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2001(1) C.G.L.J. 306
HIGH COURT OF CHHATTISGARH, BILASPUR
R.S. Garg, J.
NARMADA PRASAD – Appellant
Vs.
STATE OF M.P. – Respondent
Criminal Appeal No. 2301 of 2000.
Decided on : 15-3-2001.
NDPS Act - Violation of Section 42(1) and 42(2) - Summary of Acts and Sections: Section 42, Narcotic Drugs and Psychotropic Substances Act, 1985 - The court discussed the mandatory provisions of Section 42(1) and 42(2) of the NDPS Act, emphasizing the requirement to record information in writing and send it to the immediate official superior. The judgment highlighted the Supreme Court's observations in State of Punjab Vs. Balvir Singh and State of Punjab Vs. Baldev Singh, emphasizing that non-compliance with these provisions would vitiate the trial.
Fact of the Case:
The appellant was convicted for possession of contraband 'Ganja' under the NDPS Act. The prosecution's case relied on the information received by the police, the search, and seizure of the contraband. The appellant challenged the shaky prosecution evidence and non-compliance with mandatory provisions of the NDPS Act.
Finding of the Court:
The court found that there was non-compliance with the mandatory provisions of Section 42(1) and 42(2) of the NDPS Act, which vitiated the trial. The conviction and sentence were set aside, and the accused was acquitted.
Issues: The key issue was the non-compliance with the mandatory provisions of Section 42(1) and 42(2) of the NDPS Act, and its impact on the trial and conviction of the accused.
Ratio Decidendi: The court's decision was based on the non-compliance with the mandatory provisions of Section 42(1) and 42(2) of the NDPS Act, as highlighted in the Supreme Court's observations in previous cases.
Final Decision: The appeal was allowed, the conviction and sentence were set aside, and the accused was acquitted.
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 Narcotics Drugs and Psychotropic Substances Act, 1985 and sentencing him to undergo R.I. for two years and pay fine of Rs. 1000/- in default of payment of fine, to undergo six months further R.I., has filed this appeal.
2. The prosecution case in brief is that Jagdish Singh Bhadoriya (P.W.6) posted at Police Station Manendragarh, 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 P.W.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 Mohanir 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. Shri Rai 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 (P.W.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 P.W.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 - (1) 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 any other department of the Central Government or of the Border Security Force as s empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or Constable) of the revenue, durgs 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 animal or conveyance whic
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