Point of Law : Non-compliance of mandatory provisions of NDPS Act has to be dealt with a strict hand and it is imperative upon courts to be cautious while adjudicating such matters where seizure is concerned.

ORDER :

1. The instant application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 15.11.2017 passed by the learned Special Judge, NDPS cases, Bhilwara in Sessions Case No. 25/2016 whereby he was convicted and sentenced to suffer maximum imprisonment of 14 years under Section 8/21 of NDPS Act.

2. Learned counsel for the appellant submits that the provision of Section 57 NDPS Act has not been complied with and no Rajnamcha report has been produced in the trial despite the fact that the police party was having information regarding the transportation of the contraband. Likewise, serious questions have been raised with regard to the compliance of Section 42 of the Act, which is mandatory in nature.

3. He further submits that the appellants has spent last 7 years in custody, if they is not released on bail the very purpose of filing the appeal would be frustrated. He places reliance on the judgment passed by Hon'ble the Supreme Court in Satender Kumar Antil vs. Central Bureau of Investigation, (2021) 10 SCC 773 to support his argument that looking to the long period of incarceration, the sentence of the applicant deserves to be suspended. As the hearing of the appeal will take long time to conclude, therefore, learned counsel for the appellants submits that the sentence awarded to the accused-appellants may be suspended.

4. Per contra, learned Public Prosecutor vehemently opposes the prayer made by learned counsel for the accused-appellants and submits that the matter pertains to recovery of 1.060 kilogram Morphine and the judgment of conviction passed by learned Court below does not warrant any interference. As per the custody certificate submitted by learned Public Prosecutor, the petitioner has suffered imprisonment for almost 7 years. The impediment contained under Sections 32-A and 37 of NDPS, Act will be attracted in the factual situation of the present case.

5. Heard and perused the material available on record as well as gone through the statutory provisions applicable in the matter.

6. The prosecution has failed to prove the case beyond every shadow of reasonable doubt as it has not been proved that the information under Section 42 (2) of NDPS Act was properly supplied to the Deputy Narcotic Commissioner. There is no evidence on record to corroborate the fact that the information under Section 42 of NDPS Act was received by the Deputy Narcotic Commissioner and no other document has been produced to show the compliance of Section 42 of NDPS Act which is mandatory in nature. There is neither any proof of dispatching of the information to the superior officer nor is there any proof that reflects that the same was sent or received and lastly, there is nothing on record to show that there was acknowledgment on part of the superior officer upon receiving the information.

7. There are serious discrepancy in between the statements of PW-5 and PW-7. As per the statement of PW-4 Dharam Singh, it is stated in his cross-examination that it was PW-5 B.N. Meena who sent the information to the superior officer whereas the testimony of PW-7 reflects that it was PW-7 who actually used to record who took the information for the purpose of relaying it to the superior officer but he did not record any such thing in the present matter and he even states that PW-5 did not share the said information.

8. In Vijaysinh Chandubha Jadeja vs. State of Gujarat, AIR 2011 SC 77, the Hon’ble Apex court indicated that the failure to comply with the provisions of NDPS Act would render the recovery of illicit articles ineffective and vitiate the conviction. The relevant part of the judgment is as follows:

“Under Section 42 of the NDPS Act, the empowered officer can enter, search, seize and arrest even without warrant or authorisation, if he has reason to believe from his personal knowledge or information taken down in writing, that an offence under Chapter IV of the said Act has been committed. Under proviso to Su