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HIGH COURT OF BOMBAY
Revati Mohite Dere, J
Gurmeet Singh s/o Harjinder Singh – Appellant
Versus
Davinder Singh, Intelligence Officer, Narcotic Control Bureau – Respondent
Criminal Appeal No.351 of 2015 | Criminal Appeal No.426 of 2015
For the Appellants/Petitioners: Mr. Ayaz Khan, Mr. Dilip Mishra
For the Respondents: Ms. Ameeta Kuttikrishnan, Mr. S. V. Gavand
Non-compliance with statutory search authorization requirements under NDPS Act vitiates the trial and warrants acquittal.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 42(1) - Non-compliance of statutory provisions regarding authorization for search after sunset - The appellants were convicted and sentenced under the NDPS Act, but the Court found gross non-compliance with mandatory provisions under Section 42, which are aimed at protecting the rights of the accused - The Court reiterated that strict adherence to procedural safeguards is essential to ensure a fair trial. (Paras 14-16)
(B) Jurisprudence - Legal safeguards in criminal trials - The requirement of following mandatory provisions has been established in several precedents where non-compliance leads to vitiation of the trial and acquittal of the accused. (Paras 11-12)
Facts of the case:
The appellants were found in possession of large quantities of hashish following a raid that commenced without necessary authorizations required by law. The appellants challenged their conviction based on procedural violations during their arrest.
Findings of Court:
The Court concluded that the trial was vitiated due to non-compliance with the provisions of Section 42 of the NDPS Act, necessitating the acquittal of the appellants.
Issues: Central issues included whether the failure to obtain authorization before executing a search post-sunset invalidated the conviction of the appellants.
Ratio Decidendi: The Court ruled that the statutory procedure outlined in Section 42(1) is mandatory and non-compliance impacts the validity of the proceedings. The absence of authorization rendered the search illegal and consequentially the conviction unsustainable.
Result: Appeals allowed; judgment and order convicting the appellants set aside.
| Table of Content |
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| 1. the basis for the conviction of the appellants was the seizure of hashish. (Para 2) |
| 2. the appellants contested the legal validity of the raid due to procedural lapses. (Para 4 , 5) |
| 3. non-compliance with the ndps act’s procedural requirements was established. (Para 6 , 10 , 12) |
| 4. observations on the implications of non-compliance in legal proceedings. (Para 11) |
| 5. the court underscored mandatory compliance for legal searches. (Para 14 , 16) |
| 6. final verdict resulted in acquittal due to trial vitiation. (Para 17) |
ORAL JUDGMENT :
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 p
