Crl.A. No.2102-SB of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.2102-SB of 2005 DATE OF DECISION: October 18, 2011 JANAK RAJ @ SUSA ...APPELLANT VERSUS STATE OF HARYANA ...RESPONDENT CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL. 1. Whether the judgement should be reported in the digest? Yes/No ---- PRESENT: MR. R.K. SINGLA, ADVOCATE FOR THE APPELLANT. MR. CHARANJIT SINGH BAKHSHI, ADDL.A.G., HARYANA. M.JEYAPAUL, J.(ORAL) 1. The sole accused who was convicted for offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') has preferred the present appeal. 2. The brief case of the prosecution is that PW7 ASI Sandeep Singh accompanied by other police officials and PW3 Matu Ram, Naib Tehsildar proceeded to the house of the accused based on the secret information he received. The accused was virtually found pulling gunny bag towards the courtyard of his house from out of the store of his house. On search, 5 gunny bags containing poppy husk each weighing 40 kgs. were found. Samples were drawn. The material contrabands were recovered. The accused was arrested. The samples were sent for examination. The chemical examiner submitted a report that the samples sent for examination were nothing but poppy husk. 3. The trial Court relying upon the testimony of the material Crl.A. No.2102-SB of 2005 -2- witnesses examined on the side of the prosecution recorded conviction as against the accused. 4. I have heard the submissions made on the either side. 5. It is case of the prosecution that PW7 ASI Sandeep Singh descended alongwith other police officials on the residence of the accused only based on the secret information he received. In fact, the search was conducted only in the residential premises of the accused. As rightly pointed out by the learned counsel for the appellant, the mandatory provision under Section 42 of the Act was not followed in this case. As per Section 42 of the Act, if any information is received as to the concealment of any contraband in any building, conveyance or disclosed place, such information shall be reduced into writing and the copy of such information reduced into writing shall be sent to the immediate official superior within 72 hours. But such a mandatory provision has not been followed in this case. Therefore, the case of the prosecution is vitiated by non-compliance of the mandatory provision. Such a safeguard has been provided to rule out any false case being booked as against the suspected accused. Non- compliance of such a provision creates a doubt in the mind of the Court. The benefit of doubt will have to be conferred upon the accused. But the trial Court has very casually dealt with such a non-compliance. In fact, the trial Court has completely ignored such a non-compliance on the pretext that PW7 had infact informed the Naib Tehsildar who was examined as PW3 and conducted a search in his presence. Firstly, PW3 Matu Ram, Naib Tehsildar was not the official superior to PW7 ASI Sandeep Singh. Secondly, the information shared with PW7 does not amount to compliance Crl.A. No.2102-SB of 2005 -3- of the mandatory provision under Section 42 of the Act. In my considered view, the accused is entitled to acquittal. 6. In view of the above, the judgement of conviction and order of sentence recorded by the trial Court as against the accused-appellant under Section 15 of the NDPS Act is set aside and the accused-appellant is acquitted of the charge thereunder. It is found that the appellant is undergoing sentence. He shall be set at liberty, if his custody is not required in connection with any other case. 7. Appeal allowed. October 18, 2011 (M.JEYAPAUL) Gulati JUDGE