2013 (1) TMI 1003 - HC - Indian Laws

Summary

Issues Involved:
1. Compliance with Section 42 of the N.D.P.S. Act.
2. Evaluation of evidence, particularly the absence of public witnesses.
3. Consideration of the appellant's age and the passage of time since the occurrence.

Summary:

Compliance with Section 42 of the N.D.P.S. Act:
The primary issue in this appeal was the non-compliance with Section 42 of the N.D.P.S. Act. The court noted that the Sub Inspector received information at the police station but did not reduce it to writing nor sent it to his superior, which is a mandatory requirement. The court referenced the Constitution Bench decision in *Karnail Singh Vs. State of Haryana* and subsequent cases, emphasizing that total non-compliance with Section 42(1) and (2) is impermissible. The court found that the prosecution failed to produce the G.D. where the information was allegedly recorded, leading to an adverse inference against the prosecution. This non-compliance rendered the recovery illegal and the conviction unsustainable.

Evaluation of Evidence:
The appellant argued that the evidence of D.W. 1 was not properly appreciated and that there was no public witness to support the prosecution's version. The court held that the absence of public witnesses does not automatically discredit the evidence of police witnesses. The evidence of police witnesses should be evaluated in the same manner as that of any other witness. The court found the police witnesses' evidence reliable and noted that people often avoid becoming witnesses to crimes.

Consideration of Appellant's Age and Passage of Time:
The appellant's counsel argued that given the appellant's age (72 years) and the passage of 22 years since the occurrence, no useful purpose would be served by sending him to jail. However, the court's decision to set aside the conviction was primarily based on the non-compliance with Section 42 of the N.D.P.S. Act rather than the appellant's age or the passage of time.

Conclusion:
The appeal was allowed, and the judgment and order dated 4.11.1992 passed by IIIrd Additional District & Sessions Judge, Barabanki, were set aside. The appellant was ordered to be set at liberty, and his bail bonds were canceled. The office was directed to send back the lower court record forthwith to the concerned court.