Punjab-Haryana High Court
State Of Haryana vs Shamsher Singh Etc on 5 April, 2024
Neutral Citation No:=2024:PHHC:053440
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
218
2024:PHHC:053440
CRM-A-692-MA-2017 (O&M)
Date of decision: April 05, 2024
STATE OF HARYANA
...Appellant
Versus
SHAMSHER SINGH ETC.
...Respondents
CORAM: HON'BLE MR. JUSTICE ALOK JAIN
Present: Mr. Anmol Malik, Deputy Advocate General, Haryana.
ALOK JAIN, J. (ORAL)
CRM-12075-2017
The instant application has been filed under Section 5 of the
Limitation Act read with Section 482 Cr.P.C. for condonation of delay of 204
days in filing the appeal.
For the reasons mentioned in the application, the same is allowed.
CRM-A-692-MA-2017
1. The present appeal has been filed against the order of acquittal
dated 04.07.2016 passed by the learned Judge, Special Court (NDPS Act
Cases), Karnal.
2. Learned counsel for the appellant has vehemently argued that the
learned trial Court has made an error in acquitting the accused despite the fact
that there was a recovery of the contraband from the respondents. He has
further submitted that the recovery was effected from the car which was
apprehended when the vehicle was in transit but the learned trial Court failed to
appreciate the same.
3. Learned State counsel has also argued that in the testimony of
PW-4 ASI Jatinder Singh, who was the second IO of the case, stated that he
tried to join the witness from village Jalmana as well as from petrol pump at the
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time of recovery but this fact has been negated and the reason for acquittal is
that no independent witness was joined and provisions of Sections 42, 43 and
50 of the NDPS Act were not complied with. He has further submitted that the
delay which occurred in sending the samples to the office of FSL, Madhuban
was inconsequential because it was not agitated that the seal of the sample was
tampered or broken. It was nobody's case that the contraband was not sealed
within the time frame and therefore, delay in sending the samples to the FSL
could not have been fatal. As regards the minor discrepancies which have
occurred in the statements of the prosecution witnesses, the same were
insignificant and hence, should have no bearing on the outcome of the case.
4. I have heard learned State counsel at length and have gone through
the judgment.
5. The prosecution could not prove beyond doubt with regard to the
offence committed and the lapse on the part of the prosecution. It would be
imperative on the part of the empowered officer to apprise the person intended
to be searched of his right to be searched before a Gazetted Officer or a
Magistrate. Obligation under Section 50 of the NDPS Act is mandatory and
requires a strict compliance.
6. Further, the Hon'ble Apex Court in the case of Karnail Singh vs.
State of Haryana, (2009) 8 SC 539 has held that total non-compliance with
requirements of Section 42 of the NDPS Act is impermissible and delayed
compliance with satisfactory explanation about delay will be acceptable
compliance. Where police officer does not inform the superior at all, then it will
also be a clear violation of Section 42 of the NDPS Act. The Legislature in its
wisdom had made the provision of Section 42 of the NDPS Act mandatory and
not optional as stated by Hon'ble Apex Court in Karnail Singh's case (supra).
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The Hon'ble Supreme Court in the judgment of Vijaysinh Chandubha Jadeja
vs. State Of Gujarat, AIR 2011 SC 77 has therefore held that "non-compliance
of Section 42 and Section 50 of the NDPS Act are fatal to the case of the
prosecution and therefore, the benefit of the same has to go to the accused".
7. In the light of the above, I do not find any merit in the present
appeal and accordingly, the present appeal stands dismissed.
April 05, 2024 (ALOK JAIN)
Jaspreet Kaur JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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