Holding

Section 42(2)'s requirement of reporting to the immediate superior does not apply to gazetted officers exercising their own authority, and the conviction under Section 22 stands.

Summary

The appellants, G. Srinivas Goud and another, were convicted under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of 20 kg of diazepam seized during a raid conducted by a gazetted officer. They challenged the conviction on three grounds: (i) the search was not witnessed by independent persons, (ii) the information leading to the raid was not reduced to writing, and (iii) a copy of that information was not sent to the officer’s immediate superior as required by Section 42(2). The Supreme Court held that the panchnama was signed by two independent witnesses and detailed the seizure, and that the officer had recorded the information in a memo, satisfying the writing requirement. Crucially, the Court ruled that Section 42(2)’s reporting requirement applies only when officers act without authorisation and does not bind gazetted officers exercising their own authority. Consequently, the convictions were upheld and the appeals dismissed.

Issues considered

Whether Section 42(2) of the NDPS Act mandatorily requires a gazetted officer who conducts a search/seizure on his own to send a written copy of the information to his immediate superior.
Whether the absence of independent witnesses invalidates the seizure of contraband.
Whether failure to reduce the information in writing or to comply with Section 42(2) vitiates the conviction under Section 22.

Legislation cited

Narcotic Drugs and Psychotropic Substances Act, 1985s. 22, s. 41, s. 42, s. 50

Subjects

NDPS ActSection 42search and seizuregazetted officerindependent witnessesprocedural complianceconviction upheld

Judgment

A G. SRINIVAS GOUD
v.
STATE OF A.P.

OCTOBER 3, 2005

B (ARUN KUMAR AND A.K. MATHUR, JJ.]

Narcotics Drugs and Psychotropic Substances Act, 1985:

Section 42(2)-lnformation leading to search and seizure, taken down
C in writing by Gazetted Officer-Sending of, to immediate superior-
Compliance-Necessity of-Held: Compliance of such requirement is
necessary where action is without authorization by officers below rank of
Gazetted Officers-Gazetted Officers have power to authorize subordinates to
proceed to action-They cannot be equated to officers taking action without
authorization or warrants.

Sections 22 and 42-Search and seizure of contraband article from the
occupants of the premises-Conviction-Plea that non-association of
independent witnesses and non-compliance of section 42, thus conviction not
correct-On appeal, held: Panchnama was signed by two independent
witnesses-Officer had reduced in writing the information received-Further,
the Officer carrying out search and seizure being Gazatted Officer could act
on his own and send copy of information to the superior Officers-Hence,
conviction justified.

The contraband drug- Diazepam of20 kg in quantity was recovered
from the appellant - accused. Both the trial court and High Court convicted
the appellant under section 22 of the Narcotics Drugs and Psychotropic
Substances Act, 1985. Hence the present appeal.

Appellant-accused contended that the information received by the Officer
was not reduced in writing before proceeding for search and the copy of the
information was not sent to the immediate official superior, as such there
was non-compliance of section 42; and that there was non-association of
independent witnesses; hence the conviction was not justified.

Dismissing the appeal, the Court
840 '
G. SRINIVASGOUDv. STATE OF A.P. 841
HELD: 1.1. Section 41(2) of the Narcotics Drugs and Psychotropic A
Substances Act, 1985 refers to only officers of gazetted rank and it is such
officers who can authorize their subordinates not below the rank of peon, sepoy
and constable, to carry out arrest, search of seizure. The function of arrest,
search and seizure carried out under Section 42(1) is by officers who do not
have warrants or authorization in their hands before proceeding to take action
as per the heading of the Section. The provisions of sub-section (2) of Section B
42 are meant to cover cases falling under Section 42(1). Therefore, the
requirement of informing immediate official superior under Section 42(2)
need not to be extended to cases of arrest, search and seizure by officers of
gazetted rank. The officer of gazetted rank while authorising junior officers
under Section 41(2) knows what he is requiring them to do and, therefore, C
there is no need for reporting. For this reason Section 41 does not contain
any such requirement. The need for reporting to the immediate official
superior under Section 42(2) arises because the officer proceeds without
authorisation in terms of section 41(1) or 41(2). It has to be confined to cases
where the action is without authorisation by officers below the rank of gazetted
officers. (846-C-D-E-F) D
1.2. It will be anomalous to say that officers of gazetted rank who are
conferred with power to authorise junior officers to carry out arrest, search
and seizure, are required to report to their superior officers when they carry
out arrest, search or seizure on their own. The rationale for this provision of E
informing superiors appears to be that when the arrest, search and seizure
is without authorisation by gazetted rank officers, the officers taking action
must keep their superiors informed. The superior officers must know about
the action taken by their subordinates. However, the position of gazetted rank
officers, in view of their rank and seniority and power to authorise
subordinates to proceed to action, is totally different. They are the source of F
power of authorization. The gazetted rank officers enjoy special position and
privileges under the Act. They need not be equated to officers taking action
without authorisation or warrants. The requirement of sending information
to superior officers under Section 42(2) cannot be insisted upon in their case.
There is no bar in the statute to functions of arrest, search and seizure being G
carried out by the officers of the gazetted rank themselves. When they act on
• their own, they do not have to report to their seniors on such things .
(846-G-H; 847-A-BJ

M Prabhu/a/ v. Assistant Director, Directorate of Revenue Intelligence,
(200318 SCC 449; State of Haryana v. Jarnail Singh and Ors., [2004) 5 SCC H
842 SUPREME COURT REPORTS (2005] SUPP. 3 S.C.R.

A 188 and State of W.B. and Ors. v. Babu Chakraborthy., (2004) 12 SCC 201,
referred to.

Beckodan Abdul Rahman v. State of Kera/a, (2002) 4 SCC 229; State
ofPunjab v. Balbir Singh, [1994] 3 SCC 299; State ofPunjab v. Baldev Singh,
[1999) 6 SCC 172 and Abdul Rashid Ibrahim Mansuri v. State of Gujarat,
B 1200012 sec 513, distinguished.
1.3. Memo of search proceeding showed that the officer noted that he
had received reliable information regarding storage and possession of
Diazepam in the house; and that there was no time to obtain a search warrant
from the court and delay was likely to cause the material to disappear, as
c such there was sufficient compliance regarding making a note in writing about
the information received by an officer. (844-G-H; 845-A-BJ

1.4. Panchnama was signed by the two independent witnesses, the three
officers of the department and the two accused. It contains clear description
D of how the search was made and the contraband drug - Diazepam of 20 kg
was seized and as such leaves no scope for doubting the seizure. When the
quantity recovered is so large, it does not appear to be a case of planting.
(844-C-D-EJ

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1127 of
E 2004.
From the Judgment and Order dated 14.6.2002 of the Andhra Pradesh
High Court in Crl. A. No. 880 of 1996.
WITH
p Crl.A. No. 892 of2005.

Ms. Manjeet Chawla for appellant in Cr!. A. No. 1127/2004.

S. Muralidhar. G. Seshagiri Rao and Anil Kumar Jha for the Appellant
in Crl. A. No. 892/2005.

G Anoop G. Chaudhary, Ms. June Chaudhary, Mrs. D. Bharathi Reddy, P.
Vinay Kumar and Ms. Nishita Foster for the Respondent.

The Judgment of the Court was delivered by

ARUN KUMAR, J. These two appeals arise from a common judgment
H of the High Court maintaining the conviction of the appellants under Section
G. SRINIVASGOUDv. STATEOFA.P. [ARUNKUMAR,J.] 843

22 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short A
NDPS Act) and sentencing both of them to rigorous imprisonment for ten
years.and a fine of Rupees one lakh each, in default of payment of fine further
imprisonment of six months to the defaulter.

As per the prosecution case, P.W. 1, who happens to be the Assistant
Commissioner Prohibition and Excise, received information about illegal B
possession of Diazepam in premises bearing No. 12-13-700/2 Nagarjuna Nagar,
Tarnaka, Secunderabad. Diazepam is a banned drug under the Act. On receipt
of this information he prepared a memo of search proceedings and proceeded
!Ji::·
., to the place in question along with two constables. On his way he took two
!
persons along, one of them being a police constable to act as a mediators/
independent persons. The memo of search proceeding is Exhibit P. I. After
c
reaching the spot, he prepared a panchnama, Exhibit P.2 which is signed by
\, ~ the accused persons, two panch witnesses in addition to the three officers
of the department. A copy of the panchnama was supplied to both the
accused. According to the panchnama, on reaching the premises, the main
doors were found open. The raiding party entered the house. They found two D
persons, the present appellants, sitting in a room. The house was searched
and a plastic bag containing some chemical was found in a comer. The bag
weighed about 20 kg. It was opened. It had white powder like substance. The
two persons present in the house said that the substance was Diazepam.
They were informed that the officer, P. Sivarama Sastry, was agazetted officer.
The officer took around one gram of chemical in a clean dish and made a spot
E
verification about what it was by using some chemical which he was carrying
with him and found that the substance contained in the bag was Diazepam.
The occupants of the room did not have permit or licence for possessing the
.(
substance. The officers were informed that the substance had been purchased
by one of the occupants viz. G. Sreenivisa Goud, A.I, from the other occupant, F
M. Uma Maheswar, A.2. The prosecution examined six witnesses, besides
exhibiting the search memo as Exhibit P. I and the panchnama as Exhibit P2.
MOs I, 2, 3 are the main bag containing Diazepam and the two samples
respectively. Exhibit P.4 is the report of the Government Chemical Examiner,
Regional Excise Lab., Hyderabad (A.P.). According to the report the sample
contained diazepam and urea. The defence of the appellants was that of total G
denial. The trial court convicted both the accused for offence under Section
22 of the NDPS Act and sentenced them as aforesaid. The High Court
maintained the conviction while dismissing the appeals of both the accused.

The learned counsel for the appellant raised the following points:
H
'
844 SUPREME COURT REPORTS (2005) SUPP. 3 S.C.R.

A I. Non-association of independent witnesses,
2. Non-compliance of Section 42 of the NDPS Act, inasmuch as the
information said to have been received by the Assistant
Commisisioner of Prohibition and Excise, P.W. I, was not reduced
into writing before proceeding for search and not sending copy
B of information to immediate official superior as per Section 42 (2)
of the Act.

We have heard the learned counsel for the parties at length. We find
no substance in either of the above points urged on behalf of the appellants.

C So far as the point regarding non-association of independent witnesses
is concerned, the same is intended to throw doubt upon the recovery of the
contraband drug. Exhibit P.2 is the panchnama which is signed by the two
independent witnesses, the three officers of the department and the two
accused. It contains clear description of how the search was made and the
contraband was seized. It is a case of recovery of 20 kg. of Diazepam which
D is a banned drug as per the Schedule to the Act. When the quantity recovered
is so large, it does not appear to be a case of planting. Further a perusal of
the panchnama leaves no scope for doubting the seizure. So far as association
of independent witnesses is concerned it will be seen that the time of search
was 5.30 a.m. in the morning. At that hour it is difficult to get people from
E general public to act as independent witnesses. Still the officer managed to
get two witnesses one of whom has been exam in ed. Referring to the statement
of PW 5, the learned counsel for the appellant tried to pick holes in it. In our
view, there is no substance in the argument. P.W. 5 is a reserve policeman and
there is no bar in law for a policeman to act as a mediator/panch witness. It
should be kept in view that this was a raid which was conducted by excise
F officials and not by the police.

The main thrust of the argument on behalf of the appellants is about
non-compliance of Section 42 of the Act. It is a two pronged attack. First, it
is said to be non-recording of the information about contraband drug being
stored at the premises in question. Second, it is not sending copy of
G information in terms of sub-section (2) of Section 42 of the Act to immediate
official superior. The first point is answered by a reference to memo of search
proceeding, Exhibit P.W. l which shows that the officer noted "l have received
a reliable information regarding storage and possession of Diazepam in a
house bearing No ...... " The officer has further noted that there was no time
H to obtain a search warrant from the court and delay is likely to cause material
G. SRINIVASGOUDv. STATEOFA.P. [ARUNKUMAR,J.] 845
to disappear. He believed the infonnation to be correct and, therefore, decided A
to raid the premises. In our view, this is sufficient compliance of the provision
r~garding making a note in writing about the infonnation received by an
officer. Therefore, there is no basis for the argument regarding not making a
note of the infonnation.

Coming to the second point, which is the main point of attack on behalf B
of the appellants, the argument is that the officer conducting the raid did not
send a copy of the information received by him which led to the search and
seizure, to his immediate official superior as required under Section 42(2) of
the Act. Due to non-compliance of this provision, the case of prosecution
must fail. To deal with this argument one must carefully analyse Sections 41 C
and 42 of the Act. These sections occur in Chapter V, which has the heading
"Procedure". This Chapter deals with the procedure regarding search and
seizure of the contraband items. Section 41(1) is about issuance of warrant
for arrest and for search by empowered Metropolitan Magistrates or
Magistrates of the first class or of the second class etc. etc. Under Section
41 (I) the empowered Magistrates mentioned in the Section have the power D
to issue warrants for arrest of any person and for search of any premises.
Sub-section (2) of Section 4 I refers to issue of authorisation for arrest, search
and seizure by officers of gazetted rank of different government departments.
On the basis of authorisation the authorised officers proceed to make arrests
and carry out searches and seizures. It is worth emphasising that it is only E
the empowered officers of gazetted rank of the various departments mentioned
in the sub-section who exercise the power of authorisation to carry out arrest,
search and seizure etc. Section 42 is about arrest, search and seizure being
carried out. Section 42(1), as its heading suggests, applies to cases of officers
carrying out search and seizure without warrant or authorisation under Section
41(1) or41(2) of the Act. It is a general power of search, seizure and arrest. F
Section 42 does not use the words "officers of gazetted rank'. It covers all
empowered officers of the central excise, narcotics, customs, revenue
intelligence or any other department of Central Government including officers
of para military and anned forces and officers of State Governments. What is
important is that the officers acting under Section 42(1) act without G
authorisation. Since the officers act. without authorisation, sub-section (2)
contains the requirement of sending copy of infonnation on which they take
action which they are required to note in writing at the time they receive it.
The infonnation is to be sent to their immediate official superiors.

The question for our consideration is: whether it is necessary for officers H
846 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A of the gazetted rank to comply with sub-section (2) of Section 42, i.e. send
the information taken down in writing by the officers to immediate official
superior within seventy two hours? According to the learned counsel for the
appellants Section 42(2) is mandatory and covers all officers including officers
of gazetted rank. It does not make any distinction between a gazetted and a
B non-gazetted officer and, therefore, all empowered officers must comply with
sub-section (2) of Section 42.

It will be seen from Section 41 (2) that it refers to only officers of
gazetted rank and it is such officers who can authorise their subordinates, not
below the rank of peon, sepoy or constable, to carry out arrest, search or
C seizure. The function of arrest, search and seizure carried out under Section
42( I) is by officers who do not have warrants or authorization in their hands
before proceeding to take action. This is as per the heading of the Section
which reads: "Power of entry, search, seizure and arrest without warrant or
authorization". Under Section 41 it is the specified Magistrates who issue
warrants of arrest and it is officers of gazetted rank who give authorisation
D in favour of their juniors. Provisions of sub-section (2) of Section 42 are meant
to cover cases falling under Section 42( 1). Therefore, in our view, the
requirement under Section 42(2) need not to be extended to cases of arrest,
search and seizure by officers of gazetted rank. The officer of gazetted rank
while authorising junior officers under Section 41 (2) knows what he is requiring
E them to do and, therefore, there is no need for reporting. For this reason
Section 41 does not contain any such requirement. The need for reporting
under Section 42(2) arises because the officer proceeds without authorisation
in terms of Section 41(1) or 41(2). The requirement of informing the immediate
official superior under Section 42(2), in our view, has to be confined to cases
where the action is without authorisation by officers below the rank of
F gazetted officers.

It will be anomalous to say that officers of gazetted rank who are
conferred with power to authorise junior officers to carry out arrest, search
and seizure, are required to report to their superior officers when they carry
G out arrest, search or seizure on their own. As already seen the rationale for
this provision of informing superiors appears to be that when the arrest,
search and seizure is without authorisation by gazetted rank officers, the
officers taking action must keep their superiors informed. The superior officers
must know about the action taken by their subordinates. However, the position
of gazetted rank officers, in view of their rank and seniority and power to
H authorise subordinates to proceed to action, is totally different. They are the
G. SRINIVASGOUDv. STATE OF A.P. [ARUNKUMAR,J.] 847
source of power of authorization. The gazetted rank officers enjoy special A
position and privileges under the Act. They need not be equated to officers
taking action without authorisation or warrants. The requirement of sending
information to superior officers under sub-section (2) of Section 42 cannot be
insisted upon in their case. There is no bar in the statute to functions of
arrest, search and seizure being carried out by the officers of the gazetted rank B
themselves. When they act on their own, they do not have to report to their
seniors on such things.

The view expressed above finds support from a judgment of this court
in M Prabhulal v. Assistant Director, Directorate of Revenue Intelligence,
[2003] 8 sec 449 where it is observed: c
"Section 41(1) which empowers a Magistrate to issue warrant for
arrest of any persons whom he has reason to believe to have committed
any offence punishable under the NDPS Act or for search, has not
much relevance for the purpose of considering the contention. Under
Section 41 (2) only a Gazetted Officer can be empowered by the Central D
Government or the State Government. Such empowered officer can
either himself make an arrest or conduct a search or authorise an
officer subordinate to him to do so but that subordinate officer has
to be superior in rank to a peon, a sepoy or a constable. Sub-section
(3) of Section 41 vests all the powers of an officer acting under
Section 42 on three types otOfficers (i) to whom a warrant under sub- E
section (1) is addressed, (ii) the officer who authorized the arrest or
search under sub-section (2) of Section 41, and (iii) the officer who
is so authorised under sub-section (2) of Section 41. Therefore, an
empowered Gazetted Officer has also all the powers of Section 42
including the power of seizure. Section 42 provides for procedure and F
power of entry, search, seizure and arrest without warrant or
authorisation."

Similarly in State of Haryana v. Jarnail Singh and Ors., [2004] 5 SCC
188 , this court took the view that when an officer of gazetted rank like the
Superintendent of Police was a member of the search party he could not be G
expected to comply with the proviso to Section 42. of the Act which requires
that an officer who has reason to believe that a search, warrant or authorisation
cannot be obtained without affording opportunity for concealment of evidence
or facility for the escape of an offender, must record the reasons for his belief.
In this judgment the court relied upon the judgment in Prabhula/ 's case
H
848 SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

A (Supra).

The learned counsel for the appellants relied upon State of W.B. and
Ors. v. Babu Chakraborthy, [2004] 12 SCC 20 I. This judgment emphasises
that the provisions of Section 42 of the Act are mandatory and must be
complied with. We have gone through the judgment and in our view this
B judgment does not advance the case of the appellants. We are by no means
suggesting that the provisions of Section 42 are not mandatory. Wherever
they are attracted, compliance is mandatory.

Another case cited by the learned counsel for the appellants is Beckodan
Abdul Rahman v. State of Kera/a, (2002] 4 SCC 229. This judgment again
C holds that non-compliance of provisions of Sections 42(2) and 50 vitiates the
trial. This is correct. But present is not a case of non-compliance of Section
42(2). For this very reason State ofPunjab v. Balbir Singh, [1994] 3 SCC 299
and State ofPunjab v. Baldev Singh., [ 1999] 6 SCC 172 are not relevant cases
for the present purpose.
D
Lastly, the learned counsel for the appellants sought to rely on Abdul
Rashid Ibrahim Mansuri v. State of Gujarat, (2000] 2 SCC 513. In this case
the search was carried out by a Police Inspector who admitted that he had
failed to take down in writing the information as required under Section 42(1)
and also he had failed to send a copy of the information to his immediate
E official superior as required under Section 42(2) of the Act. The Inspector of
Police was not an officer of gazetted rank. Therefore, it was necessary for him
to comply with the provisions of Section 42. He having failed to do so, the
convictioQ of the accused was set aside by this court. The facts of the
present case are totally different because in the present case the action bas
F been taken by an officer of the gazetted rank.

As a result of the above discussion, we find no merit in the present
appeals. Both the appeals are dismissed.

If any of the accused/appellants are on bail, steps should be taken to
G apprehend them so that they may serve the remaining sentence.

NJ. Appeals dismissed.