SMT. NAJMUNISHA versus THE STATE OF GUJARAT

Citation: [2024] 4 S.C.R. 442 · Decided: 09-04-2024 · Supreme Court of India · Bench: ANIRUDDHA BOSE · Disposal: Appeal(s) allowed

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Judgment (excerpt)

* Author
[2024] 4 S.C.R. 442 : 2024 INSC 290
Smt. Najmunisha 
v. 
The State of Gujarat
(Criminal Appeal Nos. 2319-2320 of 2009)
09 April 2024
[Aniruddha Bose and Augustine George Masih,* JJ.]
Issue for Consideration
As per the prosecution, secret information was received by PW-2 
(Intelligence Officer/Inspector) as to Accused No. 4 (husband of 
Accused No.1) carrying contraband from a particular route in an 
auto rickshaw. Said secret information was recorded by her and 
reported to her superior-PW-3, (Zonal Officer, a Gazetted Officer). 
The raiding party chased the said auto rickshaw however, Accused 
No.4 allegedly abandoned it fleeing away from the scene. On 
conducting the search of the said auto rickshaw, the raiding party 
inter alia found 1.450 Kgs charas. It eventually searched the 
house of Accused No.4 and 1 and found 2.098 Kgs of charas. 
The said raid/search not based on the personal knowledge of 
PW-3 as regards there being contraband in the house of Accused 
No.4 thereby necessitating search for the same, if was bereft of 
mandatory statutory compliance of s.41(2) of the Narcotics Drugs 
and Psychotropic Substances Act, 1985. Conviction of Accused 
No.1 and 4, if justified.
Headnotes
Narcotics Drugs and Psychotropic Substances Act, 1985 – 
s.41(2), 42 – “personal knowledge”, “and taken in writing” 
– Non-compliance:
Held: s.41(2) empowers a Magistrate to issue search warrant 
for the arrest of any person or for search, whom he has reason 
to believe to have committed any offence under the NDPS Act – 
s.41(2) further enables a Gazetted Officer, so empowered to arrest 
or conduct a search – The empowered Gazetted Officer must have 
reason to believe that an offence has been committed under Chapter 
IV, which necessitated the arrest or search– As per s.41(2), such 
reason to believe must arise from either his personal knowledge 
or information given by any person to him – Additionally, such 
knowledge or information is to be reduced into writing by virtue 
[2024] 4 S.C.R. 
443
Smt. Najmunisha v. The State of Gujarat
of expression “and taken in writing” used therein – The secret 
information received by PW-2 was limited to the apprehension that 
Accused No.4 was to carry contraband via an auto rickshaw from 
a particular route – There was no reference to the apprehension 
of existence of contraband in the house of Accused No.4 in the 
said recorded information – There was no prior information to the 
raiding party, including PW-3 (Gazetted Officer) that there was 
contraband in his house, necessitating search for the same – PW-1 
deposed that he was asked to accompany the raiding party to the 
house of Accused No.4, located nearby for carrying out a search 
thereof and admits of having no knowledge about any written 
information with the raiding party for conducting raid at the said 
house – PW-2 admitted that the raiding team proceeded to the 
house for the search of the contraband pursuant to the discussions 
carried by them and not particularly on the personal knowledge of 
PW-3 – She further admitted that it was obligatory for her to obtain 
a written authorization from her superior officer, PW-3 however, 
omitted seeking the said authorization on the premise that there 
was an emergent need to conduct search at the house – Such 
major inconsistency as to the ‘source’ of information of existence 
of contraband at the house of Accused No.4 weakens the case 
of prosecution – Plea that the expressions “personal knowledge” 
and “and taken in writing” contemplated by s.41(2) ought to be 
read disjunctively, eliminating the requirement of taking down 
information in writing when it arises out of the personal knowledge 
of the Gazetted Officer, rejected – Raid/search at the house of the 
Accused No.1 and 4 was not based on the personal knowledge 
of PW-3, rather it was an action on the part of raiding party bereft 
of mandatory statutory compliance of s.41(2) – Conviction of 
Accused No.1 premised on the recovery of 2.098 kgs of charas 
from the house was not in consonance with the mandatory statutory 
compliance of s.41(2)– Prosecution not able to establish its case 
beyond reasonable doubt – Impugned judgment of the High Court 
and Trial Court, set aside – Appellants acquitted by giving benefit 
of doubt. [Paras 42-47, 54]
Narcotics Drugs and Psychotropic Substances Act, 1985 – 
s.42(1), (2), s.41(2) – Amendment Act of 2001:
Held: s.42(1) obligates an officer empowered by virtue of s.41(2) 
to record the i

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