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2019 Supreme(Bom) 596
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Revati Mohite Dere, J.
Daulatram @Dolly Trilok Singh – Appellant
Vs.
State of Maharashtra – Respondent
Criminal Appeal No. 588 of 2008, 570 of 2008, 580 of 2008
Decided On : 16-04-2019
Dilip Mishra, Adv., Nasreen Ayubi, Adv., S.V. Gavand, Adv.
Mandatory nature of Section 42(2) of the NDPS Act and the requirement for compliance with the provision.
Headnote:
NDPS Act - Conviction under Section 8(c) read with Section 20(b) - Summary of Acts and Sections: NDPS Act, 1985, Section 8(c), Section 20(b), Section 29, Section 42(2) - The court discussed the compliance of Section 42(2) of the NDPS Act, emphasizing the mandatory nature of the provision and citing the case law to illustrate the requirements and acceptable compliance. The court found that the prosecution failed to prove compliance with Section 42(2), leading to the acquittal of the appellants.
Fact of the Case:
The appellants were convicted and sentenced under Section 8(c) read with Section 20(b) of the NDPS Act for possession of charas. The prosecution's case was based on a raid conducted by the Anti Narcotic Cell, where the appellants were apprehended with the contraband.
Finding of the Court:
The court found that the prosecution failed to comply with the mandatory provision of Section 42(2) of the NDPS Act, which led to the acquittal of the appellants.
Issues: Non-compliance with Section 42(2) of the NDPS Act
Ratio Decidendi: The court emphasized the mandatory nature of Section 42(2) and cited case law to illustrate the requirements and acceptable compliance. It found that the prosecution's failure to prove compliance with Section 42(2) led to the acquittal of the appellants.
Final Decision: The Appeals were allowed, the conviction and sentencing of the appellants were quashed and set aside, and the appellants were acquitted of the offences.
Revati Mohite Dere, J.
The Appellants vide Judgment and Order dated 11th June, 2008, passed by the learned Special Judge (under the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the NDPS Act'), City Sessions Court, Greater Bombay, in NDPS Special Case No.91 of 2007, have been convicted and sentenced as under:-
- for the offence punishable under Section 8(c) read with Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 to suffer rigorous imprisonment for 18 months and to pay fine of Rs.10,000/- each, in default, to suffer further rigorous imprisonment for 1 month.
The Appellants along with other co-accused, were however acquitted of the offence punishable under Section 8(c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. The prosecution case in brief is as follows:-
According to PW6 - Manisha Anant Shirke, PSI attached to Anti Narcotic Cell (ANC), Kandivali Unit, she received information (Exhibit - 48) on 8th November, 2006 at about 06.10 hrs. at the Kandivali Unit, to the effect that three persons were coming near Hotel Holiday Inn, at Juhu at around 10.30 to 11.00 hrs. to sell charas to their customers. The said information was noted in the Station Diary and the information was forwarded to the superiors. A copy of the information is stated to have been sent to the superiors through WPC Pataskar. Accordingly, a team was formed under the supervision of P.I - Angle. Head Constable Shewate is stated to have brought two panch witnesses. On arrival of the two panchas, a pre-trap panchanama was drawn and a team comprising of P.I - Angle, PW6 - P.S.I. Manisha Shirke, PW4 - P.S.I. Dilip Shinde (complainant), P.S.I. Chavan, and five other staff members and two panchas, left the Kandivali Unit for conducting the raid at 08.45 hrs. The police vehicle was parked in the parking area, opposite the main gate of Hotel, 'Holiday Inn' at around 09.35 hrs. Thereafter, the team proceeded to the spot situated near Sea Star Building, Balraj Sahani Marg, Near Holiday Inn, Juhu. Two teams were formed. At around 10.10 hrs. three persons were noticed coming from the directiopn of Balraj Sahani Marg. The said persons stood near the Western Side. All the three persons are alleged to have been carrying bags in their hand. After 10 minutes the said three persons were apprehended. After Section 50 of the NDPS Act was complied with, search of the said three persons was conducted, which resulted as under:-
(i) The appellant - Bampada @Bamdeo @Ity Sanatan Adak, was found to be carrying 3 kgs 100 gms of charas in his bag;
(ii) The appellant - Shahmohammed Salatmatmiya Shah, was found to be carrying 2 kgs of charas; and
(iii)The appellant - Daulatram @Dolly Trilok Singh, was found to be carrying 1 kg of charas.
Other articles found on their person were also seized.
Samples were drawn and thereafter post-trap panchanama was drawn by PW6 - P.S.I. Manisha Shirke. Thereafter, the raiding party along with panchas, the appellants and the seized articles returned to the Cuffe Parade Police Station, where PW4 - Dilip Shinde, lodged an FIR, which was registered vide C.R.No.319 of 2006. Thereafter, the muddemal was deposited in the warehouse. The statements of panchas were recorded and Special report (Exhibit - 52) was submitted to the superiors. On 9th November, 2006, PW2, Police Constable Hanumant Patil was called to the Cuffe Parade Office by PW6 - P.S.I. Manisha Shirke and was handed over two letters i.e. for collecting the muddemal from the warehouse (Exhibit - 28) and for forwarding the same to the FSL for analyzing the sample packets (Exhibit-29). On 9th November, 2006, the samples were forwarded to the FSL. After investigation, charge-sheet was filed as against the appellants. Charge was framed as against the appellants, to which they pleaded not guilty and claimed to be tried.
The prosecution in support of its case examined 6 witnesses. PW1-Sandeep Chetti, Assistant Chemical
