Case Note & Summary
The case involves two criminal appeals filed by three appellants convicted under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possession and transportation of ganja. The appellants were sentenced to three years rigorous imprisonment and fine. The prosecution case was that on 30.03.2015, API N. S. Rajkumar (PW6) received secret information that persons were carrying ganja at Nagpur railway station platform no.2. He made an entry in the Station Diary and informed his superior officer, who granted permission. The police party intercepted the appellants and recovered ganja from them. The trial court convicted them. The appellants challenged the conviction on the ground of non-compliance with mandatory provisions of Sections 42 and 50 of the NDPS Act. The High Court examined the evidence and found that the secret information was not reduced to writing as required under Section 42(2), and a copy was not sent to the superior officer forthwith. Additionally, the accused were not informed of their right to be searched before a Magistrate or Gazetted Officer as mandated by Section 50. The court held that these mandatory requirements were not complied with, rendering the search and seizure illegal and the trial vitiated. Consequently, the court allowed the appeals, set aside the conviction and sentence, and ordered the appellants to be released forthwith unless required in any other case.
Headnote
A) Criminal Procedure - Search and Seizure - Compliance with Section 42(2) NDPS Act - Secret information must be reduced to writing and a copy sent to superior officer forthwith - Failure to do so renders the search and seizure illegal and the trial vitiated - Held that the mandatory requirement under Section 42(2) was not complied with, as the information was not reduced to writing and sent to the superior officer (Paras 10-15). B) Criminal Procedure - Search of Person - Compliance with Section 50 NDPS Act - Accused must be informed of their right to be searched before a Magistrate or Gazetted Officer - Failure to inform vitiates the conviction - Held that the accused were not informed of their right under Section 50, and the search was conducted without such information, making the conviction unsustainable (Paras 16-20). C) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20 and 29 - Conviction based on illegal search and seizure - Where mandatory provisions of Sections 42 and 50 are not complied with, the conviction cannot be sustained - Held that the trial court erred in convicting the appellants despite clear non-compliance, and the appeals are allowed (Paras 21-25).
Issue of Consideration
Whether the conviction under Sections 20 and 29 of the NDPS Act, 1985 is sustainable when there is non-compliance with the mandatory provisions of Sections 42 and 50 of the Act.
Final Decision
Appeals allowed. Impugned judgment and order dated 29.06.2022 set aside. Appellants acquitted of all charges. They be released forthwith unless required in any other case.
Law Points
- Non-compliance with Section 42(2) of NDPS Act
- 1985
- Non-compliance with Section 50 of NDPS Act
- Secret information not reduced to writing
- Failure to send information to superior officer
- Failure to inform accused of right to search before Magistrate/Gazetted Officer
- Conviction set aside
