Case Note & Summary
The appellants, Raju Dhanju Rathod and Ramesh Liganna Mudraj, were convicted by the Special Court for NDPS, Bombay, for offences under Section 20(c) read with Section 8(c) and Section 29 read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced to rigorous imprisonment for 10 years and fine. They appealed against the conviction. The prosecution case was that on 12th November 2011, PW4 API Vinayak Bajirao Vetal received secret information that the appellants were in possession of ganja. A raid was conducted, and ganja was allegedly seized from them. The appellants were arrested and charged. The trial court convicted them. In appeal, the High Court examined the compliance with mandatory provisions of the NDPS Act. The court found that the prosecution failed to prove that the appellants were informed of their right to be searched before a Gazetted Officer or Magistrate under Section 50. The evidence of PW4 and PW5 was contradictory on this point. Additionally, the secret information was not recorded and forwarded to the superior officer as required under Section 42(2). No report under Section 57 was sent within 48 hours. The panchnama was not proved as the panch witnesses were not examined. The court held that the mandatory provisions were not complied with, rendering the search and seizure illegal. Consequently, the conviction was set aside, and the appellants were acquitted. The court directed that the appellants be released forthwith unless required in any other case.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act - Section 50 - Right to be searched before Gazetted Officer or Magistrate - Failure to inform accused of right - The court held that the prosecution failed to prove that the appellants were informed of their right to be searched before a Gazetted Officer or Magistrate, as required under Section 50 of the NDPS Act. The evidence of PW4 and PW5 was contradictory and did not establish compliance. Consequently, the search and seizure were rendered illegal, and the conviction was set aside. (Paras 8-12) B) Narcotic Drugs and Psychotropic Substances Act - Section 42 - Recording of information and forwarding report to superior officer - Non-compliance - The court noted that the secret information received by PW4 was not reduced to writing and forwarded to the immediate superior officer as mandated by Section 42(2) of the NDPS Act. This failure vitiated the trial. (Paras 13-14) C) Narcotic Drugs and Psychotropic Substances Act - Section 57 - Report of arrest and seizure to superior officer - Non-compliance - The court observed that no report under Section 57 was sent to the superior officer within 48 hours of the arrest and seizure, which was a mandatory requirement. This further weakened the prosecution case. (Para 15) D) Evidence Act - Panchnama - Contemporaneous document - The court emphasized that the panchnama is a contemporaneous document and must be proved by examining the panch witnesses. In this case, the panch witnesses were not examined, and the panchnama was not proved, leading to a serious lacuna in the prosecution case. (Para 16) E) Narcotic Drugs and Psychotropic Substances Act - Burden of proof - Compliance with mandatory provisions - The court reiterated that the burden is on the prosecution to prove compliance with the mandatory provisions of the NDPS Act. Failure to do so entitles the accused to acquittal. (Paras 17-18)
Issue of Consideration
Whether the conviction under the NDPS Act is sustainable when mandatory provisions of Sections 42, 50, and 57 were not complied with, and whether the search and seizure were conducted in accordance with law.
Final Decision
The appeals are allowed. The impugned judgment and order of conviction and sentence dated 11th and 12th March 2014 passed by the learned Judge, Special Court for NDPS, Bombay City Civil and Sessions Court, Greater Bombay, in NDPS Special Case No.48 of 2012, is quashed and set aside. The appellants are acquitted of the offences charged. They shall be released forthwith, if not required in any other case.
Law Points
- Section 50 of NDPS Act requires that the accused be informed of their right to be searched before a Gazetted Officer or Magistrate
- and failure to do so vitiates the trial
- Non-compliance with Section 42 regarding recording of information and forwarding report to superior officer is mandatory
- Contemporaneous panchnama is essential to prove compliance with procedural safeguards
- Burden of proof on prosecution to show compliance with mandatory provisions
- Conviction cannot be sustained on basis of illegal search and seizure
