* 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.
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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.
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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. 2319-
2320 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). 7419-
7420 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.
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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.
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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.
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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.
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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.
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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. State
of Chhattisgarh (2016) SCC OnLine SC 983.
28. In the present factual matrix, having perused the material it appears
that the attempt towards raiding/searching the residence of Accused
No. 04 was not explicitly in pursuance of detaining the said accused
but the 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.
04 and subsequent search of the house of Accused No. 04, wherein
Accused No. 01 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. Thence, it can be safely concluded that
the search conducted at the residence of the Accused No. 04 is not
a continuance of action of the raiding party towards the search of
the auto rickshaw based on the secret information received by Mrs
Chaube. Accordingly, it does not appropriately fulfill the requirements
of the test laid down in Gentela Vijyvardhan Rao (supra).
29. Having reached the conclusion that the searches of the abandoned
auto rickshaw, and at the house wherein Accused No. 01 was
present, to be different transactions, the subsequent consideration
is apropos necessary statutory safeguards enlisted in the NDPS Act
1985. Henceforth, we shall further delve into the legal analysis of
relevant provisions of the NDPS Act 1985.
460 [2024] 4 S.C.R.
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30. The next issue that falls for our consideration is with respect to
the compliance of Section 42 of the NDPS Act 1985. For the said
purposes, an analysis of the bare text of Section 42 of the NDPS
Act 1985 is undertaken hereinafter. Section 42 of the NDPS Act
1985 is worded as follows:
“42. Power of entry, search, seizure and arrest without
warrant or authorisation.—
(l) Any such officer (being an officer superior in rank to a
peon, sepoy or constable) of the departments of central
excise, narcotics, customs, revenue intelligence 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 personal 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
[2024] 4 S.C.R. 461
Smt. Najmunisha v. The State of Gujarat
or conveyance which he has reason to
believe to be liable to confiscation under
this Act and any document or other article
which he has reason to believe may
furnish evidence of the commission of
any offence punishable under this Act or
furnish evidence of holding any illegally
acquired property which is liable for seizure
or freezing or forfeiture under Chapter VA
of this Act; and
(d) detain and search, and, if he thinks proper,
arrest any person whom he has reason
to believe to have committed any offence
punishable under this Act:
[Provided that in respect of holder of a licence for
manufacture of manufactured drugs or psychotropic
substances or controlled substances granted under this
Act or any rule or order made thereunder, such power
shall be exercised by an officer not below the rank of
sub-inspector:
Provided further that] if such officer has reason to believe
that a search warrant or authorisation cannot be obtained
without affording opportunity for the concealment of
evidence or facility for the escape of an offender, he may
enter and search such building, conveyance or enclosed
place at any time between sunset and sunrise after
recording the grounds of his belief.
(2) Where an officer takes down any information in writing
under sub-section (1) or records grounds for his belief
under the proviso thereto, he shall within seventy-two hours
send a copy thereof to his immediate official superior.”
31. From the perusal of provision of Section 42(1) of the NDPS Act
1985, it is evident that the provision obligates an officer empowered
by virtue of Section 41(2) of the NDPS Act 1985 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 Section 42(1) of the NDPS Act 1985
462 [2024] 4 S.C.R.
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in case an 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
Section 42(2) of the NDPS Act 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 Section 42(2) of the NDPS Act 1985 was
brought about through the Amendment Act of 2001 to the NDPS Act
of 1985 wherein prior to this position, the Section 42(2) mandated
the copy of the said writing to be sent to the immediate official
superior “forthwith”.
32. The decision in Karnail Singh (supra) has been extensively
referred by the learned Counsel for the Appellants and at the cost
of repetition, it is observed that absolute non-compliance of the
statutory requirements under the Section 42(1) and (2) of the NDPS
Act 1985 is verboten. However, any delay in the said compliance
may be allowed considering the same is supported by well-reasoned
explanations for such delay. This position adopted by the instant
5-Judges’ Bench of this Court is derived from the ratio in the decision
in Balbir Singh (supra) which is a decision by a 3-Judges’ Bench
of this Court.
33. Another 3-Judges’ Bench while dealing with compliance of Section
42 of the NDPS Act 1985 in Chhunna alias Mehtab v. State of
Madhya Pradesh (2002) 9 SCC 363 dealt with criminal trial wherein
there was an explicit non-compliance of the statutory requirements
under the NDPS Act 1985. It was held that the trial of the PetitionerAppellant therein stood vitiated. For a better reference, the judgment
is quoted below as:
“1. The case of the prosecution was that at 3.00 a.m. a
police party saw opium being prepared inside a room and
they entered the premises and apprehended the accused
who was stated to be making opium and mixing it with
chocolate.
2. It is not in dispute that the entry in search of the premises
in question took place between sunset and sunrise at 3.00
a.m. This being the position, the proviso to Section 42
of the Narcotic Drugs and Psychotropic Substances Act
was applicable and it is admitted that before the entry for
[2024] 4 S.C.R. 463
Smt. Najmunisha v. The State of Gujarat
effecting search of the building neither any search warrant
or authorisation was obtained nor were the grounds for
possible plea that if opportunity for obtaining search
warrant or authorisation is accorded the evidence will
escape indicated. In other words, there has been a noncompliance with the provisions of the proviso to Section
42 and therefore, the trial stood vitiated.
3. The appeals are, accordingly, allowed.”
34. In Dharamveer Parsad v. State of Bihar (2020) 12 SCC 492,
there was non-examination of the independent witness without any
explanation provided by the prosecution and even the panchnama
or the seizure memo were not prepared on the spot but after having
had reached police station only. Since the vehicle was apprehended
and contraband was seized in non-compliance of the Section 42
of the NDPS Act 1985 – conviction and sentence of the appellant
therein was set aside. Apart from the said reasons there were
various suspicious circumstances that inspired the confidence of the
Court to set aside the conviction affirmed by the High Court therein.
Paragraph numbers 05 and 06 are reiterated below for reference:
“5. In the present case PW 1, who is the investigating
officer, in his deposition has stated that the information
i.e. the contraband was being carried from the IndoNepal border identified in a vehicle, details of which had
also been provided, had been received in the evening of
2-7-2007. PW 1 has further stated that on receipt of this
information, he had formed a team and had moved to
Raxaul from Patna, which place they had reached by 2.00
a.m. in the morning of 3-7-2007. The vehicle in question
had been apprehended and the contraband seized at
about 6.00 a.m. of 3-7-2007. No explanation has been
offered why the statement had not been recorded at any
anterior point of time and the same was so done after the
seizure was made.
6. Even if we were to assume that the anxiety of the
investigating officer was to reach Raxaul which is on
the international border and therefore, he did not have
the time to record said information as per requirement
of Section 42 of the Act, the matter does not rest there.
464 [2024] 4 S.C.R.
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There are other suspicious circumstances affecting the
credibility of the prosecution case. Though, the investigating
officer has stated that he had moved to Raxaul along
with a team and two independent witnesses, the said
independent witnesses were not examined. No explanation
is forthcoming on this count also. That apart from the
materials on record it appears that no memos including
the seizure memo were prepared at the spot and all the
papers were prepared on reaching the police station at
Patna on 4-7-2007.”
35. The case presented by the prosecution appears to be primarily
standing on the fact that initially, Accused No. 04 – who was
identified by Mr Tomar to be sitting inside the auto rickshaw which
was part of the secret information – had absconded, leaving behind
the contraband which was eventually seized by members of the
raiding party. It is furthermore admitted that a Driving License was
also recovered from the said auto rickshaw. However, it has never
been their case that neither the owner of the auto rickshaw was
attempted to be identified nor the person whose driving license
was found therein was searched for by the authorities for the
purpose of the instant case. It is never explained by Mr Tomar
how he was able to identify the face of the Accused No. 04 sitting
on the passenger seat inside the auto rickshaw while it was being
driven at high speed. It is also not their case that any previous
photographic identification for the Accused No. 04 was provided
as part of the said information or as to how did he know the face
of the Accused No. 04.
36. Even further, it is an admitted fact by the PW-01 – the alleged
independent witness of the recovery – that the panchnama was not
prepared at the time of actual recovery from the auto rickshaw. Same
is affirmed by the testimonies of the members of the raiding party,
namely, PW-02 to PW-04. It is furthermore intriguing to note that
the panchnama which is timed “0930” was prepared and the PW-01
states as part of his cross-examination that he left for his office taking
an auto rickshaw after the incident. However, the testimony of Mrs
Chaube reveals that the PW-01 and the other panch were present
in the NCB Office after the incident and even deposes to the effect
that they, being present in the said office, ended up inscribing their
signatures on the statements taken by them.
[2024] 4 S.C.R. 465
Smt. Najmunisha v. The State of Gujarat
37. It does not transpire from the material on record as to exactly how
the Accused No. 04 came into the fiasco here except for the claim
by Mr Tomar of having identified him as the auto rickshaw per the
secret information fled the scene. It creates a doubt in the mind of
the Court apropos the case presented by the prosecution.
38. Adopting the words of V. Ramasubramanian, J., while speaking for
the Bench in Ramabora alias Ramaboraiah & Anr. v. State of
Karnataka (2022) SCC OnLine SC 996 referred to the mythological
Swan, Hamsa and drew an analogy with the following observations
made in the decision in Arvind Kumar alias Nemichand & Ors. v.
State of Rajasthan (2021) SCC OnLine SC 1099:
49. The principle that when a witness deposes falsehood,
the evidence in its entirety has to be eschewed may not
have strict application to the criminal jurisprudence in our
country. The principle governing sifting the chaff from the
grain has to be applied. However, when the evidence
is inseparable and such an attempt would either be
impossible or would make the evidence unacceptable,
the natural consequence would be one of avoidance.
The said principle has not assumed the status of law
but continues only as a rule of caution. One has to
see the nature of discrepancy in a given case. When
the discrepancies are very material shaking the very
credibility of the witness leading to a conclusion in the
mind of the court that is neither possible to separate it
nor to rely upon, it is for the said court to either accept
or reject.
39. It becomes difficult to accept the case presented against the
Accused No. 04 by the prosecution and it is not acceptable to state
that the same has been proved beyond a reasonable doubt. The
inconsistencies in the testimonies and lack of observation of due
process of law by the investigating agency has severely impacted
the case of the prosecution.
40. The subsequent and alternate contention put forth by the learned
Counsel for the Respondent No. 02 pertains to the non-requirement of
the compliance of Section 41 of the NDPS Act 1985. To appreciate the
said contention, jurisprudential aspect ought to be dealt with. Section
41 of the NDPS Act 1985 deals with the power to issue warrant and
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authorization to both a Magistrate and an Officer of Gazetted rank
as applicable and the same is reproduced below as follows:
“41. Power to issue warrant and authorisation.—
(1) A Metropolitan Magistrate or a Magistrate of the first
class or any Magistrate of the second class specially
empowered by the State Government in this behalf,
may issue a warrant for the arrest of any person
whom he has reason to believe to have committed
any offence punishable under this Act, or for the
search, whether by day or by night, of any building,
conveyance or place in which he has reason to
believe 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:
(2) Any such officer of gazetted rank of the departments
of central excise, narcotics, customs, revenue
intelligence or any other department of the Central
Government including the para-military forces or
the armed forces as is empowered in this behalf by
general or special order by the Central Government, or
any such officer 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 personal knowledge or information given
by any person and taken in writing that any person
has committed an offence punishable under this Act
or that any narcotic drug or psychotropic substance
or controlled substance in respect of which any
offence under this Act has been committed or any
document or other article which may furnish evidence
[2024] 4 S.C.R. 467
Smt. Najmunisha v. The State of Gujarat
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 place, may
authorise any officer subordinate to him but superior
in rank to a peon, sepoy or a constable to arrest such
a person or search a building, conveyance or place
whether by day or by night or himself arrest such a
person or search a building, conveyance or place.
(3) The officer to whom a warrant under sub-section
(1) is addressed and the officer who authorised the
arrest or search or the officer who is so authorised
under sub-section (2) shall have all the powers of an
officer acting under section 42.”
41. In the instant case, we are primarily affected by virtue of the
jurisprudence of Section 41(2) of the NDPS Act 1985, which begins
from the power of search and seizure conferred by the State upon
its executive or administrative arms for the protection of social
security in any civilized nation. 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. It is a settled law that 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. Thence, such a power cannot be
considered as a violation of any fundamental rights of the person
concerned. The same is iterated in MP Sharma v. Satish Chandra
Sharma, District Magistrate, Delhi 1954 SCR 1077.
42. In light of the aforementioned constitutional backdrop, provisions of
general search warrants and seizure were incorporated for the first
time in Code of Criminal Procedure, 1882, thereupon, in Sections
96, 97, 98, 102, 103, 105, 165 and 550 of the Code of Criminal
Procedure, 1898 and presently, in the Code of Criminal Procedure,
1973 under Sections 93, 94, 100, 102, 103 and 165. Upon perusal
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of Section 41(1) of the NDPS Act 1985, it is evident that the said
provision 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 provisions of the NDPS Act
1985. Section 41(2) of the NDPS Act 1985 further enables a Gazetted
Officer, so empowered in this regard by the Central Government or
the State Government, to arrest or conduct a search or authorize an
officer subordinate to him to do so, provided that such subordinate
officer is superior to the rank of a peon, sepoy or constable. It is
pertinent to note that the empowered Gazetted Officer must have
reason to believe that an offence has been committed under Chapter
IV of the NDPS Act 1985, which necessitated the arrest or search.
As per Section 41(2) of the NDPS Act 1985, such reason to believe
must arise from either personal knowledge of the said Gazetted
Officer or information given by any person to him. Additionally, such
knowledge or information is required to be reduced into writing by
virtue of expression “and taken in writing” used therein.’
43. The learned Counsel of the Respondent No. 02 presents an alternate
argument that the expressions “personal knowledge” and “and taken
in writing” contemplated by Section 41(2) of the NDPS Act 1985
ought to be read disjunctively, thereby eliminating the requirement
of taking down information in writing when it arises out of the
personal knowledge of the Gazetted Officer. We are not inclined
to accept this interpretation. The position for recording the reasons
for conducting search and seizure are well established through the
ratio in paragraph number 25 (2C) in Balbir Singh case (supra)
as mentioned below:
“(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. he may carry out the arrest or
search without a warrant between sunrise and sunset and
this provision does not mandate that he should record his
reasons of belief. But under the proviso to Section 42(1) if
such officer has to carry out such search between sunset
and sunrise, he must record the grounds of his belief.
[2024] 4 S.C.R. 469
Smt. Najmunisha v. The State of Gujarat
To this extent these provisions are mandatory and
contravention of the same would affect the prosecution
case and vitiate the trial.”
44. Applying the aforesaid legal position to the present factual matrix,
we do not find force in the submission that the raiding party
proceeded to conduct search at the house on personal knowledge
of the Gazetted Officer, Mr Tomar. Foremost, the fact that the secret
information received by Mrs Chaube was limited to anticipation
of Accused No. 04 carrying contraband from a particular route
in an auto rickshaw, remains unchallenged. Accordingly, there
was no prior information to the raiding party, including Mr Tomar
(Gazetted Officer) that there is contraband in the house of Accused
No. 04, thereby necessitating search for the same. Additionally, it
is deposed by the PW-01 that he was asked to accompany the
raiding party to the house of Accused No. 04, which was located
nearby for the purpose of 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. Further,
Mrs Chaube in her examination in chief stated that upon the
directions of Mr Tomar that the house of Accused No. 04 was
nearby, they proceeded to conduct raid thereof. Per contra, in her
cross-examination, she admits that the raiding team proceeded
to the house of Accused No. 04 for the purpose of search of the
contraband pursuant to the discussions carried by them and not
particularly on the personal knowledge of Mr Tomar.
45. She further goes on to admit that it was obligatory for her to obtain
a written authorization from her superior officer – which was Mr
Tomar in this case. She 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. 04 weakens
the case of the prosecution. Furthermore, the testimony of Mr Tomar
has some glaring irregularities apropos his personal knowledge of
having contraband at the house of Accused No. 04. Mr Tomar, on
one hand in his testimony admits that the officers of raiding party
together decided to conduct raid at the house of Accused No. 04
post recovery from the auto rickshaw, however, on the other hand
admits of having knowledge of the residential address of Accused
No. 04 from the secret information. However, Mr Tomar nowhere
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in his depositions stated that he proceeded to conduct raid at the
house on his personal knowledge.
46. From the aforementioned, we are of the view that the raid/search
conducted at the house of the Accused No. 01 and Accused No. 04
was not based on the personal knowledge of Mr Tomar, rather it was
an action on the part of raiding party bereft of mandatory statutory
compliance of Section 41(2) of the NDPS Act 1985.
47. Furthermore, even if the learned Counsel for the Respondent No.
02 would justify the raid at the house on account of “reason to
believe from …. information given by any person and taken down
in writing” as per Section 41(2) of the NDPS Act 1985, still the
prosecution is not able to establish its case beyond reasonable
doubts. Because the secret information, as received by Mrs
Chaube in the present facts was limited to the apprehension that
Accused No. 04 was to carry contraband via an auto rickshaw
from a particular route. There is no reference to the apprehension
of existence of contraband in the house of the Accused No. 04
in the said recorded information. Thence, the raid at the house
of the Accused No. 01 and Accused No. 04 is in violation of the
statutory mandate of Section 41(2) of the NDPS Act 1985 and the
ratio in the precedent of Balbir Singh (supra) and Karnail Singh
(supra). Consequently, the conviction of Accused No. 01 premised
on the recovery of 2.098 kilograms of charas from the house is
not in consonance with the mandatory statutory compliance of
Section 41(2) of the NDPS Act 1985.
48. While the facts and evidences are appreciated in the instant case,
the testimonies of the PW-01 and the members of the raiding party
do not present such a compliance of the information of rights to the
Accused No. 01 herein. While a claim is made to this effect, nothing
has come up from the perusal of the panchnama or the deposition
of the PW-01 to this effect. Accordingly, the authorities have further
failed to protect the inherent rights granted to the Accused No. 01
by virtue of the statutory safeguards.
49. Thereinafter, a significant reliance was placed by the High
Court on the statements of the accused wherein a categorical
admission was substantiated by them, especially Accused No.
01 and Accused No. 04. To begin with, Section 67 of the NDPS
Act 1985 reads:
[2024] 4 S.C.R. 471
Smt. Najmunisha v. The State of Gujarat
“67. Power to call for information, etc.—
Any officer referred to in section 42 who is authorised in this
behalf by the Central Government or a State Government
may, during the course of any enquiry in connection with
the contravention of any provision of this Act,—
(a) call for information from any person for the
purpose of satisfying himself whether there has
been any contravention of the provisions of this
Act or any rule or order made thereunder;
(b) require any person to produce or deliver any
document or thing useful or relevant to the
enquiry;
(c) examine any person acquainted with the facts
and circumstances of the case.”
50. The evidentiary value of confessional statements recorded under
Section 67 of the NDPS Act 1985 was dealt with by this Court in the
case of Tofan Singh (supra). As per the majority verdict delivered
by 3-Judges’ Bench in this case has held that the powers conferred
on the empowered officers under Section 41 and 42 of the NDPS
Act 1985 read with Section 67 of the NDPS Act 1985 are limited
in nature conferred for the purpose of entry, search, seizure and
arrest without warrant along with safeguards enlisted thereof. The
“enquiry” undertaken under the aforesaid provisions may lead to
initiation of an investigation or enquiry by the officers empowered to
do so either under Section 53 of the NDPS Act 1985 or otherwise.
Thus, the officers empowered only under the aforesaid provisions
neither having power to investigate nor to file a police report meet
the test of police officer for the purpose of Section 25 of the IEA
1872. Consequently, the bar under Section 25 of the IEA 1872 is
not applicable against the admissibility of confessional statement
made to the officers empowered under Section 41 and 42 of the
NDPS Act 1985.
51. Furthermore, it was also held by this Court that Section 67 is at
an antecedent stage to the investigation, which occurs after the
empowered officer under Section 42 of the NDPS Act 1985 has the
reason to believe upon information gathered in an enquiry made in
that behalf that an offence under NDPS Act 1985 has been committed
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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.
52. The same, therefore, cannot be considered to convict an accused
person under the NDPS Act 1985. A reference at this stage may be
made to the majority view in the 3-Judges’ Bench decision wherein
it was held as follows in paragraph number 158:
“158. We answer the reference by stating:
158.1. That the officers who are invested with powers
under Section 53 of the NDPS Act are “police officers”
within the meaning of Section 25 of the Evidence Act, as a
result of which any confessional statement made to them
would be barred under the provisions of Section 25 of the
Evidence Act, and cannot be taken into account in order
to convict an accused under the NDPS Act.
158.2. That a statement recorded under Section 67 of the
NDPS Act cannot be used as a confessional statement in
the trial of an offence under the NDPS Act.
53. By virtue of the decision in Tofan Singh (supra), the benefit is to
be granted to the appellants herein in regard to the inadmissibility
of their statements under Section 67 of the NDPS Act 1985.
54. In the light of the above, these appeals are allowed by setting aside
the impugned judgment of the High Court as well as that of the Trial
Court. The appellants are acquitted of the charges framed against
them by giving benefit of doubt.
55. Pending applications, if any, stand disposed of.
Headnotes prepared by: Divya Pandey Result of the case:
Appeals allowed.
