- (1.) ONKARESHWAR Bhatt, J. This appeal has been directed against judgment and order dated 21-12-1995 passed by the then Special Judge/ (Sessions Judge), Maharajganj in Special Sessions Trial No. 25 of 1992. The appellant has been convicted under Sections 21/23 of the Narcotic Drugs & Psychotropic Substances Act, herein-after referred to as the Act, and sentenced to ten years rigorous imprisonment and a fine of Rupees one lakh. In default of payment of fine two years' rigorous imprisonment has been awarded.
(2.) SRI Ajay Bhanot learned Counsel for the appellant, and the learned A. G. A. appearing for the Union of India, have been heard. According to the prosecution case, P. W. 1 Rajesh Kumar Singh and P. W. 2 P. D. Gupta alongwith others were posted in customs office at Sonauli, Mahrajgaj. On 5-2-1992 at about 8 a. m. P. W. 1 Rajesh Kumar Singh received secret information that the appellant is coming from Nepal bringing heroin hidden in his shoes. The information was taken down in writing and was taken to the Superintendent of Customs at Nautanwa by P. D. Gupta P. W. 2. According to the prosecution case, the Superintendent of Customs came to Sonauli office at 8. 45 a. m. Two witnesses from public, namely, Sri Narain Tripathi P. W. 3 and one Wazid Ali were called. At 9 a. m. the appellant came infront of the customs office and he was required to give search. In the office search was carried and from the shoes of the appellant in between the soles one packet each of polythene containing heroin was recovered. The weight of the packets was 1000 Grams each. After weighment our of 200 Grams three samples were prepared. One sample was kept in envelop and was sealed. The other two samples were also sealed in the above manner. The remaining contraband was sealed separately alongwith shoes. According to the prosecution case, the appellant gave written statement and signed the same. A recovery memo was prepared and thereafter the Superintendent of Customs recorded the statement of the appellant. The recovered contraband was sent for analysis to Ghazipur opium factory and it was found to be cocaine hydrochloride. Thereafter complaint was filed by P. W. 1 Rajesh Kumar Singh.
(3.) DEFENCE of the appellant is that Inspectors of customs planted the contraband and he was forced to sign certain papers and that he has been falsely implicated in this case. P. W. 1 Rajesh Kumar Singh and P. W. 2 P. D. Gupta are the Inspectors in customs office at Sonauli. They have been examined as witnesses of fact and they have stated about the search and seizure of the contraband from possession of the appellant. P. W. 3 Sri Narain Tripathi, a public witness, has not supported the prosecution case and has been declared hostile. According to the prosecution case, search of the appellant and seizure of the contraband was made on the basis of secret information. Section 42 of the Act provides that search, seizure and arrest can be made when the officer had reason to believe on information given by any person and taken down in writing that an offence punishable under Chapter IV in respect of psychotropic substance has been committed. The information which is given by any person should be taken down in writing as is provided in Section 42 (1) of the Act. In has not come in evidence that the information which was given to P. W. 1 Rajesh Kumar Singh was taken down in writing by him. All that has come in evidence is the fact that written information was sent to the Superintendent of Customs at Nautanwa in pursuance of which the Superintendent is alleged to have come to Sonauli office. Even that written report is not on record of the case. There is no paper on the record to show that written information was sent to the Superintendent. The fact remains that the information which was given to P. W. 1 Rajesh Kumar Singh, which under law he was required to down in writing, is not on record of the case. Sending written information to the Superintendent is one thing and the requirement of law that information should be taken down in writing is another thing which has not been complied with in this case. It has been held in the case of State of Punjab v. Balbir Singh, reported in 1995 (1) JIC 382 (SC) 1994 SCC (Criminal) 634, that it is obligatory that officers mentioned in Section 42 (1) of the Act on receiving the information should reduce the same to writing. It has further been held that to that extent the provision is mandatory and failure to comply with its requirements affects the prosecution case and vitiates the trial.;