KULDEEP SINGHversusSTATE OF PUNJAB

                [2010] 15 (ADDL.) S.C.R. 297


                      KULDEEP SINGH                                A
                                  v.
                    STATE OF PUNJAB
            (Criminal Appeal No. 1842 of 2010)

                   SEPTEMBER 23, 2010
                                                                   B
       [ALTAMAS KABIR AND A.K. PATNAIK, JJ.]

     Narcotic Drugs and Psychotropic Substances Act, 1985:

     s. 42 - Non-collection of samples of contraband at initial    c
stage of seizure - Seizure of 150 kg poppy husk concealed
in four bags - Contraband sealed and taken to Police Station
- S. H. 0. at the Police Station broke open the seals, mixed
the contraband, took samples and again sealed the bags -
Conviction of accused - HELD: Non-collection of samples at         0
the initial stage of seizure was a defect, which could not have
been cured in the manner in which it was done by opening
the bags which had been sealed by PW-2 and mixing the
contents thereof - The seizure and collection of samples was
not in accordance with the provisions of s.42 of the Act and
the entire procedure stood vitiated as a result - Conviction       E
and sentence set aside - Interpretation of Statute.

     s. 42 - Information regarding contraband to be recorded
and sent to superior officer - On receipt of secret information,
Police Officer on patrol duty seized the contraband -              F
Information recorded thereafter and sent to superior officer -
HELD: There was substantial compliance of the provision.

    Interpretation of Statutes:

     Strict construction - HELD: Provisions of NDPS Act have       G
to be construed strictly.

    Kamai/ Singh vs. State of Haryana 2009 (11) SCR 470
= 2009 (8) sec 539 - referred to.
                              297                                  H
    298    SUPREME COURT REPORTS (2010) 15 (ADDL.) S.C.R.


A                          Case Law Reference:
          2009 (11) SCR 470        referred to             para 7

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1842 of 2010.
B
        From the Judgment & Order dated 22.7.2008 of the High
    Court of Punjab and Haryana at Chandigarh in Criminal Appeal
    No. 628 of 1997.

         Rajesh Sharma, Yogesh Dahiya, Shalu and Sahil Bali for
C   the Appellant.

        Jayant K. Sud, Atul Shai, Aman Raj Gandari and Kuldip
    Singh for the Respondent.

          The following order of the Court was delivered
D
                               ORDER

          Leave granted.

E        This appeal is directed against the judgment and order
    dated 22nd July 2008, passed by the Punjab & Haryana High
    Court, in Crl. Appeal No. 628-SB of 1997, dismissing the
    appeal of the appellant which had been filed by the appellant
    against his conviction by the learned, Special Judge, Sangrur,
    under Section 15 of the Narcotic Drugs & Psychotropic
F   Substance Act, 1985 (NDPS Act). According to the case of the
    prosecution, P.W.3, Mr. Malkiat Singh, Sub-Inspector of Police
    Station, Bhawanigarh, was said to have been on patrol duty
    when a secre information was received by him that the
    appellant was dealing with Poppy Husk from his residence. On
G   receipt of the said information the said Malkiat Singh, along
    with Head Constable Gurmail Singh, Constable Gamdoor
    Singh, Head Constable, Jagga Ram, PHG Rajinder Singh and
    SPO Hari Singh, went to the house of the appellant and upon
    questioning him they came to learn that he had concealed
H
        KULDEEP SINGH v. STATE OF PUNJAB                       299


  certain amount of contraband. Based on the said part of the          A
  information which was admissible under Section 27 of, the
  Evidence Act, a recovery was made of four bags of Poppy Husk.
  At the time of seizure of the said contraband, no samples were
  taken by P.W.3. The same was seized by Mr. Malkiat Singh,
  who also sealed the same with his seal, and thereafter, the four     B
. bags were taken to the Police Station where the Station House
  Officer, Gurmail Singh, broke open the seals and mixed the
  contents of the four bags together, and took the samples
  therefrom and resealed the bags with his seal. At that point of
  time, the poppy Husk was weighed and found to be 150                 c
  kilograms of Poppy Husk in all. A charge was framed against
  the appellant under Section 15 of the NDPS Act, and, ultimately,
  he was found guilty and sentenced to 10 years' rigorous
  imprisonment and to pay a fine of Rs. 1,00,000/-, in default, to
  undergo rigorous imprisonment for a further period of two and
                                                                       0
  a half years.

       Aggrieved by the said order of conviction, the appellant
 moved the High Court, which agreed with the findings of the
 Trial Court, and dismissed the appeal. It is against the said
 order of Jiismissal that the instant Special Leave petition was       E
 filed, and this appeal arises therefrom.

      Mr. Sahil Bali, learned advocate for the appellant,
 submitted that in view of what has been stated hereinabove by
 the Investigating Authorities, it would be evident that the           F
 provisions of Section 42 of the aforesaid Act had not been
 complied with, and that, as has been held in several cases by
 this Court, since the provisions of the Act are very stringent they
 have to be construed very strictly also. Mr. Bali urged that by
 not taking samples at the initial time of seizure, P.W. 3, Malkiat    G
 Singh had committed an error which could not have been
 rectified in the manner done by the Station House Officer
 (P.W.2.). He also urged that since the information received by
 PWc3, Mr. Malkiat Singh, has not been reduced into writing and
 forwarded to his Senior officer, the seizure also stands vitiated
                                                                       H
    300   SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A under Section 42 of the N.D.P.S. Act.

      It was lastly contended by Mr. Bali that even Roqa, which
  was subsequently sent could not wipe out the illegalities with
  regard to the collection of samples and, accordingly, the
B conviction and sentence of the appellant was liable to be set
  aside.

        On behalf of the State of Punjab, Mr. Atul Sahi, learned
  advocate, appearing with Mr. Sud, submitted that there had been
  substantial compliance with the provisions of Section 42 of the
C aforesaid Act having particular regard to the fact that the secret
  information was received by Mr. Malkiat Singh when he was
  on patrol duty, and, therefore, had no opportunity to write down
  such information in writing and send the same to his Superior
  Officer prior to raiding of the appellant's premises. It was urged
D .that once the seizure had been effected, the evidence was
  recorded in writing, and, thereafter, sent to the Superior Officer.

       As to the legality of mixing of the samples in the Police
  Station, reliance was placed on a Constitution Bench decision
E of this Court in Kamai/ Singh Vs. State of Haryana, (2009) 8
  SCC 539, wherein the provisions of Section 42 were also
  considered and it was felt that where non-compliance of
  Section 42 did not cause any prejudice to the accused, the
  same would not vitiate the prosecution case.

F      Having considered the submissions made on behalf of the
  parties, while we are willing to accept the propositions
  advanced on behlaf of the State of Punjab as far as substantial
  compliance of Section 42 of the NDPS Act, 1985, is
  concerned, we are unable to accept the latter part of the
G submissions relating to collection of samples at the Police
  Station from the sezied goods which had been sealed by P.W.
  3, Malkiat Singh. Non-collection of samples at the initial stage
  of seizure was a defect, which could not have been cured in
  the manner in which it was done by opening the bags which
H
       KULDEEP srNGH \/. STATE OF PUNJAB                    301


had been sealed by Malkiat Singh and mixing the contents           A
thereof.

     Accordingly, as indicated hereinabove, since the
provisions of the aforesaid Act have to be construed strictly,
we have no other option but to hold that the seizure and
                                                                   8
collection of samples was not in accordance with the provisions
of Section 42 of the Act and the enti~e procedure stood vitiated
as a result thereof.

    Accordingly, the appeal is allowed. The judgment of
conviction and sentence of the appellant passed by the learned     C
Sub-Judge in Special Case No. 27/93, are set aside. In the
event the fine imposed has already been paid, the same is to
be refunded to the appellant.

R.P.                                           Appeal allowed.     0