Henry Chuma Offor v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2020 / 25TH BHADRA, 1942** **CRL.A.No.360 OF 2018** **AGAINST THE ORDER/JUDGMENT IN SC 661/2016 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VIII, ERNAKULAM** ## **APPELLANT/ACCUSED:** **HENRY CHUMAOFFOR S/O. OFFOR GABRIEL, NO.9 GN EKPE STREET, MONAQUE AVENUE, MARY LAND, ENUGU, NIGERIA.** **BY ADVS. SRI.RAHUL SASI SMT.NEETHU PREM** ## **RESPONDENT/COMPLAINANT & STATE:** **THE STATE OF KERALA REPRESENTED BY THE INSPECTOR OF CUSTOMS RUMMAGE AND INTELLIGENCE DIVISION, OFFICE OF THE ASSISTANT COMMISSIONER OF CUSTOMS (PREVENTIVE) WILLINGDON ISLAND, COCHIN - 682 003.** **R1 BY SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I.** ## **OTHER PRESENT:** ## **SPL.PP FOR CBI SASTHAMANGALAM S.AJITHKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-08-2020, THE COURT ON 16-09-2020 DELIVERED THE FOLLOWING:** Crl.Appeal.360/2018 2 ## **SUNIL THOMAS, J.** ================= **Crl.Appeal.No.360 of 2018** ================= Dated this the 16[th] day of September, 2020 ## **JUDGMENT** This appeal is directed against the judgment, conviction and sentence in Sessions Case No.661 of 2016 of the Additional District and Sessions Judge-VIII, Ernakulam arising from O.R.No.1/NDPS/2016/Intelligence Division, Kochi in FIR No.15/16. The sole accused faced trial before the court below for offences punishable under section 8(c) r/w Section 21(c), 22(c), 23, 28 and 29 of the NDPS Act. 2. The case of the prosecution was that, on 08.02.2016 at about 1 p.m., PW1, the Superintendent of Customs, Cochin Division, received a secret information that, one Judee Micthele, who was a Benin national, was in possession of certain luggages concealed with heroin and was at Express International Couriers, M.G.Road, Ernakulam, with the intention of despatching the packages to various European countries. The information so received was recorded in writing by PW1 and authorized PW2, the Inspector of Customs, to proceed under the provisions of NDPS Act. PW2 with the team of officers reached the courier office at about 2.30p.m. The African national, PW3 and CW4 who were officers of the Crl.Appeal.360/2018 3 courier service were present at the office. PW2, after disclosing his identity, conveyed his intention to conduct a physical search of the above African personnel. He was informed of his legal right to be searched in presence of a Magistrate or a gazetted officer. He opted to have personal search in the presence of PW2. Physical search did not disclose the presence of any contraband item concealed in his person. The accused and officers of the courier service identified 8 cartons brought by the accused which were proposed to be sent to various countries. The names and addresses of the addressees were not mentioned and it was reported that, he was waiting for the addresses to be conveyed to him. On opening each of the above cartons, it was found that, it contained various articles like sarees, bangles, neck ties, toys etc with several packets concealed inside it which contained white or brownish colour powder. On testing it with the testing materials in the kit, substances in 7 boxes turned out to indicate the presence of heroin. The eighth carton had crystalline Flaky substances which was concealed inside. On conducting preliminary test, it indicated the presence of methamphetamine. The total quantity of heroin so recovered weighed 4.005 kgs. Methamphetamine weighed 300 gms. All the white colour powder which were detected to contain heroin were mixed together and 3 samples of 5gm each were drawn from it. From the other contraband, 3 samples of 5 gm each were also drawn. Samples were separately packed, wrapped, tied and sealed. The remaining contraband, after drawing the sample were also separately Crl.Appeal.360/2018 4 packed and sealed. Labels with signatures of accused and the independent witnesses were also pasted. Accused was taken to the customs office and was questioned. He gave statement under section 67 of the NDPS Act. Thereafter, report was sent by PW2 to PW1 under section 57 of the NDPS Act. 3. In the course of investigation, it was revealed that, accused had stayed in a house taken on rent by him at Salem. The customs authorities at Thiruchirapalli were requested to conduct a search in that house, in accordance with law. Accordingly, search was conducted. 2.326 kgs of concealed heroin were seized from the various items kept inside the house. Several incriminating documents, including passports and their copies issued in the names of different persons issued by various countries were also found. On the basis of the information and materials gathered, investigation was completed and final report was laid. 4. Before the court below, accused pleaded not guilty and demanded trial. On the side of the prosecution, PWs.1 to 6 were examined and Exts.P1 to P45 were marked. MOs.1 to 41 were identified. On the side of the defence, there was no evidence. Court below, on an evaluation of the materials placed before it, found the accused guilty, convicted for the offence punishable under section 21(c) of the NDPS Act and sentenced him to undergo RI for 10 years and to pay a fine of Rs.1 lakh. In default of it, he was directed to undergo RI for 1 year. Aggrieved by the conviction and sentence, accused has preferred this appeal. Heard Crl.Appeal.360/2018 5 the learned Prosecutor for the Customs. Examined the records. 5. Regarding the information received, prosecution relied on the evidence of PW1. Regarding the interception and detection of the contraband, search and seizure, prosecution relied on the oral testimony of PW2, Inspector of Customs and PW3, the Manager of the courier service. Regarding the search conducted at the house of the accused at Salem and recovery of various contraband items and incriminating materials, prosecution relied on PW4, the Superintendent of Customs, Salem and PW5, Inspector of Customs Thrichy. To establish that accused had stayed in the above house under a different name, PW6, the house owner of the above house was examined. 6. The defence set up by the accused as revealed from the detailed statement filed by the accused in reply to the questioning under section 313 Cr.P.C, the trend of cross examination and other materials indicate that according to accused, he came to India in September 2015 for undergoing higher education. He was pursuing BBA at Hindustan Academy of Arts and Science and Management, Erode. He stayed at house No.118/1, Sentanil nagar, Kaikate valasu, Villasarampetti (post), Erode. During his short vacation, he proceeded to Alappuzha, from where he came down to Kochi. Since, he was in need of Indian currency, he went to a currency exchange centre near Marine Drive to exchange some US dollars with Indian currency. He was abducted by certain persons who covered his face, took him to some other place and forced him to sign Crl.Appeal.360/2018 6 certain blank papers. He was asked to sign certain documents under the name Judee Micthele, who was not known to him. He had not gone to Express International courier service for sending any parcel and was totally innocent. He was not involved in any transaction of heroin or any other narcotic substance. 7. Evidently, the person who faced the trial had represented himself to be Judee Micthele at the time of interception. He asserted that, he was a Benin national. In the course of investigation, it was revealed that the accused was in fact a Nigerian citizen and his actual name was Henry Chuma Offor. He possessed fake passports of various countries under different names but, all bearing his photographs. In the light of materials gathered by the investigation agency, final report was laid showing the name of accused as Henry Chuma Offor. Trial was conducted accordingly and accused has filed this appeal under that name. 8. To establish the receipt of information regarding the accused, his interception, arrest and process of sampling in accordance with the safeguards provided under NDPS Act, prosecution relied on the evidence of PWs.1 to 3 and the contemporaneous documents. 9. PW1, Superintendent of Customs had deposed that, he got secret information over the telephone on 08.02.2016 at about 1 p.m. He was informed that, one Judee Micthele who belonged to Benin nation was at Express International Courier Service with intention to despatch heroin Crl.Appeal.360/2018 7 in bulk quantity to various countries. The information so received was recorded by PW1 on a paper which was produced and marked as Ext.P1. Thereupon, he authorized the Preventive Inspector, PW2 to proceed to the place of incident and to take necessary steps as required under the NDPS Act. The authorization was received by PW2 and in return, he endorsed on Ext.P1 itself. PW1 in his cross examination had explained that, in fact the information received by him on telephone was scribbled on a piece of paper and thereafter it was written on a neat sheet of paper after the phone call was completed. He admitted that he did not forward the copy of Ext.P1 to his superior officer. He thereafter proceeded to the courier service office at 5 p.m. Thereafter, the statement of the accused was recorded at the customs office. Ext.P2 is the statement given by the accused in his handwriting. In the above statement, he had stated that, his name was Judee Micthele and was a citizen of Benin in West Africa. According to him, he came to India in 2015. 10. PW2 was the Inspector of Customs. He deposed that, Ext.P1 authorization was issued to him. Pursuant to it, he reached the courier service office at 2.30 p.m. CWs.3 and 4, who were officers of the courier service were present. He identified the accused who was also present in the office, confirmed his name and nationality and thereafter in compliance with the provisions of the NDPS Act, his body was searched. From his person, one mobile phone and a purse with cash was recovered. He identified MO1, the travel bag belonging to accused. From it, two Crl.Appeal.360/2018 8 mobile phones and MO1(a) passport were recovered. He identified 8 cartons which had been brought by the accused for being send by courier. These cartons were marked as Mos.2 to 9. According to PW2, he opened Mos.2 to 8 which contained various items like sarees, toys, ties, bangles etc. On opening each of the items kept inside the carton, small white colour or white brownish colour powder kept concealed in the articles were recovered. From MO2, 1kg 100gms of white powder and from MO3, 210gms of white brownish powder, from MO4, 216gms of white brown powder, from MO5, 1.426 gms of white brown colour, from MO7, 300gms white powder and from MO8, 460gms of whitish powder were recovered. On examining the contraband with the equipments in the kit carried by customs, the presence of heroin was confirmed. From MO9 carton, 300 gms of crystalline flakes which were concealed were recovered. The item recovered from it turned positive for methamphetamine. Altogether 4.005kgs of heroin were recovered from MO2 to MO8 and 300 gms methamphetamine were recovered from MO9 carton. Along with the search, Ext.P4 mahazar was prepared and got signed by the accused, PW2 and CW4. The contraband items recovered from MO2 to 8 were mixed together to a form of homogeneous item and 3 representative samples of 5gms each were drawn. The samples were wrapped in paper, sealed and signatures of the accused and witnesses obtained on the labels. The remaining contraband items were also packed, sealed and affixed with labels bearing the signatures of the accused and witnesses. Crl.Appeal.360/2018 9 Thereafter accused was taken to the customs office where his statement was recorded. On the next day, he was arrested and occurrence report prepared. He was produced before the Court along with contraband items and was remanded. 11. PW3 was the Manager of the courier service. He deposed that the accused came to his office and wanted to despatch certain items through courier. The cartons were handed over and he was waiting for instructions from somebody regarding the despatch address. While so, customs party came, introduced themselves and thereafter, the accused was intercepted. PW2 gave in detail, the process of interception, search and recovery of contraband items. The version of PW3 was completely in consonance with the version spoken by PW2. Even though both PW2 and PW3 were cross examined in detail, nothing material could be brought out in the course of cross examination, to demolish their evidence. 12. According to the prosecution, pursuant to a disclosure made by the accused that he was staying at a rented premises at Salem, Assistant Commissioner of Customs, Cochin Division addressed the Commissioner of Customs, Preventive Unit, Thiruchirapally on 08.02.2016 to conduct a search there. Ext.P14 was the letter of the Assistant Commissioner Kochi to the above Commissioner. PW4 was authorized by his superior to conduct a search and seized the offending articles. Accordingly, PW4 conducted the search along with PW5, the Inspector of Customs, Preventive Unit, Salem. PW4 deposed that he conducted search Crl.Appeal.360/2018 10 along with his subordinate officers. The owner of the building, one Jayachandran who was examined as PW6 was also present. Search revealed several sarees, bangles, passports, laptop, several id cards, 7 ladies purses etc. From the ladies purses, MO13 to 25 contraband articles kept concealed in plastic covers were recovered. Samples were separated from it. Both the samples and the remaining contraband items were packed, sealed and affixed with labels. Ext.P15 was the mahazar in relation to the search conducted there. MO29 passport of the accused was recovered. The various items which were kept in MO2 to 9 boxes at Kochi were similar to the items found in the house of the accused. 13. PW5 Inspector of Customs gave evidence in consonance with the versions spoken by PW4. He deposed that he had accompanied PW4 and had conducted search. PW6, the landlord gave evidence in accordance with the prosecution case. He deposed that he had let out the building to the accused. The accused standing in the dock was identified by witness. 14. Recovery and seizure at Kochi by PWs.2 and 3 is sought to be corroborated by Exts.P4 and P4(a), which are the contemporaneous documents. PW2 in his evidence stated that, accused was intercepted on 08.02.2016, taken to the customs office and on 09.02.2016 his arrest was recorded. He was produced before the Magistrate with Ext.P8 list of Mos, samples and contraband items. He was produced before the magistrate and endorsement on the 9[th] by the Magistrate was to produce Crl.Appeal.360/2018 11 him before the Sessions Cour on the same day. It appears from the record that he was produced on 9[th] and the items were accepted on 10[th] . The seals on the samples were found intact. Ext.P9 is the forwarding note dated 09.02.2016 by which the samples were forwarded for chemical analysis. 15. Ext.P44 is the chemical analysis report. It shows that Alprazolam was detected in sample contained in packet P2S1. Heroin was detected in sample P1S1. However, neither any drug nor any psychotropic substances was detected in the samples contained in the packets marked as P3S1 and P4S1. The report also shows that diacetyl morphine (Heroin) and alprazolam come under the purview of NDPS Act. 16. Search was conducted at Salem. PW2 in his evidence had deposed that, he got information that the accused had stayed at SPV colony, Thiruchandoor, Tamil Nadu. Letter to the Commissioner of Customs, Trichy was addressed, to conduct a search in that premises. Accordingly search was conducted at Salem on 05.02.2016. Ext.P16 was the report sent under section 57 NDPS Act. Ext.P3 was the communication issued under section 57 of the NDPS Act. The contemporaneous document to the search was Ext.P15 mahazar. Dollars and Nigerian currency notes worth Rs.1,09,355/- were also recovered. 17. To connect the accused with the above building, prosecution relied on the oral testimony of PW6 and the documents collected from the room. He deposed that passport and various documents relating Henry Crl.Appeal.360/2018 12 Chuma was recovered from his room. It was stated that, the owner of the building brought the duplicate key, opened the house and identified the accused from the photograph shown to him. Ext.P39 is the consumer bill for electricity in the name of mother of PW6. It is seen that, identical contraband items were recovered from the accused as well as from his Salem house. 18. In the light of the above evidence marshalled by the prosecution before court below, crucial question that arises is regarding the identity of the person who had faced the trial. PW1 in his evidence had stated that the information received by him referred to the name of the person carrying contraband as Judee Micthele, a Benin national. It was also recorded in Ext.P1 also. PW2 in his evidence had stated that, in the course of interception of the accused, accused had introduced himself as Judee Micthele and that, he belonged to Benin in Africa. Exts.P2 to P6 referred to the accused as Judee Micthele. He was in possession of MO1(a) which was the passport issued in the name of the Judee Mitchele of Beninoise, with the photograph of the accused affixed on it. These materials clearly show that at the time of interception, accused had posed himself as Judee Micthele. 19. PW2 enquired about the genuineness of the passport. It was revealed that the passport was a forged one and in fact the accused belonged to Nigeria. Investigation further revealed that, he was in fact Henry Chuma of Nigeria. Accordingly, the complaint was laid before the Crl.Appeal.360/2018 13 Special Court for changing the name of the accused to Henry Chumma. It is also seen that, in the arrest memo, he has signed as Judee Micthele. 20. On the basis of the information received that accused had resided in a house at Salem, search was conducted at that house through the customs office, Thiruchirapalli. Several incriminating documents were recovered from that house. MO29 passport was recovered from his house at Salem. MO30 was the international certificate of vaccination issued from Nigeria. MO31 was the driving license issued by the Republic of Nigeria. MO32 was the passbook of the accused issued by the ICICI bank. MO33 was the students ID card issued to the accused. MO34 to 37 were credit cards in the name of the accused. Ext.P20 was the copy of the passport issued in the name of Henry Chumma of Nigeria. In all the above documents, the photograph of the same person, who was facing the trial was affixed and that name was shown as Henry Chumma. Ext.P25 was the online application prepared by Henry Chumma with the colour photograph of the accused affixed on it with the copies of supporting documents issued to Henry Chumma. Exts.P26 to 35 documents included various certificates issued by the institution referring that he was selected to pursue the studies of BBA. All the above documents are in the name of Henry Chumma. This convincingly show that the person who was facing the trial was Henry Chumma. 21. He was in possession of several passports produced as Exts.P21 to P24 issued by various countries under different names. Crl.Appeal.360/2018 14 However, all of them showed the photograph of the same person who was facing the trial. Petitioner has no explanation as to why he was in possession of MO1 original passport issued to Judee Micthele. Not only that he posed himself as Judee Micthele, but he was carrying forged passport in the name of Judee Micthele. 22. The identity of the accused is further confirmed by the evidence tendered by Jayachandran, PW6 who was the owner of the house at Salem let out to the accused. PW6 in his evidence said that he had let out one apartment to Henry Chumma of Nigeria, 5 years back. He continuously stayed in that apartment. Records reveal that the photograph of the person who was intercepted at Ernakulam was shown to PW6 at the time of search of the house, in which, he identified the accused as his tenant. PW6 also identified the person who was facing trial and asserted that, it was Henry Chumma, who was his tenant. In the light of the above materials, the irresistible conclusion that could be arrived at, was that his name was Henry Chumma who belonged to Nigeria and the same person was posing himself as Judee Micthele. In the light of the above, his further defence was that he was made to sign certain documents by a group of persons who forcefully intercepted him at a money exchange shop at Marine Drive, Ernakulam is only to be rejected. 23. Evidently, material on record, especially oral testimony of PWs.2 and 3 support the prosecution case that the accused was Crl.Appeal.360/2018 15 intercepted at the courier service agency and contraband items were recovered. Their oral evidence support and compliment each other regarding the interception, drawing of the samples, sampling, packing and sealing of the samples as well as the remaining contraband items. The above oral evidence gets substantial corroboration from Exts.P4 and P4(a) contemporaneous documents. Other documents corroborate acts preceding the search and thereafter. 24. It was contended by the learned counsel for the accused that the accused was not produced in Court within a reasonable time and the custody of the accused till the time of production has not been satisfactorily explained. It casts serious doubts on the prosecution case, it was contended. PW2 in his evidence deposed that, accused was intercepted on 8[th] and after the completion of the entire formalities taken to the customs office. His statement was also recorded on that day. Accused was produced before the Court on 9[th] with Ext.P8, the list of MO's, samples and the contraband items. By endorsement dated 9[th] , the magistrate ordered that the accused shall be produced before the Sessions Court on 9[th] and thereafter, contraband items were produced in Court on 10[th] . It was recorded that, all the samples were intact and their seals were not tampered. 25. Even though learned counsel for the accused contended that, clear evidence regarding the custody of the accused during the night of 8[th] is not forthcoming, the evidence tendered by PWs.1 and 2 establish Crl.Appeal.360/2018 16 ## that, accused was in the safe custody during the relevant period. 26. Ext.P9 is the forwarding note dated 09.02.2016. Samples were forwarded for chemical analysis. Ext.P42 is the chemical analysis report. It was reported that the packets were intact and there was no tampering of the seal. The report reveals that, in P1S1 sample, diacetyl morphine (Heroin) commonly known as Heroin was detected. Alprazolam was detected in sample P2S1. Neither any psychotropic substance nor any narcotic drug was detected in the sample contained in P3S1 and P4S1. It was reported that diacetyl Morphine (Heroin) and alprazolam come under the purview of NDPS Act 1985. This conclusively show that, from two samples drawn, the presence of a narcotic drug or psychotropic substance was detected. It is also true that, it was not detected in two other samples. However, evidence convincingly show that the samples collected at the spot was packed, sealed and was produced before the trial court without any tampering and from there, it reached the chemical analysis lab without any tampering. Even otherwise, tampering is not one which is to be readily presumed. 27. Learned counsel for the appellant vehemently challenged the above finding on the ground that the process of sampling itself was faulty. It was contended by the learned counsel that the entire contraband item recovered at Ernakulam were mixed together and three different samples were drawn from the assortment. This was the procedure adopted at Salem also. According to the learned counsel, this was a faulty Crl.Appeal.360/2018 17 procedure, since even if offensive substances are found in the samples, it will not conclude that, the entire contraband items seized contained narcotic or psychotropic substance. It was contended that, independent samples should have been drawn from each of the packets recovered. 28. To substantiate the above contention, learned counsel for the petitioner relied on the decision of the Delhi High Court in **Edward Khimani Kamau v. Narcotics Control Bureau (2015 KHC 5240)** . In that case, two packets were recovered from the accused. The contents of both packets were mixed together and samples were drawn. Court analyzed whether it was a proper procedure and whether evidence showed that, accused was in possession of narcotic drug in both the packets to decide whether he was in possession of small quantity or intermediary quantity of drugs. The Court held that, if contraband items were detected in the sample as such, that may not lead to a conclusion that, items contained in separate packets recovered from the accused contained the drug. Hence the Court opined that, it would have been ideal if separate samples were drawn from each packet. To support this view, learned counsel relied on another decision of the Delhi High Court in **Basant Rai v. State (2012(6) AD (Delhi) 707)** . It is true that the above decision laid down a principle that, it would have been ideal if without mixing the contraband together, separate samples were drawn from each packet. It seems that the Delhi High Court did not lay down a Crl.Appeal.360/2018 18 law applicable to the facts of every case. It seems that in that case, an ancillary question as to whether quantum recovered fell within the small quantity or intermediary quantity was also in dispute. 29. In the case at hand, it is to be noted that, huge quantity was recovered from the possession of the accused at Ernakulam as well as from the house at Salem. Sample from each of the packet was tested positive and the presence of narcotic drug was confirmed using the materials kept in the test kit. It was thereafter all were mixed together. Evidently, the quantity of contraband seized from each place by itself exceeded intermediary quantity. Hence, it would have been immaterial whether the samples were separately drawn. Having considered this, I find that, accused is not entitled for any benefit on the ground of alleged improper procedure of drawing sample, as well as on the basis of the report that narcotic drug or psychotropic substance was not detected in the samples contained in packets P3S1 and P4S1. 30. Learned counsel for the accused vehemently contended that, there was absolutely no evidence to show that the accused was in conscious possession of the contraband items. It is pertinent to note that, PWs.2 and 3 gave evidence regarding the interception, search and seizure of the accused and the luggage. Their evidence show that the accused identified the cartons brought by him from which contraband items were recovered. This version of PW2 is spoken to by PW3 and is stated that, accused had brought all the packets and wanted them to sent to various Crl.Appeal.360/2018 19 countries. Hence, it is evident that the packets belonged to him. The evidence of PWs.4, 5 and 6 confirms that, in the course of search at Salem, huge items of suspected contraband were recovered. PW6 has affirmed that the accused was in possession of that building. There is no contra evidence or even a suggestion that, accused was not occupying that building. 31. Conscious possession need not be actual physical possession. But, it can even be constructive. It is also not required that the contraband items should be carried in person. The evidence shows that, accused tried to misrepresent that he was one Judee Micthele. Entire documents seized by prosecution contradicts his initial version that, he was Judee Micthele. There was no reason as to why one person shall conceal his original identity, unless he has to screen himself from detection. It is also seen that, all the contraband items were kept concealed inside various other items to mislead the customs party. This also shows that, he was conscious that items were illegal and to that extent, allegation of conscious possession by the prosecution stands established. 32. Learned counsel for the appellant challenged the conviction on the ground that, search and seizure were conducted by the detecting officer in breach of mandatory provision under sections 41, 42 and 50 of the NDPS Act. It was also contended that, section 57 of the Act was also not complied with. PW1 in his evidence had deposed that, he got secret Crl.Appeal.360/2018 20 information regarding the contraband. Information which was conveyed over telephone. According to PW1, he scribbled the information on a paper and thereafter wrote it in the form of Ext.P1. He also deposed that, he had authorized PW2 to proceed to the spot and to take necessary action as contemplated under the NDPS Act. PW2 in his version had deposed that, he was authorized by PW1 to proceed. PW1 also admitted that, he had not forwarded the report to his superior officer as contemplated under section 42(2) of the NDPS Act. Relying on the decision of Bombay High Court reported in **Somaskandaraja Vasanthan** **v. Union of India (2015 KHC 3370),** and the decision of the Supreme Court in **State of Rajasthan v. Jag Raj Singh @ Hansa (2016 KHC 6413)** it was contended that, section 42 was not complied with. 33. Regarding section 42, learned counsel for the appellant had twin contentions. Firstly, it was contended that, it was not recorded in the same form in which he received the information and Ext.P1 produced was only a re-written information. It was contended by the counsel that Bombay High Court in Somaskandaraja Vasanthan's case (supra) had held that information rewritten on a piece of paper and not in assigned register will not satisfy the requirement under section 42. The next limb of his argument was that, copy of the information was not sent to his superior officer as contemplated under section 42(2). In State of Rajasthan's case (supra), Honourable Supreme Court held that copy of Crl.Appeal.360/2018 21 the information sent to his immediate superior was not as per the information recorded by the officer but, was a separate memo prepared by himself. Relying on it, Supreme Court held that there was breach of section 42(2). 34. It is pertinent to note that, PW1 in his evidence asserted that the information he got was scribbled on a paper and it was properly rewritten on Ext.P1. Evidently, Statute under Section 41(2) only provides under section 41(2) that information received by an officer shall be taken in writing and proceeded with. It does not prescribe that information received should simultaneously be written down and the copy of same shall be forwarded. Statute does not expect officer to scribble down the entire information in the same verbatim manner and in the same form as conveyed by the informant. It may be possible that information given by him may contain introduction, other details which are unconnected with the direct information and hence, Statute only contemplates taking down the precise information in writing. That also does not prescribe that the exact contents of the information received by him cannot be scribbled on a paper and cannot be reproduced neatly in a proper form. Merely for that reason, Ext.P1 is not liable to be rejected. 35. The contention of the learned Special Prosecutor was that, PW1 was not an authorized officer but, an empowered officer as contemplated under sections 41 and 42 of the NDPS Act. PW1 in his evidence had deposed that, he held the post of Superintendent, which was Crl.Appeal.360/2018 22 a gazetted post. Evidently, sections 41(2) and 42(1) refers to acts to be done by an empowered officer. On getting information he is empowered to authorize any other subordinate officer to proceed under the NDPS Act. On the other hand, section 42(2) refers to an authorized officer who takes down the information and then mandatory provision under section 42(2) applies, obliging him to inform his superior officer within 72 hrs by forwarding a copy of it to the official superior. It is also pertinent to note that, PW2 was authorized by PW1 to proceed in accordance with law. 36. It was contended by the learned counsel for the appellant that in the absence of a written authorization and acceptance of it by PW2, it cannot be presumed that, there was a proper authorization. It is true that a separate authorization has not been produced. Ext.P1 shows that information received by him has been completely recorded on it and thereafter it was recorded that PW2 was authorized to proceed to the place of incident and to act in accordance with the provisions of NDPS Act. PW2 in turn has acknowledged beneath it by signing and by taking note of the suggestion. So virtually Ext.P1 is the report of information as well as a written authorization to PW2. Hence, I find no reason to discard the search and seizure on the ground that sections 41 and 42 were not complied with. The above formalities seems to be in consonance with the law laid down by the Supreme Court in **State of Rajasthan v. Sahi Ram (2019 KHC 6980)** . The position covered by section 42 as explained by the learned Special Prosecutor is in consonance with the law laid down in Crl.Appeal.360/2018 23 ## **State of Orissa v. S.Mohanty and Others (2000 KHC 960)** . 37. Another contention vehemently advanced by the learned counsel for the appellant was that, there was infraction of section 50 of the NDPS Act. PWs2 and 3 had given evidence that, before interception, accused was informed about his legal right to be searched in the presence of a gazetted officer or a judicial magistrate. This information was given to him in writing and replied by him asserting that PW2 himself can conduct search. There cannot be any dispute that accused knows English. He has written certain documents which are available on record, indicating that he knows English fluently. He was informed that, he has a legal right to be searched in the presence of either of the officers. In the above circumstances, I find no reason to hold that, there was infraction of section 50 of the NDPS Act. 38. An appreciation of the facts referred above clearly indicates that the court below on a correct appreciation of facts has arrived at a proper conclusion that the accused was found in conscious possession of commercial quantity of narcotic drug. The Court has imposed a rigorous imprisonment for a term of 10 years and to pay a sum of Rs.1,00,000/- In default, sentence to undergo rigorous imprisonment for one more year for the offence punishable under section under section 22(c) of the NDPS Act. I find no reason to interfere with the sentence also which is commensurate with the offence committed by him, which is extremely serious. Crl.Appeal.360/2018 24 In the result, appeal fails and is dismissed confirming the conviction and sentence. Substantive sentence shall run concurrently. Set off is granted in relation to the period undergone during the period of trial. **Sd/-** Sbna **SUNIL THOMAS JUDGE**