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2019 (9) TMI 566 - HC - Indian LawsSmuggling - recovery of contraband - Section 42 of the NDPS Act - appellant has vehemently argued that the prosecution has failed to prove the case against the appellant - corroboration of statements - HELD THAT:- There is violation of mandatory provisions of Section 42 of the NDPS Act. Section 42 of the NDPS Act requires recording of reasons of belief and for taking down of information received in writing and the same is to be sent to the superior officers. There is no evidence that information was reduced into writing and superior officer was informed. Their Lordships of the Hon'ble Supreme Court in Sukhdev Singh vs. State of Haryana, [2012 (12) TMI 982 - SUPREME COURT] have underlined the objects and purpose of ensuring strict compliance of Section 42. Their Lordships have held that Section 42 is mandatory which ought to be construed and complied with strictly. The compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. PW-1 SI Sohan Lal had given the options to the accused to be searched by him or Gazetted Officer or Magistrate. Similarly, PW-5 DSP Navjot Singh had also given option to the accused that he had legal right to be searched from him (DSP) or any other Gazetted Officer or Magistrate. In his crossexamination, he categorically admitted that he never apprised the accused that he was a Gazetted Officer. He was also never apprised the nature of search or meaning of Gazetted Officer of various departments of Magistrate. Investigating Officer was required to give only two options to the appellant whether he wanted to get his personal search conducted before a Magistrate or a gazetted officer. He could not ask for third option to be searched by him. Section 50 of the NDPS Act is mandatory. According to PW-1 SI Sohan Lal, he was carrying computerized weighing scale. However, PW-5 DSP Navjot Singh deposed that he was carrying traditional weighing scale. There are material contradictions in the statements of official witnesses. The appellant is acquitted. The appellant is in custody. He be released forthwith if not wanted in any other case - Appeal allowed.
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