Crl. Appeal No.598-SB of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No.598-SB of 2004 Date of Decision : March 20, 2007. Megh Singh ..... Appellant Vs. State of Haryana ..... Respondent Coram : Hon'ble Mr.Justice Mahesh Grover * * * Present : Mr.R.K.Nagpal, Advocate for the appellant. Mr.S.K.Hooda, Senior DAG, Haryana. * * * MAHESH GROVER, J. (Oral) : The appellant was sent up to stand trial for having violated provisions of Section 15 of the NDPS Act. He was convicted and sentenced to undergo RI for a period of 10 years and also to pay a fine of Rs.one lakh under the provisions of Section 15(c) of the NDPS Act. In default of payment of fine, he was directed to undergo further RI for a period of two years. The facts of the case, in brief, are that on 28.8.1999, Inspector Ujagar Singh who was posted at CIA Staff, Fatehabad, was present in Village Nagpur in Government Jeep in connection with usual patrolling, along with other police officials. He received a secret information that Megh Singh is indulging in narcotic trade and is likely to bring poppy straw in his car. Nakabandi was done at the bridge of canal Barolawali Minor of Village Nagpur. One Prem Kumar son of Bagi Ram, who met them, was Crl. Appeal No.598-SB of 2004 2 joined as an independent witness. At about 5:00 A.M., a maruti car from the side of Village Nagpur came and was signalled to stop by the patrolling party. The car was being driven by the accused who was earlier known to the police. The accused-appellant is said to have stopped the car and run away. On search of the car, four gunny bags and one plastic katta were found at the back seat of the car which were containing poppy husk. 100 grams of poppy husk was separated from each gunny bag and also from plastic katta as samples and were converted into sealed parcels. On weighing, the remainder poppy husk was found to be 39.900 kilograms in each gunny bag and 14.900 kilograms in plastic katta. Five parcels containing the sample poppy husk were prepared and sealed with the seal of `USB' and taken into possession vide separate recovery memo. The seal, after use, was handed over to Prem Kumar, the independent witness. The Investigating Officer sent information in writing for registration of a case on the basis of which formal FIR was registered. Rough site plan of the place of recovery was also prepared. After completing the investigation, the police party is said to have returned to the police station and the case property was produced before the SHO Som Raj, who affixed his own seal of `SR' on samples as well as the case property and directed the Investigating Officer to deposit the same with the MHC. The samples were sent to the office of Chemical Examiner for analysis. Ultimately, on completion of the investigation, challan was presented against the appellant and the case was committed to the Court of Additional Sessions Judge, Fatehabad, for trial. The appellant was charged for having committed an offence punishable under Section 15 of the NDPS Act for having in his possession 175 kilograms of poppy husk without any permit or license. The prosecution, in order to establish the guilt of the appellant, Crl. Appeal No.598-SB of 2004 3 examined as many as eight witnesses. The independent witness Prem Singh was given up by the prosecution having been won over by the accused. In statement under Section 313 of the Cr.P.C., the appellant denied the allegations against him and pleaded false implication. However, no evidence was adduced by him in his defence. The trial court, thereafter, on appraisal of the evidence before it, convicted and sentenced the appellant as detailed above. The appellant has assailed the conviction and sentence awarded to him by the trial court vide its judgment dated 8.12.2003 by way of the present appeal. It has been contended by the learned counsel for the appellant that the appeal deserves to be accepted as there was no compliance of Section 42 of the NDPS Act which is mandatory. According to the prosecution, secret information had been received by the patrolling party and it was incumbent upon them to adduce the same into writing and inform the superior officers within a period of 72 hours. Non-compliance of Section 42, according to the learned counsel for the appellant, would result in the benefit going in his way. That apart, false implication of the appellant is writ large on perusal of the evidence as SHO Som Raj (PW-5) has stated that the appellant was produced before him along with contra band on 28.8.1999 at about 7:30 A.M. whereas the other witnesses namely Parkash Chand (PW- 4) as stated that he had arrested the appellant on 27.9.1999. This glaring infirmity has not been explained and therefore, it casts a serious doubt on the version as given by the prosecution especially keeping in view the fact that it has been stated by the prosecution that the appellant had run away from the spot. Even if the testimony of PW-5 is to be believed that the appellant had been produced before him at 7:30 A.M. on 28.8.1999, yet the fact remains unexplained as to how the accused was apprehended and all Crl. Appeal No.598-SB of 2004 4 the formalities completed within a period of two hours, as there is no explanation coming from the side of the prosecution. On the other hand, learned counsel for the State contends that compliance of Section 42 would not vitiate the trial especially in view of the fact that the police was on patrolling duty and had no occasion to reduce the information into writing to send it to the superior officers. In any eventuality, once the appellant was produced before the SHO, who was the superior authority than Ujagar Singh, who was on patrolling duty, then it should be construed to be compliance of Section 42 of the Act. I have heard learned counsel for the parties and have perused the evidence on record. Section 42 of the NDPS Act is as follows :- “42. Power of entry, search, seizure and arrest without warrant or authorisation – (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 including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs 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 persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, Crl. Appeal No.598-SB of 2004 5 or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act 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; (c) 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 this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Crl. Appeal No.598-SB of 2004 6 Act; 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 this Act : Provided that if such officer has reason to believe that a search warrant or authorisation 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 sunset and sunrise 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 within seventy-two hours send a copy thereof to his immediate official superior.” The Hon'ble Supreme Court in the case of Dilip and another Vs. State of M.P. reported as (2007) 1 Supreme Court Cases 450 has held as under :- “It is now well settled that the offence committed under the Act is a grave one. Procedural safeguards provided therefor in terms of Sections 41, 42 and 50 of the NDPS Act should be complied with.” The fact that Section 42 of the NDPS Act is mandatory, was reiterated by Suprme Court in a case of Beckodan Abdul Rehman Vs. State of Kerala reported as 2002 (2) RCR (Criminal) 385. Crl. Appeal No.598-SB of 2004 7 A Division Bench of this Court in the case of Gurnam Kaur and others Vs. State of Punjab reported as 2006 (3) RCR (Criminal) 984 has also found sustenance from the observations of the Hon'ble Supreme Court to hold that the compliance of Section 42 is mandatory. Reverting back to the facts of the present case, testimony of PW-8 Ujagar Singh reveals that no such information was ever sent to the higher police officers. In his cross-examination, he has testified as follows :-mn “I had not sent the information regarding receipt of secret information to any higher police officer.” There is, thus, no escape from the conclusion that Section 42 of the Act was not complied with. The observations of Hon'ble Supreme Court and a Division Bench of this Court are, therefore, clearly attracted to the facts of the present case. That apart, the whole prosecution version is uninspirational. It was alleged that the patrolling party has signalled the appellant, who was going in his car, to stop upon which the appellant is stated to have run away from the spot. The incident is stated to be of 28.8.1999 at about 5:00 A.M., but strangely enough, the SHO Som Raj PW-5 states that the appellant and the contraband were produced before him at about 7:30 A.M. It is again in complete contradiction to the said testimony of PW-4 Parkash Chand, who had stated that the appellant was arrested on 27.9.1999. This has left a gaping hole in the version of prosecution as there is material contradiction regarding the arrest of the appellant which has neither been explained by any explanation or any evidence on record. Keeping in view the totality of the circumstances especially the fact that there has been non-compliance of Section 42 of the NDPS Act as also the fact that the prosecution version, right from the inception of the Crl. Appeal No.598-SB of 2004 8 story, is full of material contradictions regarding the arrest of the appellant, there is no hesitation to hold that the prosecution has failed to bring home the charge against the appellant. The present appeal is accordingly allowed and the appellant is hereby acquitted of the charge under Section 15 of the NDPS Act. March 20, 2007 ( MAHESH GROVER ) monika JUDGE