Failure to comply with statutory provisions for search and seizure under the Narcotic Drugs Act renders the evidence inadmissible, justifying an acquittal.

JUDGMENT :

Sanjib Banerjee, C.J.

The short question that arises in this appeal is as to the effect of admitted non-compliance with the condition laid down in the second proviso to Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the impact of such non-compliance on the seizure.

2. By the judgment and order impugned dated February 22, 2011, the two accused persons were acquitted by the trial court primarily on the ground that the sanctity of the seizure of contraband could not be accepted and on an incidental ground that Section 55 of the said Act had also not been complied with.

3. The Union, through the Customs Department, is in appeal since it was a Customs official who had made the alleged recovery. According to the Union, there was substantial compliance with the relevant provision and, in any event, since the recovery was made from a vehicle in a public place, the trial court ought to have read the situation in the light of Section 43 of the said Act instead of Section 42 thereof. As to the incidental ground indicated in the impugned judgment pertaining to Section 55 of the said Act, the Union claims that such provision would have no manner of application since the seizure in this case was not by the police but by Customs authorities. The Union submits that the appropriate provision in this case, instead of Section 55 of the Act, would have been Section 52 (3)(b) thereof. However, the Union contends that in the light of the much larger issue as to whether the conditions precedent to the applicability of Section 42 of the Act were complied with, it is only upon the Union succeeding on such aspect would it be necessary to go into the incidental aspect, whether under Section 55 or under Section 52 (3)(b) of the Act.

4. It is, thus, that the matter is taken up for consideration, primarily as to whether it was necessary to comply with Section 42 of the Act or the conditions precedent to its application; or, whether by virtue of Section 43 of the Act, the strict rigours of Section 42 of the Act need not have been adhered to.

5. Sections 42 and 43 of the said Act have to be seen in the context of Section 41 thereof and as distinct situations which are exceptions to the rule which is recognised in Section 41 of the Act. Section 41 of the Act is the first provision in Chapter V of the said Act. The relevant chapter covers Sections 41 to 68 and is intituled as “Procedure”. Such chapter is followed by an entire chapter which has been incorporated by an amendment and covers forfeiture of illegally acquired property.

6. Section 41 of the Act recognises the power to issue a warrant and authorisation, inter alia, for the arrest and for the search, whether by day or by night, of any building, conveyance or place, in certain circumstances. In either case of issuing a warrant or authorisation, it is a high official as a designated magistrate or a gazetted officer who must have reason to believe that action in terms of such provision is required to be taken.

7. Section 41 (1) of the Act authorises a metropolitan magistrate or a magistrate of the first class or any magistrate of the second class specially empowered by the State government to issue a warrant, whether the purpose for issuance of the warrant is for the arrest of any person whom such magistrate has reason to believe to have committed any offence punishable under the Act or for the search of any building, conveyance or place in which such magistrate has reason to believe that any narcotic drug or psychotro