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MADAN B.LOKUR, SWATANTER KUMAR
Sukhdev Singh – Appellant
Versus
State of Haryana – Respondent
What is required for compliance with Section 42 of the NDPS Act?
Key Points: - Appeal against High Court judgment upholding conviction under Section 15 NDPS Act for recovery of poppy husk (chura post) from accused's house on 4th February 1994 [1000521790001][1000521790027][1000521790002] - ASI Nand Lal (PW1) received secret information at 11:30 a.m. but did not reduce it to writing or inform superior officer as required under unamended Section 42(2) NDPS Act; reached accused's house at 2 p.m. despite only 6 km distance [1000521790006][1000521790007][1000521790008][1000521790020] - Accused offered search before Gazetted Officer under Section 50; DSP arrived after half hour, search conducted, samples taken and sealed [1000521790001] (!) - Trial Court convicted accused (10 years RI and fine); High Court upheld, finding substantial compliance with Section 42 via post-recovery ruqa and FIR [1000521790027][1000521790002] (!) [1000521790009] - Unamended Section 42(2) governs as offence occurred in 1994 and trial concluded in 1998; requires information taken in writing to be sent "forthwith" to superior [1000521790013][1000521790017] (!) - Compliance with Section 42 mandatory; total non-compliance (no writing or informing superior before raid despite sufficient time) vitiates prosecution case, no substantial compliance possible [1000521790018] (!) [1000521790019][1000521790021] - Supreme Court set aside convictions, acquitted accused, directed liberty if not required otherwise, and instructed DGP of States to ensure compliance with Section 42 [1000521790023][1000521790024][1000521790025][1000521790026]
JUDGMENT :-
Swatanter Kumar, J.
1. The present appeal is directed against the judgment dated 27th March, 2008 pronounced by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 802-SB of 1998. We may notice the case of the prosecution and the facts which have given rise to the filing of the present criminal appeal.
2. On 4th February, 1994, ASI Nand Lal along with HC Hoshiar Singh, HC Suraj Bhan and other police officials were present in village Jogewala, in connection with patrolling duty. ASI Nand Lal, who was examined as PW 1, received secret information against the accused that the accused was in the habit of selling chura post (poppy husk) in his house and if a raid is conducted upon the house of the accused, the accused can be caught red- handed with the contraband. One Nacchatter Singh is stated to have been associated with the raiding party which raided the house of the accused. However, this witness was declared hostile before the Court during his examination. On conducting a search, five bags were found lying concealed under a heap of chaff in the courtyard of the house of the accused. On suspicion of having some intoxicant in his possession, the Inv
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