Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(P&H) 1247

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
N.S. Shekhawat, J.
Jasbir Singh - Appellant - Appellant
Versus
State of Haryana - Respondent - Respondent
CRA-S-1246-SB of 2004
Decided On : 09-01-2023

Advocates appeared:
Mr. Gurnoor Singh, Advocate for the appellant.
Mr. Rajinder Kumar, DAG, Haryana.

Impermissibility of non-compliance with the mandatory provisions of Section 42 of the NDPS Act.

Headnote:
Narcotic Drugs and Psychotropic Substances Act - Conviction under Section 15 - Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Summary of Acts and Sections: Section 15 of the NDPS Act - The court discussed the applicability of Section 42 of the Act and emphasized the mandatory compliance with its provisions. The court referred to the decisions in Boota Singh & others Vs. State of Haryana and Karnail Singh Vs. State of Haryana to establish the impermissibility of non-compliance with Section 42 of the Act.
Fact of the Case:

The appellant was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of contraband. The prosecution's case was based on the recovery of crushed poppy husk from a car, and the appellant claimed innocence, alleging false implication.
Finding of the Court:

The court found that there was complete non-compliance with the mandatory provisions of Section 42 of the Act, which rendered the impugned judgment suffering from patent illegality and infirmity.
Issues: The main issue was the compliance with the provisions of Section 42 of the NDPS Act in the context of the recovery of contraband from a vehicle.
Ratio Decidendi: The court emphasized the impermissibility of non-compliance with the mandatory provisions of Section 42 of the NDPS Act, citing relevant case law and established legal principles.
Final Decision: The appeal was allowed, and the impugned judgment and order of sentence were set aside.

N.S. SHEKHAWAT, J.

1. The present appeal has been preferred against the judgment of conviction dated 14.05.2004 and order of sentence dated 15.04.2004, whereby the present appellant has been convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be as the 'Act') and sentenced to rigorous imprisonment for a period of six months and to pay a fine of Rs.10,000/- and in default thereof, to further undergo imprisonment for three months.

2. The story of the prosecution, as it emerges from the report under Section 173 Cr.P.C. is that on 06.11.1999, ASI Jahangir Singh along with other police officials was present on patrolling in crime detection duty and in the meantime, they received a secret information that Jasbir Singh @ Pappi S/o Darshan Singh, resident of Village Sujra was coming to village Sujra after loading crushed poppy husk in car bearing registration No. HR-02B/6651, driven by Harbhajan Singh S/o Sardool Singh and if nakabandi was held, they could be apprehended at the spot. Finding the said information reliable, the naka was set up and after sometime, the car bearing registration No.HR-02B/6651 came from Babain side and turned towards village Sujra. On seeing the police party, the driver stopped the car immediately and ran away after leaving the said car. One person was caught at the spot and he disclosed his name to be Jasbir Singh @ Pappi S/o Darshan Singh resident of Sujra and the car was also taken into possession. On searching the car, a gunny bag was found on the back seat and during the course of interrogation, the name of the driver, who had fled from the spot, was found to be Bhajan Singh S/o Sardool Singh, resident of village Sujra. Since the police party had suspicion that some narcotic substance was being carried in the car, a notice under Section 50 of the NDPS Act was served upon Jasbir Singh and Jasbir Singh, suspect, opted to get his search conducted in the presence of a Gazetted Officer. The memos were prepared at the spot in this regard and the DSP, Headquarter was requested to reach at the spot by sending a wireless message. After sometime, the DSP reached at the spot in the government vehicle and on his direction, the search was conducted and 20 kgs of crushed poppy husk was recovered from the car, out of which 250 grams was separated as sample. The sample as well as the residue poppy husk were converted into separate parcels and were sealed with the seals bearing impressions ‘JS’ and the DSP also affixed his seal bearing impressions ‘BS’. The car bearing registration No.HR-02B/6651 was also taken into possession by the police and the seal bearing impressions ‘JS’ was handed over to ASI Siya Nand and the recovery memo was also attested by the DSP. After necessary formalities as per law, the FIR in the instant case was registered.

3. After completion of the investigation, the challan under Section 15 of the Act was presented against Jasbir Singh only. After complying with the mandatory provisions of Section 207 of Code of Criminal Procedure, the accused was charged-sheeted under Section 15 of the NDPS Act, to which he pleaded not guilty and claimed trial.

4. To support the charge, the prosecution examined seven witnesses and had given up Deputy Superintendent of Police Ashok Kumar, UGC Des Raj, Kundan Singh and Shiv Kumar as unnecessary. Ram Kishan No.191, S.P.Office, Kurukshetra, appeared as PW-1, who received the report under Section 57 of the NDPS Act and the same was shown to the welfare Inspector. Bishan Singh, retired DSP was examined as PW-2, who, on receipt of a V.T. message, reached at the spot on 06.11.1999 and found that a notice under Section 50 of the Act had already been served upon the accused. After verifying the facts, he directed ASI Jahangir Singh to conduct the search of the gunny bag from the car and it was found that the gunny bag was lying on the back seat of the car bearing No.HR-02B-6651 and the accused was sitting with that g