TSERING TOBGES Vs. UNION OF INDIA AND ORS.

JUDGEMENT

(1.) THESE two applications can be conveniently disposed of by this common order as the applicants were prosecuted and convicted in a single case namely Special (NDPS) Case No. 14 of 2011 tried by the Special Judge at Nasik. The applicants were convicted of offences punishable under Section 20(b) read with Section 20(ii)(c) of the Narcotics Drugs and Psychotropic Substances (NDPS Act) and Section 29 read with Section 20(ii)(c) of NDPS Act, and sentenced to suffer Rigorous Imprisonment for 15 years each, and to pay a fine of Rs. 2 Lac each, on each of the said two counts. The applicants have filed separate appeals before me, which have been admitted, and are pending. By the present applications, the applicants pray that, pending the hearing and final disposal of the appeals filed by them, the substantive sentences imposed upon them by the learned Special Judge be suspended and they be released on bail.

(2.) I have heard Mr. Ayaz Khan, the learned counsel for the applicants. I have heard Mr.D.A. Nalawade, the learned Public Prosecutor for the Union of India. With their assistance, I have glanced through the evidence, adduced during the trial. I have also been taken through the relevant parts of the impugned judgment.

(3.) MR . Ayaz Khan raised a number of contentions. According to him, in the first place, there had been no satisfactory compliance with the provisions of Section 42 of the NDPS Act. He submitted that it was incumbent upon the officers of NCB to have recorded the received information in a register, but in this case, admittedly, it was simply typed on a loose paper. He also pointed out that the evidence of the witnesses did indicate the existence of a register mentioned as 'Intelligence Register,' but the entry in respect of the said information was still not made in the register, on the ground that such entry would be made only when the informers would claim a reward. According to Mr. Khan, in view of the observations made by the Supreme Court of India in Karnail Singh vs. State of Haryana reported in : (2009) 3 Supreme Court Cases (Cri) 887, this would not be construed as sufficient and proper compliance with the provisions of Section 42 of the NDPS Act. He submitted that non -compliance with the provisions of Section 42 has been held fatal to the prosecution, in a number of pronouncements of the Supreme court of India. Mr. Khan also contended that a reading of sub -section (2) of Section 41 indicates that the authorization to search could be issued by a Gazetted Officer, only if the information is received by him in person. He submitted that this is borne out from the language used in sub -section (2) of Section 41.