Advocates appeared:
Mr. Ashok Giri, Advocate for the appellant.
Mr. Kunal Vinayak, AAG, Punjab.

JUDGMENT :

Pankaj Jain, J. (Oral)

Challenge is to the judgment of conviction and order of sentence dated 31st of August, 2023 passed by Judge, Special Court, SAS Nagar, Mohali whereby the appellant stands convicted for offence punishable under Section 21(b) read with Section 31 of the NDPS Act and has been sentenced to undergo R.I. for a period of 1 year and to pay a fine of Rs.10,000/- in case FIR No.18 dated 23rd of March, 2019 registered at Police Station STF, SAS Nagar, Mohali.

2. As per the case of the prosecution on 23rd of March, 2019 a secret information was received against the appellant indulging in sale of heroin. On the basis of information, concerned police official ASI Faqir Singh sent ruqa to police station for registration of FIR and for sending some other IO along with police party on the spot. Police party headed by ASI Bhajan Singh rushed to the spot. Barricading was effected. The appellant was seen coming from Kharar side riding motorcycle bearing No.PB-65-AP-0883. Appellant was signaled to stop. He was served with notice under Section 50 of the NDPS Act. He wished to be searched before a Gazetted Officer. DSP Dev Singh was called on the spot. After the Gazetted Officer introduced himself to the appellant, search was conducted on the directions of the Gazetted Officer. From the right pocket of jeans wore by the appellant, 27 grams of heroin was recovered. The contraband was sealed by the Gazetted Officer who handed over his seal to ASI Manjit Singh. On the next day i.e. on 24th of March, 2019, accused along with Form No.29 was produced before the Illaqa Magistrate. Section 52(a) of the NDPS Act was complied with. Photographs of the inventory proceeds were also clicked. Appellant was put to trial. After appreciating the evidence on record, Trial Court found the appellant guilty of offence punishable under Section 21(b) read with Section 31 of the NDPS Act.

3. While assailing judgment under appeal counsel for the appellant submits that its a case of non-compliance of Section 42 of the NDPS Act. The compliance of Section 42 being mandatory in nature, the appellant deserves to be acquitted. Counsel for the appellant further submits that as per the case of the prosecution a secret information was received by one ASI Faqir Singh against the appellant. As per the mandate of Section 42 of the NDPS Act, he was required to reduce the same into writing and inform his superior officer. It has been contended that in the present case only ruqa was sent by the receiver of the secret information for registration of FIR. A ruqa cannot parte character of document containing secret information received in writing to hold that Section 42 was complied with. There being no other document apart from ruqa it is evident that Section 42 remains un-complied and thus, as per the mandate of Section 42 as interpreted by larger Bench of Apex Court in the case of Karnail Singh vs. State of Haryana, 2009(5) R.C.R.(Criminal) 515 the conviction of the appellant cannot be sustained. No other plea has been raised on behalf of the appellant.

4. Counsel for the State on the other hand submits that Section 42 was duly complied with and the ruqa was sent by recipient of the secret information i.e. ASI Faqir Singh to his superior officer i.e. Station House Officer, much prior to the search of the petitioner. It has been contended that even as per law laid down in Karnail Singhs case (supra), reducing the secret information into writing and sending the same to a superior officer within a reasonable time has been held to be sufficient compliance of Section 42. State counsel thus submits that no fault can be found with a well reasoned judgment passed by the Trial Court wherein the story of the prosecution has been analyzed from all the angles and guilt of the appellant has been proved beyond doubt.

5. I have heard counsel for the parties and have carefully gone through the records of the case.

6. It all started with the information received by ASI Faqir Sing