The main legal point established in the judgment is the requirement of substantial compliance with Section 42 of the NDPS Act and the allowance for delayed compliance with satisfactory explanation in emergent situations.

MUKTA GUPTA, J.

Crl. M.A. No. 7163/2016 (Delay)

1. For the reasons stated in the application, delay of 43 days in filing the leave to appeal petition is condoned.

2. Application is disposed of.

CRL.L.P. 234/2016

1. Aggrieved by the order dated 6th November, 2015, whereby the learned Additional Sessions Judge acquitted the respondent for the offence punishable under Section 20 (b)(ii)(C) of Narcotics Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), the State has preferred the present leave petition.

2. Learned APP for the State submits that the learned Additional Sessions Judge erred in overlooking the fact that Section 42 of the NDPS Act was substantially complied with in terms of DD entry No.3 in the roznamcha as deposed by Inspector Vivek Pathak (PW-18). Mere procedural defect under Section 42 of the NDPS Act cannot be a ground for rejecting the prosecution case out rightly. It is further urged that delayed compliance with satisfactory explanation would be acceptable compliance of Section 42 of the NDPS Act and the same has been explained in the deposition of HC Subhash (PW-5), HC Harender Singh (PW-6) and SI Paramjeet Singh (PW-16) to the effect that it was an emergency situation and the raid was to be conducted at a short notice. It is further submitted that the learned Additional Sessions Judge erred in ignoring the fact that since the respondent was in transit when he was stopped and searched by the raiding team, Section 43 of the NDPS Act would be applicable which does not require reasons to be recorded. Furthermore learned Additional Sessions Judge failed to appreciate that in case of seizure made under Section 42 NDPS Act between sunset and sunrise, the requirement of the proviso thereto has to be complied with. However, there is no such proviso in Section 43 of the NDPS Act therefore, if a search is conducted in a public place or in transit the officer is not required to record his satisfaction as contemplated by the proviso to Section 42 NDPS Act, for searching a vehicle between sunset and sunrise.

3. Briefly stated the case of the prosecution is that on 19th February, 2011 around 4.30 AM one secret informer came to Narcotic Cell and informed SI Paramjeet Singh that one Virender, who used to supply ganja, along with one Anil and Kamal, who invest money for procuring ganja from Orissa by oil tankers of Mathura Refinery, will come in a Tavera vehicle No. DL 3C AJ 9573 with ganja and will go to the house of Anil while passing through Yamuna Bank, Metro Depot between 5.30 AM to 6.00 AM. The aforesaid information was recorded vide DD No.3 (Ex. PW-4/A). Consequently a raiding team was constituted consisting of SI Paramjeet Singh, HC Subhash and HC Harender Singh. The raiding team along with the secret informer took position near the spot. At about 5.40 AM they saw one Tavera car coming from Akshardham Mandir side. They stopped the vehicle and one person was found sitting in the car whose name was disclosed as Virender. Notice under Section 50 NDPS Act was served upon him. The refusal was endorsed by Virender himself on the aforesaid notice. SI Paramjeet Singh searched the vehicle and found seven parcels from the backside of the car. Out of seven parcels in four parcels 35 packets each inside colourful plastic bag/katta was found totaling to 140 packets and ganja were found inside the same. On weighing it was found that each packet contained 1 kg of ganja. In the 5th, 6th and 7th parcel 20 kg, 22 kg and 27 kg respectively of ganja was found. Thus, total ganja recovered was 209 kg. The vehicle bearing No. DL 3C AJ 9573 was seized vide memo Ex.PW-5/C. Virender was arrested vide arrest memo Ex.PW-5/D. On the raid so conducted, FIR No. 41/2011 (Ex.PW-1/A) was registered at PS Crime Branch under Section 20/25 NDPS Act.

4. Learned Additional Sessions Judge placed reliance on the records pertaining to sunset and sunrise as brought by DW-3 Balram Soni, Scientific Assistant, Metrological Department vide Ex.DW-3/