Point of Law: Narcotics Drugs - Acquittal under - Non compliance of provision of S. 42 of NDPS Act - As non compliance vitiates the Trial.

JUDGMENT :

REVATI MOHITE DERE, J.

1. By these appeals, the appellants have impugned the judgment and order dated 30th December 2014, passed by learned NDPS Special Judge, City Civil and Sessions Court, Greater Bombay, in NDPS Special Case No. 148 of 2010, convicting and sentencing them, as under:-

“for the offence punishable under Sections 8(c), 20(b)(ii)(c) r/w 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to suffer rigorous imprisonment for 15 years and to pay fine of Rs. 1 lakh each, in default of payment of fine, to undergo rigorous imprisonment for 1 year.

for the offence punishable under Sections 28 r/w 8(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to suffer rigorous imprisonment for 15 years and to pay fine of Rs. 1 lakh each, in default of payment of fine, to undergo rigorous imprisonment for 1 year.

Both the aforesaid sentences were directed to run concurrently and sentence in default of fine was directed to run consecutively.”

2. A few facts as are necessary to decide the aforesaid appeals, are as under:-

On 8th May 2010, specific information was received by PW-1 Sanjay Kumar Sinha, Intelligence Officer, that “one Gurmeet Singh, aged 24 years, resident of Jammu is to deliver a substantial quantity of Hashish, a Narcotic Drug under the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’) to a person by the name Pyarelal Shridhar Keer @ Pahalwan, aged 50 years, a resident of Room No. 7, Shiv Ram Sadan, Veer Savarkar Marg, Prabhadevi, Mumbai and that Gurmeet Singh would be coming in a white Maruti Car in front of ICICI Prudential Bank Building at Veer Savarkar Marg, Prabhadevi, Mumbai, at around 11:00 p.m.”

On receipt of the said information (Exhibit-31), PW-1 Sanjay Kumar Sinha, forwarded the same, at around 7:00 p.m. to PW-6 Claudius Fernandes as well as to the Zonal Director, Yashodhan Wanage. Accordingly, the Zonal Director gave permission to PW-2 Davinder Singh to proceed with the raid.

Thereafter, the officers of the Narcotic Control Bureau (‘NCB’) organised a raid and maintained surveillance at the spot alongwith two independent panch witnesses from 10:30 p.m. onwards. It appears that shortly thereafter, a vehicle mentioned in the information (Exhibit-31) arrived at the spot and the said vehicle was parked in front of the ICICI Prudential Bank Building. After some time, a middle aged person of wheatish complexion (Gurmeet Singh) arrived near the said vehicle carrying a white polythene bag. It is alleged that after a brief talk with the driver (Pyarelal Shridhar Keer @ Pahalwan) of the said car, the said person (Gurmeet Singh) sat on the rear seat of the car. Immediately, thereafter, the officers of NCB encircled the car and asked the occupants to come out of the car. The officers introduced themselves and asked the persons in the car their names. The said persons gave their names as Gurmeet Singh and Pyarelal Shridhar Keer @ Pahalwan.

The officers disclosed the information so received to both the appellants. On enquiry, the appellant-Gurmeet Singh allegedly disclosed that a total of 40 packets of Hashish were concealed in the gas cylinder and in the cavity made in the rear seat and rear door panels. Accordingly, the officers of the NCB took the car to the NCB office at Ballard Pier, Fort, Mumbai for conducting inspection. Thereafter, a detailed search and examination of the car was undertaken and the said examination resulted in recovery of 40 packets of 1 kg Hashish from the cavity of the said car. All the packets were opened. They tested positive for Hashish when examined by the field testing kit. Thereafter, samples were taken and necessary formalities with respect to sealing were completed. The bulk as well as the samples were deposited in the godown on 9th May 2010 at 10:45 a.m. Thereafter, the statements of the appellants were recorded under Section 67 of the NDPS Act and the appellants were placed under arrest on 9th May 2010 in the evening. After completion of