2019 (9) TMI 566 - HC - Indian Laws

Smuggling - recovery of contraband - Section 42 of the NDPS Act - appellant has vehemently argued that the prosecution has failed to prove the case against the appellant - corroboration of statements - HELD THAT - There is violation of mandatory provisions of Section 42 of the NDPS Act. Section 42 of the NDPS Act requires recording of reasons of belief and for taking down of information received in writing and the same is to be sent to the superior officers. There is no evidence that information was reduced into writing and superior officer was informed. Their Lordships of the Hon'ble Supreme Court in Sukhdev Singh vs. State of Haryana, 2012 (12) TMI 982 - SUPREME COURT have underlined the objects and purpose of ensuring strict compliance of Section 42. Their Lordships have held that Section 42 is mandatory which ought to be construed and complied with strictly. The compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. PW-1 SI Sohan Lal had given the options to the accused to be searched by him or Gazetted Officer or Magistrate. Similarly, PW-5 DSP Navjot Singh had also given option to the accused that he had legal right to be searched from him (DSP) or any other Gazetted Officer or Magistrate. In his crossexamination, he categorically admitted that he never apprised the accused that he was a Gazetted Officer. He was also never apprised the nature of search or meaning of Gazetted Officer of various departments of Magistrate. Investigating Officer was required to give only two options to the appellant whether he wanted to get his personal search conducted before a Magistrate or a gazetted officer. He could not ask for third option to be searched by him. Section 50 of the NDPS Act is mandatory. According to PW-1 SI Sohan Lal, he was carrying computerized weighing scale. However, PW-5 DSP Navjot Singh deposed that he was carrying traditional weighing scale. There are material contradictions in the statements of official witnesses. The appellant is acquitted. The appellant is in custody. He be released forthwith if not wanted in any other case - Appeal allowed.

Summary

Issues Involved:
1. Compliance with Section 42 of the NDPS Act.
2. Compliance with Section 50 of the NDPS Act.
3. Contradictions in the testimonies of prosecution witnesses.

Issue-wise Detailed Analysis:

1. Compliance with Section 42 of the NDPS Act:

The court scrutinized whether the mandatory provisions of Section 42 of the NDPS Act were adhered to. Section 42 requires that any secret information received by an empowered officer must be recorded in writing and communicated to a superior officer. The prosecution failed to establish that the secret information was reduced to writing or that any superior officers were informed. The court cited several precedents, including *State of Punjab vs. Balbir Singh* and *Sukhdev Singh vs. State of Haryana*, emphasizing that non-compliance with Section 42 vitiates the trial. The court concluded that the failure to record the secret information and inform superior officers constituted a violation of Section 42, thereby affecting the prosecution's case.

2. Compliance with Section 50 of the NDPS Act:

Section 50 mandates that the accused must be informed of their right to be searched in the presence of a Magistrate or a Gazetted Officer. The court found that the appellant was given a third option to be searched by the DSP, which is not provided for under Section 50. This was deemed a violation of the mandatory provisions of Section 50, as highlighted in *State of Rajasthan v. Parmanand and another*. The court ruled that the search conducted was vitiated due to this breach, rendering the conviction illegal.

3. Contradictions in the testimonies of prosecution witnesses:

The court noted material contradictions in the testimonies of the prosecution witnesses. For instance, PW-1 SI Sohan Lal stated that he was carrying a computerized weighing scale, while PW-5 DSP Navjot Singh mentioned a traditional weighing scale. Such discrepancies further weakened the prosecution's case.

Conclusion:

The court allowed the appeal, setting aside the judgment and order dated 28.01.2015. The appellant was acquitted due to the prosecution's failure to comply with the mandatory provisions of Sections 42 and 50 of the NDPS Act and due to significant contradictions in the testimonies of the prosecution witnesses. The appellant was ordered to be released forthwith if not wanted in any other case.