CRA No.1110-SB of 2003 1 In the High Court of Punjab and Haryana at Chandigarh CRA No. 1110-SB of 2003 Date of decision: Seera @ Jagsir Singh ......Appellant Versus State of Haryana .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.D.N.Ganeriwala, Advocate, for the appellant. Mr.H.S.Benniwal, DAG, Haryana. **** SABINA, J. The appellant was convicted for an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act- for short) vide judgment dated 16.4.2003 by the Additional Sessions Judge, Sirsa. Vide order of the even date the appellant was sentenced to undergo rigorous imprisonment for a period of ten years and a fine of Rs.1,00,000/-. Hence, the present appeal. Prosecution case, as noticed by the trial Court in para No. 2 of its judgment, is reproduced herein below:- “ On 15.12.2000, Jagdish Chander, SI/SHO, Police Station Baragudha, along with some police officials, was present near village Bappan for patrol duty. CRA No.1110-SB of 2003 2 He received a secret information that accused habitually sells poppy-straw and can be caught red handed by a raid. Thereupon, the complainant Jagdish Chander organized a raiding party. During raid by the raiding party accused was found removing wheat-straw in his house. Notice Ex.PA was served upon him asking him whether he desired his search before any Gazetted Officer or a Magistrate. Accused declined the offer. Accused was found in possession of two bags of poppy-straw. Bags contained 40 kgs. of poppy straw each. Two samples as well as the residue parcel were seized vide recovery memorandum Ex.PB after being duly sealed. Formal FIR Ex.PC/1 was got registered by sending ruqa Ex.PC. Rough site plan (Ex.PD) of place of recovery was prepared. Statements of witnesses were recorded under Section 161 of Code of Criminal Procedure. On return to police station, case property was deposited with MHC. Report under section 57 of NDPS Act, Ex.PF was prepared. After completing all formalities, police put up the requisite challan against the accused under Section 15 of NDPS Act.” Learned counsel for the appellant has submitted that in the present case, the house of the appellant was raided on the basis of secret information. However, the said secret information was not reduced into writing and sent to the immediate Superior Officer. Hence, the provisions of Section 42 of the Act had not been complied with. In support of his arguments, he has placed reliance on CRA No.1110-SB of 2003 3 Beckodan Abdul Rahiman vs. State of Kerala 2002(2)RCR (Criminal) 385. Learned counsel has further submitted that the appellant has already remained in custody for five years. Learned counsel for the State, on the other hand, has submitted that the provisions of Section 42 of the Act were not applicable to the facts of the present case. Appellant had been found to be in possession of 80 kilograms of poppy husk without any permit or licence. In the present case, PW2 SI Jagdish Chander, while he was present in the area of village Bappan on canal bridge for petrol duty, received a secret information that the accused was habitual of selling poppy husk and in case, a raid was conducted at his house, the accused could be apprehended. Thereafter, PW Gurtej Singh was joined with the raiding party and the house of the accused was raided. Thereafter, as per the prosecution case, two bags of poppy husk were recovered. Two samples, hundred grams each were taken out from each bag and they were sealed with seal bearing impression `JC'. The sealed samples as well as the remaining case property were taken in possession. Section 42 of the Act reads as under:- “42.Power of entry, seizure and arrest without warrant or authorization.-(1)Any such officer(being an officer superior in rank to a peon, sepoy or constable) 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 CRA No.1110-SB of 2003 4 (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drug 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; ©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 substance;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; CRA No.1110-SB of 2003 5 Provided that if such officer has reason to believe that a search warrant or authorization 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 sun set and sun rise 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 forth send a copy thereof to his immediate official superior.” Thus, as per Section 42 of the Act, the secret information received by the raiding party has to be reduced into writing and sent to immediate Superior Officer. However, in the present case, compliance of the said provisions was not made. PW2 Jagdish Kumar, in his cross-examination, has stated that no information was sent to the Police Station on receipt of the secret information. The said witness has also not deposed to the effect that the secret information received by him had been reduced into writing. The appellant was,allegedly, caught from his residence. There is nothing on record to suggest that there was possibility that the appellant might have escaped or might have concealed the contraband. From a perusal of the statements of Raghubir Singh,PW1 and Jagdish Chander PW2, it does not transpire that the appellant was about to run away with the bags of poppy husk. From the cross-examination of PW2, it is evident that many neighbours had gathered at the spot but none has been joined by the police party at the time of raid. The only independent witness joined by the raiding party has not CRA No.1110-SB of 2003 6 supported the prosecution case. Since in the present case, the mandatory provisions of Section 42 of the Act had not been complied with and keeping in view the totality of factual matrix of this case, the appellant was liable to be acquitted. Accordingly, this appeal is allowed. The impugned judgment of conviction and order of sentence dated 16.4.2003 passed by the Additional Sessions Judge, Sirsa are set aside. Consequently, the appellant is acquitted of the charge framed against him. (Sabina) Judge January 28, 2010 arya