Compliance with Sec. 42 of the NDPS Act is mandatory, and failure to adhere to its provisions can result in the acquittal of the accused.

JUDGMENT/ORDER

1. This appeal filed by the appellants under Sec. 374(2) of Cr.P.C. for setting aside the judgment of conviction and sentence passed by the Principal District and Sessions Judge (Special Judge) Tumkur (referred as "trial Court" for short) in Spl.Case No.217/2010 dtd. 8/12/2011 for having found the accused guilty, convicted and sentenced them to undergo imprisonment for a period of 4 years and pay a fine of Rs.25, 000.00 each and in default of payment of fine, they shall undergo further imprisonment for a period of 6 months for the offense under Sec. 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short " NDPS Act ").

2. Heard the learned counsel for the appellants and learned High Court Government Pleader for respondent- State.

3. The rank of the parties before the trial Court is retrained for the sake of convenience.

4. The case of the prosecution before the trial Court is that P.W.7 one K.R.Chandrashekar received credible information on 4/10/2010 that in the lands of the accused at Kammanakote village where they stated to have grown ganja plants among other crops. In that regard, he secured panchas P.W.1, P.W.2 and Photographer P.W.3, went to the spot i.e. lands of the accused, where accused No.1 was present. On verification of the lands, it was found that the accused have grown ganja plants. He plucked the ganja plants and on counting it was found that there were 35 ganja plants weighing about 35 Kgs. The same was sealed under the panchanama and arrested the accused, came to the Police Station, filed report to P.W.9. Based on the report of P.W.7, P.W.9 registered First Information Report (for short "FIR") in Crime No.127/2010 and accused were sent to judicial remand. P.W.10 took up further investigation and filed charge sheet. After taking cognizance, the Special Court framed charges against appellants No.1 to 3, who said to have belonged to same family. They have pleaded not guilty and claimed to be tried. Accordingly, the Prosecution called upon to adduce evidence.

5. The prosecution to prove its case, in all examined 10 witnesses and got marked 9 documents and 3 material objects. After closing the prosecution evidence, the statement of accused under Sec. 313 Cr.P.C. was recorded. The incriminating evidence adduced against the accused was read over to them and the case of the accused is one of total denial but not entered any defense. Accordingly, after hearing the arguments, the Trial Court found the accused guilty, convicted and sentenced to undergo imprisonment as stated above. Being aggrieved with the same, the appellants are before this Court.

6. Learned counsel for the appellants contended that the Investigating Officer/P.W.7 has not recorded the credible information in writing prior to proceeding to the spot for search and seizure of contraband articles. It is also contended that the report was not submitted to the Higher Officer within 72 hours as per Sec. 42(2) of the NDPS Act. The trial Court has not considered these mandatory provisions which cannot be escaped from its strict compliance under the NDPS Act, which is not followed by the Investigating Officer. The panch witnesses, P.W.2 and Photographer P.W.3 turned hostile. Except the evidence of Investigating Officer and P.W.1, who is an official witness, none of them have supported the case of the prosecution. Hence, the Trial Court has committed error in accepting the evidence of prosecution and convicting the accused. Hence, prayed for setting aside the conviction and sentence.

7. Per contra, learned HCGP supporting the judgment of the trial Court contended that the mandatory provisions of Sec. 50 of the NDPS Act are not applicable to the case on hand and sending report to the Higher Officer regarding search and seizure under Sec. 57 is only directory and not mandatory. The trial Court considering the evidence of P.W.1 and P.W.7 to P.W.10 rightly convicted the appellants. Hence, prayed for dismissal of the appeal.

8. Ha