Jagtar Singh vs State Of Hy
2023 Latest Caselaw 336 P&H

      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH


322

                           CRA-S-1704-SB-2003 (O&M)
                           Reserved on: 10.11.2022
                           Date of Decision: 10.01.2023

Jagtar Singh                                                   ...Appellant
                                  Versus
State of Haryana                                           ... Respondent


CORAM :        HON'BLE MR. JUSTICE N.S.SHEKHAWAT

Present :      Mr. K.P.S. Virk, Advocate
               for the appellant.

               Ms. Sheenu Sura, DAG, Haryana.

N.S.SHEKHAWAT, J.

The present appeal is directed against the judgment of

conviction 23.07.2003 and order of sentence dated 24.07.2003 passed

by the learned Judge, Special Court, Kaithal, whereby, the present

appellant was convicted under Section 15 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter to be referred as 'the

NDPS Act) and sentenced to undergo rigorous imprisonment for ten

years and to pay a fine of Rs. 1,00,000/- alongwith default

stipulation.

The brief facts of the present case are that on

18.07.1999, ASI Om Parkash, In-charge, Police Post, Ramthali was

present on a road, which leads from Guhla to Kharka alongwith other

police officials and a secret information was received that gunny bags

of poppy husk had been loaded in a truck and the said truck was being

driven by Jagtar Singh son of Jeet Singh and Hardeep Singh son of

Gurcharan Singh is also with him in the said truck. The said two

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accused were in the habit of selling poppy husk and if a picket was

set up, the accused could be apprehended with the truck carrying the

poppy husk. One truck was seen coming from the side of Guhla after

some time and was signalled to stop by the police party. When the

truck was signalled to stop with the light of the torch, Hardeep Singh,

who was known to the Investigating Officer, alighted from the truck

and fled away. He was identified by ASI Om Parkash as they were

previously known to each other. Jagtar Singh, driver was apprehended

at the spot. After his arrest, a notice under Section 50 of the NDPS

Act was served upon the accused Jagtar Singh and the offer regarding

search was given to him. The accused opted to get his search

conducted in the presence of a gazetted officer, as per his reply Ex.PC

and a memo was prepared in this regard. Om Parkash Kadiayan, the

Deputy Superintendent of Police, Guhla was telephonically informed

and he reached at the spot. He again informed the accused, after being

apprised of the facts of the case. At the instance of Om Parkash

Kadiyan, the Deputy Superintendent of Police, ASI Om Parkash

conducted the search of truck and on checking, 19 gunny bags

containing poppy husk were found loaded in the truck upon unloading

and weighing, the weight of each gunny bag was found to be 40 kgs.

Out of each gunny bags, 250 grams poppy husk was separated for the

purpose of sample and the same were made into parcels. The residue

quantity of poppy husk was also converted into a separate parcel and

the seal 'OP' of the Investigating Officer and 'OPK' of the the Deputy

Superintendent of Police were affixed on the same. Seal 'OP' was

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handed over to HC Satyawan after use whereas seal 'OPK' was kept

by the the Deputy Superintendent of Police with himself. The sample

parcel, residue parcel, sample seal impressions, truck, RC etc., were

taken into possession by the police and the ruka Ex.PA was sent to the

police station for registration of the FIR, on the basis of which, formal

FIR Ex.PA/1 was recorded. Rough site plan was prepared and the

statements of the witnesses were recorded. Notice under Section 52 of

the Act was served upon Jagtar Singh and accused/witnesses/case

property and truck were produced before the Station House Officer of

Police Station Guhla on the said day for verification. SHO also

verified the facts of the case and had put an additional seal of 'RS' on

the sample parcels, residue bags and directed the police party to

deposit the case property with the MHC. A report under Section 57 of

the Act was again prepared and was sent to the concerned DSP in

compliance of Section 57 of the Act. After completion of the

investigation, the report under Section 173 Cr.P.C., was presented in

the competent Court against Jagtar Singh. The sample parcels were

sent to FSL Madhuban for analysis and the chemical examiner found

the samples to be containing poppy straw (chura post) vide report

Ex.PL.

After complying with the mandatory provisions, the

charge under Section 15 of the NDPS Act was ordered to be framed

against the present appellant, to which, he pleaded not guilty and

claimed trial.

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In support of the charge, the prosecution examined 9

witnesses and closed the prosecution evidence.

The prosecution examined PW1 MHC Rattan Singh, who

was working as MHC in the Police Station Guhla. On 19.07.1999,

ASI Om Parkash deposited 19 bags containing 'chura post', 19

sample parcels duly sealed and a truck, which he kept in the

malkhana. He kept the 19 bags and 19 sample parcels duly intact and

sealed. On 20.07.1999, he handed over all the sample parcels and

sample seals to Constable Ram Diya for depositing the same with

FSL, Madhuban. The sample parcels of the case property remained

intact till it remained in his custody. In his cross-examination, he

stated that from 19.07.1999 till he handed over the samples to the

constable, the same were not produced before the Magistrate.

Constable Ram Diya examined as PW2, who was given 19 sample

parcels alongwith sample seals, docket and registration certificate by

MHC Rattan Singh for depositing the same with FSL Madhuban and

he deposited the same with FSL on the same day itself. PW3 SI/SHO

Shamsher Singh completed the investigation and submitted the report

under Section 173 Cr.P.C. PW4 ASI Randhir Singh received ruka and

recorded the formal FIR on 18.07.1999. On 19.07.1999, ASI Om

Parkash produced before him a truck bearing registration

No. HR-12-G-0396, 19 bags of poppy husk, 19 sample parcels and

accused Jagtar Singh. He verified the facts of the case, put his seal

impression 'RS' and the sample seals impressions were prepared. Om

Parkash deposited the case property with the MHC. SI Paras Kumar

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was examined as PW3, who arrested the accused Hardeep Singh in

the instant case and also prepared the report under Section 173

Cr.P.C., against Hardeep Singh. HC Satyawan was examined as PW6,

who was part of the raiding party and supported the case of the

prosecution in all respects. In his cross-examination, he admitted that

secret information was received at about 08.00 p.m., by ASI Om

Parkash and the the Deputy Superintendent of Police reached at the

spot at 11.20 p.m. Again said, he came at about 09.20 p.m. No one

was joined in the investigation till the arrival of the the Deputy

Superintendent of Police at the spot. Village Ramthali was at a

distance of 1 ½ acres from the spot and nobody was sent to village

Ramthali for summoning public witnesses from the village. Even no

efforts were made to join the public witnesses from the nearby

villages at the time of search. ASI Om Parkash was examined as

PW7, who supported the version mentioned in the FIR. However, he

admitted that he had deposited the sample parcels, truck, sample seal

impressions, 19 bags containing poppy husk with the MHC in intact

condition and the truck was lodged in the police lockup. He further

stated that no one was sent to associate the independent

witnesses/public witnesses from the village. Still further, S.K. Nagpal,

Senior Scientific Officer, FSL, Madhuban was examined as PW8. He

stated that on 20.07.1999, 19 sealed cloth parcels each seal with two

seals of 'OP' and two seals of 'PK' and two seals of 'RS' were received

in FSL Madhuban. Om Parkash Kadyan, the then the Deputy

Superintendent of Police was examined as PW9 who had come at the

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spot and had witnessed the search and seizure. He also admitted in his

cross-examination that in his office, a register is maintained regarding

the receipt of documents and entry is duly made in the register. He

stated that the original of Ex.PG was sent to the S.P. Office, Kaithal.

Even no dak register was produced in the Court. He stated that

number of dak is mentioned on the report by concerned staff official

and no number was mentioned on the copy of Ex.PG as the same was

only carbon copy. However, he admitted that carbon copy Ex.PG did

not contain his signatures and the original might be having his

signatures. He further admitted that no writing regarding secret

information was received by him, but a telephonic message was

received regarding this.

After closure of the prosecution evidence, the statement

of accused under Section 313 Cr.P.C., was recorded by the learned

Special Court and he pleaded false implication. He had taken up the

stand that his father Jeet Singh filed a writ petition before this Court

against the Investigating Officer ASI Om Parkash and SI/SHO Satbir

Singh. His father had a land dispute with Roor Singh and Puran Singh

and his two brothers, namely, Virender Singh and Gurvinder Singh

were forcibly lifted on 17.07.1999 from their house. On 18.07.1999,

his father alongwith Anoop Singh came to the Police Post Ramthali

and requested the Investigating Officer ASI Om Parkash to release

them but due to party faction in the village, he had been falsely

implicated in this case at the instance of Roor Singh and Puran Singh

with the connivance of the police.

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In defence evidence, learned defence counsel tendered

certified copy of the report Ex.PD, certified copy of the grounds of

appeal Ex.DE and closed their evidence.

I have heard learned counsel for the parties and perused

the trial Court record carefully.

Learned counsel for the appellant vehemently argued that

as per the admitted case of the prosecution, the secret information was

never reduced into writing by the Investigating Officer nor the same

was ever sent by him to his immediate superior officer forthwith.

PW7 ASI Om Parkash admitted in his cross-examination that secret

information was received at 07.30 p.m., which was not reduced into

writing nor the copy of the same was sent to higher officers. Still

further, the learned trial Court misinterpreted the provisions of

Section 42 of the NDPS Act and placed reliance on the judgments,

which were not applicable to the facts of the instant case. Still further,

in the instant case, the case property was never produced before the

Illaqa Magistrate for certification of the inventory, leading to

non-compliance of Section 52-A of the NDPS Act. Even PW1 MHC

Rattan Singh admitted that from 19.07.2000 till he handed over the

sample to the constable, the same were not produced before the

learned Magistrate. Still further, a carbon copy Ex.PG of the report

under Section 57 of the NDPS Act was placed on the record, which

did not bear the stamp or signatures of SHO, DSP or SP, which could

fully show that the same was not presented to any senior officers and

Section 57 of the NDPS Act was not complied with. Still further, the

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date mentioned in Ex.PG is 18.06.1999 whereas the recovery was

made on 18.07.1999. It appears that the report Ex.PG seems to be ante

dated in order to fill the lacuna in the prosecution case. Apart from

that, the sampling was not done properly as only one sample was

taken out of each bag, which is clear violation of the standing order

No. 1/89 dated 13.06.1989 issued by the Government of India, which

makes it mandatory that two samples should be drawn from recovered

substance, failing which, the whole recovery procedure shall be

vitiated. Even, PW8, S.K. Nagpal, Senior Scientific Officer, FSL,

Madhuban also admitted the fact that it was mandatory to take two

samples from each of the seized articles. Consequently, the recovery

stood vitiated and the impugned judgment was unsustainable. Still

further, the sample seal was also missing in the instant case. Learned

counsel further argued that there was ample time with the

Investigating Agency to join independent witnesses in the instant

case, yet no independent witness was joined in the instant case. Even,

the prosecution witnesses themselves admitted that no independent

witnesses were joined. Apart from that, the story of the prosecution

was highly improbable and unbelievable. Furthermore, the link

evidence was also missing in the instant case. Thus, the impugned

judgment and order are legally unsustainable.

The submissions made by the learned counsel for the

appellant have been vehemently opposed by the learned State counsel

by submitting that the mandatory provisions of the NDPS Act had

been complied with. Learned counsel further submitted that the

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Investigating Officer had followed the complete procedure as

prescribed by the statute and there was no violation, as alleged. Apart

from that it is a matter of common experience that independent

witnesses do not join at the time of making recoveries of the

contraband from the smugglers. Thus, it was prayed that the

impugned judgment passed by the learned trial Court may be upheld.

Non-compliance of Section 42 of the Act

I have considered the rival submissions made by the

learned counsel for the parties. I find sufficient force in the arguments

raised by the learned counsel for the appellant that there was complete

non-compliance of Section 42 of the NDPS Act and the learned trial

Court had misinterpreted the provisions of Section 42 while

delivering the impugned judgment. The findings recorded by the

learned trial Court in this regard are extracted below:-

"12. In the present case, admittedly, a secret information was received nearabout 08.00 p.m. And after the secret information, nakabandi was made, but the said secret information was not reduced into writing nor any such information was sent to the senior officers regarding the secret information, nor the investigating officer recorded the reasons as provided under sub- section (2) of section 42 of the Act.

13. No doubt, in case any secret information is received by the authorised officer, then he is required to reduce the said secret information in writing or in the alternative to record the reason or his belief and send the same to senior officers. In the present case, the provisions of Section 42 or its proviso have not been

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complied with, but in this case, non-compliance of provisions of Section 42 of the Act or its proviso has not vitiated the trial."

             14 XXX          XXX               XXX
             15. XXX          XXX              XXX

16. Since in the present case, had the investigating officer complied with mandate strictly, there could be the delay in trapping the accused, so even if there is no- compliance of Section 42(f) of the Act, the same is not fatal to the prosecution case. In the present case, the purpose of Section 42 of the Act or its proviso has not been forfeited because after apprehending accused Jagtar Singh, the search and seizure has been taken in the presence of DSP Om Parkash, who is a Gazetted Officer. Thus, the senior officers were duly informed before taking the search of the truck in question".

In fact from the perusal of the above referred findings, it

is apparent that the learned trial Court had misinterpreted the

provisions of Section 42 of the NDPS Act.

Section 42 of the NDPS Act has been reproduced below

for the ready reference:-

"42. Power of entry, search, seizure and arrest without warrant or authorisation.-(l) 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

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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, 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 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:

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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."

In fact, Section 42 of the NDPS Act has been interpreted

by the Hon'ble Supreme Court in number of judgments. It has been

held that the compliance of requirements of Section 42(1) and 42(2)

of the NDPS Act in regard to writing down the information received

and sending a copy thereof to the superior officer, should normally

precede the entry, search and seizure by the officer. In special

circumstances involving emergent situation, recording of the

information in writing and sending a copy thereof to the officer

superior may get postponed by a reasonable period, i.e., after the

search, entry and seizure. It has been held that total non-compliance

of the requirements of sub-sections (1) and (2) of Section 42 of the

NDPS Act is impressible in law and the provisions of Section 42 of

the NDPS Act are mandatory and not directory.

In the instant case, PW1 ASI Jaswinder Singh is the star

witness of the prosecution who supported the case of the prosecution

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in all material particulars. However, in his cross-examination, he

clearly admitted that he acted on receipt of the secret information,

which was received by him at village Achral Khurd. However, he did

not separately reduce the secret report into writing and did not send

any intimation regarding the secret information to his higher officers

in writing. Apart from that, even from the perusal of his entire

testimony, it is not discernible that he had complied with the

mandatory provisions of Section 42(2) of the NDPS Act at the time of

search and seizure or within the period prescribed by the statute. It

has been held by the Hon'ble Supreme Court in plethora of judgments

that the requirement of Section 42 (1) and Section 42(2) of the NDPS

Act in regard to writing down the information received and sending a

copy thereof to the superior officers should normally precede the

entry, search and seizure by the officer. But in special circumstances

involving emergent situation the recording of information in writing

and sending a copy thereof to official superior may get postponed by

a reasonable period, i.e. after the search, entry and seizure. While total

non-compliance of Section 42 is impressible in law, delayed

compliance with satisfactory explanation about the delay is acceptable

compliance of Section 42 of the NDPS Act. In the instant case, there

is complete non-compliance of the mandatory provisions of Section

42 of the NDPS Act. The first informant in the instant case had

sufficient time to take action and to send a copy of the information, to

the officer superior and in spite of the same, he did not adhere to the

mandatory provisions of law.

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It has been held by the Hon'ble Supreme Court in the

matter of State of Rajasthan Vs. Jag Raj Singh @ Hansa 2016(3)

R.C.R.(Criminal) 539 and AIR 2016 SC 3041 as follows:-

19. Thus the present is not a case where Section 43 can be said to have been attracted, hence, noncompliance of Section 42(1) proviso and Section 42(2) had seriously prejudiced the accused. This Court had occasion in large number of cases to consider the consequence of non- compliance of provisions of Section 42(1) and 42(2), whether the entire trial stand vitiated due to above non compliance or conviction can be set aside. In this context reference is made to the judgment of this Court in State of Punjab v. Balbir Singh 1994(1) RCR (Criminal) 736 : (1994) 3 SCC 299. In the above batch of cases, the High Court has acquitted accused on the ground that search was conducted without conforming to the provisions of the NDPS Act. Sections 41,42 43 and other relevant provisions came for consideration before this Court, referring to the provisions of Chapter IV following was stated in paragraph 8:

"8. But if on a prior information leading to a reasonable belief that an offence under Chapter IV of the Act has been committed, then in such a case, the Magistrate or the officer empowered have to proceed and act under the provisions of Sections 41 and 42. Under Section 42, the empowered officer even without a warrant issued as provided under Section 41 will have the power to enter, search, seize and arrest between sunrise and sunset if he has reason to believe from personal knowledge or information given by any other person and taken down in writing that an offence under Chapter IV has been committed or any document or other article which may

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furnish the evidence of the commission of such offence is kept or concealed in any building or in any place. Under the proviso if such officer has reason to believe that search warrant or authorisation cannot be obtained without affording opportunity for the concealment of the evidence or facility for the escape of the offender, he can carry out the arrest or search between sunset and sunrise also after recording the grounds of his belief. Subsection (2) of 8 1990 Cri LJ 414 (Del) Section 42 further lays down that when such officer takes down any information in writing or records grounds for this belief under the proviso, he shall forthwith send a copy thereof to his immediate official superior."

20. After referring large number of cases, this Court recorded conclusion in paragraph 25 which is to the following effect:

"25. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows :

(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that

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stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. (2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorised officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal. (2-B) Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.

(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out

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such search between sunset and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total noncompliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.

(4-A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions 'of Sections 100 and 165 Cr.P.C. including the requirement to record reasons, such failure would only amount to an irregularity.

(4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 Cr.P.C. and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial.

The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.

(5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or

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42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.

(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case."

It has also been held by the Hon'ble Supreme Court in

the matter of Boota Singh Vs. State of Haryana 2021 (2) RCR

Criminal 892 and 2021 AIR (SC) 1913 as follows:-

10. In Karnail Singh, the Constitution Bench of this Court concluded:-

"35. In conclusion, what is to be noticed is that Abdul Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC (Cri) 1217] hold that the

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requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

(a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.

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(d) While total non-compliance with requirements of subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."

(Emphasis added)

11. In Jagraj Singh alias Hansa, the facts were more or less identical. In that case, the vehicle (as observed in para 5.3 of the decision) was not a public transport vehicle. After considering the relevant provisions and some of the decisions of this Court including the decision in Karnail Singh, it was observed:-

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"14. What Section 42(2) requires is that where an officer takes down an information in writing under sub-section (1) he shall send a copy thereof to his immediate officer senior. The communication Ext. P-15 which was sent to the Circle Officer, Nohar was not as per the information recorded in Ext. P-14 and Ext. P-21. Thus, no error was committed by the High Court in coming to the conclusion that there was breach of Section 42(2).

...............

16. In this context, it is relevant to note that before the Special Judge also the breach of Sections 42(1) and 42(2) was contended on behalf of the defence. In para 12 of the judgment the Special Judge noted the above arguments of defence. However, the arguments based on non-compliance with Section 42(2) were brushed aside by observing that discrepancy in Ext. P-14 and Ext. P-15 is totally due to clerical mistake and there was compliance with Section 42(2). The Special Judge coming to compliance with the proviso to Section 42(1) held that the vehicle searched was being used to transport passengers as has been clearly stated by its owner Vira Ram, hence, as per the Explanation to Section 43 of the Act, the vehicle was a public transport vehicle and there was no need of any warrant or authority to search such a vehicle. The High Court has reversed the above findings of the Special Judge. We thus, proceed to examine as to whether Section 43 was attracted in the present case which obviated the requirement of Section 42(1) proviso.

...............

29. After referring to the earlier judgments, the Constitution Bench came to the conclusion that non-

compliance with requirement of Sections 42 and 50 is

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impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance with Section 42. The Constitution Bench noted the effect of the aforesaid two decisions in para 5. The present is not a case where insofar as compliance with Section 42(1) proviso even an argument based on substantial compliance is raised there is total non-compliance with Section 42(1) proviso. As observed above, Section 43 being not attracted, search was to be conducted after complying with the provisions of Section 42. We thus, conclude that the High Court has rightly held that non- compliance with Section 42(1) and Section 42(2) were proved on the record and the High Court has not committed any error in setting aside the conviction order."

(Emphasis added)

Non-compliance of Mandatory Provisions of Section 42 of the NDPS Act.

When the facts of the present case are seen, in the light of

the above referred pronouncements, it is ample clear that the findings

recorded by learned trial Court are perverse and legally unsustainable.

The learned trial Court wrongly held that non-compliance of Section

42 of the NDPS Act would not vitiate the trial. Further, it was also

wrongly held that even if there was non-compliance of Section 42 of

the NDPS Act, the same was not fatal to the prosecution case. Even,

the learned trial Court wrongly held that since the Deputy

Superintendent of Police, Om Parkash Kadayan was informed about

apprehending the accused, search and seizure, consequently, there was

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no necessity to comply with the provisions of Section 42 of the NDPS

Act. In fact, the said observations are contrary to the law laid down by

the Hon'ble Supreme Court and by this Court and the findings

recorded by the learned trial Court are liable to be reversed by this

Court.

Non-compliance of Section 52-A of the NDPS Act

Section 52-A of the NDPS Act has been reproduced as

below:-

[52A. Disposal of seized narcotic drugs and

psychotropic substances.

[(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.] (2) Where any 4[narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare

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an inventory of such 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of--

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such magistrate, photographs of 5 [such drugs, substances or conveyances] and certifying such photographs as true; or

(c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the innventory, the photographs of 1 [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-

section (2) and certified by the Magistrate, as primary evidence in respect of such offence.]

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As per the case of the prosecution, the recovery was

effected from the appellant and his co-accused on 18.07.1999. As per

Section 52-A of the Act, the Investigating Officer/SHO was under a

obligation to prepare an inventory of the narcotic drugs containing

such details relating to its description, quality, quantity, mode of

packing, marks, numbers or such other identifying particulars and

other details and make an application to any Magistrate for the

purpose of certifying the correctness of the inventory so prepared.

Even, the police may take photographs of such drugs and certify such

photographs as true in the the presence of the Magistrate and the

Magistrate may allow the drawing of the representative samples of

such drugs and may also certify the correctness of any list of the

samples so drawn and such evidence certified by the Magistrate

would be treated as primary evidence in support of such offence.

Here, the admitted case of the prosecution is that the case

property was never produced before the Illaqa Magistrate for the

certification of the inventory and from the perusal of the trial Court

record also, it is evident that no such inventory was found. PW1 MHC

Rattan Singh clearly admitted that from 19.07.1999 till he handed

over the sample to the constables, the same was not produced before

the learned Magistrate. Even, the prosecution failed to exhibit any

order on record to show that the case property was ever produced

before the learned Magistrate in compliance of Section 52-A of the

Act. Section 52-A of the Act is a very important safeguard, which

ensures that the samples are taken by a Magistrate, which are further

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sent to the FSL under his seal to rule out the possibility of false

implication. In the instant case, the Investigating Officer, for the

reasons best known to him, failed to adopt the procedure as prescribed

by the statute and it creates serious doubt about the veracity of the

prosecution case, especially, in view of the fact that the samples,

which were sent to the FSL had only seal impressions of the police

officials and the seal remained with the police officials throughout the

investigation. Consequently, there was total non-compliance of the

provisions of Section 52-A of the Act, which cannot be viewed lightly

and the findings recorded by the learned trial Court are unsustainable.

Non-compliance of Section 57 of the NDPS Act

Section 57 of the NDPS Act clearly provides for the

report of arrest and seizure and the same has been reproduced below:-

Section 57 in The Narcotic Drugs and Psychotropic Substances Act, 1985

57. Report of arrest and seizure.--Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.

In the present case, the original report under Section 57

of the NDPS Act was never brought on record before the learned trial

Court. Only a photocopy of report has been exhibited as Ex.PG,

which was objected to by the appellant during the course of evidence.

Even, the report Ex.PG is alleged to have been sent to the senior

officers, but neither any signatures nor any stamp is visible on the

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same, which could establish that the same was presented to any senior

officer of the police. The prosecution examined PW9 Om Parkash

Kadyan, the Deputy Superintendent of Police, who had reached at the

spot on getting the information. The said witness admitted that no dak

register was produced before the Court on that day. The copy Ex.PG

was not bearing any dak number nor did it bear his signatures. Even,

he admitted that the original might be having his signatures, but no

such original was on record. Thus, it is apparent that in the instant

case, the Investigating Agency was most negligent in conducting the

investigation fairly and completely overlooked the procedure

established by law.

Apart from that, even sampling was not done properly,

which was in violation of standing order No. 1/89 dated 16.06.1989.

Still further, in the instant case, the police had sufficient time to join

the independent witnesses, but no independent witness was joined, in

spite of opportunity and time. This aspect of the matter also raised a

serious question mark on the manner, in which, the recovery was

effected and the investigation was conducted. Apart from that, there

are several other suspicious circumstances, which render the

prosecution story to be unbelievable. There were several documents,

which were prepared by the police at the spot, but still those

contained FIR number, which was registered subsequently. Reference

can also be made to Ex.PB, Ex.PC, Ex.PD and Ex.PE in this regard.

From a careful perusal of all these documents, it is evident that the

said documents were prepared in a running hand-writing with same

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ink by the same person. Still, it is apparent that the FIR number is also

mentioned on these documents, whereas these documents are shown

to have been prepared prior to the registration of the FIR.

In view of the above discussion, the judgment passed by

the learned trial Court suffers from patent illegality and the impugned

judgement of conviction is legally unsustainable.

The judgment of conviction dated 23.07.2003 and order

of sentence dated 24.07.2003 passed by the learned Judge, Special

Court, Kaithal, are set-aside and the appeal succeeds. As a

consequence, both the appellant is ordered to be acquitted.

All pending applications, if any, are disposed of,

accordingly.

The case property, if any, may be dealt with as per the

rules after expiry of period of limitation for filing the appeal.

Records of the Court below be sent back.

10.01.2023                                    (N.S.SHEKHAWAT)
amit rana                                           JUDGE


               Whether reasoned/speaking :             Yes/No
               Whether reportable         :            Yes/No




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