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TMI Blog2015 (9) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... t is difficult to uphold conviction –Appeal allowed and appellant directed to be released from custody – Decided in favour of Appellant. - CRL. A. No. 1555/2011 - - - Dated:- 1-9-2015 - Ashutosh Kumar, J. For the Appellant : Mr Ajit Sharma, Adv. For the Respondent : Ms Alpana Pandey, APP for the State with SI P K Jha and SI Chandra Shekhar, P S Hazrat Nizamuddin JUDGMENT Ashutosh Kumar, J. 1. Thomas Karketta stands convicted under Section 20 (b) (ii) (c) of the Narcotic Drugs and Psychotropic Substances Act (For Short NDPS Act ), for being in possession of 61.49 kg ganja by judgment dated 5/9/2011, passed by ASJ/ Special Judge- NDPS/South and South-East, Saket Court Complex, New Delhi in Session Case no. 51 A/2009 arising out of FIR no. 333/2009 (PS H. Nizamuddin). 2. By order dated 8/9/2011, he has been sentenced to undergo Rigorous Imprisonment for 10 years and to pay a fine of rupees 1 lac. and in default of payment of fine to further suffer Simple Imprisonment for 6 months. 3. The aforesaid judgment and order of conviction is under challenge in the present appeal. 4. The appellant was arrested from near ISBT, Sarai Kale Khan, near IGL pump and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment and order of conviction on the following grounds: a. The secret information which was received by PW.4 was not reduced in writing as per the mandatory requirement of the Section 42 of the NDPS Act, thereby vitiating the entire prosecution edifice b. There has been a delay of one and half months in sending the sealed samples to FSL which is in-violation of the standing instruction no. 1/88 dated 15/3/88 of the NCB namely that the samples must be dispatched to the laboratory within 72 hours of the seizure to avoid any legal objection c. The FSL form was not sent along with sample to the FSL, giving rise to strong suspicion of tampering with sample; and d. Lastly, non joining of any public or independent witness to the search, seizure and arrest and thereby raising doubts about the veracity of the search and seizure proceedings. 12. In order to appreciate the contention of appellant, the testimony of PW.4 requires to be examined. 13. SI Shivraj Bisht (PW.4) has testified that on 6/8/2009, while he along with PWs. 1, 3 and 6 were on patrolling duty at Maharani Bagh bus stop, an information was provided by a spy about an accused with contraband sitting near IG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, at the time of testing, verification of the seal on the samples is done by matching it with the seal on the FSL form. The FSL form, thus is an important safe guard to avoid any suspicion and the same not having been sent to the laboratory along with the sealed samples raises serious doubts about the samples being tampered with. 20. In this connection, the FSL report (Ex.PW.5/A) is perused. The report clearly states, after giving the description of the parcels that the seals on the four parcels marked as S1 to S4 were intact and tallied with the specimen seals as per the forwarding letter (FSL form). Thus one of the arguments on behalf of the appellant viz. the FSL form was not sent along with the sealed samples to the FSL is incorrect. It can safely be presumed that PW.9 inadvertently missed in stating about the FSL forms also being sent to the FSL along with sealed samples. 21. Now, to the issue of compliance of the provision of Section 42 of the NDPS Act. Section 42 of the NDPS Act reads as here under- Section-42. Power of entry, search, seizure and arrest without warrant or authorization.-(1) Any such officer (being an officer superior in rank to a peon, sepoy or con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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. 22. In Abdul Rashid Ibrahim Mansuri vs. State of Gujarat: (2000) 2 SCC 513, a three judge bench of Supreme Court held that compliance with the Section 42 of NDPS Act is mandatory and failure to take down the information in writing and forthwith send the report to the immediate Official Superior would cause prejudice to the accused. However in Sajan Abraham vs. State of Kerala: (2001) 6 SCC 692, which was also decided by a three Judge bench, it was held that Section 42 of NDPS Act was not mandatory and substantial compliance was sufficient. 23. In view of the conflicting opinions regarding the scope and applicability of Section 42 of the Act, a reference was made to the Constitution Bench in Karnail Singh vs. State of Haryana: (2009) 8 SCC 539, which finally resolved the dispute by listing the actual effect of the two decisions referred to above: 35. In conclusion, what is to be noticed is that Abdul Rashid [(2000) 2 SCC 513: 2000 SCC (Cri) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer 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. 24. Admittedly, the present case hinges on the secret information having been provided by a spy to PW.4. There is no averment in the testimony of PW.4 regarding such secret information having been reduced in writing and sent to the Superior Officer. There is no DD entry regarding such secret information having been received by PW.4. As has been decided in Karnail Singh vs. State of Haryana (supra), the mandatory requirement is of writing down the information received and sending a copy th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons to become a witness to the search, seizure and later arrest of the appellant. In this context, reference is made to testimony given by PW.3, wherein it has been admitted that no public witness was asked to join such proceedings. Similarly PW.4 has also admitted that no public person was requested to witness the search. However such statement was qualified by saying that no one was available at the time of search. 28. ASI Mahesh Singh (PW.5) has affirmed that the place where the appellant was arrested was a busy and crowded place. The submission therefore is that in the absence of any notice under Section 100 (8) of Cr. P.C. having been issued by the police, it could safely be presumed that no serious effort was made to make public person join the investigation. 29. Though in Ajmer Singh vs. State of Haryana:(2010) 3 SCC 746, the Supreme Court has held that joining of public persons is not an inviolable rule and there could not be any acquittal merely because no independent person was produced; nonetheless the requirement of independent persons joining the investigation and deposing before the Trial Court was not undermined wholly. 30. This Court finds that in most ..... X X X X Extracts X X X X X X X X Extracts X X X X
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