Non-Compliance With Section 42 of NDPS Act Is Fatal to Prosecution: Punjab & Haryana High Court Acquits Two Accused In 160 Kg Poppy Husk Case

"When the law mandates compliance with statutory safeguards, failure to follow the same cannot be brushed aside as technical irregularity" – In a significant ruling that reiterates the indispensable nature of procedural safeguards under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), the Punjab and Haryana High Court acquitted two men convicted for possession of 160 kg of poppy husk under Section 15 of the NDPS Act. The Court held that the prosecution's failure to comply with the mandatory requirements of Section 42(2) and Section 52(A) of the Act, coupled with unreliable evidence and missing link testimony, rendered the conviction unsustainable.

Justice Surya Partap Singh, who allowed the appeal, set aside the trial court’s judgment, and acquitted the appellants of all charges.

“There is not even a single whisper that any report regarding the recovery was submitted to the senior police officer”— High Court slams police for violating Section 42(2)

Delivering the judgment, the Court squarely held that the prosecution failed to demonstrate compliance with the mandatory safeguards prescribed under Section 42(2) of the NDPS Act. The provision requires that if a police officer receives information regarding narcotic substances, such information must be reduced to writing and communicated to a superior officer within 72 hours.

Justice Surya Partap Singh observed: “There is not even a single whisper in the entire prosecution evidence that any report with regard to recovery of contraband pursuant to a tip-off was submitted before the Senior Police Officer. This argument of learned counsel for the appellants holds good that there was violation of Section-42 of the NDPS Act.”

The Court relied heavily on two Supreme Court precedents—Sukhdev Singh v. State of Haryana, (2013) 2 SCC 212 and State of Rajasthan v. Jagraj, (2016) 1 SCC 687—both of which underscore the necessity of strict compliance with Section 42 to ensure the integrity of the recovery process.

The Court categorically noted that “failure of Investigating Officer to comply with the above-mentioned provision was a factor responsible for making a doubt in the prosecution story.”

Recovery Process Held Suspicious: Missing Witnesses, Contradictions, and Chain of Custody Gaps

The High Court also pointed out multiple deficiencies in the investigation and trial, which cumulatively cast serious doubt on the prosecution’s version.

A major concern was the non-examination of Kundan Singh, the only independent witness claimed to have been present during the recovery. The prosecution contended that the witness was “won over,” but failed to seek summons or explain his absence convincingly. The Court found this omission deeply problematic:

“Failure of prosecution to examine the above-mentioned witness, who was the most crucial witness, was a very serious and severe blow to the story set-out by the prosecution.”

Further, the Court held that the chain of custody of the contraband was broken. The most crucial link evidence—production of the sealed case property before the Magistrate under Section 52(A)—was left unproven. The prosecution neither examined ASI Ranjit Singh, who had allegedly presented the case property in court, nor placed on record any documentary proof or Daily Diary Report (DDR) entries to establish this essential link.

The Court noted: “Even the Daily Diary Reports showing the exit and entry of case property from the store room of the police station were not proved. Thus in my opinion, in the present case the requisite link evidence was also missing.”

Compounding the suspicion was the conduct of DSP Lakhwinder Pal Singh, who retained the seal used during the recovery instead of handing it to a neutral party—an action that increased the possibility of tampering.

Contradictions in Official Testimonies and Non-Joining of Public Witnesses Weakens Case Further

The Court critically analyzed the testimonies of PW-1 (DSP Lakhwinder Pal Singh) and PW-2 (SI Gurwinder Singh), highlighting key contradictions in their statements regarding their presence at the scene and timeline of the recovery process.

Justice Singh remarked: “If the impact of all the above-mentioned factors is co-jointly considered, it leads to a conclusion that the evidence adduced by the prosecution was deficient for arriving at a conclusion that the allegations with regard to recovery of contraband from the possession of appellants had been proved beyond the shadow of all reasonable doubts.”

The Court also flagged the failure to join available independent passersby at the scene as further undermining the credibility of the investigation: “No convincing explanation was given either by PW-1 or PW-2 for not joining public witnesses who were present at the spot.”

Acquittal Ordered: Trial Court Criticised for Erroneous Appreciation of Evidence

While setting aside the trial court’s conviction, the High Court held that the lower court “committed an error of judgment while holding that the above-mentioned evidence was sufficient and good enough to prove guilt of the appellants.”

Justice Singh concluded: “In the given fact-situation the only finding which should have been returned by the learned trial Court should have been acquittal of the appellants.”

The appeal was thus allowed, the conviction and sentence set aside, and the appellants were acquitted. Their bail bonds were discharged accordingly.

Date of Decision: 15.12.2025