2016 (4) TMI 98 - HC - Customs

Validity of Sentence order - Contravention in relation to poppy straw - punishment rewarded under Section 15 of the Act - Appellant contended non-compliance of section 42 of the Act which is mandatory - Held that - as per decision of Hon ble Supreme Court in a case, registration of First Information Report by SHO and communicating the same to Superintendent of Police would not constitute compliance of the provisions of Section 42 of the Act. The finding given by the trial Court that the sending of Ruqa to Police Station and recording of FIR and then sending the special report to the senior officers amounts to compliance is against the law. In some of the circumstances the compliance of Section 42 can be made by the Investigating officer after conducting the raid, if there are chances of the accused to fled away etc. Therefore, the mandatory provisions of Section 42 of the Act have not been complied with. Therefore, the sentence order is set aside. - Decided in favour appellant

Issues Involved:
1. Compliance with Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Validity of the prosecution's evidence and witness testimony.
3. Legality of the trial court's judgment and sentence.

Issue-wise Detailed Analysis:

1. Compliance with Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985:
The appellant's counsel argued that the mandatory compliance under Section 42 of the Act was not met. The court noted that the Investigating Officer received secret information and sent a 'Ruqa' to the police station, leading to the registration of an FIR. However, the evidence did not show that the secret information was recorded separately and reported to senior officers before the raid. The court referenced the Supreme Court's ruling in *Darshan Singh v. State of Haryana*, which emphasized that recording secret information in writing and communicating it to a superior officer are distinct requirements under Section 42. The court concluded that the mere registration of an FIR and communication to the Superintendent of Police does not fulfill the mandate of Section 42. The trial court's finding that sending the 'Ruqa' and recording the FIR constituted compliance was deemed incorrect. The court further cited *Karnail Singh v. State of Haryana*, which clarified that while immediate action in emergent situations could delay compliance, total non-compliance or unexplained delays are impermissible. Thus, the court found that Section 42's mandatory provisions were not complied with in this case.

2. Validity of the Prosecution's Evidence and Witness Testimony:
The prosecution's case involved several witnesses, including police officials and the Naib Tehsildar. The defense argued that the two public witnesses joined before the raid refused to testify and were released at the spot, casting doubt on the prosecution's version. The court noted that if independent witnesses are not willing to testify or are not present during the recovery, their inclusion serves no purpose. This inconsistency further weakened the prosecution's case.

3. Legality of the Trial Court's Judgment and Sentence:
The trial court convicted the appellant based on the prosecution's evidence. However, the appellate court found that the trial court's judgment was not in accordance with the law due to non-compliance with Section 42 and doubts about the prosecution's evidence. Consequently, the appellate court set aside the trial court's judgment and order of sentence, acquitting the appellant of the charges. The appellant's bail bonds and surety bonds were discharged as he was already released on bail.

Conclusion:
The appeal was allowed, and the trial court's judgment of conviction and order of sentence were set aside due to non-compliance with mandatory legal provisions and doubts about the prosecution's evidence. The appellant was acquitted of the charges.

← Previous Next →