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TMI Blog2013 (1) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram Saroj Yadav got an information that the appellant is extracting heroin from opium in his house situated in village Saidanpur within the circle of Police Station Safdarganj, District Barabanki. Relying on this information Sub Inspector Ram Saroj came in action and went on his jeep along with other police personnel. On way he met Station House Officer Bhola Nath Yadav. This information was orally conveyed to Station House Officer. At the said time SHO was on patrol duty. While the police party was on way to the house of the appellant then they met Kallan, Anwar and Shri Kundan, who were asked by the police party to accompany them to become witness of the entire proceedings, but all the three persons declined to become a witness. Thereafter police party reached the house of the appellant and after pushing the door open, entered into the house of the appellant and found that the appellant was present in the court-yard of his house and was busy in drying the extracted heroin on a stove. Seeing the police party, appellant made an effort to run away but by using reasonable force the police party apprehended the appellant on the spot. The appellant told that he had extracted heroin fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c witness in support of its version. 8. Learned A.G.A. has submitted that there is no law that the entire prosecution story must be thrown out if the public witness refrain from becoming witness of the occurrence. The evidence of police witness has to be evaluated in the same manner as evidence of any other witness and their evidence cannot be discarded solely on the ground that they happens to be the members of the police force. It is a case of emergency, the police party got information and they immediately came inaction. At that time SHO was on Patrol duty in his Halka and therefore, they had no occasion to comply with the provision under Section 42 of the N.D.P.S. Act. It is further submitted that trial court has considered all the aforementioned argument in the correct perspective and had rightly held the appellant to be guilty. 9. It is further submitted by the learned counsel for the appellant that the occurrence relates to year 1990, after lapse of 22 years, the age of the appellant has become 72 years and no useful purpose would be served by sending him to jail as there is absolutely no adverse criminal history against the appellant. 10. In the facts of this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42 (1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty of otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42 (1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Section 42 (1) and 42 (2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear from the evidence of PW-1 R.P. Saroj that he got the information at the police station and after getting this information he along with police party came in action he has nowhere stated in his evidence that the information received by him was reduced into writing, however, he has made an effort to fill this gap by stating in his cross-examination that the information so received was mentioned in the G.D. but when he was confronted with his statement under Section 161 Cr.P.C. then he failed to explain as to why this fact was not stated by him in his statement under Section 161 Cr.P.C. He has admitted in his cross examination that he got information at police station at about quarter past 15 hours. The G.D. in which the information received is alleged to have been mentioned by this witness has not been produced by the prosecution and has been withheld which gives rise to an adverse inference against the prosecution. Therefore, it is an admitted fact that the said information was received by PW-1 at the police station and he has not reduced the same into writing nor any effort was made to send the said information to his official superior. Without complying with the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduced into writing in less than a minute but no such effort was made. There is absolutely no evidence to infer that any information of the said information was, even after the arrest, sent to the official superior. This is a case of total non compliance of provisions of Section 42 of the N.D.P.S. Act, which renders recovery illegal and consequently the conviction of the appellant cannot be sustained. This aspect of the matter was not considered by the trial court rendering its judgment unsustainable under law. 15. In the case of Abdul Rashid Ibrahim Mansuri V. State of Gujrat (2000) 2 SCC 513, followed in the case of State of West Bengal and others Vs. Babu Chakraborty 2004 (2) EFR 521 it has been held that in any case where mandatory provisions are not complied with and where independent mahazar witnesses are not examined, the accused would be entitled to be acquitted and any seizure in violation of the mandatory provisions would be inadmissible since these provisions are in the nature of statutory safeguards. 16. In the case of State of Karnataka vs. Dondusa Namasa Baddi 2010 (4) Criminal Court Cases 429 Hon'ble Apex Court has held that it is not the case of the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X
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