Non-compliance with Section 42 of the NDPS Act vitiates the trial, as established by precedent, and the prosecution failed to provide credible evidence.

JUDGMENT :

Tarlok Singh Chauhan, J.

Aggrieved by the acquittal of the respondent for the commission of offence punishable under Sections 21 and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS Act’), the State has filed the instant appeal.

2. We really wonder why the State has filed the instant appeal, given the fact that it is the admitted case of theprosecution that instant was a case of prior information, yet the provisions of Section 42 of the Act have not been complied with.

3. This would be further clear from the factual matrix of the case that on 01.02.2014, Rahul Sharma, Investigating Officer along-with HC Govind, Constable Suresh, Lady Constable Kamlesh and Constable Ashok Kumar was present in Nerwa market at about 5.30 p.m. He received a secret information regarding indulgence of the respondent in the sale of ‘Rexcof’ syrup and was stated to be residing in the third floor of the house of one Chajju Ram.

4. It is further case of the prosecution that the I.O. associated two independent witnesses, namely, Ashwani Kumar (PW-1) and Ramesh Zinta (PW-6) and searched the house of the respondent in their presence and recovered seven bags, which were found containing 567 bottles of ‘Rexcof’ syrup, each bottle having 100 ml. The ‘Rexcof’ along-with bag was put in three sacks and those three sacks were thereafter sealed with seal ‘E’ by affixing two seals on each of the sack. After obtaining seal impression of seal ‘E’ on a separate piece of cloth, the I.O. filled in NCB form in triplicate and obtained the specimen of seal ‘E’ on it and the seal after use was handed over to witness Ashwani Kumar.

5. During search of the room of the respondent, currency notes of Rs.39,500/- were also recovered and taken into possession vide seizure memo Ext.PW-10/B. The I.O. prepared the spot map Ext. PW-10/C and sent the rukka Ex.PW-10/H from the spot along-with case property for registration of the FIR. The FIR came to be registered and the respondent was arrested.

6. The I.O. prepared the report under Section 57 of the NDPS Act. The case property was handed over to Inspector Virender Chauhan, SHO, Police Station, State CID Bharari, Shimla for re-sealing, who re-sealed the case property with seal ‘N’ filled in the column Nos. 9 to 11 of the NCB form in triplicate, prepared the re-seal certificate and deposited the case property with the MHC, who in turn, sent the same to FSL Junga. As per report of FSL, Ext. P-Z, codeine phosphate was present in the exhibit stated as ‘Rexcof’ in poly gunny bag parcels marked as 1, 2 and 3.

7. After completion of the investigation, final report was presented in the Court, upon which, cognizance was taken and the respondent was charge sheeted for the offence punishable under Sections 21 and 22 of the Act to which, she pleaded not guilty and claimed to be tried.

8. In order to substantiate its case, the prosecution examined as many as 10 witnesses.

9. On closure of prosecution evidence, the respondent was examined under Section 313 Cr.P.C., in which, she denied the case of the prosecution and pleaded her innocence. However, she did not choose to lead any evidence in her defence.

10. Learned Special Judge, as observed above, acquitted the respondent on various grounds, however, mainly on the ground that there is non-compliance of the mandatory provisions as contained in Section 42 NDPS of the Act.

11. We have given our thoughtful consideration to the submissions made at the Bar and have also gone through the judgment of the learned trial Court as well as the evidence on record.

12. It would be noticed that it is the case of prosecution that the premises of the respondent were searched on the basis of prior information and there is nothing on record to suggest that the provisions of Section 42 of the Act have been complied with.

13. Section 42 of the NDPS Act which reads as under:

“42. Power of entry, search, seizure and arrest without warrant or authorisation.--

(1) Any such offi