Case Note & Summary
The appellant, Bhola Vijayprasad Gupta, was convicted by the Additional Sessions Judge, Washim, on 27.01.2006 in Sessions Trial 4/2003 for offences under Section 20(b)(ii) and Section 27(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). He was sentenced to rigorous imprisonment for ten years and a fine of Rs.1,00,000/- for the first offence, and six months rigorous imprisonment with a fine of Rs.5,000/- for the second. The appellant challenged the conviction in the Bombay High Court, Nagpur Bench. The core issue was whether the mandatory requirement under Section 42(2) of the NDPS Act, which requires that any secret information received by an officer be reduced to writing and sent forthwith to his immediate superior, was complied with. The prosecution relied on sanha entry no.40 (Exh.10) to show that the information was telephonically received and transmitted to the Superintendent of Police and SDPO. However, the court noted that the sanha entry did not contain the full details of the information and there was no evidence that it was sent to the superior officer as required. The appellant's counsel argued that non-compliance with Section 42(2) vitiates the trial, citing Supreme Court precedents. The State's counsel argued that the sanha entry and lack of cross-examination on this point indicated compliance, relying on Gidhari v. State of Rajasthan. The court, after hearing both sides, found that the mandatory provision was not complied with, and thus the trial was vitiated. The appeal was allowed, the conviction and sentence were set aside, and the appellant was acquitted.
Headnote
A) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 42(2) - Mandatory Compliance - Secret Information - The issue was whether the mandatory requirement under Section 42(2) of the NDPS Act to reduce secret information to writing and send it to the superior officer forthwith was complied with. The court held that the provision is mandatory and its non-compliance vitiates the trial. The court found that the sanha entry (Exh.10) did not contain the full details of the information and was not sent to the superior officer as required. (Paras 2-6)
Issue of Consideration
Whether there was compliance of the provisions of Sub-Section (2) of Section 42 of the NDPS Act.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted.
Law Points
- Section 42(2) of NDPS Act is mandatory
- non-compliance vitiates trial
- secret information must be reduced to writing and sent to superior officer forthwith
