Holding

Non‑compliance with the mandatory provisions of Section 42 of the NDPS Act vitiates the prosecution, the acquittal stands, and the High Court's strictures and compensation order against the officers are set aside for being passed without a hearing.

Summary

The police conducted a night raid on the accused's house based on secret information and seized heroin, but failed to comply with the mandatory procedural requirements of Section 42 of the NDPS Act, including recording the information in writing and preparing a search memo. The trial court convicted the accused under Section 21 of the NDPS Act, but the Calcutta High Court acquitted him, passed strictures against the investigating officers and ordered the State to pay Rs.1 lakh compensation to the accused, also directing prosecution of the officers under Section 58 of the NDPS Act and IPC sections 166 and 167. The Supreme Court held that the High Court erred in passing strictures and ordering compensation without affording the officers a hearing, and that such orders must be expunged. It affirmed that non‑compliance with the mandatory provisions of Section 42 vitiates the prosecution, thereby justifying the acquittal, but rejected the award of compensation and the direction to prosecute the officers. Consequently, the appeal was partly allowed: the compensation order and prosecution direction were set aside while the acquittal was upheld.

Issues considered

The mandatory procedural requirements of Section 42 of the NDPS Act and their impact on the validity of the prosecution.
Whether a High Court can pass strictures and award compensation against police officers without giving them an opportunity of hearing.
The propriety of directing prosecution of police officers under Section 58 of the NDPS Act and IPC sections 166, 167 in a criminal appeal.
The scope of Section 482 CrPC in allowing a court to award compensation to an accused in a criminal appeal.
The burden of proof on the prosecution to demonstrate compliance with mandatory provisions of the NDPS Act.

Legislation cited

Code of Criminal Procedure, 1973s. 313, s. 372, s. 386, s. 482
Indian Penal Code, 1860s. 166, s. 167
Narcotic Drugs and Psychotropic Substances Act, 1985s. 21, s. 42(1), s. 42(2), s. 58, s. 69, s. 8(c)

Subjects

NDPS ActSection 42mandatory proceduresearch and seizurecompensationpolice officershigh court stricturesacquittalcriminal appealSection 482 CrPC

Judgment

THE STATE OF WEST BENGAL AND ORS. A
v.
BABU CHAKRABORTY

SEPTEMBER 2, 2004

[K.G. BALAKRISHNAN AND DR. AR. LAKSHMANAN, JJ.] B
Criminal Law:

- ' Narcotic Drugs and Psychotropic Substances Act, 1985-Sec. 21, Sec.
8(c), 41(2), 42 (I), (2)-Non-compliance of mandatory requirements under~
No independent witness examined-Held, conviction not sustainable. c
Indian Penal Code 1908-Sec. 166, 167-NDPS Act, 1985-Section
58-Conviction set aside by appellate court-Appellate Court passing
strictures and awarding compensation to be recovered from officers-Held,
such an order without affording an opportunity of hearing-Unwarranted- D
Hence remarks expunged.

Cr.P. C. Sec. 482-Inherent powers ofHigh Court-Official act done in
good faith-No malafides alleged-No grounds in the appeal attributing
motive-Held order passing strictures unjustified.
E
On receipt of a secret information, a raid was conducted at the
house of the respondent under the supervision of appellant nos. 2 and
3 and other persons. A quantity of 3 gms and 25 mgms of Heroin was
recovered. The respondent was arrested and thereafter he produced 123
packets of heroin on his own. The seized articles were sealed and labelled.
The respondent was charged for offences under Sec. 8(c) of the NDPS F
Act. The Additional Sessions Judge convicted and sentenced him to
undergo RI for 10 years and imposed a fine of Rs. 1 lac, with default
stipulation:

On appeal, High Court acquitted the Respondent and passed several G
strictures and observations against appellants 2 and 3. The High Court
also awarded a compensation of Rs. I lac to be paid to respondent
reserving liberty to the State Government to realise the same from
appellant no. 2, an IPS officer.

In appeal to this Court, the appellants contended that the said H
17
18 SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.

A observations and strictures were made by the High Court without giving
even an opportunity of being heard to the appellants to explain their
stand; that the action taken by the appellants charging the accused for
offence under Section 21 of the Act is justified in the given circumstances;
that when the ingredients of Sections 41 (2), 42(1)(2), 50, 51, 52, 54, 55
and 57 of the Act, are complied with, the High Court is not justified in
B setting aside the trial court's judgment and releasing the accused; that
the High Court is not justified in directing the State of West Bengal to
pay compensation of Rs. 1 lakh to the respondent reserving liberty to
the State Government to realis.e the same from appellant no. 2 an I.P.S. f ;

officer; and that the High Court has omitted to take note of the fact that
c the action taken by the officers under the Act is in good faith and is
protected under Section 69 of the Act.

The Respondents contended that where mandatory provisions are
not complied with and where independent Mahazar witnesses are not
examined the accused would be entitled to be acquitted; that as far as
D the expunging of observations is concerned, where the observations are
part and parcel of the reasoning, the Court may decline to expunge and
further it is not the law that absence of notice alone is a ground for
expunging the remarks particularly when the officers have appealed to
the Court and had an opportunity to be heard; that in hearing an
appeal against the conviction, compensation can be awarded to the
E
accused where ultimately he is acquitted and that this power is also
available in the High Court since it has plenary power and there is no
statutory bar.

Allowing the appeal in part, the Court
F
HELD : 1. The High Court was not justified in passing observations/
strictures against appellants 2 & 3 without affording an opportunity of
being heard, and it is in violation of the settled law. Harsh or disparaging
remarks are not to be made against the persons and authorities whose
conduct comes into consideration before Courts of law unless it is really
G necessary for the decision of the case. Likewise, the directions issued by
the High Court to the Trial Court to lodge a complaint to the Magistrate
having jurisdiction for prosecuting appellants 2 and 3 for having
committed an offence under Section 58 of the Act read with Sections 166
and 167 of the Indian Penal Code is not warranted. The observations
H made by the High Court are liable to be expunged. [32-C-E]
STATE v. BABU CHAKRABORTY 19
Dau/at Ram v. State of Haryana, (1996] 11 SCC 711; Mohd. Zalid v, A
Govt. of NCT of Delhi, (1998) 5 SCC 419; Rudul Sah v. State of Bihar and
Anr., (1983] 4 SCC 141; Nilabati Behera v. State of Orissa & Ors., (1993)
2 SCC 746 and D.K. Basu v. State of WB., (1997] 1 SCC 416. referred
to.

Lashkair Ram and Others v. Mast Ram Tanta and Another, [1998) 6. B
SCC 666; In the mattter of 'K' A Judicial Officer, [2001) 3 SCC 54 and
P.K. Dave v. PUCL (Delhi) and Others, [1996) (4) SCC 262, cited.

·- • 2. The action taken by appellants 2 and 3 have been taken in the
course of discharging their official duties and they would have violated · C
certain provisions. Officers who are discharging their statutory duties ·
cannot be blamed when the action taken by the State Government and
the officials concerned are for implementing the objects behind the Act
by resorting the check and to direct the raids etc. That does not enable
the Court to pass strictures against the officials and order payment of
compensation. There is no evidence or circumstance to show that there D
was any malafides on the part of these officers. Thus the direction issued
by the High Court to the State to pay compensation of Rs. 1 lakh to the
respondent/ accused giving liberty to the State to realize or to recover ·
the whole of such compensation from appellant no. 2 is wholly unjustified.
(32-F-H; 33-A-B] E
3. The search conducted after sunset and before sunrise was without
complying with the proviso to Section 42 (1). In view of the above, Sedion
42(2) also stood violated. Neither PW-4 nor PW-2 deposed tbat they
had complied with the procedure under Section 42(1) and the proviso to
Section 42(1) and Section 42(2) before they conducted the search. F
Unfortunately, these independent witnesses were not examined and no
attempts were made to summon them at the trial. In fact, PW-2, on a
specific question in cross-examination, deposed that no search memo
was prepared and, PW-4 said he does not remember if any search memo
was prepared. Due to the non-compliance of mandatory provisions of G
the Act by the appellants 2 and 3 the judgment of the High Court
cannot be characterized as perverse judgment warranting interference
in appeal by this Court. [26-F; 28-B-E; 33-G-H]

State of Punjab v. Balbir Singh, [1994) 3 SCC 299 and State of
Punjab v. Baldev_ Singh, [1999) 6 sec 172, relied on. H
20 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC
513; Kolu Thimottil Razak v. State of Kera/a, (2000) 4 SCC 465; Beckodan
Abdul Rahman v. State ofKera/a, (2002) 4 SCC 229; Chhunna Alias Mehtab
v. State of MP., (2002) 9 SCC 363 and Saiyad Mohd. Saiyad Umar Saiyad
& Ors. v. State of Gujarat, (1995] 3 SCC 610, referred to.

B It is very relevant that the prosecution witnesses speak about the
·compliance about the mandatory procedure and if evidence to this effect
is not given, the Court must assume that the person to be searched was
not informed of the protection. The Court must find that the possession
of illicit articles under the Act was not established. In this Case; PW-2 ,. :
C and PW-4 and any other prosecution witness do not speak about the
compliance with the mandatory provisions of Section 42(1), proviso to
Section 42(1) and Section 42(2). (31-B-C; 31-E]

Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2.SCC 513,
relied on.
D
Sajan Abraham v. State of Kera/a, (2001) 6 SCC 692 and Narcotics
Control Bureau v. Pradeep Nath Mathur and Anr., (2003) 10 SCC 699,
distinguished.

E CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No; 426 "'
of 1998.

From the Judgment and Order dated 3. I 0.97 of the Calcutta High Court
in Crl.A. No. 461 of 1990.

F Tapash Roy and Ms. A. Subhashini for the Appellant.

K.V. Vishwanathan, Anand, B. Raghunath, D. Bharat Kumar and
Abhijit Sengupta for the Respondent.

The Judgment of the Court was delivered by
G
DR. AR. LAKSHMANAN, J. : This appeal is preferred by the State
of West Bengal and two others to set aside the judgment or the Division
Bench of the Calcutta High Court and also for expunging certain strictures
passed against appellant Nos. 2 and 3, who belong to the Indian Police
H Service Cadre and a member of the West Bengal Police respectively. The
STATE v. BABU CHAKRABORTY [DR. LAKSHMANAN, J.] 21

High Court set aside the order of conviction and sentence passed by A
Additional Sessions in Sessions trial No. 29of1990 convicting the respondent-
herein, Babu Chakraborthy, under Section 21 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred as "the Act") and
sentencing him for rigorous imprisonment for 10 years and pay a fine of Rs.
1 lakh in default of which one more year of imprisonment is to be undergone. B

Briefly stated, the case of the prosecution is as under.

On obtaining of secret information, a raid was conducted at the house
of the respondent/accused at about 21.45 hours under the supervision of
appellant No. 2, K.L. Meena, the then Additional Superintendent of Police,, C
Burdwan, accompanied by appellant No. 3, the Sub-Inspector and other
persons and seized 3 gms 25 mgs of Heroin. The accused was arrested for
possession in contravention of Section 8(c) of the Act.

According to the prosecution, necessary formalities as envisaged under
Section 50 of the Act was observed by the raiding Police party. Thereafter,
D
the accused on his own produced 123 packets containing Diacetyl Morphine
commonly known as Heroin. The said 13 polythene packets were seized
under a seizure list prepared. Witnesses signed the seizure list. Subsequently,
seized articles were sealed and labelled. G.D. entry No. 275 at the Police
Station was made at 11.30 p.m. by the officer in charge of the said Police E
Station, who was not the member of the raiding party. G.D. entry No. 276
was made at 11.55 p.m. at the same Police Station where the accused was
produced and the seized articles were handed over to the,Excise Officer. The
Excise Officials took charge of the accused for production before the Court.
At about 7.00 a.m. on 06.05.1989, O.C. Memari Police Station sent wireless F
message to S.P., Burdwan and other senior officers mentioning full details
regarding arrest and seizure on being instructed by P.W. 4. The said message
was received by the control room of S.P., Burdwan at about 8.00 a.m. At
about 4.00 p.m. on the same day, S.P. Burdwan sent a special message to
Police, West Bengal, LB., Crime, Commissioner, Burdwan Division, G.l.G.
Burdwan Range, D.M. Burdwan etc. mentioning full details regarding. the G
arrest and seizure.

The Additional Sessions Court, Burdwan in S.T. No. 29 of 1990 in
Sessions case No. 16 of 1990 convicted the accused and sentenced to I 0 years
rigorous imprisonment and Rs. l lakh fine, in default of payment for another H
22 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A one year rigorous imprisonment. The accused preferred Criminal Appeal No.
461 of 1990 Before the High Court of Calcutta. The High Court, on
03.10.1997, pronounced the impugned judgment allowing Criminal Appeal
No. 461 of 1990 and acquitted the accused. While passing the said order,
several strictures and observations were made against appellant Nos. 2 and
3. According to the counsel for the appellant, the said observations and
B
strictures were made by the High Court without giving even an opportunity
of being heard to the said appellants to explain their stand.· Aggrieved by the
impugned judgment, a Special Petition was filed before this CoL!rt on
05.01.1998 and leave was granted by this Court on 06.04.1998. Interim stay
'
of the direction regarding payment of Rs. I Iakh as compensation was also .'
;•

C made on 29.0l.1998 and continued till date.

We heard Mr. Tapas Ray assisted by Ms. A. Subhashini, learned counsel
for the appellant and Mr. K.V. Vishwanathan, learned counsel for the
contesting respondent.
D
We have been taken through the judgment passed by the Sessions Court
and of the High Court and the documents and annexures filed therein and
also in this Court.

Mr. Tapas Ray raised the following contentions :
E
1. that the action taken by the appellants charging the accused for
offence under Section 21 of the Act is justified in the given
circumstances. According to him, the ingredients of Sections
41(2), 42(1)(2), 50, 51, 52, 54, 55 and 57 of the Act, are
complied with. Under such circumstances, the High Court is
F
not justified in setting aside the trial Court's judgment and
releasing the accused;

2. that the High Court is not justified in directing the State of
West Bengal to pay compensation of Rs. 1 lakh to the
G respondent reserving liberty to the State Government to realise
the same from appellant No. 2, a member of the I.P.S.;

3. that the High Court has omitted to take note of the fact that
the action taken by the officers under the Act is in good faith
and protected under Section 69 of the Act.
H
STATE v. BABU CHAKRABORTY [DR. LAKSHMANAN, J.] 23

Mr. K.V. Vishwanathan, learned counsel for the respondent, submitted A
that the judgment of the High Court is a well-considered one and that the
High Court has found gross violation of the mandatory procedure prescribed
in Section 42(1) and proviso to Section 42(1). Apart from this, several
infirmities, inconsistencies and material contradictions as well as non-
compliance of other mandatory provisions like Sections 55 and 57 of the Act B
and Section I 02 of Cr.P.C. have also been found. Therefore, the judgment,
by no stretch of imagination, can be characterized as a perverse judgment
warranting interference in an appeal against acquittal.

... Mr. Vishwanathan contended that the views expressed by the High
Court on Section 42 of the Act finds support from a large number of c
judgments of this Court and that this Court has held that the provisions of
Section 42(1) and the proviso to Section 42(1) and Section 42(2) are
_,, mandatory. According to the learned counsel, that any information has to be
taken down in writing and that the proviso to Section 42(1) of the Act has
to be strictly complied with. The reason to believe that a search warrant or
D
authorization cannot be obtained without affording opportunity for the
concealment of evidence or facility for the escape of an Offender, has to be
recorded with the grounds of his belief and he has to send a copy thereof

.· .. to the immediate superior, where the search is after sunset and before sunrise .
He relied on two judgments of this Court being State of Punjab v. Balbir
- Singh, [ 1994] 3 SCC 299 and State of Punjab v. Baldev Singh, ( 1999] 6 SCC
172. It was further submitted that great significance has been attached to the
E

mandatory nature of the provisions keeping in mind the stringent punishment
prescribed in the Act. Arguing further, the learned counsel submitted that
where mandatory provisions are not complied and where independent
mahazar witnesses are not examined the accused would be entitled to be F
acquitted. At the time of hearing, the learned courisel has also pointed out
other infirmities found by the High Court. They are :

(i) In exhibit-8, it is stated against Serial No. 2 regarding description
of seal wax as West Bengal Excise seal No. Ex. 23 in red
sealing wax. But curiously enough on left hand margin of G
Exhibit 8 a plain rubber stamp impression is seen. There is no
such seal in red sealing wax as noted in _exhibit-8 at serial No.
2·
'

.. (ii) There is no explanation why the other search witness namely
H
24 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A Swapan Samata did not sign on the labels covei:ing the seized
articles being marked as exhibit-4, 5 & 6;

(iii) PW 2 is wholly incompetent and unreliable witness regardipg
the search and seizure as in his cross-examination he has
admitted that he conducted the search as per the direction of
B PW 4 without_ preparing any search Memo;

(iv) There is no explanation what prompted the PW4 to locate the
house of the accused 10 to 15 days prior to the date of raid.
There is no answer to the pertinent question that if
C PW 4 was already in possession of the secret information what
prevented him from raiding the house of the accused
immediately;

(v) The West Bengal notification No. 1573 Ex. dt. 5.11.1985 and
notification No. 1574 dt. 5.11.1985 do not show that
D PW 2 or PW 4 was authorized by the State Government under
Section 41 (2) of the Act;

(vi) There is no evidence to show that the accused was informed
of the grounds of his arrest by PW 42 or PW 4 as required
under Section 52(1) of the Act;
E
(vii) There is glaring inconsistencies and contradictions in the
evidence of PW 2 and PW 4, the seizure list Ex. 7 and the
G.D. entry Ex.-1, regarding the search and seizure of the
contraband articles from the possession of the accused;
F
(viii) No where from the evidence on record it appears that
PW I the 0.C. Memari P.S. has complied with the mandatory
provisions of Section 55 of the NDPS Act or for that matter
PW 2 or PW 4 affixed their seals on the seized articles as
per Ex-7 given in custody of PW-I as recorded in the G.D.
G entry as per Ex- I;

(ix) It appears from the Ex-10 that the sealed cover containing
labelled paper packets were received back from the laboratory
on 3.8.89 by the Inspector of Excise, Kalan Katwa Range,
H Burdwan, but this sealed cover has not been produced before
STATE v. BABU CHAKRABORTY [DR. LAKSHMANAN, J.] 25

the trial Court to establish the identity of the samples seized A
by the Police;

(x) There was gross violation of Section 57 of the NDPS Act,
as the PW 4 did not make a full report of all the particulars
of such arrest or seizure to his immediate official superior.
Further, PW 2 and PW 4 have without any reasonable ground B
of suspicion, entered and searched the house of the respondent
and have vexatiously and unnecessarily arrested him so as to
proceed against Section 58 of NDPS Act.

As far as the expunging of observation is concerned, where the C
observations are part and parcel of the reasoning, the Court may decline to
expunge and further it is not the law that absence of notice alone is a ground
for expunge particularly when the officers have appealed to the Court and
had an opportunity to be heard.

The judgments of this Court in the case of Lashkari Ram and Others D
v. Mast Ram Tanta and Another, [1998] 6 SCC 666, In the matter of:
'K' A Judicial Officer, [2001] 3 SCC 54, P.K. Dave v. Peoples' Union of
Civil Liberties (Delhi) and Others, [1996] 4 SCC 262 were cited for the above
• proposition .

Learned counsel for the respondent submitted that this Court in the case
E
of Dau/at Ram v. State of Haryana, [1996] 11 SCC 711 and Mohd. Zahid
v. Govt. of NCT of Delhi, [ 1998] 5 SCC 419 held that in hearing an appeal
against the conviction, compensation can be awarded to the accused where
ultimately he is acquitted and that this power is also available in the High
Court since the High Court is having, plenary power and there is no statutory F
bar. Additionally, the power is also traceable to Section 482.

Concluding his arguments, Mr. Vishwanathan submitted that though the
cases of Rudul Sah v. State of Bihar and Anr, [1983] 4 SCC 141, Nilabati
Behera v. State of Orissa & Ors., [1993] 2 SCC 746 and D.K. Basu v. State
of West Bengal, [1997] I SCC 416 were cases under Article 32 and the Court G
held that compensation for breach of fundamental rights by the Public
Officials could be awarded in a proceeding under Articles 32 and 226, that
princ:ple should be extended to Section 482 also that the High Court hearing
a criminal appeal should have power to order compensation to the accused
for illegal incarceration. Hence, it is submitted that the High Court is perfectly H
26 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A justified in invoking Section 482 Cr.P.C. while adjudicating appeal under
Section 372 read with Section 386 Cr.P.C. and in ordering compensation.

As the last submission, Mr. Vishwanathan submitted that the respondent
has undergone 7 years 4 months in Jail and that even this Court finds that
acquittal by the High Court is incorrect, in view of the period of 7 years and
B 4 months undergone, may declare the law or point out the lower Courts error, .
but still may not interfere since special circumstances are shown to exist.

As an alternative plea, Mr. Vishwanathan submitted that even if the
acquittal is found to be incorrect, this Court following the principles laid
C down in Chandra Singh v. State of Rajasthan, [2003] 6 SCC 545 may not
direct the respondent to be taken into custody since he has already undergone
7 years 4 months for an alleged possession of 3 gm and 25 mgs of Heroin.

We have given our thoughtful consideration to the submissions made
by both the learned counsel appearing on either side on facts and also on law.
D In the instant case, the respondent was charged for the offence under Section
21 of the Act for the illegal possession of 3 gms and 25 mgs of Diacetyl
Morphine, which is commonly known as Heroin in contravention of Section
8(c) of the Act. The case of the prosecution was that PW 4, Additional S.P.,
received secret information and to work out the secret information, he along •
E with PW 2, S.K Dutta, went to the house of the respondent on 05.05.1989
and conducted a search of the house of the accused. What is important to
notice _is that the information was not taken down in writing, as required under
law and as rightly contended by the learned counsel for the· respondent. The
search conducted at 9.45 pm after sunset and before sunrise was without
complying with the proviso to Section 42(1). Section 42(1) and the proviso
F to Section 42(1) and Section 42(2) is reproduced hereunder :

"42. Power of entry, search, seizure and arrest without warrant or
authorisation. - (1) Any such officer (being an officer superior in
rank to a peon, sepoy or constable) of the departments of central
excise, narcotics, customs, revenue intelligence or. any other
G 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, policy or any other department
H of a State Government as is empowered in this behalf by general
STATE v. BABU CHAKRABORTY [DR. LAKSHMANAN, J.] 27

or special order of the State Government, if he has reason to believe A
from persons knowledge or information given by any person 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
B
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,-
c
(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 D
manufacture thereof and any other article and any animal or
conveyance which he has reason to believe to be liable to
confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the
commission of any offence punishable under this Act or
furnish evidence of holding any illegally acquired property
E
which is liable for seizure or freezing or forfeiture under
Chapter VA of this Act; and

(d) detain and search, if he thinks proper, arrest any person whom
he has reason to believe to have committed by offence F
punishable under this Act;

Provided 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, G
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 H
28 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A thereto, he shall within seventy-two hours send a copy thereof to his
immediate official superior."

In view of the above, Section 42(2) also stood violated. The proviso to
Section 42(1) requires that where an officer has reason to believe that a search
warrant or authorization cannot be obtained without affording opportunity for
B 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
before sunset and sunrise after recording the grounds of his belief.

We have perused the evidence led in this regard. Neither PW 4 nor PW
c 2 deposed that they had complied with the procedure under Section 42(1)
and the proviso to Section 42(1) and Section 42(2) before they conducted
the search. It is alleged by them that on search certain Polythene Bags
containing Heroin were recovered. According to them, two independent
witnesses of the locality Swapan Kumar Samantaand Ramkaran Prasad were
taken and they witnessed the search. But unfortunately, these witnesses were
D
not examined and no attempts were made to summon them at the trial. In
fact, PW 2 - S.K. Dutta, on a specific question in cross-examination, deposed
that no search memo was prepared and, PW_ 4 K.L. Meena said he does not
remember if any search memo was prepared. Further, it is alleged that they
came to Memari P.S. at 11.30 pm and Ex. 1 G.D. Entry was prepared. This
E G.D. Entry shows that the seized articles were recovered from the bed room
of the accused. The accused was also arrested on 05.05.1989. Thereafter, the
case was made over to PW 3 and after receiving the report from the Central
Public Health and Laboratories, the accused was sent up for trial. The trial
Court convicted the accused and punished the respondent for offences under
F Section 21 of the Act and sentenced him to undergo I 0 years R.I. and pay
a fine of Rs. I lakh.

The accused filed an appeal in the High Court and the High Court, after
finding violation of Section 42(1 ), proviso to Section 42(1) and 42(2) of the
NDPS Act and after finding several discrepancies acquitted the respondent
G and awarded compensation of Rs. 1 lakh. Strictures have also been passed
on PW 4 and PW 2 and direction to the Magistrate to prosecute PW 4 and
PW 2 was ordered.

As noticed earlier, the views of the High Court on Section 42 of the
H Act finds support from a large number of judgments of this Court.
STATE v. BABU CHAKRABORTY [DR. LAKSHMANAN, J.] 29

In the case of State of Punjab v. Balbir Singh, [1994] 3 SCC 299, a A
Bench of two Judges of this Court observed as under :

"Under Section 42(1), the empowered officer ifhas 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 B
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( l ), if such officer has to carry out such C
search between sunset and sunrise, he must record the grounds of
his belief.

To this extent, these provisions are mandatory and contravention
of the same would affect the prosecution case and vitiate the trial.
D
(3) Under Section 42(2), such empowered officer who takes
down any information in writing or records the grounds under
proviso to Section 42(1) should forthwith send a copy thereof to his
immediate official superior. If there is total non-compliance of this
provision, the same affects the prosecution case. To that extent, it E
is mandatory. But ifthere is delay whether it was undue or whether
the same has been explained or not, will be a question of fact in each
case."

In the case of State of Punjab v. Baldev Singh, [1999] 6 SCC 172,
a Constitution Bench of this Court observed in paragraphs 9 & 1O as F
under :

"Sub-section (1) of Section 42 lays down that the empowered
officer, if has a prior information given by any person, he should
necessarily take it down in writing and where he has reason to
believe from his personal knowledge that offences under Chapter vi G
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 a warrant between
sunrise and sunset, and he may do so without recording his reasons
of belief.
H
30 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A The proviso to sub-section (1) lays down that ifthe empowered
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 offend ~r, 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.
B Vide sub-section (2) of Section 42, the empowered officer who takes
down information in writing or records the grounds of his belief
under the proviso to sub-section (1), shall forthwith send a copy of
the same to his immediate official superior. Section 43 deals with
the power of seizure and arrest of the suspect in a public place. The
c material difference between the provisions of Section 43 and Section
42 is that whereas Section 42 requires recording of reasons for belief
and for taking down information received in writing with regard to
the commission of an offence before conducting search and seizure.
Section 43 does not contain any such provision and as such while
acting under Section 43 of the Act, the empowered officer has the
D power of seizure of the article etc. and arrest of a person who is
found to be in possession of any narcotic drug or psychotropic
substance in a public place where such possession appears to him
to be unlawful."

Great significance has been attached to the mandatory nature of the \-
E
provisions, keeping in mind the stringent punishment prescribed in the Act.
This Coun has attached great importance to the recording of the information
and the ground of belief since that would be the earliest version that will be
available to a Court of law and the accused while defending his prosecution.
This Court also held that failure to comply with Section 42(1), proviso to
F Section 42(1) and Section 42(2) would render the entire prosecution case
suspect and cause prejudice to the accused.

In the cases of Abdul Rashid Ibrahim Mansuri v. State ofGujrat, [2002]
2 SCC 513, Koluttumottil Razak v. State of Kera/a, (7000] 4 SCC 465,
Beckodan Abdul Rahman v. State of Kera/a, [2002] 4 SCC 229 and in the
G case of Chhunna Alias Mehtab v. State ofMP., [2002] 9 SCC 363, this Court
has held that the non-compliance of the provisions of the proviso to Section
42 of the Act which is mandatory, the action was held illegal and the ·
conviction of the accused was set aside. This Court also held that the onus
to prove compliance lies on the prosecution and in the absence of any
H prosecution evidence about the compliance with the mandatory procedure,
STATE v. BABU CHAKRABORTY [DR: LAKSHMANAN, J.] 31

the presumption would be that the procedure was not complied with. A
In the case of Saiyad Mohd. Saiyad Umar Saiyad & Ors. v. State of
Gujarat, (1995] 3 SCC 610, this Court held that the prosecution is obliged
to give evidence of the search and all that transpired in its connection. It, is
very relevant that the prosecution witnesses speak about the compliance B
about the mandatory procedure and if under the evidence to this effect is not
given, the Court must assume that the person to be searched was not infonned
of the protection. The Court must find that the possession of illicit articles
under the Act was not established. It has been held that when the officer has
not deposed that he had followed the procedure mandated, the Court is duty
bound to conclude that the accused had not had the benefit of the protection C
that the Act affords; that therefore, his possession of articles under Act is not
established and that the pre-condition for his having satisfactorily accounted
for such possession had not been met; and to acquit the accused.

The above statement oflaw has been affinned in the Constitution Bench
judgment of this Court in the case of State ofPunjab v. Baldev Singh (supra).
D

Though these observations were made in a case to which Section 50
applies, in view of the pronouncement of the judgment 0f three Judges of
this Court in Abdul Rashid Ibrahim Mansuri v. State of Gujarat (supra), the
approach by the Court in interpreting the law for the non-compliance of E
Section 42 and Section 50 must remain the same. In this case, PW-2 and PW-
4 and any other prosecution witness do not speak about the compliance with
the mandatory provisions of Section 42(1), proviso to Section 42(1) and
Section 42(2).

It has been held that in any case where mandatory provisions are not .
F
complied with and where independent mahazar witnesses are not examined,
the accused would be entitled to be acquitted and that any seizure in violation
of the mandatory provisions would be inadmissible since these provisions are
in the nature of statutory safeguards.
G
In the case of Sajan Abraham v. State of Kera/a, [2001] 6 SCC 692,
it was a chance recovery on the road and the observations made in the said
judgment have to be confined to the facts of th~t case. The said judgment
will not apply since in this case, the recovery is afteged from the house. For
the same reason, the. referral order in the case of Narcotics Control Bureau
H
I•

32 SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.

A v. Pradeep Nath Mathur & Anr, [2003) 10 sec 699' also need not detain
this Court since the facts here are different from the case in Sajan Abraham
v. State of Kera/a (supra) and a larger Bench of five Judges and three Judges
have maintained that Section 42 is mandatory under the present facts.

Replying to the arguments of Mr. Viswanathan, Mr. Tapas Ray, learned
B senior counsel, submitted that the operating portion of the impugned
judgment clearly brings out the perversity in the judgment. According to
him, the strictures that has been passed against the appellants by the
Division Bench of the High Court are wholly unjustified and are liable to
be expunged. He is right in his submission. In our view, the High Court was
c not justified and correct in passing observations/strictures against appellants
2 & 3 without affording an opportunity of being heard, and it is in violation
of catena of ·pronouncements of this Court that harsh or disparaging
remarks are not to be made against the persons and authorities whose conduct
comes into consideration before Courts of law unless it is·. really
11ecessary for the decision of the case. Likewise, the directioQs issued
D
by the High Court to the trial Court to lodge a complaint to the
Magistrate having jurisdiction for prosecuting appellants 2 and 3 for
having committed and offenc~ under Section 58 of the Act read with Se.ction
166 and 167 of the Indian Penal Code is not warranted. The observations
made by the High Court are liable to be expunged and accordingly, we
E expunge the same including the direction to lodge a complaint against
appellants 2 & 3 .
.,
As'rightly pointed out by Mr. Tapas Ray, the observations of the High :r-
Court in the impugned judgment passing strictures against the appellants have
F been made while against the record of the case and penalize the two police
officers who were discharging their official duties as per the law. The action
taken by.appellants 2 & 3 have been taken in the case of discharging of their
official duties while discharging their duties, the official would have violated
certain provisions. That does not, in our opinion, enables the Court to pass
strictures against the officials and ordered compensation. There is no
G evidence or circumstance to show that there was any rnalafides on the part
of these officers.

Likewise, the direction issued by the High Court directing the State of
West Bengal to pay compensation of Rs. 1 Iakh to the respondent/accused
H giving liberty to the State to realize or to recover the whole of such
.... ..lo. ....

STATE v. BABU CHAKRABORTY [DR. LAKSHMANAN, J.] 33
'i
compensation from appellant No. 2, Mr. K.L. Meena, a member of the Indian A
Police Service, is wholly unjustified.

In our view, officers who are discharging their statutory duties cannot
be blamed when the action taken by the State Government and the officials
concerned are for implementing the objects behind the Act by resorting the
check and to direct the raids etc. The High Court has further penalized the
B
State Government and its officers for such an action. Since the strictures
passed against them are wholly unjustified, we have no hesitation in
expunging the remarks.

Above all, the respondent/accused who was the appellant before the c
High Court did not take any plea in the memorandum of grounds attributing
motive against the appellants, particularly, appellants 2 & 3. The High Court
by pronouncing the impugned judgment has not followed the parameters laid'
down by this Court inasmuch as when the appellant before the High Court,
the accused, has not taken the plea attributing motives to appellants 2 & 3
specifically. However, we hold that the High Court is right in giving a finding
D
that non-compliance of the mandatory statutory provisions vitiates the
prosecution. There was no reason for the police officials to implicate the
accused falsely in this case. Even the accused has nowhere including in his
statement under Section 313 Cr.P.C. stated that the case was fabricated
against him due to animosity or enmity by the police. Even in the criminal E
appeal filed before the High Court, the accused has nowhere complained that
the case was falsely implicated against him.

The impugned judgment directing the State Government to pay
Rs. 1 lakh as compensation to the accused caused a great prejudice to the
State. There was no ground for coming to such conclusion. In this regard,
F
the High Court also has omitted to take note of the fact that the action taken
under the Act in good faith is protected under Section 69 of the Act. The
ju~gment of the High Court passing strictures against the professionals/
officials amounts to condemnin,g the affected parties without being heard.
G
. Jn paragraph supra, we have already discussed about the
non-compliance of the mandatory provisions of the Act by the appellants 2-
3. Under such circumstances, we are of the. opinion that the judgment of the
High Court cannot be c;haracterized as perverse judgment warranting
interference in appeal by this Court.
H
34 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A Hence, we are of the opinion that no compensation can be awarded to
the accused in the facts and circumstances of this case. We, therefore, allow
the appeal in part and set aside that part of the impugned judgment ordering
compensation to the accused and also the direction to launch prosecution
against PW 2 and PW 4 (2nd appellant) under Section 58 of the NDPS Act.
The impugned judgment shall stand in all other respects.
B
The appeal is partly allowed.

V.M. Appeal partly allowed.