NDPS Appeal in Punjab Haryana High Court Chandigarh

Last Updated on August 11, 2024 by Satish Mishra

This post is a case digest of NDPS Appeal in Punjab Haryana High Court Chandigarh wherein appeal against the order of Session Court was preferred before High Court Chandigarh as main contentions were compliance of Sec 42 & 43 of NDPS Act. In light of various judgments of hon’ble Apex court and Our Hon’ble High Court, the sentences were upheld and sustained in the eyes of law. In NDPS Cases across Punjab Haryana (Chandigarh Panchkula Mohali Zirakpur Baltana Derabassi Kharar Mullanpur) etc. statutory compliances as held under various judgments has to be mandatory complied as benefit of doubt is given to the accused.

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Now let’s read the judgment without any further delay:

Nasib Singh & Ors vs State Of Haryana on 18 March, 2020

Different provisions under the Narcotic Drugs Psychotropic Substances Act, 1985 (NDPS) Act has led to great controversy as to the application and scope of Section 42 and 43 of the Act. The Single Learned Judge upheld the decision of the Session Court where the accused were convicted under NDPS Act and pointed out the difference between Section 42 and 43 of the Act.

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In the instant case, two trucks with the accused were apprehended by one Paras Kumar, the Officer in charge, Police station, Shahabad, carrying Poppy Husk. A notice under Section 50 of the act was served upon the accused whereby a personal search was conducted in the presence of a gazetted officer. The accused were found carrying contraband and were subsequently charged under Section 15 of the NDPS Act. The Sessions Judge convicted the accused and sentenced them to undergo rigorous imprisonment for a period of 10 years and pay a fine of 1lakh rupees and further directed the confiscation the vehicles by the State. Aggrieved the said judgement the accused preferred an appeal to the High Court.

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The counsel for the accused contended that the mandatory provision of section 42 of the act has not been complied with, no independent witness were examined, and there has been an unreasonable delay in sending the samples to the Forensic Science Laboratory. On the contrary, the counsel for the state contended that the provisions of Section 42 of the Act are not attracted in the present case and the delay in sending the samples to the Forensic Science Laboratory was trifling.

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The Learned Judge while deciding the appeal, relied on several judgements of the Supreme Court and several other High Courts explaining Section 42 and 43 of the Act, said that Section 42(1) lays down that an authorised officer can carry out a search between sunrise and sunset without any warrant. It was further said that Section 42(2) required that where an officer has taken down information in writing under sub-Section (1) he shall send a copy thereof to his immediate senior officer. But in the instant case, the provisions of Section 42 of the Act were not attracted. The accused were present in two trucks on a public highway and under such circumstances, provisions of Section 43 and not 42 come into play.

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Explaining the difference between Section 42 & 43 of the NDPS Act the Court said that Section 42 and 43 provides with two totally different circularces, while Section 42 deals with entry into and search of any building, or enclosed place, Section 43 deals seizure made in any public place or in transit. A plain reading of Section 43 provides that any officer of any of the departments mentioned in Section 42 may seize any narcotic drug or psychotropic substance etc.in any public place or in transit, in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public. Thus, if a public conveyance is searched in a public place, the officer is not required to record his satisfaction as contemplated under Section 42 of the NDPS Act. The Court further said that it cannot be disregarded that the Superintendent of Police was also a member of the searching party. The Court relied on M.Prabhulal vs. Assistant Director, Directorate of Revenue Intelligence^[1], where it was held that where a search is conducted by a gazetted officer himself, it was not necessary to comply with the requirements of Section 42.

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With regard to the examination of independent witnesses the Court relied on Jarnail Singh v. State of Punjab^[2] and State, Govt. of NCT of Delhi v. Sunil & Anr.^[3], where it was held merely because the prosecution did not examine any independent witnesses, would not necessarily lead to the conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status. The deposition of official witnesses cannot be disbelieved merely because of their official status unless or until there are cogent grounds therefor. Moreover, the raid was conducted in pursuance of the secret information but had much time been consumed in joining independent witness, it would have frustrated the purpose of the raid and provided an opportunity to the accused to slip away from the spot.

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With regard to the delay in sending the samples to the Forensic Science Laboratory, the Court said that an unreasonable delay in sending the samples would render the case of the prosecution doubtful, reference was made to the decision of the Supreme Court in Hardip Singh v. State of Punjab ^[4], wherein it has been held that the delay of 40 days in sending the sample parcels was inconsequential as it had not caused any prejudice to the accused. Moreover in Jarnail Singh v. State of Punjab^[5], there was 12 days delay in sending the samples of narcotic substance for chemical examination, it was held that mere delay in sending the sample parcels for the chemical examination would not be a sufficient ground to conclude that the sample was tampered with.

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The High Court, hence, found that the view taken by the Sessions Court did not suffer from any infirmity or illegality and as such the findings and sentence of the Session Court, are affirmed. With regard to the confiscation of one truck bearing registration number HNU 9589, the Court said that such confiscation cannot be sustained in the eyes of law as the owner of the truck was not afforded a reasonable opportunity of being heard. Moreover, he has not been sought to be prosecuted under Section 25 of the Act, therefore the order with regard to confiscation of a truck bearing registration no HNU 9589 was set aside.

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For case specific advice, one may contact best/top/expert lawyer advocate of Punjab Haryana High Court (Chandigarh Panchkula Mohali Zirakpur Baltana Derabassi Kharar Mullanpur) etc.

The digest has been prepared by Aniket Rai. One can read the entire judgment yourself here.