Thankachan Vs. State of Kerala
EmailAppeal: Criminal Appeal No. 108 of 2001
Petitioner: Thankachan
Respondent: State of Kerala
Apeal: Criminal Appeal No. 108 of 2001
Judges: Dr. A.S. ANAND, CJI, A.P. MISRA & SHIVARAJ V. PATIL, JJ.
Date of Judgment: Jul 26, 2001
Head Note:
CRIMINAL LAW
NDPS Act, 1985
Section 42(1), (2) – Noncompliance – Effects – Prior information received – Nothing in writing – Recovery affected. Held that noncompliance renders the recovery doubtful and may even vitiate trial. Case law referred. (Paras 4, 6)
Cases Reffered:
1. Koluttumottil Razak v. State of Kerala (2000 (4) SCC 465) (Para 6)
2. State of Punjab v. Baldev Singh (JT 1999 (4) SC 595) (Para 6)
3. State of Punjab v. Balbir Singh (JT 1994 (2) SC 108) (Para 6)
2. State of Punjab v. Baldev Singh (JT 1999 (4) SC 595) (Para 6)
3. State of Punjab v. Balbir Singh (JT 1994 (2) SC 108) (Para 6)
JUDGEMENT:
ORDER
1. The appellant along with another person were put on trial for commission of an offence punishable under section 20(b)(i) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereina fter the ‘NDPS Act’).
2. The learned additional sessions judge vide judgment dated 29th September, 1997 held the appellant guilty of the said offence and sentenced him to undergo four years R.I. and to pay a fine of Rs. 25,000/- and in default of payment of fine, to undergo R.I. for one year. An appeal filed by the appellant challenging his conviction and sentence failed. Hence, this appeal by special leave.
3. The case of the prosecution is that on getting reliable information on 30th June, 1994, PW-1 proceeded to the place near Kottaparamba bus stand. The appellant and his co-accused were searched and from a bag, which was in possession of the appellant, ganja, weighing 600 gms. was seized. It was taken into possession in presence of PW-4. 10 gms. of the recovered contraband were placed in a bottle which was closed and sealed. A label was affixed on the bottle which was signed by the witnesses as well as the appellant and his co-accused. The rest of the ganja was wrapped in newspaper and put in a yellow polythene bag and sealed on the spot. Mahazar had been prepared and signed by the witnesses. Subsequently, the appellant and his co-accused with the seized contraband were produced before head constable in-charge at Kasaba police station. The sample of seized material was sent to the chemical analyser, who, after examination, opined that it was ganja. The appellant and his co-accused were sent up for trial and while the co-accused was acquitted, the appellant was convicted as already noticed.
4. In this case, we find there has been a total noncompliance with the provisions of section 42 of the NDPS Act. From the evidence of PW-1, it transpires that he had received reliable prior information regarding selling of contraband by two persons from a place near the Kottaparamba bus stand and on arriving at the spot, he found the appellant and his co-accused standing near an electric post. They were searched and allegedly the contraband was recovered from the violet coloured airbag held by the appellant. Though PW-1 had received reliable information before proceeding to the spot to effect seizure and arrest the accused, he admitted that he did not record the information in writing before proceeding to the spot. He also admitted that since nothing had been taken down in writing, the question of sending a copy of that writing immediately to his superior officer as required by section 42(2) of the Act did not arise.
5. This Court has, in a number of judgments commented upon the importance of external checks available under section 42 of the NDPS Act. It has been laid down that if the empowered officer has prior information given by any person, then, within the meaning of sub section (1) of section 42 of the NDPS Act, he should necessarily take it down in writing and after doing so, he should forthwith send a copy of the same to his immediate superior official under section 42(2) of the NDPS Act. This provision has been made by the legislature with a view to provide safeguard so that testimony of the empowered officer is checked by reference to written record.
6. A constitution bench in State of Punjab v. Baldev Singh (JT 1999 (4) SC 595) relied with approval an earlier judgment by a division bench of this Court in State of Punjab v. Balbir Singh (JT 1994 (2) SC 108) and held that failure to comply with the provisions of section 42 of the NDPS Act would render the recovery suspect and the contravention of the provisions, may, therefore, even vitiate the trial. The constitution bench judgment has been followed by a judgment of this Court in Koluttumottil Razak v. State of Kerala (2000 (4) SCC 465).
7. In view of the fact situation, as noticed above, PW-1 was obliged to record the prior information, before proceeding to seize the contraband and arrest the accused. He did not do so. There is no explanation forthcoming for noncompliance with the statutory safeguard. We are, therefore, of the considered opinion that because of noncompliance with the provisions of section 42(1) and (2) of the NDPS Act, recovery of the contraband has become suspect. It is, therefore, difficult to sustain the conviction and sentence of the appellant. We, therefore, allow this appeal and set aside the conviction and sentence of the appellant. We direct that the appellant shall be set at liberty forthwith unless required in any other case.
1. The appellant along with another person were put on trial for commission of an offence punishable under section 20(b)(i) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereina fter the ‘NDPS Act’).
2. The learned additional sessions judge vide judgment dated 29th September, 1997 held the appellant guilty of the said offence and sentenced him to undergo four years R.I. and to pay a fine of Rs. 25,000/- and in default of payment of fine, to undergo R.I. for one year. An appeal filed by the appellant challenging his conviction and sentence failed. Hence, this appeal by special leave.
3. The case of the prosecution is that on getting reliable information on 30th June, 1994, PW-1 proceeded to the place near Kottaparamba bus stand. The appellant and his co-accused were searched and from a bag, which was in possession of the appellant, ganja, weighing 600 gms. was seized. It was taken into possession in presence of PW-4. 10 gms. of the recovered contraband were placed in a bottle which was closed and sealed. A label was affixed on the bottle which was signed by the witnesses as well as the appellant and his co-accused. The rest of the ganja was wrapped in newspaper and put in a yellow polythene bag and sealed on the spot. Mahazar had been prepared and signed by the witnesses. Subsequently, the appellant and his co-accused with the seized contraband were produced before head constable in-charge at Kasaba police station. The sample of seized material was sent to the chemical analyser, who, after examination, opined that it was ganja. The appellant and his co-accused were sent up for trial and while the co-accused was acquitted, the appellant was convicted as already noticed.
4. In this case, we find there has been a total noncompliance with the provisions of section 42 of the NDPS Act. From the evidence of PW-1, it transpires that he had received reliable prior information regarding selling of contraband by two persons from a place near the Kottaparamba bus stand and on arriving at the spot, he found the appellant and his co-accused standing near an electric post. They were searched and allegedly the contraband was recovered from the violet coloured airbag held by the appellant. Though PW-1 had received reliable information before proceeding to the spot to effect seizure and arrest the accused, he admitted that he did not record the information in writing before proceeding to the spot. He also admitted that since nothing had been taken down in writing, the question of sending a copy of that writing immediately to his superior officer as required by section 42(2) of the Act did not arise.
5. This Court has, in a number of judgments commented upon the importance of external checks available under section 42 of the NDPS Act. It has been laid down that if the empowered officer has prior information given by any person, then, within the meaning of sub section (1) of section 42 of the NDPS Act, he should necessarily take it down in writing and after doing so, he should forthwith send a copy of the same to his immediate superior official under section 42(2) of the NDPS Act. This provision has been made by the legislature with a view to provide safeguard so that testimony of the empowered officer is checked by reference to written record.
6. A constitution bench in State of Punjab v. Baldev Singh (JT 1999 (4) SC 595) relied with approval an earlier judgment by a division bench of this Court in State of Punjab v. Balbir Singh (JT 1994 (2) SC 108) and held that failure to comply with the provisions of section 42 of the NDPS Act would render the recovery suspect and the contravention of the provisions, may, therefore, even vitiate the trial. The constitution bench judgment has been followed by a judgment of this Court in Koluttumottil Razak v. State of Kerala (2000 (4) SCC 465).
7. In view of the fact situation, as noticed above, PW-1 was obliged to record the prior information, before proceeding to seize the contraband and arrest the accused. He did not do so. There is no explanation forthcoming for noncompliance with the statutory safeguard. We are, therefore, of the considered opinion that because of noncompliance with the provisions of section 42(1) and (2) of the NDPS Act, recovery of the contraband has become suspect. It is, therefore, difficult to sustain the conviction and sentence of the appellant. We, therefore, allow this appeal and set aside the conviction and sentence of the appellant. We direct that the appellant shall be set at liberty forthwith unless required in any other case.
