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SEBI S
GOVT. LAW COLLEGE
ERNAKULAM
M.Prabhulal v. Assistant Director, Directorate
of Revenue Intelligence (2003) 8 SCC 449
Court:
Supreme Court of India
Petitioner:
M. Prabhulal
Respondent:
Assistant Director,
Directorate of Revenue Intelligence
Bench:
Justice Y.K. Sabharwal & Justice B.N. Agrawal
Date of Judgment:
19/09/2003
Judgemet was deliverd by: Justice Y.K. Sabharwal
FACTS OF THE CASE
 One Prabhulal of Anna Nagar, Trichy, his brother
Shivanarain of Trichy, Mohammed Shabir of Madhya
Pradesh and Loganathan of Dindigul are engaged in
dealing with narcotic drugs. Intelligence gathered
indicates that Shivanarain and Loganathan are likely to
proceed to Salem and stay in National Hotel, Salem and
are likely to receive huge quantity of Heroin from
Mahammed Shabir of Madhya Pradesh on 15.5.1993
who is accompanying the said consignment in a lorry
from North India. Shivanarain and Loganathan are likely
to travel in a car bearing Registration No. TNB-9346 to
meet the lorry earring the contraband Heroin at the
outskirts of Salem. On the basis of an information, on
15th May, 1993, a truck and car were apprehended. From
them heroin weighing 66.1 kg. was seized. The
consignment in question was to be received and sold for
 The Special Judge, Salem under Narcotics Drugs
and Psychotropic Substances Act, 1985, tried 11 accused for
various offences. Six were convicted. Two of the convicted
accused succeeded in the criminal appeal and the remaining four
whose conviction and sentence has been maintained by the High
Court by the impugned judgment are appellants before the
Supreme court. They are original accused Nos. 1, 2, 3 and 6.
 The trial judge convicted accused Nos. 1, 2 and 3 for offences
under Section 8(c) and Section 8(1) of the NDPS Act and
awarded on each appellant the sentence of 10 years' rigorous
imprisonment and also fine amount of Rs.1 lakh and in default
of payment fine for each offence, they were directed to undergo
further rigorous imprisonment for two years. The substantive
sentences were, however, directed to run concurrently.
 Accused Nos. 6 was also found guilty for offence under Sections
8(c) of the NDPS Act and sentenced to undergo 10 years'
rigorous imprisonment and fine of Rs. 1 lakhs and in default of
payment of fine, to undergo further rigorous imprisonment for
ISSUES
 Whether involuntary statements obtained by torture and
harassment can be taken as a confessional statement?
 Whether the examination of police witness only and not of
independent witness vitiate the whole trial proceedings?
 Whether search and seizure in the customs office and not in the
spot establishes any prejudice caused to the accused?
 Whether compliance of section 42(2) is mandatory when a
gazetted officer himself conducts the search and seizure?
ARGUMENTS BY THE APPELLANT
 It was contended that the statements on basis whereof the
appellants have been found guilty are not voluntary and thus their
conviction cannot be sustained.
 The learned counsel further contends that the independent
witnesses of the recovery of the contraband was not examined
and only police witnesses having been examined, the recovery
becomes doubtful.
 The next contention was that search and seizure was faulted for
the reason of the same having taken place not on spot but in the
customs office.
 The last and most serious contention was that the High Court was
erroneous in its view that when a gazetted officer himself
conducts a search it is not necessary to comply with Section
42(2) of the Act.
OBSERVATION AND DECISION BY THE
COURT
 The statements of the appellants was recorded by officers of
Department of Revenue Intelligence who are not police officers
within the meaning of Section 25 of the Evidence Act, 1872. The
confessional statements recorded by such officers are admissible
in evidence.
 The contention of the Learned counsel that the statements were
involuntary and were obtained by torture and harassment and,
therefore, the conviction of the appellants cannot be sustained.
The delay in recording of the statements of the appellants is put
forth as one of the reasons to support the contention that the
statements were involuntary.
 Court observed that the Customs Office was about 20
kilometres from the place were the truck and the car were
apprehended. Having regard to the large quantity of the heroin,
the said vehicles with accused Nos. 2, 3 and 6 were brought to
the Customs Office.
 Further accused Nos. 1 and 2 did not know Tamil. A Hindi
knowing officer had to be arranged. Under the circumstances no
delay in recording the statements of the appellants can be
noticed.
 The Court further observed that the appellants did not make any
complaint before the Magistrate before whom they were
produced complaining of any torture or harassment. It is only
when their statements were recorded by the trial judge
under Section 313 of Code of Criminal Procedure that a vague
stand about the torture was taken. Under these circumstances,
the confessional statements cannot be held to be involuntary.
The statements were voluntarily made and can, thus, be made
 It was observed that the evidence cannot be discarded merely on
the ground that the witness belong to police force and are either
interested in the investigating or prosecuting agency, but as far as
possible, corroboration of their evidence in material particularly
should be sought. On the facts of this case, recovery cannot be
doubted as the confessional statements of the appellants were
made voluntary and also for want of non-examination of
independent witnesses.
 The Court observed that no allegation about meddling with the
contraband has been made on the facts of the case and there is no
illegality in the seizure of the contraband either on account of
non- examination of the independent witnesses or by effecting
the seizure at the office of the Customs Department. The
appellants thus failed to establish any prejudice caused to them.
 The Court further observed that under Section 41(2) the
Central Government or the State Government can empower an
officer of a gazetted rank who can either himself act or
authorise his subordinate on the terms stated in the section.
Under sub- section (1) of Section 42, however, there is no
restriction on the Central Government or the State Government
to empower a Gazetted Officer.
 A Gazetted Officer has been differently dealt with and more
trust has been reposed on him can also be seen from Section
50 of the NDPS Act which gives a right to a person about to be
searched to ask for being searched in presence of a Gazetted
Officer. The High Court is, thus, right in coming to the
conclusion that since the Gazetted Officer himself conducted
the search, arrest the accused and seized the contraband, he
was acting under Section 41 and, therefore, it was not
necessary to comply with Section 42.
 SECTION 41
Power to issue warrant and authorisation –
(1) A Metropolitan Magistrate or a Magistrate of the First Class or any
Magistrate of the Second Class specially empowered by the State
Government in this behalf, may issue a warrant for the arrest of any
person whom he has reason to believe to have committed any offence
punishable under Chapter IV, or for the search, whether by day or by
night, of any building, conveyance or place in which he has reason to
believe any narcotic drug or psychotropic substance in respect of which
"an offence punishable under Chapter IV has been committed or any
document or other article which may furnish evidence of the commission
of such offence is kept or concealed.
(2) Any such officer of gazetted rank 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 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 Chapter IV or that any
narcotic drug, or psychotropic substance in respect of which
any offence punishable under Chapter IV has been committed
or any document or other article which may furnish evidence of
the commission of such offence has been kept or concealed in
any building, conveyance 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 a person or search a building conveyance or place.
(3) The officer to whom a warrant under sub-section (1) is
addressed and the officer who authorised the arrest or search or
the officer who is so authorised under sub-section (2) shall have
all the powers of an officers acting under Section 42.
42. Power of entry, search, seizure and arrest without warrant or
authorisation.- (1) Any such officer 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 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 down in writing, that any narcotic
drug, or psychotropic substance, in respect of which an offence
punishable under Chapter IV has been committed or any
document or other article which may furnish evidence of the
commission of such offence 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 Chapter
IV relating to such drug or substances; 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
Chapter IV relating to such drug or substance :
 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.
 (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 forthwith send a copy thereof to his immediate official
SECTION 42
Section 42(2)
Sending report to the
superior officer
Section 42(1)
Noting down
information
Forthwith
before 2.10.2001
72 hours
on and after 2.10.2001
Two parts of this section
CONCLUSION
The Honourable Supreme Court in this case held that Section
42(2) is not applicable when search and seizure is conducted by a
Gazetted Officer under Section 41(2) and (3)of the NDPS Act.
Further held that the impugned judgment of the High Court
cannot be faulted and sustained the conviction and sentence of
the appellants and the appeals are dismissed.
THANK YOU

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Caselaw 3

  • 1. SEBI S GOVT. LAW COLLEGE ERNAKULAM M.Prabhulal v. Assistant Director, Directorate of Revenue Intelligence (2003) 8 SCC 449
  • 2. Court: Supreme Court of India Petitioner: M. Prabhulal Respondent: Assistant Director, Directorate of Revenue Intelligence Bench: Justice Y.K. Sabharwal & Justice B.N. Agrawal Date of Judgment: 19/09/2003 Judgemet was deliverd by: Justice Y.K. Sabharwal
  • 3. FACTS OF THE CASE  One Prabhulal of Anna Nagar, Trichy, his brother Shivanarain of Trichy, Mohammed Shabir of Madhya Pradesh and Loganathan of Dindigul are engaged in dealing with narcotic drugs. Intelligence gathered indicates that Shivanarain and Loganathan are likely to proceed to Salem and stay in National Hotel, Salem and are likely to receive huge quantity of Heroin from Mahammed Shabir of Madhya Pradesh on 15.5.1993 who is accompanying the said consignment in a lorry from North India. Shivanarain and Loganathan are likely to travel in a car bearing Registration No. TNB-9346 to meet the lorry earring the contraband Heroin at the outskirts of Salem. On the basis of an information, on 15th May, 1993, a truck and car were apprehended. From them heroin weighing 66.1 kg. was seized. The consignment in question was to be received and sold for
  • 4.  The Special Judge, Salem under Narcotics Drugs and Psychotropic Substances Act, 1985, tried 11 accused for various offences. Six were convicted. Two of the convicted accused succeeded in the criminal appeal and the remaining four whose conviction and sentence has been maintained by the High Court by the impugned judgment are appellants before the Supreme court. They are original accused Nos. 1, 2, 3 and 6.  The trial judge convicted accused Nos. 1, 2 and 3 for offences under Section 8(c) and Section 8(1) of the NDPS Act and awarded on each appellant the sentence of 10 years' rigorous imprisonment and also fine amount of Rs.1 lakh and in default of payment fine for each offence, they were directed to undergo further rigorous imprisonment for two years. The substantive sentences were, however, directed to run concurrently.  Accused Nos. 6 was also found guilty for offence under Sections 8(c) of the NDPS Act and sentenced to undergo 10 years' rigorous imprisonment and fine of Rs. 1 lakhs and in default of payment of fine, to undergo further rigorous imprisonment for
  • 5. ISSUES  Whether involuntary statements obtained by torture and harassment can be taken as a confessional statement?  Whether the examination of police witness only and not of independent witness vitiate the whole trial proceedings?  Whether search and seizure in the customs office and not in the spot establishes any prejudice caused to the accused?  Whether compliance of section 42(2) is mandatory when a gazetted officer himself conducts the search and seizure?
  • 6. ARGUMENTS BY THE APPELLANT  It was contended that the statements on basis whereof the appellants have been found guilty are not voluntary and thus their conviction cannot be sustained.  The learned counsel further contends that the independent witnesses of the recovery of the contraband was not examined and only police witnesses having been examined, the recovery becomes doubtful.  The next contention was that search and seizure was faulted for the reason of the same having taken place not on spot but in the customs office.  The last and most serious contention was that the High Court was erroneous in its view that when a gazetted officer himself conducts a search it is not necessary to comply with Section 42(2) of the Act.
  • 7. OBSERVATION AND DECISION BY THE COURT  The statements of the appellants was recorded by officers of Department of Revenue Intelligence who are not police officers within the meaning of Section 25 of the Evidence Act, 1872. The confessional statements recorded by such officers are admissible in evidence.  The contention of the Learned counsel that the statements were involuntary and were obtained by torture and harassment and, therefore, the conviction of the appellants cannot be sustained. The delay in recording of the statements of the appellants is put forth as one of the reasons to support the contention that the statements were involuntary.
  • 8.  Court observed that the Customs Office was about 20 kilometres from the place were the truck and the car were apprehended. Having regard to the large quantity of the heroin, the said vehicles with accused Nos. 2, 3 and 6 were brought to the Customs Office.  Further accused Nos. 1 and 2 did not know Tamil. A Hindi knowing officer had to be arranged. Under the circumstances no delay in recording the statements of the appellants can be noticed.  The Court further observed that the appellants did not make any complaint before the Magistrate before whom they were produced complaining of any torture or harassment. It is only when their statements were recorded by the trial judge under Section 313 of Code of Criminal Procedure that a vague stand about the torture was taken. Under these circumstances, the confessional statements cannot be held to be involuntary. The statements were voluntarily made and can, thus, be made
  • 9.  It was observed that the evidence cannot be discarded merely on the ground that the witness belong to police force and are either interested in the investigating or prosecuting agency, but as far as possible, corroboration of their evidence in material particularly should be sought. On the facts of this case, recovery cannot be doubted as the confessional statements of the appellants were made voluntary and also for want of non-examination of independent witnesses.  The Court observed that no allegation about meddling with the contraband has been made on the facts of the case and there is no illegality in the seizure of the contraband either on account of non- examination of the independent witnesses or by effecting the seizure at the office of the Customs Department. The appellants thus failed to establish any prejudice caused to them.
  • 10.  The Court further observed that under Section 41(2) the Central Government or the State Government can empower an officer of a gazetted rank who can either himself act or authorise his subordinate on the terms stated in the section. Under sub- section (1) of Section 42, however, there is no restriction on the Central Government or the State Government to empower a Gazetted Officer.  A Gazetted Officer has been differently dealt with and more trust has been reposed on him can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in presence of a Gazetted Officer. The High Court is, thus, right in coming to the conclusion that since the Gazetted Officer himself conducted the search, arrest the accused and seized the contraband, he was acting under Section 41 and, therefore, it was not necessary to comply with Section 42.
  • 11.  SECTION 41 Power to issue warrant and authorisation – (1) A Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance in respect of which "an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed. (2) Any such officer of gazetted rank 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 general or special order by the Central Government, or any such officer of the
  • 12. 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 Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance 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 a person or search a building conveyance or place.
  • 13. (3) The officer to whom a warrant under sub-section (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under sub-section (2) shall have all the powers of an officers acting under Section 42. 42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) Any such officer 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 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 down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,-
  • 14. (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 Chapter IV relating to such drug or substances; 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 Chapter IV relating to such drug or substance :  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.  (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 forthwith send a copy thereof to his immediate official
  • 15. SECTION 42 Section 42(2) Sending report to the superior officer Section 42(1) Noting down information Forthwith before 2.10.2001 72 hours on and after 2.10.2001 Two parts of this section
  • 16. CONCLUSION The Honourable Supreme Court in this case held that Section 42(2) is not applicable when search and seizure is conducted by a Gazetted Officer under Section 41(2) and (3)of the NDPS Act. Further held that the impugned judgment of the High Court cannot be faulted and sustained the conviction and sentence of the appellants and the appeals are dismissed.