2025:HHC:20681-DB IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 618 of 2015 Reserved on: 30.06.2025 Decided on: 01.07.2025 State of Himachal Pradesh .......Appellant Versus Beli Ram ...Respondent Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon’ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting?1 For the Appellant: Mr. Anup Rattan, A. G. with Mr. I.N. Mehta, Senior Additional Advocate Generals, Mr. Ramakant Sharma, Ms. Sharmila Patial, Additional Advocates General and Mr. Raj Negi, Deputy Advocate General. For the respondent: Mr. G. R. Palsra, Advocate. Tarlok Singh Chauhan, Judge Aggrieved by the acquittal of the respondent for the commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’), the State has filed the instant appeal. 2. We really wonder why the State has filed the instant appeal, given the fact that it is the admitted case of 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2025:HHC:20681-DB 2 the prosecution that the police party was having prior information of the contraband and yet the provisions of Section 42 of the Act have not been complied with. 3. This would be further clear from the factual matrix of the case that on 05.06.2013, ASI Jeet Singh, HHC Ram Lal, C. Hans Raj, C. Ram Dass and C. Jitender Kumar, were present at Bhekhli Nallah, where they had laid a nakka. At about 6:00 p.m., the respondent came from Bhekhli village having a rucksack on his back, who on seeing the police party, tried to run back, but was apprehended by the police party. 4. According to the further story of the prosecution that since the conduct of the respondent arouse suspicion that he may be carrying something illegal or contraband, therefore, he is made aware of his right to be searched before a Gazetted Officer or Magistrate, but the respondent gave his consent to be searched by the police party. The rucksack was searched and a carry bag was recovered containing stick type and ball type shaped cannabis, which was weighed on the electronic scale and found to be 1 kg. The cannabis was sealed at the spot with seal impression ‘A’, 12 in number, and seal after use was given to HHC Ram Lal. Other formalities were completed at the spot. Ruqua 2025:HHC:20681-DB 3 was sent to the police station, on the basis of which, FIR came to be registered. 5. Upon completion of the investigation, the challan was presented before the Court, and upon consideration, the respondent was charged as aforesaid, to which he pleaded not guilty and claimed trial. 6. The prosecution in support of its case, examined as many as 12 witnesses. 7. Thereafter, the statement of the respondent was recorded under Section 313 Cr.P.C., wherein, he denied the case of the prosecution, and claimed that a false case had been fastened upon him. However, he did not opt to lead any evidence. 8. The learned Special Judge, after evaluating the evidence, acquitted the respondent, constraining the State to file the instant appeal. 9. We have given our thoughtful consideration to the submissions made at the Bar and have also gone through the judgment of the learned Special Judge as well as the evidence on record. 10. As observed above, the instant case is not one of chance recovery, but is of prior knowledge. Why we observed so, because PW 2 HHC Ram Lal, No. 723, who was member of the raiding party has clearly deposed as under:- 2025:HHC:20681-DB 4 “I.O. had knowledge regarding the contraband as such he has mentioned the same in Ex. PW1/A that police party was not possessing any contraband”. 11. The testimony assumes importance, because first of all, search of the police officials was conducted vide memo Ext. PW1/A and it is only thereafter a memo under Section 50 of the Act Ext. PW2/A was issued to the respondent in purported compliance of Section 50 of the Act. This is so stated by PW 2 HHC Ram Lal and this fact is further corroborated by the I.O. Jeet Singh, who while appearing as PW-10, has clearly admitted in his cross- examination that “Ext. PW1/A was prepared prior to Ext. PW2/A.” 12. To similar effect is the statement of another witness of the spot, PW-1 C. Ram Dass. Thus, what has been clearly established on record is that the policy party was having prior information of the offence and yet did not comply with the provisions of Section 42 of the Act. 13. Section 42 of the NDPS Act which reads as under: “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 department of the Central Government including para-military forces or armed forces as is empowered in this behalf by 2025:HHC:20681-DB 5 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 behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and 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 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,--- (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 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 which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: 2025:HHC:20681-DB 6 Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made there under, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further 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, 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 thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.] 14. A close perusal of Section 42 of the NDPS Act would reveal that if any such officer 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, or controlled substance in respect of which an offence punishable under this Act has been committed, is kept or concealed in any building, conveyance or enclosed place, he may enter into and search any such building, conveyance or place between sunrise and sunset and shall within seventy-two hours send a copy of the information/ grounds of his belief to his immediate superior officer. Further if such officer has reason to believe that search warrant or authorization 2025:HHC:20681-DB 7 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, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief and he shall within seventy-two hours send a copy thereof to his immediate superior official. 15. The Hon'ble Supreme Court in a catena of decisions has held that violation of Section 42 of the NDPS Act vitiates the entire trial. 16. In the case of Karnail Singh v. State of Haryana (2009) 8 SCC 539, a Constitution Bench of the Hon'ble Supreme Court considered Sections 42 and 50 of the NDPS Act. Paragraphs 1, 2 and 35 of the above judgment read as under: "1. In Abdul Rahsid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513, a three-Judge Bench of this Court held that compliance with Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act") is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused. In the case of Sajan Abraham vs. State of Kerala, (2001) 6 SCC 692, which was also decided by a three-Judge Bench, it was held that Section 42 was not mandatory and substantial compliance was sufficient. 2 In view of the conflicting opinions regarding the scope and applicability of Section 42 of the Act in the matter of conducting search, seizure and arrest without warrant or 2025:HHC:20681-DB 8 authorization, these appeals were placed before the Constitution Bench to resolve the issue. 35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: [a] The Officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). [b] But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42 (1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. [c] In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending 2025:HHC:20681-DB 9 a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. [d] While total non-compliance with requirements of subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To 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 treated as violation of Section 42. But if the information 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 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 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." 17. In Boota Singh & others vs. State of Haryana, (2021) 19 SCC 606, the Hon’ble Supreme Court has held as under: “15. It is an admitted position that there was total non-compliance of the 2025:HHC:20681-DB 10 requirements of Section 42 of the NDPS Act. 16. The decision of this Court in Karnail Singh (Karnail Singh v. State of Haryana, (2009) 8 SCC 539) as followed in Jagraj Singh (State of Rajasthan v. Jagraj Singh, (2016) 11 SCC 687), is absolutely clear. Total non-compliance of Section 42 is impermissible. The rigors of Section 42 may get lessened in situations dealt with in the conclusion drawn by this Court in Karnail Singh but in no case, total non-compliance of Section 42 can be accepted.” 18. In Najmunisha vs. State of Gujarat, AIR 2024 Supreme Court 2778, the Hon’ble Supreme Court held that the officer receiving the information regarding the narcotic is bound to record the same and send it to the superior officer and failure to do so will vitiate the trial. The relevant paras of the aforesaid judgment read as under: 31. From the perusal of provision of Section 42(1) of the NDPS Act 1985, it is evident that the provision obligates an officer empowered by virtue of Section 41(2) of the NDPS Act 1985 to record the information received from any person regarding an alleged offence under Chapter IV of the NDPS Act 1985 or record the grounds of his belief as per the Proviso to Section 42(1) of the NDPS Act 1985 in case an empowered officer proceeds on his personal knowledge. While the same is to be conveyed to the immediate official superior prior to the said search or raid, in case of any inability to do so, the Section 42(2) of the NDPS Act provides that a copy of the same shall be sent to the concerned immediate official superior along with grounds of his belief as per the proviso hereto. This relaxation 2025:HHC:20681-DB 11 contemplated by virtue of Section 42(2) of the NDPS Act 1985 was brought about through the Amendment Act of 2001 to the NDPS Act of 1985 wherein prior to this position, the Section 42(2) mandated the copy of the said writing to be sent to the immediate official superior “forthwith”. 32. The decision in Karnail Singh (supra) has been extensively referred by the learned Counsel for the Appellants and at the cost of repetition, it is observed that absolute non- compliance of the statutory requirements under the Section 42(1) and (2) of the NDPS Act 1985 is verboten. However, any delay in the said compliance may be allowed considering the same is supported by well- reasoned explanations for such delay. This position adopted by the instant 5-Judges’ Bench of this Court is derived from the ratio in the decision in Balbir Singh (supra) which is a decision by a 3-Judges’ Bench of this Court. 33. Another 3-Judges’ Bench while dealing with compliance of Section 42 of the NDPS Act 1985 in Chhunna alias Mehtab v. State of Madhya Pradesh (2002) 9 SCC 363 dealt with criminal trial wherein there was an explicit non-compliance of the statutory requirements under the NDPS Act 1985. It was held that the trial of the Petitioner- Appellant therein stood vitiated. For a better reference, the judgment is quoted below as: “1. The case of the prosecution was that at 3.00 a.m. a police party saw opium being prepared inside a room and they entered the premises and apprehended the accused who was stated to be making opium and mixing it with chocolate. 2. It is not in dispute that the entry in search of the premises in question took place between sunset and sunrise at 3.00 a.m. This being the position, the proviso to Section 42 of the Narcotic Drugs and Psychotropic Substances Act was applicable and it is admitted that before the entry for effecting search of the building 2025:HHC:20681-DB 12 neither any search warrant or authorisation was obtained nor were the grounds for possible plea that if opportunity for obtaining search warrant or authorisation is accorded the evidence will escape indicated. In other words, there has been a noncompliance with the provisions of the proviso to Section 42 and therefore, the trial stood vitiated.” 19. Thus, in the aforesaid decisions of the Hon’ble Supreme Court, it has clearly been held that where the empowered officer does not record the information at all and also does not inform the official superior, then, it is a clear violation of Section 42 of the NDPS Act. The punishments provided under NDPS Act are deterrent in nature. The Legislature in its wisdom imposed several safeguards so as to see that the penal provisions of the Act may not be abused. In the instant case, the Investigating Officer did not record the information and also did not inform the official superior(s) at all, as such, it is a clear violation of Section 42 of the NDPS Act. 20. In view of the aforesaid discussion, we are not inclined to interfere with the findings arrived at by the learned Special Judge, more particularly, when the State was not in a position to show any evidence worth the name to take a contrary view in the matter than the one taken by the learned Special Judge. 2025:HHC:20681-DB 13 21. The State has miserably failed to establish that the approach of the learned Special Judge is vitiated by some manifest or illegal error and that its decision is against the material and evidence available on record. 22. Consequently, there is no merit in the instant appeal and the same is accordingly dismissed. 23. Record be sent down. ( Tarlok Singh Chauhan ) Judge 1st July, 2025 ( Sushil Kukreja ) (sanjeev) Judge