HAMIDBHAI AZAMBHAI MALIK versus STATE OF GUJARAT

Citation: [2009] 1 S.C.R. 166 · Decided: 12-01-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Judgment (excerpt)

[2009] 1 S.C.R. 166 
A 
HAMIDBHAI AZAMBHAI MALIK 
v. 
,, 
ST ATE OF GUJARAT 
(Criminal Appeal No. 164 of 2002) 
B 
JANUARY 12, 2009 
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM 
SHARMA, JJ.] 
Narcotic Drugs and Psychopropic Substances Act, 1985 
c - ss. 20 (b) (ii) and 42 - Information about possession of 
contraband articles by accused, in the course of an 
investigation against him - Search of the house of accused 
after intimation to higher officers - Conviction by courts below 
- Plea of non-compliance with the requirements of s. 42 (2) 
D - Held: Conditions incorporated in s. 42 not applicable where 
information about possession of contraband articles comes 
to notice during investigation - However, in the present case 
the conditions were complied with by the complainant. 
E 
In the course of investigation of an offence 
committed by the appellant, the complainant (police 
official) came to know that the appellant also possessed 
and used to sell contraband articles at his residence. 
Before affecting the raid, the complainant informed the 
higher officer by a written report, about having received 
... 
F such information. Raid was affected in the presence of 
Panchas and other officers. 'Charas' was seized. Trial 
court found the appellant guilty u/s. 20 (b) (ii) of Narcotic 
Drugs and Psychotropic Susbtances Act, 1985. 
Conviction was upheld by High Court. 
G 
In appeal to his court appellant contended inter alia 
that there was non-compliance with the requirement of 
s. 42 (2) of the Act. 
H 
166 
HAMIDBHAI AZAMBHAI MALIK v. STATE OF GUJARAT 
167 
Dismissing the appeal, the Court 
A 
HELD: 1.1. Section 42 of Narcotic Drugs and 
Psychotropic Substances Act, 1985 will be invocable only 
if the search is made by the police officer or the 
concerned authority, upon the prior information. When 
8 
such an information or intimation or knowledge comes 
to the notice of the Investigating officer in course of the 
regular patrolling or an investigation of some other 
offence, it is not necessary to follow in all cases the 
conditions incorporated in Section 42. [Para 11] [177-C] 
1.2. In the instant case, by way of abundant 
precaution, the complainant, though he was investigating 
c 
the offence registered under the Act, upon receipt of an 
intimation or information about the present offence, also 
noted down such an information taken down in writing, 
D 
which is produced at Exh. 30, and such infGrmation was 
transmitted through a messenger immediately to the 
higher officers. Not only that this part of the procedure, 
by way of abundant precaution, exercised and followed 
by the complainant, is also manifestly recorded in the 
E 
complaint at Exh.32. [Para 12] [177-D-E] 
State of Punjab v. Baldev Singh 1999(6) SCC 172, 
referred to. 
Case Law Reference: 
1999(6) sec 112 
Referred to. 
Para 10 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 164 of 2002. 
From the final Judgment and Order dated 31.7.2000 of the 
High Court of Gujarat at Ahmedabad in Criminal Appeal No. 
145 of 1997. 
Rishi Malhotra and Prem Malhotra for the Appellant. 
F 
G 
H 
168 
SUPREME COURT REPORTS 
(2009] 1 S.C.R. 
A 
Hemantika Whai, K. Enatoli Serna, Pinky Behra and 
Somnath for the Respondent. 
~ 
The Judgment of the Court was delivered by 
DR. ARIJIT PASAYAT, J.1. Challenge in this appeal is to 
B the judgment of the Division Bench of the Gujarat High Court 
upholding the conviction of the appellant for offence punishable 
under Section 20 (b)(ii) of the Narcotic Drugs and Psychotropic 
Substances Act, 1985 (in short the "NDPS Act"). The learned 
Additional Sessions Judge, Bharuch had found him guilty under 
C the aforesaid provision for having committed the offence under 
Section 8(c) of the NDPS Act. Minimum sentence of 10 years' 
rigorous imprisonment and a fine of Rs.1,00,000/ - with default 
stipulation was imposed. 
D 
2. The appellant, who is the original accused in Sessions 
Case No. 84 of 1996, was charged for having committed 
offence punishable under Section 20(b) (ii) of the NDPS Act, 
on the basis of a complaint lodged by one PSI KD Pandya, 
LCB Branch, Aharuch District, Complainant in Course of 
E investigation of one snottier offence, registered vide CR No, II 
135 of 1995, under the NDPS act, came to know that accused 
is also possessing and selling the contraband articles at his 
residence. Upon such information he and other Officers started 
for raid. 
F 
3. Initially, he informed about having received such 
information

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