Appellant Acquitted Due to Non-Compliance with Mandatory Provisions of Sect. 42 NDPS Act – P&H HC

The Punjab and Haryana High Court, in a recent judgment delivered by Justice N.S. Shekhawat, acquitted an appellant in a Narcotic Drugs and Psychotropic Substances (NDPS) case due to non-compliance with the mandatory provisions of the NDPS Act. The court held that the violation of Section 42 of the Act, which pertains to non-compliance of secret information being reduced into writing, resulted in a breach of a mandatory provision, leading to the appellant's acquittal.

The case revolved around the appellant, Isham Singh, who had been convicted under Section 15 of the NDPS Act by the Special Court in Kurukshetra. Singh was sentenced to one year of rigorous imprisonment and a fine of Rs. 6000. However, his counsel, Mr. Keshav Pratap Singh, argued that there was a clear non-compliance with the provisions of Section 42 of the NDPS Act, which rendered the conviction erroneous.

According to the prosecution's case, a secret information was received by the police regarding Singh's involvement in selling poppy husk at his dhaba. The raiding team, led by SI Prem Narain, conducted a search at JVG Dhaba and apprehended Singh, who was found carrying a gunny bag. Upon search, poppy husk was discovered in the bag. However, it was revealed during the trial that the secret information had not been reduced into writing and was not sent to the police station or higher police officers, thus violating the mandatory provision of Section 42.

Justice N.S. Shekhawat, in the judgment, emphasized that the non-compliance with Section 42 was a breach of a mandatory provision, and the appellant could not be convicted based on such non-compliance. The court highlighted that sending a ruqa for recording the FIR at the police station could not be considered sufficient compliance with the provision. It was further emphasized that when there is total and definite non-compliance with statutory provisions, the element of prejudice becomes irrelevant, and it per se amounts to prejudice.

In support of the acquittal, the court referred to the Supreme Court's decision in the case of State of Rajasthan vs. Jag Raj Singh @Hansa (2016), where it was held that compliance with the provisions of Sections 42 and 50 of the NDPS Act is mandatory. The court also noted that delayed compliance with satisfactory explanation might be acceptable, but in this case, there was total non-compliance with Section 42.

Justice N.S. Shekhawat concluded that the breach of the mandatory provisions of Section 42 led to the appellant's acquittal. The court held that the purpose of these provisions is to protect suspects against false implication and ensure fair investigation in trials. Violation of such mandatory provisions cannot be overlooked, and it warrants the acquittal of the accused.

As a result, the High Court set aside the judgment of the Special Court and ordered the acquittal of Isham Singh. The bail bond and surety bond were discharged, and the accused was ordered to be set at liberty, provided he was not required in any other case.

This judgment serves as a reminder of the significance of complying with the mandatory provisions of the NDPS Act during investigations and trials, ensuring a fair and just process for all parties involved.

Decided on: 10.03.2023

Isham Singhvs State of Haryana