S.C.R.
451
Smt. Najmunisha v. The State of Gujarat
recording of statement of Accused No. 02, there was no reason to
question the veracity of the depositions of the members of the raiding
party. Those minor fallacies in the statements of the prosecution
witnesses do not go to the root of the matter. Thereafter, while
acquitting Accused No. 02, the High Court believed that there was
no evidence implicating him to the criminality involved. In the same
breath, the Court observed that such finding of acquittal does not
throw prosecution's case as against other accused persons, inter alia,
Accused No. 01 and Accused No. 04, which is established beyond
any reasonable doubts.
13. With respect to the objection that no independent witnesses were
examined to prove joint possession of house by Accused No. 01 and
Accused No. 04, the High Court of Gujarat placed reliance on the
depositions of Defence Witness (brother of Accused No. 04), who
testified that the said accommodation was occupied by the accused
persons to entertain their guests. The fact of possession of the house
by Accused No. 01 and Accused No. 04 is bolstered by their own
confessional statements and corroborated by the testimony of an
independent witness PW-01. Thereupon, perusing the statements
of Mrs Chaube and PW-05, the High Court held that there was no
infirmity regarding the receipt of muddamal with seals intact on the
goods being sent to the Forensic Science Laboratory for examination.
14. Delving into the question of compliance of Section 42(2) of the
NDPS Act 1985, the High Court was inclined to accept the argument
of the prosecution that the statement of Mrs Chaube with respect
to recording of secret information and conveying it to her superior
officer stood established by consistent testimonies of Mrs Chaube
and Mr Tomar and clarified that the testimony of the former cannot
be thrown on the premise that there was variation on the point that
who called the panch witness. Considering the aforementioned, the
High Court of Gujarat affirmed the case of conviction of the Accused
No. 01 and Accused No. 04.
15. The learned Counsel for the appellants herein contends that the
statement of the appellants/accused in the instant case recorded
under the provision of Section 67 of the NDPS Act 1985 was not
admissible and ought not to have been the basis of conviction of
the Accused No. 01 and Accused No. 04. It has been brought to
our attention that the High Court has critically scrutinized the said
452
[2024] 4 S.C.R.
Digital Supreme Court Reports
statements of Accused No. 01 to Accused No. 04 and has observed
that the same being voluntary in nature and having been corroborated
by other evidence can form the basis of their conviction. For this
purpose, reliance has been placed on the decision in Tofan Singh
v. State of Tamil Nadu (2021) 4 SCC 1 whereby it has been
categorically held that a statement recorded under Section 67 of the
NDPS Act 1985 is inadmissible in evidence. The majority opinion
herein had held that power of recording of statement under Section
67 of the NDPS Act is limited in nature and conferred upon subject
to the safeguards as set out in Sections 41 to 44 of the NDPS Act
1985 for the purpose of entry, search, seizure and arrest without
warrants and for conducting of only an enquiry and not in the course
of investigation. It is for the initiation of an investigation or enquiry
under the NDPS Act 1985 and it does not meet the threshold of a
confessional statement.
16. It is submitted that the secret information received by Mrs Chaube was
only related to the auto rickshaw wherein the Accused No. 04 was to
be carrying the contraband - which was eventually seized. However,
there existed no secret information apropos the house wherein the
subsequent search/raid was conducted by the raiding party. The
latter was totally out of the scope of the information received and
recorded and thereby the search therein was absolutely illegal and
in violation of the provisions of Section 42 of the NDPS Act 1985.
The learned Counsel has further drawn our attention to the fallacies
and inconsistencies in the panchnama recorded by the raiding party
in addition to the depositions of the prosecution witnesses.
17. The learned Counsel further relies on Darshan Singh v. State of
Haryana (2016) 14 SCC 358 which deals with scope of Sections
41(1) and (2) of the NDPS Act 1985 and the need of their independent
compliance against each other. This Court herein went on to hold
that mere registration of FIR at the instance of the SHO and its
subsequent communication to the Superintendent of Police would
not amount to sufficient compliance with Section 42(2) of the NDPS
Act 1985. For this purpose, reference is made to paragraph number
13 of the said judgment at Page 364 as follows:
"13. Having given our thoughtful consideration to the
submission advanced at the hands of the learned counsel
for the respondent, we are of the view that the mandate
[2024] 4 S.C.R.
453
Smt. Najmunisha v. The State of Gujarat
contained in Section 42(1) of the NDPS Act, requiring the
recording in writing, the details pertaining to the receipt of
secret information, as also, the communication of the same
to the superior officer are separate and distinct from the
procedure stipulated under the provisions of the Criminal
Procedure Code. Sub-section (1) of Section 41 of the
NDPS Act provides that a Metropolitan Magistrate or a
Magistrate of the First Class or any Magistrate of Second
Class specially empowered by the State Government may
issue a warrant for the arrest of any person whom he has
reason to believe to have committed any offence punishable
under Chapter IV. Sub-section (2) of Section 41 refers
to issuance of authorisation for similar purposes by the
officers of the Departments of Central Excise, Narcotics,
Customs, Revenue Intelligence, etc. Sub-section (1) of
Section 42 of the NDPS Act lays down that the empowered
officer if he has a prior information given by any person,
should necessarily take it down in writing, and where he
has reason to believe from his personal knowledge, that
offences under Chapter IV have been committed or that
materials which may furnish evidence of commission of
such offences are concealed in any building, etc. he may
carry out the arrest or search, without warrant between
sunrise and sunset and he may do so without recording
his reasons of belie. The two separate procedures noticed
above are exclusive of one another. Compliance with
one, would not infer compliance with the other. In the
circumstances contemplated under Section 42 of the NDPS
Act the mandate of the procedure contemplated therein will
have to be followed separately, in the manner interpreted
by this Court in Karnail Singh case [Karnail Singh v. State
of Haryana, (2009) 8 SCC 539 : (2009) 3 SCC (Cri) 887]
and the same will not be assumed, merely because the
Station House Officer concerned had registered a first
information report, which was also dispatched to the
Superintendent of Police, in compliance with the provisions
of the Criminal Procedure Code."
18. The aforesaid reference places its reliance on a judgment of the
Constitution Bench of this Court, i.e., Karnail Singh v. State of
454
[2024] 4 S.C.R.
Digital Supreme Court Reports
Haryana (2009) 8 SCC 539 which is also relied upon by the learned
Counsel for the appellants. It is a well celebrated judgment on the
statutory requirement of writing down and conveying information to
the superior officer prior to entry, search and seizure as per Section
42(1) and (2) of the NDPS Act 1985, requiring a literal or substantial
compliance. The learned Counsel has brought our attention to
paragraph number 35 of the judgment at page 554 which dealt with
effect of the decisions in Abdul Rashid Ibrahim Mansuri v. State
of Gujarat (2000) 2 SCC 513 and that in Sajan Abraham v. State
of Kerala (2001) 6 SCC 692. By virtue of this, it was observed that
while a total non-compliance of Section 42 of the NDPS Act 1985
would be impermissible, a delayed compliance with satisfactory
explanation about the said delay could be an acceptable compliance
of statutory requirements under Sections 42(1) and (2). For a better
clarity of the judgment, paragraph number 35 is reproduced as follows:
"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
[2024] 4 S.C.R.
455
Smt. Najmunisha v. The State of Gujarat
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 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,
456
[2024] 4 S.C.R.
Digital Supreme Court Reports
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."
19. Per contra, the learned Counsel for the Respondent No. 02 herein
contents that there is no infirmity in the concurrent findings of the
Trial Court and the High Court. There has been well recorded
compliance of the statutory requirements and the evidences have
been sufficiently appraised by the Courts below. Moreover, there has
been no material contradiction in the testimonies of the prosecution
witnesses and the same aspires confidence. It is a settled law that
the concurrent findings of the facts must not ordinarily be interfered
with unless there exists a prima facie perversity or absurdity in light
of the observation in paragraph number 26 in the decision delivered
in Balak Ram v. State of Uttar Pradesh (1975) 3 SCC 219.
20. It is further submitted by the learned Counsel for the Respondent
No. 02 that there has been substantial compliance of the statutory
requirements under Section 42 of the NDPS Act 1985 as Mrs Chaube
recorded the secret information in writing and conveyed the same to
her superior officer namely, Mr Tomar prior to the raid conducted as
against Accused No. 04 and Accused No. 01. It is contended that
the search undertaken at the residence of Accused No. 04 whereby
Accused No. 01 was also present, was in continuation of the action
taken on the basis of the said secret information. For this, the learned
Counsel has brought to our attention the testimonies of Mrs Chaube
(PW-02) and Mr Tomar (PW-03). Alternatively, even assuming that
the said latter part of the raid/search at the house of the Accused
No. 01 and Accused No. 04 was not in continuation of the action
taken towards Accused No. 04 as per the secret information, there
has still been appropriate compliance of Section 42 of the NDPS
Act 1985 for the reason that the same was based on the personal
[2024] 4 S.C.R.
457
Smt. Najmunisha v. The State of Gujarat
knowledge of Mr Tomar, who is a Gazetted Officer. It is further
contended that the provision of Section 42(2) of the NDPS Act is to
be read disjunctively and henceforth there is no requirement to take
down the information in writing where it emanates from the personal
knowledge of the superior officer. To further this argument, the learned
Counsel has distinguished the facts of the present case from the
ratio in decisions in State of Punjab v. Balbir Singh (1994) 3 SCC
299 and Karnail Singh (supra) as they refer only to the process to
be followed upon receipt of information from any person and not to
"personal knowledge" of the officer.
21. Furthermore, it is submitted that there has been a substantial
compliance of Section 42(1) of the NDPS Act 1985 as during the
action being taken against the Accused No. 04 and his absconding
therefrom, an emergent situation arose which necessitated the
search in his house - which was nearby to the place where auto
rickshaw was abandoned. There was a grave possibility that if the
Accused No. 04 was at his house then he might run away and/or
if there was any further amount of contraband at his residence, he
would have appropriated that as well. Thence, the raiding party had
their hands tied down to necessarily carry out the said search at the
house of Accused No. 04 in light of the ratio in Karnail Singh (supra)
not necessitating literal compliance rather substantial compliance
contingent on the facts of each case.
22. The learned Counsel for the Respondent No. 02 further contends
that the scope of Section 50 of the NDPS Act 1985 is limited to the
search on the person of an individual and does not include adherence
to the search made on any premise(s). Reliance is placed on State
of Himachal Pradesh v. Pawan Kumar (2005) 4 SCC 350 wherein
it was held that presence of a Gazetted Officer is required only at the
time of the search which is on the person and is not applicable during
search of premises. To bolster this argument, it is submitted that the
said interpretation fits into the reading of Section 42 of the NDPS
Act 1985 as Section 42(1)(a) of the NDPS Act 1985 comprehends
search of a building or conveyance or place while Section 42(1)(d)
of the NDPS Act 1985 contemplates for search of a person.
23. Apropos, the presumption pertaining to the recovery of contraband,
the learned Counsel for the Respondent No. 02, submits that
once the recovery of the contraband has been made from the
458
[2024] 4 S.C.R.
Digital Supreme Court Reports
possession of an individual, there arises a rebuttable presumption
as per Section 54 of the NDPS Act 1985 that the said individual
has committed an offence under the NDPS Act 1985. To further
build this contention, the learned Counsel has brought our attention
to the decision in Madan Lal v. State of Himachal Pradesh
(2003) 7 SCC 465 whereby at paragraph numbers 22 to 26 of the
judgment, it was has been laid down that the aforesaid possession
of contraband includes constructive possession and it need not
be only an actual possession of the contraband. On the basis of
these above recorded submissions, he prays for dismissal of the
instant appeals.
24. Before we delve into the factual analysis based on the legal principles
and jurisprudence existing in each contention, it is pertinent to refer
to the heart and soul of the Constitution of India, 1950 (hereinafter
referred to as "Constitution of India") - Article 21 - necessitates a
just and fair trial to be a humane and fundamental right and actions
of the prosecution as well as the authorities concerned within the
meaning of the NDPS Act 1985 must be towards ensuring of upholding
of the rights of the accused in order to allow to have a fair trial.
The harmonious balance between the Latin maxims salus populi
suprema lex (the safety of the people is the supreme law) and salus
republicae suprema lex (safety of the State is the supreme law) is
not only crucial and pertinent but lies at the core of the doctrine that
welfare of an individual must yield to that of the community subject
to the State being right, just, and fair as was iterated in the decision
of Miranda v. Arizona (1966) 384 US 436.
25. The NDPS Act 1985 being a special law with the purpose to curtail
the drug menace in the republic necessitated the comprehensive
control in favour of the authorities. The same is well reflected in the
decisions of this Court across the last couple of decades. Accordingly,
the key provisions to be contemplated for the purpose of appraising
the present factual matrix are Sections 41, 42, and 67 of the NDPS
Act 1985. The same are thereby analysed herein after.
26. Having heard the learned Counsels for both the parties, we deem
it appropriate to refer to the jurisprudence of Section 6 of the IEA
1872. It is to be observed that it deals with relevancy of facts forming
part of same transaction and therefore, it is crucial to refer the bare
provision which reads as follows:
[2024] 4 S.C.R.
459
Smt. Najmunisha v. The State of Gujarat
"6. Relevancy of facts forming part of same
transaction.--Facts which, though not in issue, are so
connected with a fact in issue as to form part of the same
transaction, are relevant, whether they occurred at the
same time and place or at different times and places."
27. This court has laid down the test for "acts forming part of same
transaction" in Gentela Vijyvardhan Rao and Anr. v. State of
Andhra Pradesh (1996) 6 SCC 241, wherein it has been held that
it is based on spontaneity and immediacy of such statement or fact
in relation to the fact in issue. Provided that if there was an interval
which ought to have been sufficient for purpose of fabrication then
the said statement having been recorded, with however slight delay
there may be, is not part of res gestae. The same was adopted by a
3-Judges' Bench in the decision of Dhal Singh Dewangan v.