NATHU RAM Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the conviction and sentence dated 27.1.1989 by which Mr R.C. Jain, Additional Sessions Judge, Delhi, convicted the appellant under Section 20 of the Narcotics Drugs and Psychotrofic Substances Act, 1985 (hereinafter called "the Act") and <PG>250</PG> sentenced him to udergo regorous imprisonment for a period of 10 years and also to a fine of Rs. 1 lac or in default suffer a further a simple imprisonment for 2 1/2 years.

(2.) The story of the prosecution is that the Vigilance Department of Delhi Police, New Delhi, had information that one person by the name of Nathu receives charas from one Baldev Singh @ Abdul Latif and sells the same to different persons and that on 13.8.1986 he will come on his scooter No. DIS-3029 and hand over the same to some party in Hotel Basant. On the basis of this information they organised a raiding party comprising of Sub-Inspectors Bir Singh and Surender Pal Rana. Head Constables Dharam Singh, Constables Rajinder Singh, Basi Haider Paramanand and Ajay Kumar under the supervision of Inspector Jai Pal Singh in the office of DPC (Vigilance). The raiding party started from the police headquarters at about 1.50 PM in a Government Vehicle No. DED 532 toward Basant Hotel, Pahar Ganj and picketed 'Nakabandi' near the Tonga Stand, Basant Hotel in a gali adjoining Basant Hotel. A public w itness Mr. Abdul Rauf, a waiter-cum-receptionist in Hotel Basant was also joined. The raiding party waited for the arrival of Nathu. At about 2.05 PM, one pson whose name and address was later on found as Nathu Ram son of Desh Raj, resident of House No. 7802, Katra Jamaluddin, Arakashan Road. Ram Nagar, Paharganj, New Delhi, arrived there on scooter No. DIS-3029 and as soon as he parked his scooter near Basant Hotel, at the pointing out of the informer, he was overpowered. He was than informed that if he desired, his search could be taken in the presence of some gazetted officer or a Magistrate. But he (the appellant) declined. Then in the presence of ?he raiding party and .public witness Abdul Rauf the dicky of the scooter was got opened from the appellant. It was found to contain four packets of charas in the from of slabs, wrapped in polythene paper. Each packet was further tried with a thread. Those four packets were separately weighed and were found to be of one Kg each Therefore, the total weight of the four packets was found to be 4 Kgs. They were numbered A to D. 10 grams each was separated as sample from each of the four packets. The samples were put in paper envelopes separately and converted and into four separate parcels AD the four packets of charas were converted into one parcel and sealed with the seal impression 'JPS'. The sample parcels were given serial numbers I to 4 and were separately sealed with the same seal impression 'JPS'. From CFSL was also filled at the slop Specimen of the seal impression was also prepated. On checking of the scooter the papers concerning the scooter were, not found. The sample parcels, the one parcel of the remaining charas, the keys of the scooter along with the scooter were taken into policy prossession vide the sizeure memo. The Rukka Ex Public Witness 5/A was forwarded of police station, Pahhr Ganj through Constable Basi Haider for registration of a case. The personal search memo of the appllant Ex Public Witness 1/B was also prepared at the spot. The investigation of this case was carried out by Inspector Jai Pal Singh, Public Witness-12 who prepared the site plan Ex Public Witness 12/A. The appellant had refused to be searched before a Magistrate and he gave in his own handwriting the paper Ex Public Witness 2/8 to that effect. The Appellant further made a disclosure statement on the basis of which a raid was organised and 5 Kgs of charas was recovered from Baldev @ Abdul Latif staying in Micki restaurant on the same evening. After completion of investigation the charge sheet was filed and the appellant was tried, convicted and sentence as stated above. It may also be noted that the co-accused Baldev alias Abdul Latif was prosecuted separately. He was also prosecuted in this case along with the appellant under Section 29 of the Act. He was, however, discharged by the learned trial court vide order dated 4.9.87. The sample parcels were also <PG>251</PG> allegedly sent to CFSL, whereupon the report Ex. Public Witness 12/C was received from. the CFSL staling that the samples gave positive test for charas.

(3.) I have beard agruments advanced by learned counsel for the parties and have given my careful consideration to the evidence examined and have also carefully persued the judgment recorded by the learned trial Judge. Learned counsel for the appellant brought to my notice that the police failed to comply with certain mandatory provisions of the Act, and on this account the appellant deserves to be acquitted. My attention has been draw to Section 42(1) of the Act. It is provided in this Section that when any 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 as is empowered in this behalf by the general or special order by the Central Government or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behall' be general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person ami taken down in writing that any narcotic durg, or psychotropie substance in respect of which an offence punishable under Chapter IV has been committed then only he has the power to enter into and search any such building, conveyance or place. Upon the basis of the words, "and taken down in writing" it is argued that it is incumbent upon a police officer to take down in writing any information which is supplied to him about the commission of an offence under this Act. Since secret information received by an officer of the Vigilance branch was nut reduced to writing and not forwarded to any immediate superior officer as enjoined by Section. 42(2) of the Act. the whole proceedings being in violation of Section 42 were vitiated. I do not agree with this contention of the learned counsel for the appellant. It has been rightly pointed out by learned counsel for the State that it was not obligatory for the officer to record any such information in writing. Sub-section (2) of Section 42 of the Act states as follow : "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". It clearly shows that the information can be forwarded to the immediate superior officer only where such information is taken down in writing. Therefore, by necessary implication, if such an information has not been recorded by the officer, question of sending any such information to any superior officer does not arise. Therefore, the requirement under Section 42 of the Act for reducing the information in writing can be said to be only directory and not mandatory.