Punjab-Haryana High Court
Avtar Singh @ Jagtar Singh @ Jagga vs State Of Punjab on 1 April, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:043345
CRA-S No.2558 of 2023 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on 29th of January, 2024
Pronounced on 1st of April, 2024
CRA-S No.2558 of 2023
Avtar Singh @ Jagtar Singh @ Jagga ....Appellant
Versus
State of Punjab ....Respondent
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present: Mr. Ashok Giri, Advocate
for the appellant.
Mr. Kunal Vinayak, AAG, Punjab.
PANKAJ JAIN, J. (ORAL)
Challenge is to the judgment of conviction and order of
sentence dated 31st of August, 2023 passed by Judge, Special Court,
SAS Nagar, Mohali whereby the appellant stands convicted for offence
punishable under Section 21(b) read with Section 31 of the NDPS Act
and has been sentenced to undergo R.I. for a period of 1 year and to pay
a fine of Rs.10,000/- in case FIR No.18 dated 23rd of March, 2019
registered at Police Station STF, SAS Nagar, Mohali.
2. As per the case of the prosecution on 23rd of March, 2019 a
secret information was received against the appellant indulging in sale
of heroin. On the basis of information, concerned police official ASI
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Faqir Singh sent ruqa to police station for registration of FIR and for
sending some other IO along with police party on the spot. Police party
headed by ASI Bhajan Singh rushed to the spot. Barricading was
effected. The appellant was seen coming from Kharar side riding
motorcycle bearing No.PB-65-AP-0883. Appellant was signaled to
stop. He was served with notice under Section 50 of the NDPS Act.
He wished to be searched before a Gazetted Officer. DSP Dev Singh
was called on the spot. After the Gazetted Officer introduced himself
to the appellant, search was conducted on the directions of the Gazetted
Officer. From the right pocket of jeans wore by the appellant, 27
grams of heroin was recovered. The contraband was sealed by the
Gazetted Officer who handed over his seal to ASI Manjit Singh. On
the next day i.e. on 24th of March, 2019, accused along with Form
No.29 was produced before the Illaqa Magistrate. Section 52(a) of the
NDPS Act was complied with. Photographs of the inventory proceeds
were also clicked. Appellant was put to trial. After appreciating the
evidence on record, Trial Court found the appellant guilty of offence
punishable under Section 21(b) read with Section 31 of the NDPS Act.
3. While assailing judgment under appeal counsel for the
appellant submits that it's a case of non-compliance of Section 42 of
the NDPS Act. The compliance of Section 42 being mandatory in
nature, the appellant deserves to be acquitted. Counsel for the appellant
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further submits that as per the case of the prosecution a secret
information was received by one ASI Faqir Singh against the appellant.
As per the mandate of Section 42 of the NDPS Act, he was required to
reduce the same into writing and inform his superior officer. It has
been contended that in the present case only ruqa was sent by the
receiver of the secret information for registration of FIR. A ruqa
cannot parte character of document containing secret information
received in writing to hold that Section 42 was complied with. There
being no other document apart from ruqa it is evident that Section 42
remains un-complied and thus, as per the mandate of Section 42 as
interpreted by larger Bench of Apex Court in the case of Karnail Singh
vs. State of Haryana, 2009(5) R.C.R.(Criminal) 515 the conviction
of the appellant cannot be sustained. No other plea has been raised on
behalf of the appellant.
4. Counsel for the State on the other hand submits that Section
42 was duly complied with and the ruqa was sent by recipient of the
secret information i.e. ASI Faqir Singh to his superior officer i.e.
Station House Officer, much prior to the search of the petitioner. It has
been contended that even as per law laid down in Karnail Singh's case
(supra), 'reducing the secret information into writing and sending the
same to a superior officer within a reasonable time' has been held to be
sufficient compliance of Section 42. State counsel thus submits that no
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fault can be found with a well reasoned judgment passed by the Trial
Court wherein the story of the prosecution has been analyzed from all
the angles and guilt of the appellant has been proved beyond doubt.
5. I have heard counsel for the parties and have carefully gone
through the records of the case.
6. It all started with the information received by ASI Faqir
Singh on 23rd of March, 2019. It is claimed that he received a secret
information that the appellant, who is habitual of selling contraband is
coming to Mohali from Kharar side riding motorcycle bearing No.PB-
65-AP-0883 and if apprehended, heavy quantity of heroin can be
recovered. ASI Faqir Singh sent communication to Station House
Officer disclosing the said information. He requested for registration of
FIR and also requested that another ASI be sent on the spot for further
proceedings. Said Faqir Singh appeared as PW11. He proved
communication as Exhibit PW11/A. ASI Harbhajan Singh appeared as
PW10 and proved noting of FIR on the said communication as Exhibit
PW10/14. Counsel for the appellant has raised issue that
communication Exhibit PW11/A is a ruqa and thus does not meet the
requirement of Section 42 of the NDPS Act. Before proceeding further
and in order to appreciate the plea raised by counsel representing the
appellant, it is necessary to peruse Section 42 of the NDPS Act. The
same reads as under:
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"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 intellegence 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 personal 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 VA 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 VA of this Act;
and
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(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 in respect of holder of a licence for
manufacture of manufactured drugs or psychotropic substances or
controlled substances granted under this Act or any rule or order
made thereunder, such power shall be exercised by an officer not
below the rank of sub-inspector:
Provided further 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."
7. Section 42 has been subject matter of debate which was
settled by larger Bench in the case of Karnail Singh vs. State of
Haryana (supra). To track evolution of Section 42, it must be reminded
that the provision came up for interpretation before Supreme Court in
the case of State of Punjab vs. Balbir Singh, (1994) 3 SCC 299
wherein it was held as under:
"The common question that arises for consideration is whether any
arrest and search of a person or search of a place without
conforming to the provisions of the Narcotic Drugs and
Psychotropic Substances Act, 1985 ('NDPS Act' for short),
becomes illegal and consequently vitiates the conviction. The trial
court in these cases acquitted the accused on the ground that the
arrest, search and seizure were in violation of some of the relevant
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and mandatory provisions of the NDPS Act. The High Court
declined to grant leave to appeal against the said order of acquittal.
Questioning the same the State of Punjab has filed these special
leave petitions and appeals. In a few cases, the convicted accused
also have questioned their convictions on the ground that arrest and
trial were illegal. Since a common question arises in all these
matters, they are being disposed of by a common judgment. xxx
xxxx xxx
(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 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 authorized
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.
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(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 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 non-compliance 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 CrPC 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 CrPC
and if there is no strict compliance with the provisions of CrPC
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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 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."
8. Thereafter, in Abdul Rashid Ibrahim Mansuri Vs. State
of Gujrat (2000) 2 SCC 513 the said view was followed as under:
"18. A two Judge Bench of this Court has considered the said
question along with other questions in State of Punjab v. Balbir
Singh, [1994] 3 SCC 299. In paragraph 25 of that judgment the
conclusions were laid down, of which what is relevant for this case
regarding Section 42(1) is the following:
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"(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 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."
19. When the same decision considered the impact of non-
compliance of Section 50 it was held that !!it would affect the
prosecution case and vitiate the trial". But the Constitution Bench
has settled the legal position concerning that aspect in State of
Punjab v. Baldev Singh (supra), the relevant portion of which has
been extracted by us earlier. We do not think that a different
approach is warranted regarding non-compliance of Section 42
also. If that be so, the position must be the following :
20. If the officer has reason to believe from personal knowledge or
prior information received from any person that any narcotic drug
or psychotropic substance (in respect of which an offence has been
committed) is kept or concealed in any building, conveyance or
enclosed place, it is imperative that the officer should take it down
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in writing and he shall forthwith send a copy thereof to his
immediate official superior. The action of the officer, who claims
to have exercised it on the strength of such unrecorded information
would become suspect, though the trial may not vitiate on that
score alone. Nonetheless the resultant position would be one of
causing prejudice to the accused."
9. Abdul Rashid Ibrahim Mansuri's case (supra) was
further followed in Koluttumottil Razak Vs. State of Kerala (2000) 4
SCC 465 to hold that:
"6. It is a mandate of Section 42 of the Act that when an officer
referred to in Sub-section (1) thereof "has reason to believe from
personal knowledge or information given by any person and taken
down in writing" that any narcotic drug or psychotropic substance
is kept or concealed he may detain and search, and, if he thinks
proper, arrest any person whom he has reason to believe to have
committed any offence under the Act. The other requirement of
law is that the officer who takes down the information in writing or
records grounds for his belief shall forthwith send a copy thereof to
his immediate official superior. A three-Judge Bench of this Court
held in Abdul Rashid Ibrahim Mansuri v. State of Gujarat : that
non-compliance with the requirements of Section 42(1) and (2)
would render the resultant search and seizure suspect, though that
by itself may not vitiate the proceedings.
7. In the present case, unfortunately, apart from the
evidence of the police officers there is absolutely no
independent evidence to ensure confidence in our mind that
the search was in fact conducted by PW 2 as ne has claimed.
As his evidence is required to be approached with suspicion
due to violation of Section 42 of the Act we may require
corroboration from independent sources that is lacking in this
case."
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10. Supreme Court in Sajan Abraham Vs. State of Kerala
(2001) 6 SCC 692 though held compliance of Section 42 of the NDPS
Act is mandatory but called for more pragmatic approach observing as
under:
"6. With regard to Section 42, the submission is that PW5 has not
recorded the information given by PW3 with respect to the
appellant's involvement before proceeding to arrest him in this
case. This constitutes violation of Section 42 of the Act. It is true
under Section 42(1), the officer concerned, when he has reason to
believe from his personal knowledge or information received from
any person, he is obliged to take it down in writing if such
information constitutes an offence punishable under Chapter IV of
the Act and send it forthwith to his immediate superior. Such an
officer is empowered to search any building, conveyance and in
case of any resistance, break up any door or remove any obstacle
for such entry, seizure of such drug or substance and to arrest such
person whom he has reason to believe to have committed any
offence punishable under the said Chapter. Thereafter such officer
has to send a copy of this information forthwith to his immediate
superior. Submission is that PW5 after receiving the said
information has not communicated it to his immediate superior
which constitutes violation of Section 42. In construing any facts
to find, whether prosecution has complied with the mandate of any
provision which is mandatory, one has to examine it with
pragmatic approach. The law under the aforesaid Act being
stringent to the persons involved in the field of illicit drug, traffic
and drug abuse, the legislature time and again has made some of its
provisions obligatory for the prosecution to comply, which the
courts have interpreted it to be mandatory. This is in order to
balance the stringency for an accused by casting an obligation on
the prosecution for its strict compliance. The stringency is because
of the type of crime involved under it, so that no such person
escapes from the clutches of law. The court however while
construing such provisions strictly should not interpret it so
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literally so as to render its compliance, impossible. However,
before drawing such an inference, it should be examined with
caution and circumspection. In other words, if in a case, the
following of mandate strictly, results in delay in trapping an
accused, which may lead the accused to escape, then prosecution
case should not be thrown out."
11. The aforesaid views taken in the case of Abdul Rashid
Ibrahim Mansuri's case (supra) and the one in Sajan Abraham's
case (supra) were comparatively analyzed by the Supreme Court in the
case of Karnail Singh Vs. State of Haryana 2009 (5) RCR
(Criminal) 515 to hold as under:
"17. In conclusion, what is to be noticed is Abdul Rashid did not
require literal compliance with the requirements of Sections 42(1)
and 42(2) nor did Sajan Abraham hold that the requirements of
Section 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 concerned Register 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.
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(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.
(d) While total non-compliance of requirements of sub-sections (1)
and (2) of section 42 is impermissible, delayed compliance with
satisfactory explanation about the delay will be acceptable
compliance of 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 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."
12. View taken by Constitution Bench in Karnail Singh's case
(Supra) was again followed in Bahadur Singh Vs. State of Haryana
(2010) 4 SCC 445 to hold that :-
"12. It cannot but be noticed that with the advancement of
technology and the availability of high speed exchange of
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information, some of the provisions of the NDPS Act, including
Section 42, have to be read in the changed context. Apart from the
views expressed in Sajan Abraham's case (supra) that the delay
caused in complying with the provisions of Section 42 could result
in the escape of the offender or even removal of the contraband,
there would be substantial compliance, if the information received
were subsequently sent to the superior officer. In the instant case,
as soon as the investigating officer reached the spot, he sent a
wireless message to the Deputy Superintendent of Police,
Kurukshetra, who was his immediate higher officer and subsequent
to recovery of the contraband, a Ruqa containing all the facts and
circumstances of the case was also sent to the Police Station from
the spot from where the recovery was made on the basis whereof
the First Information Report was registered and copies thereof
were sent to the Ilaqa Magistrate and also to the higher police
officers. As was held by the High Court, there was, therefore,
substantial compliance with the provisions of Section 42 of the
NDPS Act and no prejudice was shown to have been caused to the
accused on account of non-reduction of secret information into
writing and non-sending of the same to the higher officer
immediately thereafter.
13. Apart from the decision in Sajan Abraham's case (supra), the
decision of the Constitution Bench in Karnail Singh's case (supra),
has also made it clear that non-compliance with the provisions of
Section 42 may not vitiate the trial if it did not cause any prejudice
to the accused. Furthermore, whether there is adequate compliance
of Section 42 or not is a question of fact to be decided in each
case."
13. The same was further followed in Rajender Singh Vs.
State of Haryana (2011) 8 SCC 130 to observe that:
4. A reading of the above said provision pre-supposes that if an
authorized officer has reason to believe from personal knowledge
or information received by him that some person is dealing in a
narcotic drug or a psychotropic substance, he should ordinarily
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take down the information in writing except in cases of urgency
which are set out in the Section itself. Section 42(2), however,
which calls for interpretation in the matter before us, is however
categorical that the information if taken down in writing shall be
sent to the superior officer forthwith. In Karnail Singh's case, this
Court has held that the provisions of Section 42(2) are mandatory
and the essence of the provisions has been set out in the following
terms:
"In conclusion, what is to be noticed is that Abdul
Rashid did not require literal compliance with the
requirements of Sections 42(1) and 42(2) nor did Sajan
Abraham hold that the 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
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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.
(d) While total non-compliance with requirements of sub-
sections (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."
5. It is therefore clear that the total non-compliance with the
provisions sub-section (1) and (2) of Section 42 is impermissible
but delayed compliance with a satisfactory explanation for the
delay can, however, be countenanced. Xxx xxx"
14. Thus, from the aforesaid precedents, it can be concluded
that:
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a) Compliance of Section 42 of the NDPS Act is
mandatory;
b) The compliance as contemplated under Section 42(1)
and 42(2) of the NDPS Act including that in the
proviso with regard to writing down the information
received and the grounds of belief are mandatory;
c) To interpret the same pragmatically, in some cases
the prosecution may comply the same with some
delay;
d) The delay needs to be explained.
e) Where cogent explanation has been offered by
prosecution for delayed compliance, onus shifts on
accused to prove prejudice caused on account of such
delay.
f) Total non-compliance of Section 42 of the NDPS Act
is impermissible;
g) Non-compliance of Section 42 of the NDPS Act itself
may not vitiate the trial but puts case of prosecution
under cloud of doubt.
15. Coming on to the facts of the present case, the
communication i.e. ruqa sent by the recipient of secret information i.e.
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ASI Faqir Singh to the Station House Officer, Exhibit PW11/A is
reproduced herein below:
"SHO, Police Station STF Phase-4 Mohali
Jai Hind
Today, I ASI alongwith ASI Harbans Singh 154/SAS
Nagar in a private vehicle was present at Part City Chowk,
Industrial Area, Mohali in connection with the search of drug
traffickers. There the special informer informed me, the ASI that
Avtar Singh @ Jagtar Singh @ Joga s/o Anoop Singh resident of
Manakpur Sharif, Police Station Block Majri, District SAS Nagar,
who is habitual of selling intoxicants is coming on his motorcycle
bearing no. PB-65-AP-0883 from Kharar side to Mohali through
Airport Road. At this time, he is in possession of heroin in huge
quantity. If search is conducted on him by apprehending him on
holding a nakka near TDI Colony Mohali then a huge quantity of
heroin can be recovered from him. The information is true and
reliable. As abovesaid Avtar Singh has been caught time and again
and running the business of heroin again and keeping heroin in his
possession so an offence u/s 21-31-61-85 NDPS Act is made out
against him. Hence, this ruqa is registered and file number thereof
be intimated and an ASI be sent at the spot for conducting
investigation. I depart to the boundaries of TDI Colony, Mohali.
In the boundaries of : - Park City Chowk, Mohali.
At 6.30 PM
Sd/-
Faqir Singh, ASI
18-FGS"
16. ASI Faqir Singh appeared as PW11. His statement reads as
under:
"PW-11 on SA: Statement of ASI Fakir Sing.. No.18/FGS, PS STF
Phase-IV, SAS Nagar, Mohali.
Stated that on 23.03.2019 I was posted as ASI, PS STF
Mohali and I alongwith police party in connection with checking
of Drug Trafficers were present at City Chowk Industrial Area,
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SAS Nagar, Mohali. At around 5:30 PM I received secret
information regarding Avtar Singh @ Jagtar Singh @ Jagga son of
Anup Singh, R/o Manikpur Sarif PS Block Majri was indulging in
sale of coxicant and he is coming on Motor- cycle bearing no.PB-
65-AP-083 from Kharar side towards Mohali via Airport Road. If
Naka is laid near TDI Colony, Mohali then accused can be
apprehended with Heroin. So, I sent ruqa Ex.PW- 11/A through
ASI Harbans Singh for registration of the FIR against accused. I
also requested through ruqa to send some other 10 alongwith
police party to send on the spot.
XXXXXXX by Sh. C.S. Bawa Advocate for accused.
We started from the police station at about 5:30 PM on
Motor-cycle. We had not checked any person on the way. The
informer came from Kharar side on motor-cycle. I do not
remember the make, colour and number of the said motor-cycle.
We reached TDI Colony at about 6 PM. The informer was a Sikh
gentleman and he remained with me upto 10 minutes. Thereafter
he left the spot but I do not know from which side he proceeded.
ASI Harbhajan Singh reached at the place of alleged recovery at
about 6:30 PM. Accused came to the spot at about 6:30 PM. IO
himself searched the accused. Accused came on motor-cycle. IO
can tell whether any independent witness was joined at the spot or
not. I left the spot at about 6:30 PM. It is wrong to suggest that no
secret informer came before me. I returned back to the police
station at about 7:45 PM on the same day. I do not know whether
accused was picked by ASI Baljeet Singh from his house. It is
wrong to suggest that I am deposing falsely just to complete the
chain of link evidence."
17. A bare perusal of the cross-examination of PW11 ASI Faqir
Singh would reveal that not even a suggestion was put to him that the
secret information received by him was not reduced into writing. In the
considered opinion of this Court, nomenclature of the communication
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is of no consequence. Requirement of Section 42 as interpreted in
Karnail Singh's case (supra) is that an officer who receives
information of the nature referred to in sub-Section (1) of Section 42
from any person, is required by law to record the same 'in writing' in
the concerned register 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). In the present case, Exhibit PW11/A is
compliance of Section 42. From the reading thereof, it is evident that
after receiving the information, the concerned officer i.e. ASI Faqir
Singh recorded the same 'in writing' and sent a copy to his 'immediate
official superior' i.e. Station House Officer prior to taking further
action. Merely because it was mentioned as 'Ruqa' the same cannot be
held to be out of purview of Section 42.
18. In view of above, this Court has no doubt in holding that
Section 42 in the present case was complied with and the same stands
proved before the Trial Court in terms of Exhibit PW11/A. The
mandate of Section 50 was also complied with. The appellant was
searched in the presence of Gazetted Officer as desired by him. The
contraband was duly sealed. FSL report has been duly proved on
record. Prior conviction of the appellant is not denied and the same has
also been proved on record. The appellant is a prior convict vide
judgment dated 3rd of July, 2015 in FIR No.80 dated 3rd of June, 2012,
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registered at Police Station Kurali for offences punishable under
Sections 15 and 22 of the NDPS Act. In view thereof, no fault can be
found with the judgment of conviction impugned in the present appeal.
Appellant has been rightly held to be guilty of committing offence
punishable under Section 21(b) read with Section 31 of the NDPS Act.
Keeping in view the minimum punishment awarded to the appellant as
prescribed under law, this Court does not find any reason to interfere in
the present appeal. Resultantly, the same is ordered to be dismissed.
April 01, 2024 (Pankaj Jain)
Dpr Judge
Whether speaking/reasoned : Yes
Whether reportable : Yes
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