Paragraph numbers below are the court’s original numbering, recovered from the source text.
19. Learned counsel for the State has contended that the offence in question is a continuing offence, for the offence is basically a possession of the contraband articles. He has commended us to the authority in State of Bihar v. Deokaran Nenshi &Anr.24, wherein it has been held that:- "A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or .non-compliance occurs and reoccurs, .. (1972) 2 sec s90 there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all."
20. Mr.Shiv Mangal Sharma, learned MG for the State has also drawn inspiration from Udai Shankar Awasthi v. State of Uttar Pradesh and Anr.25 In the said case, while dealing with the concept of continuing offence, after referring 0 to Section 472 of Criminal Procedure Code, 1973, (CrPC) the Court has stated that the expression "continuing offence" has not been defined in CrPC because it is one of those expressions which does not have a fixed connotation and, therefore, the formula of universal application cannot be E formulated in this respect. The court referred to Balakrishna Sava/ram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan26 , Gokak Patel Vo/kart Ltd. v. Dundayya Gurushiddaiah Hiremath17 and eventually held thus: "Thus, in view of the above, the law on the issue can be summarised to the effect that, in the case of a continuing offence, the ingredients of the offence continue i.e. endure even after the period of consummation, whereas in an instantaneous offence, the offence takes place once and for all i.e. when the same actually takes place. In such 25 c2013) 2 sec 435 "" AIR 1959 SC 798 21 (1991) 2 sec 141 cases, there is no continuing offence, even though the damage resulting from the injury may itself continue."
21. In this context, it would be fruitful to refer to a three- Judge Bench decision in Maya Rani Punj v. Commissioner of/ncome Tax, DelhP8. In the said case, the Court approved B what has been said by the High Court of Bombay in State v. A.H. Bhiwandhiwa/ia29• For the sake of completeness, we reproduce the relevant paragraph:- "ln State v. A.H. Bhiwandiwalla (a decision referred to in c CWTv. Suresh Seth30), Gajendragadkar, J. (as hethen was), after quoting the observations of Beaumount, C.J. in an earlier Full Bench decision of that Court observed: "Even so, this expression has acquired a well-recognised o meaning in criminal law. If an act committed by an accused person constitutes an offence and if that act continues from day to day, then from day to day a fresh offence is committed by the accused so long as the act continues. Normally and in the ordinary course an offence is committed only once. But we may have offences which can be committed from day to day and it is offences falling ·in this latter category that are described as continuing . offences.""
22. We have dwelled upon the said submission, as the learned counsel for the State has seriously addressed that it is a continuing offence. We have already opined that on the date the NDPS Act came into force, the accused-appellant was still in possession of the contraband article. Thus, it was G possession in continuum and hence, the principle with regard to continuing offence gets attracted. 28 (1986} 1 sec 445 28 AIR 1955 Born 161 "' (1981} 2 sec 190
23. It is submitted by Ms. Aishwarya Bhati, learned counsel for the appellant that there has been non-compliance of Section 42 of the NDPS Act and hence, the conviction is vitiated. It is urged by her that the Investigating Officer has not reduced the information to writing and has also not led any B evidence of having made a full report to his immediate official superior. The High Court has taken note of the fact that information given to Bheem Singh, PW-12, and recovery was made by him who was the Sub-Inspector and SHO at the police C station. That apart, in this context, we may refer with profit to the Constitution Bench decision in Karnail Singh v. State of Haryana31, wherein the issue emerged for consideration is whether Section 42 of the NDPSAct is mandatory and failure to take down the information in writing and forthwith sending a o report to his immediate officer superior would cause prejudice to the accused.
The Court was required to reconcile the decisions in Abdul Rashid Ibrahim Mansuri v. State of Gujarat» and Sajan Abraham v. State of Kera/a". The Constitution Bench explaining the position opined that Abdul E Rashid (supra) did not require about literal compliance with the requirements of Section 42(1) and 42(2) nor did Sajan Abraham (supra) hold that requirement of Section 42(1) and 42(2) need not be fulfilled at all. The larger Bench summarized the effect of two decisions. The summation is reproduced F below:-· "(a) The officer on receiving the information of the nature referred to in sub-section (1) of Section 42 from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (cf) of Section 42(1) . ., (2009) a sec 539 S2 (2000) 2 sec 513 33 (2001) e sec 692 (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42( 1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. ( d) While total non-compliance with requirements of sub- sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of acopy of such information to the official superior forthwith, may not be treated as violation of Section 42.
But if the c c information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."
24. In Rajinder Singh v. State of Haryana34, placing reliance on the Constitution Bench, it has been opined that total non-compliance with the provisions of sub-sections ( 1) and (2) of Section 42 of the Act is impermissible but delayed compliance with satisfactory explanation for the delay can, E however, be countenanced.
25. In the present case, the High Court has noted that the information was given to the competent authority. That apart, the High Court has further opined that in the case at F hand Section 43 applies. Section 43 of the NDPS Act contemplates seizure made in the public place. There is a distinction between Section 42 and Section 43 of the NDPS Act. If a search is made in a public place, the officer taking the search is not required to comply with sub Sections ( 1) and (2) G of Section 42 of the NDPS Act. As has been stated earlier, the seizure has taken place beneath a bridge of public road accessible to public. The officer, Sub-Inspector is an empowered officer under Section 42 of the Act. As the place is a public place and Section 43 comes into play, the question ,. c2011) a sec 130 of non-compliance of Section 42(2) does not arise. The A aforesaid view gets support from the decisions in Directorate of Revenue and Anr. v. Mohammed Nisar Holia35 and State, NCT of Delhi v. Malvinder Singh36•
26. Learned counsel for the appellant has also B contended that there has been non-compliance of Section 57 of the NDPSAct, which reads as follows:- "Report of arrest and seizure – Whenever any person makes any arrest or seizure under this Act, he shall, within c fortyeight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
27. A three-Judge Bench in Sajan Abraham (supra), D placing reliance on State of Punjab v. Balbir Singh37, has held that Section 57 is not mandatory in nature and when substantial compliance is made, it would not vitiate the prosecution case. In Karnail Singh (supra), the Constitution Bench, while explaining the ratio laid down in Sajan Abraham E (supra), analysed the requirement of Section 42(1) and 42(2) and opined that the said pronouncement never meant that those provisions need not be fulfilled at all. However, the Constitution Bench has not delved into the facet of Section 57 of the NDPS Act.
28. In Kishan Chand v. State of Haryana38, the Court while dealing with the compliance of Sections 42, 50 and 57, has opined thus:- "21. When there is total and definite non-compliance with 3• (2oos) 2 sec 370 ,. (2007) 11 sec 314 37 (1994) 3 sec 299 3• (2013) 2 sec so2 c such statutory provisions, the question of prejudice loses its significance. It will per se amount to prejudice. These are indefeasible, protective rights vested in a suspect and are incapable of being shadowed on the strength of substantial compliance. 22. The purpose of these provisions is to provide due protection to a suspect against false implication and ensure that these provisions are strictly complied with to further the legislative mandate of fair investigation and trial. It will be opposed to the very essence of criminal jurisprudence, if upon apparent and admitted non- compliance with these provisions in their entirety, the court has to examine the element of prejudice. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevance. Absolute duty coupled with strict compliance would rule out the element of prejudice where there is total non- compliance with the provision." After so stating, the Court proceeded to address the separate rights and protection under the said provisions and F in that context ruled:- "Reliance placed by the learned counsel appearing for the State on SajanAbraham is entirely misplaced, firstly in view of the Constitution Bench judgment of this Court in Kamai/ Singh. Secondly, in that case the Court was also dealing with the application of the provisions of Section 57 of the Act which are worded differently and have different requirements, as opposed to Sections 42 and 50 of the Act. It is not a case where any reason has come in evidence as to why the secret information was not reduced to writing and sent to the higher officer, which is the requirement to be adhered to "pre-search". The question of sending it immediately thereafter does not arise in the present case, as it is an admitted position that there is total non-compliance with Section 42 of the Act. The sending of report as required under Section 57 of the Act on 20-7-2000 will be no compliance, factually and/or in the eye of the law to the provisions of Section 42 of the Act. These are separate rights and protections available to an accused and their compliance has to be done in accordance with the provisions of Sections 42, 50 and 57 of the Act. They are neither interlinked nor interdependent so as to dispense compliance of one with the compliance of another. In fact, they operate in different fields and at different stages. That distinction has to be kept in mind by the courts while deciding such cases."
29. In the instant case, on perusal of the evidence, it is clear that there has been substantial compliance of Section c 57 of the NDPSAct and, therefore, the question of prejudice E does not arise.
30. Ms. Bhati, learned counsel forthe appellant has also contended that the appellant was in custody in connection with FIR no. 95of1985 and while in custody, he suffered a disclosure F statement and led to discovery of the contraband articles. Submission of the learned counsel for the appellant is that the said statement cannot be taken aid of for the purpose of discovery in connection with the present case. It is demonstrable from the factual matrix that in connection with G FIR No. 95 of 1985, he was arrested and while he was interrogated, he led to discovery in connection with the stolen contraband articles from the malkhana which was the matter of investigation in FIR no. 96of1985. There is no shadow of A doubt that the accused-appellant was in police custody. Section 27 of the Indian EvidenceAct, 1872 provides that when any fact is deposed to as discovery in consequence of the information received from a person accused of any offence in custody of a police officer, so much of such information whether B it amounts to confession or not as relates distinctly to the fact thereby discovered may be proved.
It is well settled in law that the components or portion which was the immediate cause of the discovery could be acceptable legal evidence [See A.K C Subraman and Others v. Union of India and Others39]. The words employed in Section 27 does not restrict that the accused must be arrested in connection with the same offence. In fact, the emphasis is on receipt of information from a person accused of any offence. Therefote, when the accused- D appellant was already in custody in connection with FIR no. 95 of 1985 and he led to the discovery of the contraband articles, the plea that it was not done in connection with FIR no. 96 of 1985, is absolutely unsustainable. Be it stated here, that the recovery has been proven to the hilt. The accused, E accompanied by the witnesses, had gone beneath the bridge built between Gupal Sariya and Madiyai and he himself had removed the big stone and dug the earth and took out the packet which was bound in a long cloth from which a packet was discovered and the said packet contained 10 kg and 200 F gms of opium.
The learned trial Judge as well as the High Court has, by cogent and coherent reasons, accepted the recovery. On a scrutiny of the same, we also find that there is nothing on record to differ with the factum of recovery of the G contraband articles ..
31. Another submission that has been advanced by the learned counsel for the appellant is that the seized articles were not sent immediately for chemical examination. The FSL report, H Ex. P-14, dated 15.9.1986 states that a letter along with a 39 AIR 1976 SC 483 sealed packet was received with seals intact. The said report A further mentions that packet was covered in white cloth and on opening of the packet, the examiner found a cylindrical tin and the substance on examination was found to be an opium having 1.44 % morphine. The seal being intact, the description of the case number and the impression of seal having been fixed on B memo of recovery, there is no reason or justification to discard the prosecution case on the ground of delay on this score. In Hardip Singh v. State of Punjab40, a two-Judge Bench while dealing with the question of delay in sending the samples of C opium to the FSL, opined that it was of no consequence, for the fact of the recovery of the said sample from the possession of the appellant had been proven and established by cogent and reliable evidence and that apart, it had also come in evidence that till the date of parcels of samples were received o by the Chemical Examiner, the seal put on that parcel was intact. Under these circumstances, the Court ruled that the said facts clearly proves and establishes that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chemical E examination contained the same opium which was recovered from the possession of the appellant. The plea that there was 40 days delay was immaterial and would not dent the prosecution case.
32. In view of the aforesaid analysis, we do not perceive any substance in this appeal and accordingly, the same is dismissed. Kalpana K. Tripathy Appeal dismissed. '° c2ooa) a sec 557