STATE OF RAJASTHANversusBHERU LAL

                        (2013] 6 S.C.R. 252


A                    STATE OF RAJASTHAN
                                v.
                            BHERU LAL
                 (Criminal Appeal No. 36 of 2006)
                           MAY 28, 2013
B
         [DR. 8.$. CHAUHAN AND DIPAK MISRA, JJ.]

       Narcotic {!)rugs and Psychotropic Substances Act, 1985
  - s.42 - Scope and applicability of - Search, seizure and
C arrest carried out by Sub-Inspector in temporary charge as
  Station House Officer - Whether can be held to be carried
  out by unauthorized officer and hence violative of s.42- Held:
  As per Government Notification a Sub-Inspector can be
  posted as Station House Officer - The officer in the instant
D case (a Sub-Inspector) was posted as Station House Officer
  at the relevant time - Hence search, seizure and arrest by the
  officer not violative of s.42 - Notification No. F1(3)FD!Ex/85-
  1 dated 16.10! 1986.

E       The question for Consideration in the present appeal
  was whether the search, seizure and arrest by the Sub-
  Ins pector, (given temporary charge as Station House
  Officer at the relevant time), is violative of s. 42 of Narcotic
  Drugs and Psychotropic Substances Act, 1985 and
  whether on this account the whole trial becomes void ab
F initio.

        Allowing the appeal, the Court

      HELD: 1. In view of the Notification No. F1(3) FD/Ex/
G 85-1 dated 16.10.1986, it is manifest that the Sub-
  Inspectors of Police, posted as Station House Officers
  were authorised by the State to exercise the powers
  enumerated in Section 42 of the Narcotic Drugs and
  Psychotropic; Substances Act, 1985. There cannot be
H                               252
       STATE OF RAJASTHAN v. BHERU LAL                  253

literal interpretation of Section 42(1) of the Act. The        A
provision employs the words "empowered in this behalf
by general or special order of the State Government." The
notification has stated "any Sub-Inspector posted as
Station House Officer". [Paras 10, 11 and 14] [258-D-E, H;
259-A; 261-D-E]                                                B
     2. The High Court acquitted the respondent solely
on the ground that PW-9 was posted as the Station
House Officer and not PW-2,who conducted the search,
seizure and arrest. It is the accepted position that PW-2
was given temporary charge of the Station House Officer        C
at the relevant time. He received information from the
reliable source. He complied with the other necessary
requirements and proceeded to the spot to trap the
accused. Any delay would have allowed the accused to
escape. As per the Notification, a Sub Inspector of Police     D
can be posted as Station House Officer and at the relevant
time PW-2 was in-charge Station House Officer. There is
no justification to place unnecessary importance on the
term "posted". PW-2 wa~, in fact, in-charge of the post
of Station House Officer 1at that juncture. Therefore, the     E
search, seizure and arre~t carried out by him would not
make the trial ab initio void. Thus, the High Court has
fallen into grave error by opining that Section 42(1) of the
Act was not complied with as the entire exercise was
carried out by an officer who was not authorised. [Para        F
14] [261-E-H; 262-A-B]
    Kamai/ Singh v. State of Haryana (2009) 8 SCC 539:
2009 (11) SCR 470 - followed.
    Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000) G
2 SCC513: 2000 (1) SCR 542; Sajan Abraham v. State of
Kara/a (2001) 6SCC 692: 2001 (1) Suppl. SCR 335 -
refe~red to.

                  Case Law Reference:
    2009 (11) SCR 470       followed             Para 12       H
    254       SUPREME COURT REPORTS               [2013] 6 S.C.R.


A         2000 i1) SCR 542             referred to      Para 12
          2001 (1) Suppl. SCR 335      referred to      Para 12

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 36 of 2006.
B
        From the Judgment and Order dated 09.04.2004 of the
    High Court of Judicature for Rajasthan at Jodhpur in S.B. Crl.
    Appeal No, 659 of 2002.

          Dr. Manisha Singhvi, AAG, Milind Kumar for the Appellant.
c
        Atul Agarwal, Nitin Jain, Dr. Vipin Gupta for the
    Respondemt.

          The Judgment of the Court was delivered by
D        DIPAI< MISRA, J. 1. The present appeal is directed
    against the judgment of acquittal dated 9.4.2004 passed by the
    learned single Judge of the High Court of Judicature of
    Rajasthan in S.B. Criminal Appeal No. 659 of 2002 whereby
    he has reversed the judgment of conviction and order of
E   sentence passed by the learned Special Judge, NDPS cases,
    Chittorgarh on 7.8.2002 and acquitted the respondent of the
    offences punishable under Sections 8/18 of the Narcotic Drugs
    and Psychotropic Substances Act, 1985 (for short "the Act").

F      2. Thie broad essential facts leading to trial of the
  respondent are that on 4.4.2001 about 5.45 p.m. Parveen
  Vyas, temporary in-charge S.H.O., Police Station Chittorgarh,
  received information from a reliable informer that the
  respondent would come with illegal opium on his Hero Honda
G Motor Cycle No. 5902 from Phkhliya towards Chittorgarh and
  would sell it to some person. The information was entered into
  Daily Diary at report No. 146 and dispatched to higher officers
  through Constable Davender Singh. Thereafter, Parveen Vyas,
  along with other police officials and independent witnesses,
H namely, Abdul Kareem and Haider Ali laid a trap at Sarhad
            STATE OF RAJASTHAN v. BHERU LAL                      255
                     [DIPAK MISRA, J]
    Kheri Road and when the respondent came to the spot with a          A
    plastic bag, he was informed about his right to be searched
    by a gazetted officer or a Magistrate and, thereafter, after
    proper search two polythene bags containing 3 Kgs. opium in
    each bag were seized. Following due procedure, the samples
    were sent for chemical analysis and, after completing the           B
    investigation, charge-sheet was placed for the offences
    punishable under Sections 8/18 of the Act.

         3. The accused denied the charges, pleaded false
    implication and claimed to be tried.
                                                                        c
        4. The prosecution to bring home the charges examined
    Abdul Raheem, PW-1, Parveen Vyas, PW-2, Rais Mohammad,
    PW-3, Narayan, PW-4, Madan Lal, PW-5, Arjun Lal, PW-6,
    Mithu Lal, PW-7, RodSingh, PW-8, Rameshwar Prasad, PW-
    9, Davender Singh, PW-10, and Kailash, PW-11. The accused           D
    examined Bheru Lal, DW-1, and Shanti Lal, DW-2.

         5. The learned trial Judge, analyzing the evidence and
    other material brought on record, and considering the
    contentions raised by the learned counsel for the prosecution
                                                                        E
    and defence, found the accused guilty of the offence punishable
    under Sections 8/18 of the Act and sentenced the accused to
    undergo rigorous imprisonment for ten years and to pay a fine
    of rupees one lakh and in default of payment of fine, to suffer
    further rigorous imprisonment for one year.
                                                                        F
         6. Challenging the conviction and sentence an appeal was
    preferred by the respondent before the High Court. The
    principal contention that was raised in appeal was that Parveen
    Vyas was not authorised under Section 42 of the Act to search,
    seize or arrest a person and hence, the whole trial was ab initio   G
    void. The High Court, scanning the statutory provision and the
    notification issued by the Government, came to hold that
    Parveen Vyas was not the Station House Officer of Police
    Station, Chittorgarh, as Rameshwar Prasad was the only
    Station House Officer and hence, Parveen Vyas did not have          H
'
    256      SUPREME COURT REPORTS                [2013] 6 S.C.R.


A   the authority to conduct any search, seizure and arrest and,
    therefore, the whole trial was vitiated. Being of this view, the
    learned single Judge dislodged the judgment of conviction and
    acquitted the accused.

B       7. We have heard Dr. Manish Singhvi, learned Additional
  Advocate General for the State of Rajasthan, and Mr. Atul
  Agarwal, learned counsel appearing for the respondent. It is
  submitted by Dr. Manish Singhvi that the High Court has failed
  to appreciate the language employed in the Section 42 of the
  Act and the notification issued by the State of Rajasthan in that
C behalf as a consequence of which the ultimate conclusion of
  the High Court has become wholly unsustainable. It is urged by
  him that Rameshwar Prasad, Station House Officer of the police
  station, h;ad gone out of police station and handed over the
  charge to Parveen Vyas, Sub-Inspector and he had conducted
D the search and seizure and, therefore, there has been
  substantial compliance of the provision in view of the
  Constitution Bench decision in Kamai/ Singh v. State of
  Haryana 1.

E      8. Mr. Atul Agarwal, learned counsel for the respondent,
  would submit that the High Court has correctly interpreted the
  provision and as per the notification only those Sub Inspectors
  of Police who are posted as Station House Officers are
  authorised to carry out the search and seizure and Praveen
F Vyas, no! being the permanent S.H.O. could not have carry out
  the search and seizure, and hence, the judgment of acquittal
  cannot be flawed.

        9. To appreciate the rival submissions raised at the Bar,
  it is necessary to refer to the ununamended Section 42 of the
G Act as the said provision was applicable at the relevant time.
  The original Section 42 of the Act has been substituted by Act
  9 of 2001 with effect from 2.10.2001. Prior to the amendment
  Section 42 read as follows: -

H 1. c2009) a sec 539.
   STATE OF RAJASTHAN v. BHERU LAL                     257
            [DIPAK MISRA, J]
"42. Power of entry, search, seizure and arrest               A
without warrant or authorization. - (1) Any such officer
(being an officer superior in rank to a peon, sepoy or
constable) of the departments of central excise, narcotics,
customs, revenue intelligence or any other department of
the Central Government or of the Border Security Force        B
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      c
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, in respect of which an offence punishable under    0
Chapter IV has been committed or any document or other
article which may furnish evidence of the commission of
such offence is kept or concealed in any building,
conveyance or enclosed place, may, between sunrise and
sunset, -
                                                              E
 (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;                     F

 (c)   seize such drug or substance and all materials used
       in the manufacture thereof and any other article and
       any animal or conveyance which he has reason to
       believe to be liable to confiscation under this Act
       and any document or other article which he has         G
       reason to believe may furnish evidence of the
       commission of any offence punishable under
       Chapter IV relating to such drug or substance; and

 (d)   detain and search, and if he thinks proper, arrest     H
    258       SUPREME COURT REPORTS               [2013] 6 S.C.R.


A                any person whom he has reason to believe to have
                 committed any offence punishable under Chapter
                 IV relating to such drug or substance:

                Provided that if such officer has reason to believe
          that a search warrant or authorization cannot be obtained
8
          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 sun set and sun rise after
          recording the grounds of his belief.
c
          (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 forthwith send a copy
          there6f to his immediate official superior."
D
        10. In pursuance of the aforesaid Section the State of
    Rajasthan had issued a notification No. F.1 (3) FD/Ex/85-1
    dated 16.10.1986, which reads as follows: -

          "S.O. 115. In exercise of the powers conferred by Section
E         42 of the Narcotic Drugs and Psychotropic Substances
          Act, 1985 the State Government hereby authorise all
          Inspectors of Police, and Sub Inspectors of Police posted
          as Station House Officers, to exercise the powers
          mentioned in Section 42 of the said Act with immediate
F         effect:

          Provided that when power is exercised by Police Officer
          other than Police Inspector of the area concerned such
          officer shall immediately hand over the person arrested
G         and articles seized to the concerned Police Inspector or
          SHO of the Police Station concerned."

       11. On a perusal of the aforesaid notification it is manifest
  that the Sub Inspectors of Police, posted as Station House
  Officers, were authorised by the State of Rajasthan to exercise
H the powers enumerated in Section 42 of the Act. There is
         STATE OF RAJASTHAN v. BHERU LAL                      259
                  [DIPAK MISRA, J]
cogent and reliable evidence on record that Rameshwar Prasad          A
had left the police station for certain length of time and at that
juncture, he had given charge of the Station House Officer to
 Parveen Vyas, PW-2. The learned single Judge has accepted
that he was handed over temporary charge of the Station House
Officer by Rameshwar Prasad, PW-9. However, he had taken              B
note of the fact that he was not posted as Station House Officer
at the police station and by the time the search and seizure had
taken place about 8.00 p.m., Rameshwar Prasad had already
 returned to the police station. As far as the timing is concerned,
we are not at all impressed as there are circumstances to             c
 negative such a conclusion. However, as far as charge is
concerned, there is no difficulty in holding that he was in-charge
Station House Officer. The question that emanates for
consideration is whether he could have carried out the search,
seizure and arrest or there has been violation of the
                                                                      0
 requirements as contained in Section 42 of the Act by which
the whole trial becomes ab initio void.

     12. In Kamai/ Singh (supra) the Constitution Bench was
required to resolve the conflicting opinions expressed regarding
the scope and applicability of Section 42 of the Act in the matter    E
of conducting search, seizure and arrest without warrant or
authorization. The larger Bench analysed the ratio laid down in
Abdul Rashid Ibrahim Mansuri v. State of Gujaraf and Sajan
Abraham v. State of Karala 3 and opined that Abdul Rashid did
not require literal compliance with the requirements of Sections      F
42(1) and 42(2) and similarly in Sajay Abraham's case it was
not held that requirements of Sections 42(1) and 42(2) need
not be fulfilled at all. The Constitution Bench in paragraph 34
of the report observed as follows: -
                                                                      G
      "34. The advent of cellular phones and wireless services
      in India has assured certain expectation regarding the
      quality, reliability and usefulness of the instantaneous
2.   (2000) 2 sec 513.
3.   (2001) s sec 692.                                                H
    260       Sl)PREME COURT REPORTS                 [2013] 6 S.C.R.


A         messages. This technology has taken part in the system
          of police administration and investigation while growing
          consel'lsus among the policymakers about it. Now for the
          last two decades police investigation has gone through a
          sea ctiange. Law enforcement officials can easily access
B         any information anywhere even when they are on the move
          and not physically present in the police station or their
          respe~ive offices. For this change of circumstances, it may
          not be possible all the time to record the information which
          is collected through mobile phone communication in the
c         register/records kept for those purposes in the police
          station or the respective offices of the authorised officials
          in the Act if the emergency of the situation so requires. As
          a result, if the statutory provision under Sections 41 (2) and
          42(2) of the Act of writing down the information is
          interp(eted as a mandatory provision, it will disable the
D
          haste of an emergency situation and may turn out to be in
          vain With regard to the criminal search and seizure. These
          provis'ions should not be misused by the wrongdoers/
          offenders as a major ground for acquittal. Consequently,
          these provisions should be taken as a discretionary
E         meas1:Jre which should check the misuse of the Act rather
          than providing an escape to the hardened drug peddlers."

         13. After so observing, the Constitution Bench stated in
    seriatim the effect of the two earlier decisions. Paragraph 35(d),
F   being relevant for the present purpose, is reproduced below: -

          "(d) While total non-compliance with requirements of sub-
          sections (1) and (2) of Section 42 is impermissible,
          delay~d compliance with satisfactory explanation about the
          delay will be acceptable compliance with Section 42. To
G
          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
H
        STATE OF RAJASTHAN v. BHERU LAL                       261
                 [DIPAK MISR~, J]
    treated as violation of Section 42": But if the information       A
    was received when the police officer was in the police
    station with sufficient time to take action, and if the police
    officer fails to record in writing the information received,
    or fails to send a copy thereof, to the official superior, then
    it will be a suspicious circumstance being a clear violation      B
    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         c
    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."

      14. Though the principle was stated in a different context,
yet the dictum laid down therein is clear as crystal that there       D
cannot be literal interpretation of Section 42(1) of the Act. The
provision employs the words "empowered in this behalf by
general or special order of the State Government." The
notification has stated "any Sub Inspector posted as Station
House Officer". The High Court has acquitted the respondent           E
solely on the ground that Rameshwar Prasad was posted as
the Station House Officer and not Parveen Vyas, who
conducted the search, seizure and arrest. It is the accepted
position that Parveen Vyas, PW-2, was given temporary charge
of the Station House Officer at the relevant time. He received
information from the reliable source. He complied with the other
necessary requirements and proceeded to the spot to trap the
accused. Any delay would have allowed the accused to escape.
As per the notification a Sub Inspector of Police can be posted
as Station House Officer and at the relevant time PW-2 was            G
in-charge Station House Officer. There is no justification to
place unnecessary importance on the term "posted". He was,
in fact, in-charge of the post of Station House Officer at that
juncture. In our considered view, such a literal and technical
approach would defeat the principle laid down by the
                                                                      H
    262              '
             SUPREME COURT REPORTS                 [2013) 6 S.C.R.


A Constitution Bench in Kamai/ Singh's case. Therefore, the
  search, seizure and arrest carried out by him would not make
  the trial ab initio void. Thus, the irresistible conclusion is that
  the High Court has fallen into grave error by opining that Section
  42(1) of the Act was not complied with as the entire exercise
B was carried but by an officer who was not authorised.

       15. In view of the aforesaid analysis, the appeal is allowed,
  the judgment passed by the High Court is set aside and the
  judgment rendered by the learned trial Judge is restored. The
  learned trial Judge is directed to take steps for arrest of the
C respondent so that he can undergo rest of the sentence.

                                                   Appeal allowed.