ORDER

The petitioners have challenged the prosecution launched against them in Spl.C.C.No.3/2020 registered by the Udupi CEN Police Station for the offences punishable under Sections 8(c), 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘N.D.P.S. Act’), which is pending trial before the Principal District and Sessions Judge, Dakshina Kannada, Udupi (henceforth referred to as 'Trial Court').

2. It is alleged that on 06.09.2018 at about 12.30 p.m., an informant telephoned the investigating officer and informed him that a few students were consuming Ganja at Flat No.204, Aditi Apartment, Vidya Ratna Nagar, and that they had also stored Ganja for sale. The investigating officer purportedly entered the information in the Station House Diary and informed his superiors and obtained permission to raid the premises. He also requested the District Health and Family Welfare Officer to depute a Gazetted Officer to conduct a search, consequent to which Dr.Vasudeva was deputed. It is also alleged that two panchas were requested to co-operate in the raid and they accepted. Later, the Sub-Inspector along with three Head Constables and three witnesses went to the spot in Jeep, while two other police personnel reached the spot on their bikes. The premises was raided and the occupants were searched. The accused No.1 brought two shoulder bags kept in a compartment of a wooden rack, which contained Ganja leaves, seeds, buds and plants. The said accused disclosed that 3 kilos of Ganja was supplied of which, they had consumed a small portion and they sold 10 grams. packet to the students at Rs.500/-. The accused disclosed that they were not authorised to sell Ganja. The accused were offered to inspect the raiding party. Thereafter, the Ganja packs were seized which weighed 1 kilo 254 grams and 1 kilo 550 grams respectively. A mahazar was drawn on the same day between 1.45 to 3.45 p.m. at the spot and a case in Crime No.80/2018 was registered for the offence punishable under Sections 8(c), 20(b)(ii)(B) of the N.D.P.S. Act.

3. The accused Nos.1 to 7 were produced before the Magistrate, who were remanded to judicial custody. The accused were later enlarged on bail. The respondent conducted an investigation and filed a final report under Section 173 of Cr.P.C. for the offences punishable under Sections 8(c), 20(b)(ii)(B) and Section 27(b) of N.D.P.S. Act. The Trial Court took cognizance of the aforesaid offences and issued process to the accused and registered Spl.C.C.No.3/2020 for the offences punishable under Section 8(c), 20(b)(ii)(B) and Section 27(b) of the N.D.P.S. Act.

4. Being aggrieved by the same, the petitioners have filed this petition.

5. The learned counsel for the petitioners contended that, (i) that the respondent had not complied with the mandatory provisions of law while conducting a search and seizure as prescribed under Section 41(2) of the N.D.P.S. Act, in as much as the investigating officer had not taken down the information in writing. She contended that the charge-sheet discloses that the entries in the Station House Diary was made after the search, seizure and arrest of the accused persons. She therefore, contends that the mandatory provision of law was not complied.

(ii) that the respondent did not record his reasons in writing as to why a search warrant could not be procured as mandated under proviso (2) to Section 42(1) of the N.D.P.S. Act. She contends that since a reverse burden is cast upon the accused, the provisions of the N.D.P.S. Act have to be strictly construed and any violation of mandatory provision of law should result in vitiation of the prosecution.

(iii) that the premises searched was not a public place but was a private place of the accused No.1, which was a hostel and therefore, the search could not have been conducted without following the procedure contemplated under Section 43 of the N.D.P.S. Act.

(iv) that the accused were not informed that they were entitled to be searched