Non-compliance with Section 42 of the NDPS Act and non-production of muddamal in court are fatal to the prosecution case, leading to the acquittal of the accused.

Mr. Pankaj Bhandari, J.

1. Appellant has preferred this appeal aggrieved by judgment and sentence dated 08.06.2010 passed by Special Judge, NDPS Cases, Chhabra Distt. Baran in Sessions Case No. 10/2008, whereby the appellant has been convicted for offence under Section 8/18 of the NDPS Act and sentence of 10 year R.I. has been imposed along with fine of Rs.1,00,000/- and in default of payment of fine, appellant is required to under go further one year R.I.

2. Factual matrix of the case are that on 18.11.2007, complainant, Ramniwas Gurjar, S.H.O. lodged a written report against the appellant stating therein that on regular patrolling, Ramniwas Gurjar was seen carrying two bags and on seeing Police Party, he tried to run away but was apprehended and 8 Kg and 100 gm of opium was recovered from him. The Police after completion of investigation submitted charge-sheet under Section 8/18 of the NDPS Act against the appellant.

3. On behalf of the prosecution as many as 7 witnesses were examined and 14 documents were exhibited. After examining the accused under Section 313 of Cr.P.C. and hearing the arguments, the trial Court convicted the accused-appellant for offence under Section 8/18 of the NDPS Act. Aggrieved by which the present appeal has been preferred.

4. It is contended by counsel for the appellant that the Police Party had prior information and the same was not recorded as per Section 42 of the Act and copy of it was not sent to the Senior Officer as per Sub-clause 2 of Section 42 of the Act. It is also contended that the muddamal and control samples were not produced in Court and non-production of the same has caused serious prejudice to the appellant.

5. It is also contended that there are no independent witnesses to the search proceedings and as Police witnesses are interested witnesses, conviction on their sole testimony cannot be upheld. It is also contended that the sample A-1 and B-1 were of 50 gms each but when they were received by the FSL, the weight of each packet was 26.62 gm and 26.87 gm respectively along with weight of the polythene bag. It is also contended that there is noncompliance of Section 50 as original notice which was recovered from the possession of the appellant-accused was not produced in Court.

6. Learned Public Prosecutor has opposed the criminal appeal. His contention is that accused has been apprehended with commercial quantity of opium, the information was received while party was on patrol duty and, therefore, it was not possible to note down the secret information and intimate the Senior Officer as per the provision of Section 42 of the Act.

7. It is also contended that there was no enmity between raiding party and the appellant and the Court below has not committed any illegality in convicting the accused-appellant.

8. I have considered the contentions put forth by the counsel for the parties.

9. PW-5, Ramniwas is the Officer who has lodged the F.I.R. In his cross-examination, he has admitted that in Ex.P-2 in portion marked ‘E’ to ‘F’, it was mentioned that there was secret information about the accused carrying contraband. He has admitted that in spite of having the secret information, he did not inform Senior Officer.

10. PW-4, Ajeet Singh a member of the team has also admitted in his cross-examination that in Ex.P-2, there is a mention about there being secret information of accused having psychotropic substance.

11. No explanation has been given by Ramniwas PW-5 as to when the secret information was received, why it was not noted down and why information was not furnished to the Senior Officers in accordance with Sub-clause (2) of Section 42 of the Act.

12. The other major lacuna in the prosecution case is non production of the muddamal in self same condition before the court and non-production of the control samples before the Court. Non-production of muddamal has been viewed as a serious infirmity in the prosecution case and has been considered as fatal to the prosecution by t