Gurjant Singh vs State of Haryana

T.H.B. Chalapathi, J.

This appeal through jail is directed against the conviction and sentence imposed by the learned Additional Sessions Judge, Bhiwani in Sessions Case No. 62 of 1988 (Sessions Trial No. 54 of 1988) dated 8.11.1988.

The accusedappellant was prosecuted for the offence under Section 18 of the Narcotic Drugs & Psychotropic Substances Act (for short `NDPS Act'') for being in possession of 4 Kgs of opium.

According to the case of the prosecution, the Inspector, C.I.A, Bhiwani received a secret information on 2.2.1988 that the accused was coming from Rajasthan border with the opium. Thereafter, he held a Nakabandi and apprehended the accused alongwith one Rajesh and searched the accused which revealed that he was in possession of 4 Kgs of opium. Accordingly, case was registered and after completion of the investigation, a chargesheet was filed against the accused for the offence under Section 18 of the NDPS Act.

On the basis of the material placed before him, the learned Magistrate committed the case to the Court of Sessions. After committal, the learned Additional Sessions Judge framed the charge against the accused under Section 18 of the NDPS Act to which the accused pleaded not guilty.

In order to prove the guilt of the accused, the prosecution examined two witnesses and marked certain documents. After closure of the evidence for the prosecution, the accused was examined under Section 313 Cr.P.C. but the accused did not adduce any witness.

On a consideration of the evidence on record, the learned Additional Sessions Judge convicted the accusedappellant under Section 18 of the NDPS Act and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. one lac. Aggrieved by the said conviction and sentence, the accusedappellant filed this appeal through Jail.

This appeal is to be allowed on the short ground that there was a violation of SubSection (2) of Section 42 of the N.D.P.S. Act. Admittedly, the secret information said to have been received by PW2 that the accused was coming from Rajasthan border with opium was not reduced to writing and the same was not sent to the higher officials. SubSection (2) of Section 42 of N.D.P.S. Act mandates that the Officer who receives the information will reduce it in writing and send the same to his higher officials. It was held by the Apex Court in State of Punjab v. Balbir Singh, 1994(1) RCR(Crl.) 736 : JT 1994(2) SC 108 that the provisions of Subsection (2) of Section 42 are mandatory. Since there is a violation of mandatory provisions, I am of the opinion that the accused is entitled to be acquitted.

Accordingly, the appeal is allowed, the conviction and sentence imposed on the accusedappellant by the learned Additional Sessions Judge are hereby set aside and the bail bonds of the accused shall stand cancelled.