Case Note & Summary
The State of Maharashtra appealed against the acquittal of the respondent (accused) by the Special Judge, Pune, for an offence under Section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution case was that on 20th April 2002, PSI Dogre received secret information that the accused was possessing contraband Ganja at her house. The information was recorded in writing at 9:15 a.m. and a copy was sent to the Police Inspector at Yerwada police station. A raid was conducted, and Ganja was seized. The trial court acquitted the accused on the ground that the prosecution failed to comply with Section 42(2) of the NDPS Act, which requires that a copy of the information recorded under Section 42(1) be forwarded to the immediate official superior. The High Court examined the evidence and found that the prosecution did not prove that a copy of the information was sent to the immediate superior officer. The court noted that the only witness who could have spoken about this was not examined. The High Court held that the requirement under Section 42(2) is mandatory and non-compliance is fatal to the prosecution case. The court rejected the State's argument that no prejudice was caused, stating that the provision is a safeguard against abuse of power. The appeal was dismissed, and the acquittal was upheld.
Headnote
A) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 42(2) - Mandatory Requirement - Secret Information - The prosecution failed to prove that a copy of the information recorded under Section 42(1) was sent to the immediate official superior. The trial court acquitted the accused on this ground. The High Court held that non-compliance with Section 42(2) is fatal to the prosecution case, and the acquittal was proper. (Paras 1-10) B) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 42(2) - Burden of Proof - The burden is on the prosecution to prove compliance with Section 42(2). Even if no prejudice is shown, the requirement is mandatory and non-compliance vitiates the trial. (Paras 5-10)
Issue of Consideration
Whether the failure to forward a copy of the information recorded under Section 42(1) of the NDPS Act to the immediate official superior, as required under Section 42(2), vitiates the trial and warrants acquittal.
Final Decision
Appeal dismissed. Acquittal of the respondent by the Special Judge, Pune, dated 3rd May 2006, is upheld.
Law Points
- Non-compliance with Section 42(2) of NDPS Act
- 1985 is fatal to prosecution
- Secret information must be forwarded to immediate superior officer
- Acquittal upheld even if no prejudice shown
- Burden on prosecution to prove compliance
