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2016 (4) TMI 98 - PUNJAB AND HARYANA HIGH COURT

2016 (4) TMI 98 - PUNJAB AND HARYANA HIGH COURT - TMI - Validity of Sentence order - Contravention in relation to poppy straw - punishment rewarded under Section 15 of the Act - Appellant contended non-compliance of section 42 of the Act which is mandatory - Held that:- as per decision of Hon'ble Supreme Court in a case, registration of First Information Report by SHO and communicating the same to Superintendent of Police would not constitute compliance of the provisions of Section 42 of the Act .....

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order is set aside. - Decided in favour appellant - Criminal Appeal No.S-799-SB of 2004 - Dated:- 11-2-2016 - MR. INDERJIT SINGH, J For the Petitioner : Mr. G.S. Sandhu, Advocate For the Respondent : Mr. Himmat Singh, Deputy Advocate General ORDER INDERJIT SINGH, J. This criminal appeal has been filed by Hardeep Singh-appellant challenging the impugned judgment of conviction and order of sentence dated 1.4.2004/3.4.2004 passed by learned Judge, Special Court, Karnal, whereby he has been held gui .....

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with other police officials was present at Bus Stand, Dachar, in connection with detection of crime. In the meanwhile, ASI Varinder Singh received a secret information that accused Hardeep Singh used to sell poppy straw at his house situated in the eastern side of the village and on that day he was selling the poppy straw at his residence. On this information, ASI Varinder Singh sent Ruqa' Ex.PA to the police station and conducted raid at the house of the accused after joining Joga Singh son .....

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Singh along with accused, two bags and witnesses came to the Tehsil Office, Nissing and produced them before Shri Lehna Singh, Naib Tehsildar. Then the search was made as per rules. 200 Grams of poppy straw was separated as sample from each of the bags and the remaining poppy husk on weighment came to be 19.800 Kgs. of each bag, which was put in those very bags. The parcels of the samples as well as remainder poppy husk were sealed with the seal of VS' and taken into police possession vide .....

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eport Ex.PF of the FSL was received. The accused was arrested. The statements of witnesses were recorded. After necessary investigation, the challan was presented in the Court. On presentation of challan, the trial Court finding prima facie case against the accused-appellant framed charge for the offence under Sections 15 of the Act, to which the accused pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW-1 SI Bhagat Ram, the then SHO, Police Station Nissing .....

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, Nissing has supported the prosecution version. PW-5 HC Parmal Singh is the recovery witness, who was with the police party. He also deposed as per prosecution version. PW-6 ASI Varinder Singh is the Investigating Officer of this case, who deposed regarding conducting the investigation of this case. At the close of prosecution evidence, the accused was examined under Section 313 Cr.P.C. and was confronted with the evidence of the prosecution, but he denied the correctness of the evidence and pl .....

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een filed. At the time of arguments, learned counsel for the appellant mainly argued on one point that the compliance of Section 42 of the Act is mandatory and in the present case no compliance under Section 42 of the Act has been made. On the other hand, learned State counsel argued that the compliance under Section 42 of the Act has been made and it has been duly discussed in the judgment by the learned Judge, Special Court. He argued that the PWs have consistently deposed regarding prosecutio .....

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he senior officers. A perusal of the evidence on record no where shows that the secret information was recorded separately and then the report was sent under Section 42 of the Act to the Senior Officers before conducting raid at the house of the accused. In the latest judgment of the Hon'ble Supreme Court in Darshan Singh v. State of Haryana, 2016(1) Law Herald (P&H) 225 (SC), after discussing the judgment of the Constitutional Bench in Karnail Singh v. State of Haryana, 2010 (2) Law Her .....

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Procedure Code. Sub-section 1 of Section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the first Class or any Magistrate of second Class specially empowered by the State Government may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Sub-section (2) of Section 41 refers to issue of authorisation for similar purposes by the officers of the Departments of Central Excise, Narcotics, .....

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tween sunrise and sunset and he may do so without recording his reasons of belief. The two separate procedures noticed above are exclusive of one another. Compliance of one, would not infer the compliance of the other. In the circumstances contemplated under Section 42 of the NDPS Act the mandate of the procedure contemplated therein will have to be followed separately, in the manner interpreted by this Court in Karnail Singh's case (supra) and the same will not be assumed, merely because th .....

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rintendent of Police, Panipat would constitute sufficient compliance of the mandate of Section 42 of the NDPS Act. 13. In aforesaid view of the matter, we are satisfied that Section 42 of the NDPS Act was not complied with at all, insofar as the present controversy is concerned. Thus viewed with conclusion (d) recorded in Paragraph 35 of the judgment rendered in Karnail Singh's case (supra), would fully apply to the facts and circumstances of the present case, and we are left with no other o .....

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on and recording of FIR and then sending the special report to the senior officers amounts to compliance is against the law. There is no dispute regarding the legal position that the provisions of Section 42 of the Act are mandatory. In some of the circumstances the compliance can be made by the Investigating officer after conducting the raid, if there are chances of the accused to fled away etc. as held in Karnail Singh v. State of Haryana (supra), which is as under:- 17. In conclusion, what is .....

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uperior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information give .....

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l circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of subsections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with section 42. To .....

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