Judgment

Ms. Kirti Singh, J.

The instant appeal is preferred against the judgment of conviction dated 16.01.2006 passed by the learned Presiding Officer, Special Court, Kurukshetra, whereby the appellant has been convicted under Section 15 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (in short ‘the NDPS Act’) and was sentenced to undergo rigorous imprisonment for period of 03 years and to pay a fine of Rs.15000/- and in default of payment of fine to further undergone simple imprisonment for a period of 04 month.

2. The facts as put forth by the prosecution are that on 12.03.2002 SI Ram Singh along with other police officials were present on Barara Chowk, Shahabad when secret information was received to the effect that a white Maruti car bearing No.PB-07B-0666 was coming from Pipli side in which some narcotic substance was being taken to Ambala and if a nakabandi was laid then some narcotic substance could be apprehended. On this information nakabandi was laid. After some time the said car came and despite a signal to stop being given to the driver, the car did not stop and broke the naka. The car was followed and when the police jeep over took the car, then the car driver took a left sharp turn in the process of which the car went into a ditch, however the car driver managed to escape and abandoned the car. On checking the car, underneath the rear seat a gunny bag containing poppy husk was recovered which weighed 30 kgs out of which 200 gms was separated and a separate parcel was prepared and sealed with seal bearing letter ‘RS’ and after preparing specimen seal impressions, the case property was taken into possession vide recovery memo. The maruti car was also taken into possession along with its key-ring with a photograph of the accused. Ruqa was sent to the police station for registration of the case, on the basis of which formal a FIR was registered. Rough site plan was prepared and statements of the witnesses were recorded. On returning to the police station case property was deposited with the MHC. Report under Section 57 of the Act was also prepared. On 13.03.2002, SI went to the taxi stand and enquired about the said car and came to know that the said car was being driven by Shish Pal resident of Jharauli Khurd. Thereafter Jaspal, brother of the accused Shish Pal disclosed that he was the owner of the said car. Accused was arrested after serving him notice under Section 52 of the Act. After completion of investigation, challan report under Section 173 Cr.P.C. was forwarded to the court for trial of the accused.

3. After supplying the copies of challan and other documents accused was charge-sheeted under Section 15 of the NDPS Act on 10.10.2002, to which the accused pleaded not guilty and claimed trial.

4. In support of its case prosecution examined total 9 witnesses ASI Nasib Singh as PW1, Constable Om Chand as PW2, Saraj Ali as PW3, Waheguru Singh as PW4, Gurnam Singh as PW5, HC Rattan Singh as PW6, ASI Maya Chand as PW7, HC Chanan Ram as PW8, SI Ram Singh as PW9 and tendered report Ex.PX of FSL.

5. In the statement recorded under Section 313 Cr.P.C. accused denied all the allegations of the prosecution and pleaded false implication. No defence evidence was led by the accused.

6. Learned counsel appearing on behalf of the appellant has argued that there was complete non compliance of Sections 42 of the NDPS Act whereby the secret information was required to be supplied to the Senior Officer and the police official failed to do so. As per Section 42 of Act if the secret information is received regarding an offence under NDPS Act then it is the duty of the officer to inform his superior immediately about the offence not later than 72 hours. It was also submitted that PW-9 SI Ram Singh had admitted in his cross examination that he had not noted the secret information anywhere. Therefore there was total non compliance of the mandatory provisions of Section 42 of the NDSP Act. He further submits that the tampering o