- 1 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL PETITION NO.103123 OF 2024 BETWEEN: PUSHPARAJ MEHTA S/O. GHISWALAJI, AGED ABOUT 43 YEARS, OCC: BUSINESS, R/O: NARAYAN PRIDE, NEAR CBT KILLA, HUBBALLI, TQ: HUBBALLI, DIST: DHARWAD. …PETITIONER (BY SRI. G. I. GACHCHINAMATH & SRI. SHASHANT S. CHATNI, ADVOCATES) AND: THE STATE OF KARNATAKA, THROUGH E AND N CRIME POLICE STATION, HUBBALLI DHARWAD CITY, REPRESENTED BY ITS STATE PUBLIC PROSECUTOR, DHARWAD. …RESPONDENT (BY SRI. RAMESH B. CHIGARI, AGA) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. (528 OF BNSS), PRAYING TO QUASH THE ENTIRE PROCEEDINGS OF SPL.C. (NDPS) NO.10/2022 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS COURT, DHARWAD (ARISING OUT OF E AND N CR. NO. 8/2020 OF E AND N CRIME POLICE STATION, HUBBALLI DHARWAD CITY) FOR THE ALLEGED OFFENCES PUNISHABLE UNDER SECTION 21 OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT SO FAR IT PERTAINS TO ACCUSED NO.1 IN THE INTEREST OF JUSTICE AND EQUITY. THIS CRIMINAL PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR ORAL ORDER This petition is filed by accused No.1 under Section 528 of BNSS praying to quash entire proceedings in Spl.C.(NDPS) No.10/2022 pending on the file of the Principal District and Sessions Court, Dharwad registered for offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereafter referred to as ’”NDPS Act” for brevity) 2. The respondent on 12.09.2020 at about 4.30 p.m. has received information that narcotic substance is being secured from the other State for the purpose of selling at Osiya Markettling shop location at Broad way market, New Killa, Hubballi and accordingly the Police Inspector has intimated the same to his higher officers and has taken his team consisting of police constables and at the same time has summoned two of panchas and also the Ayurvedic Doctor and request him to participate in the raid - 3 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 that is to be conducted. And accordingly, at around 5.50 p.m. has conducted the raid and at the time of raid he came across two persons who are accused Nos.1 and 2. When enquired, accused No.1 stated that he is owner of the shop and accused No.2 stated that he is working in the shop. Thereafter, the Police Inspector told them that they have got the information regarding the narcotic drug being sold in the shop and accordingly enquired and made search for the same and found two boxes consisting of 40 packets in one box and 22 packets in another box weighing about 486 grams valuing Rs.300/- and one of the pack was opened and it was found that the packed consisted of a material which was smelling pungent and the same was seized at around 6.30 p.m. The said packet has a wrapper stating the product is “Madhu Monakka” and it is also stated that “Sales permitted in Rajasthan only”. Thereafter, when enquired further it was told that the same material is kept in their godown. The godown was also raided and the Police Inspector has seized three - 4 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 bags. In the first bag there were 120 boxes consisting of 40 packets of Madhu Monakka weighing 23Kgs 877 grams valuing Rs.12,000/- and the second bag consisted of 120 boxes consisting of 40 packets of Madhu Monakka weighing 23 kgs 657 grams valuing Rs.12,000/- and third bag consisted of 60 boxes consisting of 40 packets of Madhu Monakka weighing 12 kgs 200 grams valuing Rs.6,000/-. The complainant seized all these materials and took statement of panchas and the Doctor who had accompanied raid. The raid process was completed at about 9.30 p.m. thereafter, he lodged the complaint for the offence punishable under Section 21 of the NDPS Act. After completing investigation, charge sheet came to be filed and now case is in pending on the file of the Principal District and Sessions Court, Dharwad. The proceedings of the said case are sought to be quashed in the present petition by accused No.1. 3. Heard learned counsel for the petitioner – accused No.1 and learned AGA for the respondent –State. - 5 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 4. Learned counsel for the petitioner –accused No.1 would contend that there is no compliance of Sub- Section (1) of Section 42 of the NDPS Act as information received has not been reduced into writing. He further submits that the search has been conducted after sunset and it is not permitted under Sub-Section (1) of Section 42 of NDPS Act. The complainant has not recorded reasons for search between sunset and sunrise. The information reduced into writing has not been sent to Official Superior in the proper form as required under Sub-Section (2) of Section 42 of the NDPS Act. On perusal of the sachet seized it is produced by Indian product Beawar, Rajasthan and there is no investigation regarding the Manufacturer of product seized. The said Manufacturer has not been made as accused. The said sachet has been manufactured by the Indian Product which is having license and same is part of the charge sheet. The license No.703-D has also been mentioned on the sachet. There is discrepancy in the weight in the certificate of Destruction and mahazar. On - 6 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 the points canvassed the learned counsel has placed reliance on the following decisions: 1) Mohinder Kumar Vs. The State, Panaji Goa1 2) Union of India (UOI) Vs. Bal Mukund And Others2 3) Boota Singh and Others Vs. State of Haryana3 4) Smt. Najmunisha Vs. The State Of Gujarat4 5) Nagappa Laxamappa Janawad And Another vs. The State of Karnataka And Another5 6) Mahabir Singh Vs. State of Haryana6 7) Abdul Rakib Vs. The State of West Bengal7 5. Learned AGA would contend that requisition for permission has been sent to Official Superior prior to raid i.e. on 12.09.2020 and the Official Superior has issued order granting permission for the raid on the same day i.e. on 12.09.2020. As there is permission granted by the authorised officer, a raid can be conducted by day or by night which is permissible under Section 41(2) of NDPS 1 Reported in (1995) AIR (SCW) 1208 2 Reported in (2009)67 (ACrC) 394 3 Reported in (2021)4 S.C.R 180 4 Reported in (2024)4 S.C.R. 442 5 Rendered in Crl.P.no.100806/2025 Decided on 21.02.2025 6 Decided on 26.07.2001 7 Rendered in CRM(NDPS) 546 OF 2023 Decided on 25.082023 - 7 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 Act. The FSL report indicates that the product seized is positive for charas. There is presumption under Section 45 of the NDPS Act. There is compliance of Sub-Section (2) of Section 42 of NDPS Act. With these, he prays for dismissal of the petition. 6. In reply, learned counsel for the petitioner would submits that grant of permission by authorised officer has not been stated in the Station House Dairy and that itself show that it is created subsequently. 7. Having heard learned counsels, this Court has perused the charge sheet and other materials placed on record. 8. It is specific contention of learned counsel for the petitioner that search has been conducted after sunset and before sunrise and the officer conducted search has not recorded reasons for search between sunset and sunrise. On that point he placed reliance on the decision of the Hon’ble Apex Court in the case of Mohinder Kumar - 8 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 Vs The State of Panaji(Supra) wherein it is held that under Section 42(1) proviso, if the search is carried out between sunset and sunrise, officer must record the grounds of his belief. 9. In the case of Union of Indian Vs Bal Mukund and Others (Supra) the Hon’ble Apex Court has observed thus: “18. Section 42 of the Act mandates compliance of the requirements contained therein, viz., if the officer has reason to believe from personal knowledge or information given by any person which should be taken down in writing that any drug or psychotropic substance or controlled substance in respect of which an offence punishable under the Act has been committed, he is empowered to exercise his power enumerated in clauses (a) and (b) of Section 42(1) of the Act between sunrise and sunset. Subject to just exceptions, thus, taking down the information in writing is, therefore, very necessary to be complied with. The proviso appended to Section 42(1) of the Act reads as under: - 9 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 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, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief." Sub-section (2) of Section 42 of the Act provides that such an information reduced in writing should be communicated to his immediate superior officers within seventy two hours. The information was received on the previous night. The purported recovery was made at 5 a.m. Even the Senior Superintendent of Police was aware thereof, who had received the information first and directed PW-7 to conduct the raid. No explanation has been offered as to why the mandatory requirements of law could not be complied with.” 10. The Hon’ble Apex Court in the case of Smt. Najmunisha Vs State of Gujarat (supra) has observed thus - 10 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 “43. The learned Counsel of the Respondent No. 02 presents an alternate argument that the expressions “personal knowledge” and “and taken in writing” contemplated by Section 41(2) of the NDPS Act 1985 ought to be read disjunctively, thereby eliminating the requirement of taking down information in writing when it arises out of the personal knowledge of the Gazetted Officer. We are not inclined to accept this interpretation. The position for recording the reasons for conducting search and seizure are well established through the ratio in paragraph number 25 (2C) in Balbir Singh case (supra) as mentioned below: “(2C) Under Section 42(1) the empowered officer if has 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 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. - 11 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 But under the proviso to Section 42(1) if such officer has to carry out such 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.” 11. The Co-Ordinate Bench of this Court in the case of Nagappa and Another Vs State of Karnataka and another(supra) relying on the decision of the Hon’ble Apex Court in the case of Smt. Najmunisha Vs State of Gujarat (supra) has held that total non-non-compliance of Sub-Section (2) of Section 42 of NDPS Act vitiates the trial. 12. The Hon’ble Apex Court in the case of Boota Singh and others Vs State of Hariyana(Supra) has held as under: “10. In Karnail Singh , the Constitution Bench of this Court concluded:- - 12 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 “35. In conclusion, what is to be noticed is that Abdul Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham [(2001) 6 SCC 692 :2001 SCC (Cri) 1217] 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 - 13 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 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 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 sub- sections (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 - 14 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 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.” 11. In Jagraj Singh alias Hansa , the facts were more or less identical. In that case, the vehicle (as observed in para 5.3 of the decision) was not a public transport vehicle. After considering the relevant provisions and some of the decisions of this Court including the decision in Karnail Singh, it was observed:- “14. What Section 42(2) requires is that where an officer takes down an information in writing under sub-section (1) he shall send a - 15 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 copy thereof to his immediate officer senior. The communication Ext. P-15 which was sent to the Circle Officer, Nohar was not as per the information recorded in Ext. P-14 and Ext. P-21. Thus, no error was committed by the High Court in coming to the conclusion that there was breach of Section 42(2). 16. In this context, it is relevant to note that before the Special Judge also the breach of Sections 42(1) and 42(2) was contended on behalf of the defence. In para 12 of the judgment the Special Judge noted the above arguments of defence.However, the arguments based on non-compliance with Section 42(2) were brushed aside by observing that discrepancy in Ext. P-14 and Ext. P-15 is totally due to clerical mistake and there was compliance with Section 42(2). The Special Judge coming to compliance with the proviso to Section 42(1) held that the vehicle searched was being used to transport passengers as has been clearly stated by its owner Vira Ram, hence, as per the Explanation to Section 43 of the Act, the vehicle was a public transport vehicle and there was no need of any warrant or authority to search such a vehicle. The High Court has reversed the above findings of the Special Judge. We thus, - 16 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 proceed to examine as to whether Section 43 was attracted in the present case which obviated the requirement of Section 42(1) proviso. 29. After referring to the earlier judgments, the Constitution Bench came to the conclusion that non-compliance with requirement of Sections 42 and 50 is impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance with Section 42. The Constitution Bench noted the effect of the aforesaid two decisions in para 5. The present is not a case where insofar as compliance with Section 42(1) proviso even an argument based on substantial compliance is raised there is total non-compliance with Section 42(1) proviso. As observed above, Section 43 being not attracted, search was to be conducted after complying with the provisions of Section 42. We thus, conclude that the High Court has rightly held that non-compliance with Section 42(1) and Section 42(2) were proved on the record and the High Court has not committed any error in setting aside the conviction order.” - 17 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 13. Considering above decisions relied upon by learned counsel for the petitioner if there is non compliance of Sub-Section (1) and (2) of Section 42 of NDPS Act vitiates trial. Considering the said aspect, now it is to be considered in the present case whether there is compliance of Section 42 of NDPS Act or not. 14. The Police Inspector has received credible information and same has been entered in the Station House Diary at about 4.30p.m. As per Sub-Section (1) of Section 42 of NDPS Act any information received has to be reduced into writing has been complied with. Learned counsel for the petitioner would contend that the said information reduced in the Station House Dairy is not in the manner prescribed. Whether the said information reduced in Station House Diary is in proper manner or not cannot be considered at this stage and it is to be considered at the trial. 15. The said information received by the Police Inspector has been communicated to the Assistant Police - 18 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 Commissioner, Hubballi South Sub-Division on 12.09.2020 whereunder the permission has been sought for conducting raid. The said letter dated 12.09.2020 sent by the Police Inspector has been received by the Assistant Police Commissioner, Hubballi South Sub-Division on 12.09.2020 and there is endorsement to that effect along with signature and seal of the Assistant Police Commissioner, Hubballi South Sub-Division. The Assistant Police Commissioner, Hubballi South Sub-Division has accorded permission to conduct raid and same is part of the charge sheet and it is dated 12.09.2020 and there is signature of the Police Inspector on it for having received the same. Learned counsel for the petitioner would contend that there is no outward number on the said two letters and therefore, they are created. Merely because they have no outward number, at this stage it cannot be said that they are created and same can be urged at the trial. The information received has been reduced into writing and it is communicated to Official Superior within - 19 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 72 hours and there is compliance of Sub-Sections (1) and (2) of Section 42 of NDPS Act. 16. It is not in dispute that alleged raid has been conducted after sunset and before sunrise. Sub Section (2) of Section 41 reads as under: “1) XXXX 2 ) Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of Central Government including the para-military forces or the armed forces as is empowered in this behalf by 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 behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any - 20 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 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, or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.” 17. As provided under Sub –Section (2) if there is authorization by authorised officer, the raid can be conducted by day or by night. Therefore, Sub-Section (2) of Section 41 of NDPS Act permits such an empowered or authorised officer to exercise the said powers to authorise raid by day or by night. 18. In the case on hand there is authorisation by authorised officer as provided under Sub-Section (2) of Section 41 of NDPS Act which provide for conduct of raid - 21 - NC: 2025:KHC-D:5190 CRL.P No. 103123 of 2024 by day or by night. Therefore, recording of reasons to believe that such a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender is not required. 19. Considering all these aspects, there are no grounds for quashing as sought for. In the result, the petition is dismissed. SD/- (SHIVASHANKAR AMARANNAVAR) JUDGE DSP/CT-ASC List No.: 1 Sl No.: 7