Union of India Vs.
Satrohan  INSC 1124 (14 July 2008)
IN THE SURPEME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1145 OF 2001 Union
of India ...Appellant Versus Satrohan ...Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of the acquittal passed by learned Single
Judge of the Allahabad High Court, Lucknow Bench, directing acquittal of the
respondent (hereinafter referred to as the `accused') by setting aside the
judgment of conviction recorded by learned Additional District and Sessions
Judge, Lucknow in Criminal Appeal No.65 of 1993. The trial Court had convicted
the respondent for offences punishable under Section 8(c) and of the Narcotics
Drugs and Psychotropic Substances Act, 1985 (in short the `Act') and sentenced
to undergo RI for 10 years and fine of rupees one lakh with default
version in a nutshell is as follows:
On the basis of
secret information Sri Naseem Ahmad, an Inspector of Narcotics Department along
with other officials raided the house of the respondent on 20.11.1992 at about
8.00 a.m. in village Dadari Jamalpur. The house of the respondent was searched
and from his house 29 bags containing poppy straws were recovered. The
respondent could not explain legal possession of poppy straws weighing 309 kgs.
The respondent was arrested and after investigation charge sheet was submitted
against him. The respondent denied the possession and ownership of the property
in question and claimed trial.
The trial Court found
the evidence adduced to be clear and cogent and directed conviction and imposed
sentence as afore-noted. In appeal, the High Court directed acquittal by a
practically non-reasoned order holding that there was non- compliance of
Sections 42(2) and 50 of the Act. It was noted that the Narcotics Department
has given licence to the father of the respondent for cultivation of opium and
if there had been recovery of poppy straws it might be relatable to the
ownership of father of the respondent.
counsel for the appellant submitted that the trial Court had relied upon the
confession of the accused respondent and the grounds on which the High Court
directed acquittal are (i) non examination of independent witnesses; (ii) lack
of evidence to show exclusive ownership; and (iii) the alleged non compliance
of Sections 42(2) and 50 of the Act.
is pointed out that Section 50 is not applicable to the case. Additionally,
under Section 57 secret information has to be sent and the particulars of
seizure and arrest have to be sent. The records if asked for could have been
produced. In the instant case there is no evidence led or not even any question
was asked about absence of records. In the alternative, the inspector was a
Gazetted Officer and, therefore, even if it is conceded for the sake of
argument that there is any incorrect reference, the acts are covered under
Section 41 and not under Section 42.
counsel for the respondent on the other hand submitted that the confessional
statement could not have been relied upon. The statement was recorded by PW-2
and by the investigating officer (PW-6) on 20.11.1992. There could not have
been any recording of statement by PW-6 as he was entrusted with investigation
on 3.12.1992. It is pointed out that the investigating officer was not a
Gazetted Officer. Since authorization was obtained Section 57 comes into play.
It is pointed out that there is licence of the father also. Therefore, the High
Court's order does not suffer from any infirmity.
2(xv) and Section 2(xviii) define "opium' and "poppy straws"
respectively. It is the stand of the respondent that since there was licence of
opium, obviously there is presumption that there was licence of poppy straws.
As a matter of fact the High Court did not direct acquittal on the ground that
there was licence for poppy straws also. The evidence on record clearly shows
that the expressions "opium"
"poppy straws" are not interchangeable as contended by learned
counsel for the respondent, as Section 2(xiv) clearly makes out a distinction
between opium and poppy straws. So far as the role of PW-6 is concerned, it is
to be noted that there is no reference to the stand presently highlighted by
the High Court.
there are two different entries for opium and poppy straws. Opium appears at
Sl. No.92 while poppy straws appear at Sl. No.110. The statement of the
accused- respondent in terms of Section 67 throws considerable light on the
controversy. In the statement recorded there was no retraction and in fact
during examination under section 313 of the Code of Criminal Procedure, 1973
(in short the `Code') while answering question No.4 it was stated that there
was no confession. The confessional statement was recorded on 20.11.1992 and
the statement under Section 313 of the Code was recorded on 6.2.1999.
Therefore, there has been no retraction at any point of time. The position is
also clear from Section 57 of the Code. At the time of production before the
Magistrate, there was no allegation of any torture as presently submitted. In
this connection a few decisions of this Court need to be noted.
Kanhaiyalal v. Union of India (2008 (1) SCALE 165) at para 7 it was noted as
"7. Since the appellant
Kanhaiyalal was convicted on the basis of the statement made by him under
Section 67 of the NDPS Act, a question has been raised whether such statement
made to an officer within the meaning of Section 42 of the said Act could be
treated as a confessional statement and whether the accused could be convicted
on the basis thereof in the absence of any other corroborative evidence."
in A.K. Mehaboob v. The Intelligence Officer, Narcotics Control Bueau (JT 2001
(1) SC 614) it was observed as follows:
"4. Smt. Malini
Poduval, learned counsel for the appellants contended that Exhibit P-8 cannot
be relied on for more than one reason.
One is that the said
statement had been retracted by the accused himself. Second is that on
11.8.1994 appellant- Naushad informed the Magistrate in writing that the said
statement had been coaxed out from him.
The third is that the
said retracted confession had no corroboration and therefore cannot be made the
basis for conviction. There is nothing to indicate that Exhibit P-8 had been
elicited from A-2 by any coercion, threat or force and therefore the learned
Single Judge of the High Court had spurned down that contention. Regarding the
complaint alleged to have been made by appellant-Naushad on 11.3.1994 we have
perused it. His case therein was that he offered himself to be a witness in the
case and some reward was offered for it. It was on the said offers that he
agreed to sign the said statement. It must be remembered that appellant-Naushad
has no case that when he was produced before the Magistrate, immediately after
his arrest, he made any grievance of any maltreatment administered to him by
the members of the Narcotics Control Bureau. Wisdom downed on him (when the
complaint dated 11.3.1994 was filed) to put up an advance defence against the
statement given by him under his own signature. Even 7 then he did not think
it necessary to make any allegation that any intimidatory tactic, much less any
third degree method had been applied on him. His case in the said complaint
that a reward was offered to him and hence he agreed to sign the statement is
contrary to the present stand adopted by him that he was coerced and threatened
to made such a statement. The learned Single judge had rightly repelled the
contentions made on behalf of appellant- Naushad relating to Exhibit P-8."
inferential conclusion that the articles seized might have been recovered by
the father's licence is a conclusion without any foundation and basis.
far as the fulfillment of the requirement of Section 57 of the Act is concerned
it is to be noted that the legal position was stated by this Court in T.
Thomson v. State of Kerala and Anr. (2002 (9) SCC 618) and in State, NCT of
Delhi v. Malvinder Singh (JT 2007 (9) SC 283). In Malvinder Singh's case
(supra) at para 6, it was observed as follows:
"6. At this
juncture, it would be relevant to take note of that has been stated by this
Court 8 in T. Thomson v. State of Kerala and Anr. At para 5 it was observed as
Senior counsel further argued that the record alleged to have been prepared by
PW-1 on getting information regarding the movement of the appellants has not
been produced in court. But he conceded that no motion was made on behalf of
the appellants to call for the said record. There is no statutory requirement
that such a record should be produced in the Court as a matter of course. We
are, therefore, not disposed to upset the finding on that score either."
far as the applicability of Section 42 is concerned few decisions need to be
M. Prabhulal v. The Assistant Director, Directorate of Revenue Intelligence (JT
2003 (2) Supp SC 459) it was noted as follows:
"8. Now, we come
to the last and rather more serious objections raised on behalf of the
appellants regarding the non-compliance with Section 42 of the NDPS Act
vitiating the conviction which looks quite formidable but only on the first
impression and not on its deeper examination. The contention of Mr R.K. Jain is
that the view of the High Court that when a Gazetted Officer himself conducts a
search it is not necessary to comply with Section 42(2) of the Act, is clearly
erroneous. Section 42(2) provides that 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 thereof to his
immediate official superior. This was the statutory provision at the relevant
time. By the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001
which came into force on 2-10-2001, Section 42(2) was amended whereunder the
information taken down in writing under sub-section (1) or grounds of belief
recorded under the proviso thereto are required to be sent within seventy-two
hours to officers' immediate official superior. The contention is that the
officer who searched and seized the contraband did so on information received
by him as per Ext. PW 1 but the said information was not forwarded to his
superior officer as contemplated in Section 42(2) of the NDPS Act, thus
vitiating the entire prosecution. Further argues the counsel that the
respondent after grant of bail to the appellants by the High Court taking into
consideration the non-compliance with Section 42(2) has tried to fill in the
lacuna with a view to show the compliance of this mandatory provision. 9. The
officer who conducted the arrest, search and seizure was an empowered Gazetted
Officer of the Department. This fact is not in dispute. According to Mr Vasdev,
learned Senior Counsel for the respondent, Section 42(2) is not applicable when
an empowered Gazetted Officer conducts the arrest, search and seizure. The
counsel submits that there was no obligation on the officer to comply with the
requirement of Section 42(2) of the NDPS Act. It was also contended, in the
alternative, that Section 42 (2) of the NDPS Act was complied with.
41(1) which empowers a Magistrate to issue warrant for arrest of any person
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 Government or the State Government.
Such empowered officer
can either himself make an arrest or conduct a search or authorize 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 of officers (i)
to whom a warrant under sub-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 authorized 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 power of
entry, search, seizure and arrest without warrant or authorization. An
empowered officer has the power of entry into and search of any building,
conveyance or place, break open any door, remove obstruction, seize contraband,
detain, search and arrest any person between sunrise and sunset in terms
provided in sub-section (1) of Section 42. In case of an emergent situation,
these powers can also be exercised even between sunset and sunrise without
obtaining a search warrant or authorization, in terms provided in the proviso
to sub-section (1) of Section 42. Sub-section (2) of Section 42 is a mandatory
provision. In terms of this provision a copy of information taken down in
writing under sub-section (1) or ground recorded for the belief under the
proviso thereto, is required to be sent by the officer to his immediate superior
official. It is clear from Section 41(2) that the Central Government or State
Government, as the case may be, can only empower an officer of a gazetted rank
who can either himself act or authorize his subordinate on the terms stated in
the section. Under sub-section (1) of Section 42, however, there is no
restriction on the Central Government or the State Government to empower only a
Gazetted Officer. But on an officer empowered under sub-section (1) of Section
42, there are additional checks and balances as provided in the proviso and
also provided in sub-section (2) of Section 42. It is clear from the language
of sub-section (2) of Section 42 that it applies to an officer contemplated by
sub-section (1) thereof and not to a Gazetted Officer contemplated by sub-
section (2) of Section 41, when such a Gazetted Officer himself makes an arrest
or conducts search and seizure. It would be useful to also notice Section 43
which relates 12 to power of seizure and arrest in a public place. Any officer
of any of the departments mentioned in Section 42 is empowered to seize
contraband etc. and detain and search a person in any public place or in
transit on existence of ingredient stated in Section 43. It can, thus, be seen
that Sections 42 and 43 do not require an officer to be a Gazetted Officer
whereas Section 41(2) requires an officer to be so. A Gazetted Officer has been
differently dealt with and more trust has been reposed in him can also be seen
from Section 50 of the NDPS Act which gives a right to a person about to be
searched to ask for being searched in the presence of a Gazetted Officer. The
High Court is, thus, right in coming to the conclusion that since the Gazetted
Officer himself conducted the search, arrested the accused and seized the
contraband, he was acting under Section 41 and, therefore, it was not necessary
to comply with Section 42. The decisions in State of Punjab v. Balbir Singh,
Abdul Rashid Ibrahim Mansuri v. State of Gujarat and Beckodan Abdul Rahiman v.
State of Kerala on the aspects under consideration are neither relevant nor
14. Section 67 reads
"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 13 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 there
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."
41(2) deals with two situations. One is relatable to Gazetted Officer while in
the other case the Gazetted Officer may authorize his subordinate to do the
relevant act or may do it himself. Section 41(3) refers to the power under
Section 42 which refers to subordinates.
the confessional statement the accused has clearly stated about the ownership.
So, there has been no retraction at considerable length of time.
being the position, the High Court was clearly in error by setting aside the
judgment of the trial Court. We set aside the judgment of the High Court and
restore that of the trial Court. The appeal is allowed to the aforesaid extent.
ARIJIT PASAYAT) .................................J.