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2001 Supreme(Chh) 30
HIGH COURT OF CHHATTISGARH
R. S. Garg
NARMADA PRASAD - Appellant
Versus
STATE OF M. P. - Respondents
Criminal Appeal 2301 Of 2000
Decided On : MARCH 15, 2001
Raj Kamal Singh, Ranvir Singh
Non-compliance with mandatory provisions of the NDPS Act, specifically Section 42(1) and 42(2), can vitiate the trial and lead to the acquittal of the accused.
Headnote:
NDPS Act - Non-compliance with mandatory provisions of Section 42(1) and 42(2) - Summary of key legal provisions and interpretations
Fact of the Case:
The appellant was convicted for possession of contraband Ganja under Section 20(b)(i) of the NDPS Act. The prosecution's case relied on the information received by the police, search, and seizure of the contraband.
Finding of the Court:
The Court found that the provisions of Section 42(1) and 42(2) of the NDPS Act, which mandate the recording and submission of information by the empowered officer, were not complied with. The non-compliance of these mandatory provisions vitiated the trial, leading to the acquittal of the accused.
Issues: Non-compliance with mandatory provisions of Section 42(1) and 42(2) of the NDPS Act
Ratio Decidendi: The non-compliance of the mandatory provisions of Section 42(1) and 42(2) of the NDPS Act would vitiate the trial, and the accused is not required to show that he suffered any prejudice because of such non-compliance.
Final Decision: The findings and conviction by the lower court were set aside, and the accused was acquitted of the charges.
( 1 ) THE appellant being aggrieved by the judgment dated 24-8-2000 passed in Special Case No. 103 of 1998 by the learned Special Judge (NDPS Act), Sarguja (M. P.), convicting the appellant for the offence punishable under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to undergo RI. for two years and pay fine of Rs. 1,000/-, in default of payment of fine, to undergo six months further RI. has filed this appeal.
( 2 ) THE prosecution case in brief is that Jagdish Singh Bhadoriya (PW 6) posted at Police Station Mahendragarh on receiving the information on 15-5-1998 that somebody was coming with contraband Ganja, went to the spot with Head Constable 941 Ganpat Pandey and Constable No. 899 Suresh Kumar to Fabbara Chowk. At about 5. 45 on coming accused was seen and after the informer raised his fingers towards the accused the accused was apprehended, a notice under Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 was given to him and after seeking the consent of the accused to be searched by PW 6 Jagdish Singh Bhadoriya, a search was conducted in which about 400 grams of Ganja was recovered from the possession of the accused. The said Ganja was weighed on the spot two samples were drawn from the contraband and were properly sealed. The accused was brought to the police station where the First Information Report was recorded the contraband and samples were given to Police Station Maharrir for being kept in safe custody. The samples were sent for their chemical analysis. On completion of investigation, a challan in accordance with law, was submitted by the police agency against the accused in the competent Court.
( 3 ) AFTER recording the evidence and hearing the parties, the learned Trial Court convicted the accused and sentenced him accordingly.
( 4 ) MR. Raj Kamal Singh, learned Counsel for the appellant submits that the prosecution evidence is shaky, the Court below was not justified in relying upon the statements of said Bhadoriya (PW 6) and in absence of the evidence that the narcotics and samples were sealed and that the concerned police officer had recorded the information and sent the same immediately to the officer immediate superior to him and as there are violations of the mandatory provisions of the NDPS Act, the appellant deserves to be acquitted. On the other hand, learned Counsel for the State submits that the Court below was not unjustified in relying upon the statement of PW 6 Bhadoriya who has been supported by the other witnesses.
( 5 ) SECTION 42 of the NDPS Act reads as under: 42 power of entry, search, seizure and arrest without warrant or authorisation- (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or another department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance in respect of which an offence punishable, under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place may, between sunrise and sunset (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any anima
