Compliance with Section 42 of the NDPS Act is imperative, but delayed compliance with a satisfactory explanation for the delay can be countenanced. The presence of a Gazetted Officer during search and seizure is crucial.

SUDIP AHLUWALIA, J.

This appeal is directed against the Judgment of conviction and Order of sentence dated 8.1.2011 passed by the Ld. Judge, Special Court, Amritsar in Session Case No.87/8.4.2008 arising out of FIR No.58 dated 18.3.2008 of Police Station Jandiala Guru, District Amritsar, under Section 21 of the Narcotic Drugs & Psychotropic Substances Act (in short “NDPS Act”), 1985.

2. Vide the impugned Judgment, the Trial Judge had convicted the Appellant of the offences u/s 21 & 29 of the NDPS Act, and sentenced him to undergo R.I. for a period of ten years each and to pay a fine of Rs. One Lac each, in default whereof, he was directed to further undergo R.I. for a period of one year each.

3. The factual background of the case according to the prosecution side is that on 18.03.2008, Inspector Balbir Singh of Special Narcotic Cell, Amritsar while in his office, received Secret Information that renowned international Smuggler of Heroin, Arms and Ammunition namely Balkar Singh and his nephew Jagga Singh and their accomplice Kulbir Singh, resident of village Bagguwala, District Ferozepur were standing near Fast Food 'T' Point, G.T. Road, Jandiala Guru, on account of big deal of Heroin in Accent Car No.PB-02Q-9797 and if raid is conducted they can be apprehended with large quantity of Heroin. He brought this information to the notice of Sh. Tulsi Ram, SSP, Special Narcotic Cell, Punjab, Amritsar and on their direction, constituted a Police Party consisting of SI Harvinder Pal Singh, ASI Nirmal Singh, ASI Ashok Kumar, ASI Satnam Singh and others, and went in two vehicles and when the Police Party reached near Fast Food Restaurant, they saw an Accent Car colour Silver, parked at 'T' Point having its face towards Tarn Taran side and on seeing the Police Party, two persons came down from the Car and tried to run towards Tarn Taran side. But with the help of officials on suspicion both of them were apprehended and their whereabouts were asked. They were carrying hand bags in their hands. Out of them, one disclosed his name as Balkar Singh alias Bara son of Channan Singh resident of Baghuwala, P.S. Mallanwala, and second Jagga Singh son of Kashmir Singh resident of Baghuwala PS Mallan, while the third person was apprehended sitting on Driver seat of the said car and he disclosed his name as Kulbir Singh alias Keeru son of Kartar Singh resident of village Karmuwala. The officer disclosed his identity to the accused one by one that he is Sub Inspector Balbir Singh, posted at Special Narcotic Cell, and he suspected that they were possessing some narcotic or psychotropic substance in their person or in the car, and that they had a legal right to be searched in the presence of any Gazetted Officer or Magistrate, and he further apprised them one by one that he can arrange for the Gazetted Officer or Magistrate at the time of making their search. All the aforesaid accused, desired for the presence of any Gazetted Officer at the time of making their search and he recorded the non consent memos of Kulbir Singh, Balkar Singh and Jagga Singh which were attested by SI Harvinderpal Singh, ASI Nirmal Singh and accused signed/thumb marked the same. Then, he requested DSP Rajpal Singh, a Gazetted Officer of Special Narcotic Cell, to reach at the spot. In the meantime, one public witness Bhagwant Singh son of Harinder Singh was also joined. The complainant then briefed DSP Rajpal Singh about the facts of the case and got introduced the independent witness and apprised him about the facts. DSP Rajpal Singh gave his introduction to the aforesaid accused one by one that he is DSP Rajpal Singh a Gazetted Police Officer and further apprised that he was having suspicion that they were in possession of some narcotics in their car or in their hand bags, and that they have their legal right for their search to be conducted in the presence of any Gazetted Officer or Magistrate. All the aforesaid accused, reposed confidence with DSP, vide Consent Memos, w