JUDGMENT R.S. Sodhi, J.
1. This Criminal Appeal is directed against the judgment and order of the Special Judge, Delhi in Sessions Case No. 3/96 dated 25.9.1999 whereby the learned Special Judge has held the appellant guilty under Sections 21/65/85 of the NDPS Act, 1985 and order dated 29.9.1999 whereby the learned Special Judge sentenced the appellant to undergo rigorous imprisonment for ten years together with a fine of rupees one lac and in default thereof to undergo further simple imprisonment for two years.
2. The case of the prosecution is that on 1,11.1995 at about 12.30 P.M., while SI Ram Avtar was going to his office at PG Cell, Rajouri Garden, Delhi, he received a secret information that a person who sells smack will come on a two wheeler scooter in Krishna Park Extn., Tilak Nagar, Delhi and if a raid is conducted, a large quantity of smack may be recovered from his possession.
3. This information was reduced into writing vide DD No. 8. A raiding party was constituted, which reached Krishna Market Extn. At above 4.30 P.M., at the instance of the secret informer a two wheeler scooter HR-14-2191 was apprehended and two persons, driver as also the pillion rider were detained. It is stated by the prosecution that the person driving the scooter ran away from the site leaving the scooter but was chased, over-powered at a distance of about 200 yards and brought to the, site where the pillion rider was standing. The driver is Anup Singh while the pillion rider is Puran Singh. It is the further case of the prosecution that a notice under Section 50 of the NDPS Act was served upon Puran Singh, who declined to be searched in the presence of a Magistrate or a Gazetted Officer. Since the accused declined search before a Magistrate or a Gazetted Officer, his search was conducted by SI Ram Avtar, who found from the back side pocket of Puran Singh's underwear, 8 white polythene pockets and on checking he suspected that the same contained smack and that all the contents of the 8 packets were collectively weighed and found to be 400 garms. Out of which 10 grams was separated as sample and the remaining smack and sample were converted into two separate parcels, both parcels were sealed with the seal of RAS and KL, form CFSL was also filled in and impression of the seals Was affixed on it and the seals were given tq a public witness Jitender Singh. Both parcels and the form were sealed and handed over the SHO for safe custody.
4. Search was conduced on Anup Singh @ Ajit Singh but nothing incriminating was recovered from his possession. A sample was sent for testing to the laboratory at Chandigarh which tested positive for smack. Charge under Section 21 of the NDPS Act was framed against Puran Singh for having possession of 400 grams of smack on 1.11.1995 while Anup Singh @ Ajit Singh was charged for the offence under Sections 21/29 of the Act for transporting the smack in possession of Puran sitting on the pillion on the aforesaid scooter on 1.11.1995.
5. The prosecution, in order to prove its case, examined as many as 10 witnesses and closed the case. Learned counsel for the appellant has argued before me that this is a case where there is non-compliance of Section 42(2) of the Act as also the Section 50. Both of which are mandatory provisions and violation thereof wo.uld render the trial vitiated. He has drawn my attention to PW-8 and PW-10, who apparently are the same person, namely, SI Ram Avtar. SI Ram Avtar as. PW-8 states that he received information from an informer that a supplier of smack can be apprehended at Krishna Park Extn., Tilak Nagar, Delhi which information was given to senior officer Inspector Sardar Singh and thereafter reduced the information in the rojnamcha to DD No. 8. This witness re-appears as PW-10 and repeats the above deposition by adding that thereafter he along with Inspector Sardar Singh and other staff including informer reached Krishna Park Extn. at about 1.15 P.M. It was about 4.30 P.M. that the scooter was seen coming and upon pointing by the informer was apprehended. The persons on the scooter were apprised of their right to be searched before a Gazetted Officer or a Magistrate. Meanwhile, Inspector K.L Meena. SHO of the Police Station Tilak Nagar also reached there, who was also apprised of the fact that a notice under Section 50 of the Act (Ex. PW-10/A1) was served on the accused. The accused refused the offer of being searched before a Magistrate or a Gazetted Officer and put his signature at point A on Ex. PW-10/A1 in token of his refusal. It is interesting to point out here that on the record there are two notices under Section 50 of the Act. One is signed by SI Ram Avtar as also by Puran Singh. The second one is not signed by SI Ram Avtar but is signed by Puran Shigh. This exhibited at Ex.PW-2/A. A perusal of both these notices would indicate that they are not drawn by the same person but bears the signature of Puran Singh. It is the case of the defense before me that various blank papers were got signed from the accused and that both these notices, purportedly under Section 50 of the Act were prepared much later in the Police Station. The explanation given by SI Ram Avtar is as follows:-
"I had prepared all the other document in duplicate except the notice Under Section 50. Both the notices Ex PWIO/A and 2/A are in my hand writing. One notice was prepared in duplicate with the carbon and one notice was prepared without the carbon and ones the notice was prepared in duplicate with the carbon later other notice was prepared in duplicate with carbon. No witness was asked to sign the notice. I can not say any reason for not getting the notices signed by the witnesses. It is incorrect to suggest that I had prepared the notices in the PS, therefore, wrongly had been prepared twice. It is incorrect to suggest that the signature of the accused person was taken on blank and later on the same was converted into two notices."
6. Surprisingly, no carbon copy has been exhibited and also no notice under Section 50 served upon Anup Singh finds mention on the record. The manner in which the SI has tried to explain the notices creates a doubt as regards their genuineness.
7. I cannot get myself to believe that two notices could be prepared in the manner explained and for the reasons explained by SI Ram Avtar. Since I did not believe that notice under Section 50 of the Act was ever served validly upon the accused, any recovery pursuant thereof would be of no consequence. In this I am supported by Supreme Court in Stale of Punjab v. Baldev Singh (1999) 6 SCC 172 where a Constitution Bench of the Supreme Court has held that any recovery made illegally cannot be legitimised.
8. Further there appears to be a violation of Section 42(2) of the Act inasmuch as no information reduced in writing and copy thereof was sent to the Superior Officer.
Section 42 has been held to be mandatory and non-compliance of the same would lead to disastrous consequences as far as prosecution is concerned. SI Ram Avtar in his statement does not say that a copy of the information taken down in writing was sent to the superior officers. Further, if we take it that upon receiving an oral information, he had orally apprised Inspector Sardar Singh that too does not inspire Confidence. Inspector Sardar Singh has not been examined nor is there an entry to this effect in the case diary. Therefore, except for the Ipsi dixit of SI Ram Avtar, there is no material on record to show that Section 42(2) has been complied with.
9. I need not go into other aspects of this case. Suffice it to say that the mandatory provisions of Section 42(2) and Section 50 have not been complied with.
10. I hold that violation of Sections 42(2) and 50 of the NDPS Act has vitiated the trial. The judgment and orders dated 25.9.1999 and 19.9.1999 of the Special Judge are set aside and Criminal Appeal No. 583/99 is allowed.
11. The appellant be set at liberty if not wanted in any other case.