RAJ KUMAR KAPOOR ALIAS KAKA Vs. STATE

JUDGEMENT

(1.) By this criminal appeal Raj Kumar Kapoor Kaka has challenged the order dated 28.10.1999 of the Special Judge, Delhi convicting him under Sections 21/25/61/85 of the NDPS Act, 1985 (for short 'the Act'), and the order dated 30.10.1999 sentencing him to undergo rigorous imprisonment for 10 years under Section 21 of the Act together with fine of rupees one lac and in default thereof to undergo further imprisonment for two years. The prosecution case as unfolded by the charge-sheet is that on the basis of secret informaiton reduced into writing. Inspector Mahesh Chand Sharma arranged for a raiding party and apprehended a Scooter No. DL-8S-1520 on 7.7.1996 at about 10.15 p.m. at the Southern-Western Side, Guru Sai Dutt Parmanand Colony and after serving the notice under Section 50 of the Act, recovered 100 grams of heroin from his possession, which was taken into possession and a sample of 5 grams was drawn from it and separately sealed. A sample was got chemically analysed and found to be heroin. The case against Desh Raj is that he had abated and helped Raj Kumar to deal in smack. The prosecution in order to bring home the guilt of the accused, examined as many as 11 witnesses. The learned Special Judge, on a perusal of the evidence, returned the finding that the appellant is gulty of offence committed under Section 21 of the NDPS Act for having possession of 100 grams of heroin. His co-accused Desh Raj was acquitted of all the charges. The learned Special Judge by his order dated 30.10.1999 was pleased to sentence the appellant for 10 years under Section 21 together with fine of Rs. one lac and in default thereof to further undergo imprisonment for two years. At the threshold, learned Counsel for the appellant has argued that there is violation of Section 42(2) of the NDPS Act inasmuch as the secret information taken down was not forwarded to the superior officers as required by Section 42(2) of the Act. He argues that Section 42(2) is mandatory and its non- compliance would vitiate the trial. He draws my attention to Abdul Rashid Ibrahim Mancuri v. State of Gujarat, 2000 SCC (Crl) 496 = (2000) SLT 580 =I(2000) CCR 155 (SC), where it is held that Section 42 is mandatory and if this mandatory provision is violated, inherent prejudice to the accused has to be read into the violation. That being so, the conviction would suffer. The law does not look kindly upon violation of mandatory provisions specially in an enactment, which spells drastic consequences. Its compliance must be ensured in letter and spirit. Any violation of the mandatory requirements must enure to the benefit of the accused. In the present case, the Investigating Officer, in his deposition states as follows:

(2.) A reading of the above leaves no manner of doubt that Section 42(2) has been violated. The Supreme Court has ruled that Section 42 is mandatory in nature, its non-compliance cannot be handled with butter fingers but must be frowned upon. Prejudice caused to the accused must necessarily be read to his benefit. The Supreme Court in Abdul Rashid Ibrahim Mansuri's case (supra), while dealing with Section 42(2) of the Act has referred, with approval, another judgment of the Supreme Court in State of Punjab v. Balbir Singh, (1994) 3 SCC 299=1 (1994) CCR 146 (SC), and has quoted the following paragraph:

(3.) Again in Koluttumottil Razak v. State of Kerala, 2000 SCC (Cri.) 829, the Supreme Court has held as under: