Haseena Begum vs State
2001 Latest Caselaw 978 Del

JUDGMENT

R.S. Sodhi, J.

1. Criminal Appeal No. 203 of 1995 is directed against the judgment and order dated 5.10.1995 of the learned Additional Sessions Judge, Special Court, NDPS Act, convicting the appellant under Section 21 of the Narcotic Drugs and Psycotrophic Substances Act, 1985 (for short 'the Act') and further by his order dated 6.10.1995 sentenced the appellant to undergo RI for ten years with a fine of Rs. 1,00,000 and in default of payment of fine to further undergo RI for one year.

2. The facts of the case, as noted by the learned Judge, are as follows:

On 1.11.93 when SI Risal Singh was present in his office of N & CP Cell Kamla Market, at about 5.15 p.m. a secret information was received that one lady named Haseena who resides in Bengali Basti Yamuna Pushta who is selling smack in packets in front of her jhugi No. 319. If raid is conducted she can be apprehended. This information was passed on to Inspector J.S.Rana and Shri B.C.Kalra ACP was informed on telephone. Both ACP and Inspector directed SI Risal Singh to organise a raiding party and accordingly he organized a raiding party comprising of SI Ravinder Kumar. H.C. Abdul Qadir, H.C Ram Babu, Lady Const. Maya Devi and other Consts. under the overall supervision of Inspector J.S.Rana. The raiding party along with informer left for the place in Govt. vehicle. The vehicle was parked at Vijay Ghat. He and Inspector J.S. Rana asked many passers-by to join the raiding party but they declined. The jhugi No. 319 was cordoned from all the four sides and at about 6.05 p.m. on the pointing out of the informer one lady whose name was later known as Haseena was apprehended by SI with the help of Lady Const. Maya Devi. She was told about the secret information and a notice Under Section 50 NDPS Act was given and an offer was made that if she wants she could be produced before Gazetted Officer of Police or Magistrate for search but she declined. Lady Const. Maya Devi offered her search by the accused but she declined. Thereafter Lady Const. Maya Devi took the search of the accused and from her right hand one green colour polythene was recovered which on being checked was found to contain 10 packets of polythene of small and big size. The same was checked and found to be containing smack. All the smack was put together and on being weighed was found to be 200 gm. 5 gm. was taken out as sample. Sample and the remaining smack were made in two different pulandas and sealed with the seal of RS. Form CFSL was also filled in and seal impression put on it. Seal after use was handed over to SI Ravinder Kumar. Both the pulandas and Form CFSL were taken in police possession. Rukka was sent to P.S. through H.C. Abdul Qadir and both the pulandas, Form CFSL were also handed over to H.C. Abdul Qadir to produce the same before SHO who should take the same in safe custody and deposit in the malkhana. After the registration of the case personal search of the accused was conducted. Statement of the witnesses were recorded and after receipt of Chemical examiner's report and completing the necessary investigation the accused was challenged.

3. Charge under Sections 21, 61 and 85, NDPS Act framed against the accused which is read over and explained to her to which she pleaded not guilty.

4. Learned Counsel appearing for the appellant submits that in this case there has been violation of Section 42 of the Act. He submits that Section 42 of the Act is a mandatory provision, violation whereof would render the conviction bad. He draws my attention to the statement of SI Rishal Singh, PW-9, who deposed to the effect that on 1.11.1993 he was posted as SI in SCP Cell, Kamla Market and was present in his office when at about 5.15 p.m., a secret information that one lady, named, Haseena, was living in Bengali Basti, Yamuna Pusta, who was selling heroin and if raid is conducted, heroin can be recovered. This information was, according to this witness, passed on to Inspector J.S. Rana in his office in Kamla Market Police Station and also to ACP B.C. Kalra of the Narcotic Cell, but this witness nowhere stated that the secret information received by him was reduced into writing nor such a writing has been exhibited in evidence.

5. Adverting to the deposition of PW-6, it is clear that this witness also does not depose to the effect that he received any written information from SI Rishal Singh and as far as ACP B.C.Kalra is concerned, he has not been examined. Section 42 of the Act lays down, in no uncertain terms, that the secret information must be reduced into writing and a copy thereof forwarded to a superior officer. In State of Punjab v. Balbir Singh , the Supreme Court has categorically held that Section 42 of the Act is a mandatory provision violation whereof shall render the conviction bad. In the present case, there is noncompliance of Section 42 of the Act and, therefore, the judgment under challenge cannot be sustained. Learned Counsel for the State also supports learned Counsel for the appellant inasmuch as Section 42 of the Act has been violated.

6. I need not advert to the other points raised by the learned Counsel. Suffice it to say that Section 42 of the Act is a mandatory provision and its non-compliance would vitiate the conviction. I, therefore, allow Criminal Appeal 203/95, set aside the judgment and order under challenge and acquit the appellant of all charges. The appellant who is in jail be released forthwith, if not wanted in any other case.