Case Note & Summary
The State of Maharashtra appealed against the acquittal of six accused persons by the Additional Sessions Judge cum Special Judge for NDPS Act, Pandharpur, for an offence under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The trial court acquitted all accused on 15 May 2004, primarily on two grounds: failure of the prosecution to comply with the mandatory provisions of Section 42 of the NDPS Act, and failure to prove conscious possession of the contraband (ganja) recovered from a vehicle. The High Court, in its appellate jurisdiction under Section 378 of the Code of Criminal Procedure, 1973, examined the trial court's judgment. The court noted that the trial court had observed that the prosecution did not comply with Section 42, which requires that any information received by an authorized officer be taken down in writing before conducting a search without warrant. The High Court found that the trial court's reasoning on this point was plausible and not perverse. Additionally, the High Court agreed with the trial court that the prosecution had failed to establish conscious possession of the ganja by each accused. The recovery was from a vehicle, but there was no evidence to show that each accused knew about the contraband or had control over it. The High Court held that the appeal lacked merit and dismissed it, upholding the acquittal. The court emphasized that unless the trial court's judgment is perverse or based on no evidence, an appellate court should not interfere with an acquittal.
Headnote
A) Criminal Procedure - Appeal against Acquittal - Section 378 CrPC - State appeal against acquittal - Court held that unless the judgment is perverse or based on no evidence, appellate court should not interfere - Trial court's findings on non-compliance with Section 42 NDPS Act and lack of conscious possession were plausible - Appeal dismissed (Paras 1-5) B) Narcotic Drugs - Mandatory Compliance - Section 42 NDPS Act - Power of entry, search, seizure without warrant - Requirement of recording information in writing - Trial court found that the prosecution failed to comply with Section 42 - High Court upheld that non-compliance is fatal to the prosecution case (Paras 2-4) C) Narcotic Drugs - Conscious Possession - Section 20(b)(ii)(c) NDPS Act - Possession of ganja - Court held that mere recovery of contraband from a vehicle does not prove conscious possession of each occupant - Prosecution must establish that each accused had knowledge and control over the contraband - Trial court's finding of lack of conscious possession upheld (Paras 3-5)
Issue of Consideration
Whether the acquittal of the accused for offence under Section 20(b)(ii)(c) of NDPS Act was proper given the alleged non-compliance with Section 42 and failure to prove conscious possession.
Final Decision
Appeal dismissed. Acquittal of all accused upheld.
Law Points
- Non-compliance with Section 42 of NDPS Act is fatal to prosecution
- Conscious possession must be proved
- Acquittal appeal dismissed for lack of merit
