Supreme Court upholds NDPS conviction, finds substantial compliance with Section 42
A bench of Justices Sanjay Karol and Augustine George Masih dismissed Kashmir Ram’s appeal, holding the ruqa and telephonic summons met Section 42 and Section 50 was not attracted.
The Supreme Court has upheld the conviction and ten-year sentence of Kashmir Ram @ Pappi under Section 15(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, for possession of poppy husk. In a judgment authored by Justice Augustine George Masih, a division bench held that the investigating officer’s conduct amounted to substantial compliance with Section 42, that Section 50 was not attracted to the search of the vehicle from which the contraband was recovered, and that the delay in dispatching samples to the Chemical Examiner was a procedural irregularity cured by a contemporaneous judicial order recording intact seals. The Court dismissed the appeal, finding that the concurrent findings of the Special Court, Jalandhar, and the High Court of Punjab and Haryana disclosed no perversity warranting interference under Article 136.
How the poppy husk case reached the Court
The appeal arose from a judgment of the High Court of Punjab and Haryana at Chandigarh dated 30 October 2019, which had dismissed the appellant’s challenge to his conviction by the Special Court, Jalandhar.
On 4 May 2014, Inspector Shiv Kumar had laid a naka at the Canal Bridge near Village Tehang. A secret informer told him around 11:00 AM that the appellant and his brother, Dharam Pal @ Bobby, were selling poppy husk on a large scale and were carrying bags in a Tata Safari from Saiffabad towards Tehang.
The officer scribed a ruqa, sent it to Police Station Phillaur, and FIR No. 89 was registered under Sections 15, 61 and 85 of the NDPS Act. The vehicle was intercepted; the driver attempted to turn it around. Ten plastic bags of poppy husk, each of twenty kilograms, were found beneath a tarpaulin at the rear. A further eight bags were later recovered from the accused’s house on disclosure.
The Special Court, by judgment dated 26 March 2018, discarded the recovery of eight bags from the house for want of independent witnesses but sustained the recovery of ten bags from the vehicle, convicting both accused under Section 15(c). Dharam Pal @ Bobby did not challenge the conviction and was not before the Supreme Court.
What the Court held on Section 42
The principal issue was compliance with Section 42, which requires prior information given by any person to be taken down in writing and a copy sent to the immediate official superior within seventy-two hours.
Counsel for the appellant argued that this was a case of total, not delayed, non-compliance. PW-04 admitted he had not reduced the secret information into writing or sent it to a superior at any stage. PW-06, the officer before whom the accused elected to be searched, admitted he was never informed of the information in writing. The appellant relied on Karnail Singh v. State of Haryana, State of Punjab v. Balbir Singh and Darshan Singh v. State of Haryana.
The Court affirmed the proposition in Darshan Singh that registration of an FIR under the Code of Criminal Procedure is no substitute for the distinct obligation Section 42 casts. But it read that ruling as directed against assuming compliance from a single circumstance, not as a rule excluding an FIR-triggering writing from the totality of consideration.
On the facts, the Court found the finding of substantial compliance rested on three matters taken together. The information reached PW-04 at 11:00 AM while at a nakabandi on a public road, relating to a vehicle in transit and expected imminently — a situation answering clause (b) of paragraph 35 of Karnail Singh. PW-04 scribed the ruqa and dispatched it before the interception. He then telephoned the Deputy Superintendent of Police (D), communicated the receipt of the information and summoned him to the spot, where the search was conducted under supervision.
Read against those circumstances, PW-04’s admission established only that no register entry was made and no separate copy transmitted, “not that the officer proceeded in secrecy.” The Court held there was substantial compliance and that no prejudice had been shown.
Section 50 and the personal search
The appellant argued Section 50 was violated because a personal search of both accused was conducted under memos Ex. P-9 and Ex. P-10, and PW-06 held the post of Deputy Superintendent of Police only on current duty charge on 4 May 2014, being confirmed in the substantive rank only in 2016.
The Court held Section 50 operates on the search of a person, not of a conveyance. Nothing was recovered on the personal search; the conviction rested wholly on the ten bags from beneath the tarpaulin. Applying State of Punjab v. Baljinder Singh, the Court treated the vehicle search and the personal search following it as separate, independent steps. Where nothing is recovered on the latter while narcotics are recovered from the former, the entire search is not vitiated.
Since Section 50 was not attracted, the further contention about PW-06’s rank did not arise.
Sample delay, link evidence and the reverse onus
The samples drawn on 4 May 2014 reached the Chemical Examiner only on 20 May 2014, said to breach Standing Order 1/88 and Section 52A. The Court held the object of prompt dispatch is to foreclose tampering. On the day after recovery, the case property was produced before the Sub-Divisional Judicial Magistrate, whose order recorded the seals “SK”, “AK” and “PSS” as intact. The laboratory reports Ex. D2 and Ex. PY recorded seals intact and tallying. Relying on Narcotics Control Bureau v. Kashif, the Court held the interval a procedural irregularity that did not vitiate the trial.
The Chemical Analyst was not examined, but the report stood tendered under Section 293 CrPC and was admissible without formal proof. No application to examine the analyst had been made and declined.
On the absence of independent witnesses, the Court found no inconsistency in accepting the vehicle recovery while discarding the house recovery. The search of a dwelling attracts Section 100(4) CrPC; the search of a vehicle on a public road does not. The recovery from the vehicle preceded the disclosure statements, rested on a distinct recovery memo Ex. P-6, a distinct Form M-29 and a distinct report, and stood vouched by the Magistrate’s order dated 5 May 2014.
The High Court had recorded findings against PW-01, PW-03 and PW-06 on collateral particulars and forwarded a copy of its judgment to the Director General of Police, Punjab. The Supreme Court held those infirmities did not touch the interception, the appellant’s presence in the vehicle, the recovery, or the forensic identity of the material.
On possession, the Court observed that what matters under Section 15 is possession, not title. Though PW-02 proved the vehicle stood registered in a third party’s name, both accused were within it and the bags lay behind them. The presumption under Section 54 was attracted and, the defence of false implication spoken to by DW-01 having been rejected by both courts, stood unrebutted.
Order
The Court dismissed the appeal. It upheld the conviction under Section 15(c) of the NDPS Act and the sentence of ten years’ rigorous imprisonment with a fine of INR 1,00,000, and in default, rigorous imprisonment for a further one year, as recorded by the Special Court, Jalandhar, and affirmed by the High Court. Pending applications were disposed of.