Delhi High Court (May 15, 2001) 2001 (TLS)125403 2001-JCC (Del)-2-65 NAZIR AHMED Vs. STATE OF DELHI ( 1 ) THIS criminal appeal is directed against the judgment and order dated 11. 08. 1992 of the learned Additional Sessions Judge in Sessions case No. 136/1989 whereby the learned additional Sessions Judge held the appellant guilty under Section 21 NDPS Act and further by a separate order sentenced the appellant accused to undergo R. 1 for 10 years with a fine of Rs. One Lac and in default of payment of fine to further undergo S. I. for one year. ( 2 ) THE case of the prosecution, as has been deposed by PW-6 ASI Om Prakash and reproduced by the learned Additional Sessions judge, is that "on 14. 2. 89-, 1 along with SI mahavir Singh, constable Chander Pal and constable Ramesh Chand was present at chowk prem Narani during patrolling. A secret information was received that one Nazir was standing in Bazar Kali Masjid with smack purias for sale. I recorded the information vide Ex. PW- 6/a. I told the police officials about the information and organised a raiding party. I requested shop keepers Hari Om, Santosh, Salim barber to be witnesses and told them the information. They did not agree on hearing name of Nazir. At about 4. 18 p. m the informer and raiding party proceeded to the spot. On the way rashid and Umardin were also told about the secret information and asked to join the party but they also declined. We reached Kali Masjid, where informer pointed to accused Nazir, who was standing outside P. No. 2965. We all started to run to apprehend the accused. He tried to run away but stumbled on something and fell. we encircled him and made him stand. I told Nazir about the secret information and that he can get himself searched before a Gazetted officer or a magistrate but Nazir declined. I offered my search to accused, but he declined this as well. I gave my search to SI Mahavir Singh vide memo ex. PW-3/a, which bears my signatures at point b . 1 then searched Nazir at about 4. 30 p. m. From the right side pocket of the pant worn by nazir, 42 purias of paper in a polythene Thaili were recovered. These contained brown powder type heroin. I gave my search to SI Mahavir Singh vide memo ex. PW-3/a, which bears my signatures at point b . 1 then searched Nazir at about 4. 30 p. m. From the right side pocket of the pant worn by nazir, 42 purias of paper in a polythene Thaili were recovered. These contained brown powder type heroin. SI Mahavir Singh informed SHO, who came to spot on official jeep. 1 produced the case property and accused before SHO and made my report. SHO talked to Nazir. SHO directed me to put smack of all the purias on one paper and then weigh it. I did accordingly. The weight was 43 grams. 2 Grams smack was taken as sample, as directed by SHO, on a separate polythene paper. Sample and remaining heroin polythene thaili and purias were put in two separate pullandas, which were sealed with seal op. SHO also put his seal on both pullandas i. e. MSC. Form CFSL was filled up. Specimen of seal was put on this form. I gave my seal to SI mahavir Singh. Both the pullandas were seized vide Ex. PW-3b. Smack Ex. Pl, polythene bag ex. P2, pieces of paper used as puria Ex. P3/l to 42 are the same which were recovered from nazir. I sent rukka Ex. PW-6/a through] constable Chander Pal on which formal FIR No. ] 36/89 was recorded by ASI Desa Singh, Duty officer. I prepared site plan Ex. PW-6/c, with correct marginal notes. I correctly recorded statements of witnesses. Accused was arrested. Personal search memo Ex. PW-3/c was prepared. I deposited the case property in malkhana on direction of S. H. O. Sample was sent to CFSL. Report Ex. PW-6/d was receved" and was placed on court file". ( 3 ) THE prosecution, in order to prove the case, examined as many as seven witnesses. Of them, PW-6 the Investigating Officer has stated in his deposition that a secret information was received that one Nazir was standing in Bazar kali Masjid with smack purias for sale. This witness says that he recorded the information vide Ex. PW-6/a in writing and sent for the SHO to organise a raiding party. This witness nowhere states that a copy of Ex. PW-6/a was sent to his superiors, as required under Section 42 (2) of the Act. This witness says that he recorded the information vide Ex. PW-6/a in writing and sent for the SHO to organise a raiding party. This witness nowhere states that a copy of Ex. PW-6/a was sent to his superiors, as required under Section 42 (2) of the Act. learned counsel for the appellant submits that total non-compliance of section 42 (2) would render the trial vitiated as has been held by the Supreme Court in Stale of punjab Vs. Balbir Singh (AIR 1994 SC1872 ). The learned counsel further argues that there is no evidence on record to show that the CFSL form was filed in at the time when the recovery was made nor was there any entry to show that this form was deposited in the malkhana by the sho nor is there any evidence to show that the constable, who took the pullandas deposited with the moharar malkhana also took along with him the CFSL form to deposit the same with the CFSL. In the absence of the CFSL form, the identity of substance sought to be sent for examination cannot be said to be established. He also submits that no notice under Section 50 of the Act was served on the appellant and, therefore, taking the case in totality, he submits that the prosecution has miserably failed to bring home the guilt of the accused. ( 4 ) WITH the assistance of the learned counsel for the parties, I have gone through the record of the case. From a perusal of the evidence of pw-6, It appears that he had recorded the secret information as Ex. PW-6/a. However, there is nothing on record to show that copy thereof was made or was sent to the superior. There is no witness, who has been brought by the prosecution as a superior officer to show that he received a copy of Ex. PW-6/a. In the absence of any material to show compliance of Section 42 (2), I do not see how the argument of the learned counsel for the appellant can be faulted with. Section 42 (2) is a mandatory provision and its violation vitiates the trial as has been held by the Supreme Court in State of Punjab Vs. Balbir Singh (supra ). Section 42 (2) is a mandatory provision and its violation vitiates the trial as has been held by the Supreme Court in State of Punjab Vs. Balbir Singh (supra ). Going by the Judgment of the Supreme Court, I have no hesitation in holding that the judgment under challenge cannot be sustained on this ground alone. I need not, therefore, go into the question of whether the notice under Section 50 was served or not and also as to what is the affect of non-filing of the CFSL form. Suffice it to say that non- compliance of section 42 (2) vitiates the trial and, therefore, the appellant deserves to be acquitted. ( 5 ) IN the forgoing circumstances, I set aside the Judgment of the learned Additional Sessions judge dated 11. 8. 1992 and acquit the appellant of all charges and allow Criminal Appeal No. 207/1992. ( 6 ) THE appellant is on bail. His bail bond is cancelled and sureties stand discharged. ( 7 ) THE record of trial court be sent back forthwith. --- *** --- .