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SWATANTER KUMAR, MADAN B.LOKUR
Kishan Chand – Appellant
Versus
State of Haryana – Respondent
What is the effect of total non-compliance with Sections 42(1) and 42(2) of the NDPS Act? What is required for compliance with Section 42 of the NDPS Act when secret information is received?
Key Points: - Trial Court convicted accused Kishan Chand under Section 18 of NDPS Act for 10 years RI and fine, acquitted co-accused Ramphal; High Court affirmed conviction (!) [1000521840001] - Secret information received by SI Kaptan Singh (PW7) about accused smuggling opium on scooter; nakabandi set up, scooter stopped, notice under Section 50 given, accused opted for Gazetted Officer search, Tehsildar PW5 called, 3.8 kg opium recovered from tool box [1000521840002][1000521840003] - PW7 admitted secret information not reduced to writing or sent to superior officer, distance to recovery site 1.5 km, no public witnesses joined [1000521840013] (!) - Trial and High Courts held non-compliance of Section 42(2) not fatal due to urgency to prevent escape and substantial compliance, relying on Sajan Abraham [(2001)6 SCC 692] (!) (!) [1000521840008] (!) - Supreme Court held Sections 42(1) and (2) mandatory, total non-compliance impermissible, no substantial compliance doctrine applies to penal provisions with harsh punishments; prejudice inherent, prosecution fails [1000521840015] (!) [1000521840020][1000521840022] - Distinguished Sajan Abraham, relied on Karnail Singh Constitution Bench: immediate recording and sending copy required unless emergent situation with delayed compliance explained; here total non-compliance [1000521840016] (!) (!) (!) (!) (!) - Sections 42, 50, 57 independent, operate at different stages, compliance not inter-dependent [1000521840023] - Doubt on PW5 presence: DW1 driver testified jeep logbook shows no trip to site with PW5 on 19.7.2000, used by Naib Tehsildar elsewhere [1000521840025] (!) (!) [1000521840026] - Prosecution failed to prove case beyond reasonable doubt due to total non-compliance of Section 42, doubtful recovery, no independent witnesses; appeal allowed, accused acquitted under Section 18 [1000521840026][1000521840028]
JUDGMENT :-
Swatanter Kumar, J.
1. The Judge, Special Court, Kaithal, Haryana vide his judgment dated 31st July, 2002 rendered the judgment of conviction and passed an order of sentence under Section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) and awarded the punishment to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs. 1 lakh, and in default thereto and to further undergo rigorous imprisonment for a period of two years to accused Kishan Chand, while it acquitted the other accused Ramphal as the prosecution had failed to prove its charge against that accused.
2. Upon appeal, the judgment of the Trial Court was affirmed by the High Court as it was of the opinion that the judgment of the Trial Court did not warrant any interference. Thus, by its judgment dated 22nd April, 2008, the High Court sustained the conviction and sentence of the accused. Aggrieved from the judgment of the Division Bench of the High Court, the accused filed the present appeal.
3. Before we dwell upon the merit or otherwise of the contentions raised before us, it will be appropriate for the Court to fully narrate the facts resulting in the convicti
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