Case Note & Summary
The appeal was filed by the original complainant, an Assistant Collector of Central Excise and Customs, Pune, challenging the judgment and order dated 5/5/1993 passed by the Additional Sessions Judge, Pune, acquitting respondent nos.1 and 2 (original accused nos.1 and 2) of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and under Sections 66(1)(b) and 81 of the Bombay Prohibition Act. The prosecution case was that on the night of 16/4/1991, officers of Central Excise and Customs, Pune, acting on information, searched the residential premises of accused no.1 situated in agricultural land bearing Gat No.29 in the presence of panchas. Accused no.1 was present during the search, and 166 cannabis plants valued at about Rs.40,000 were recovered and seized under a panchanama. Samples were sent for analysis, and statements of accused nos.1 and 2 were recorded under Section 67 of the NDPS Act. Accused no.2 was impleaded as the land stood in his name, while accused no.1 was allegedly cultivating cannabis. After investigation, a charge-sheet was filed, and charges were framed under Sections 8(c), 10, 20(a)(i), 22(a)(i), 25, and 29 of the NDPS Act and under Sections 66(1)(b) and 81 of the Bombay Prohibition Act. The trial court acquitted both accused. The complainant appealed. The High Court, after hearing the parties, found that the search and seizure were conducted without complying with the mandatory provisions of Section 42 of the NDPS Act, which requires that the officer must record information in writing and, if the search is conducted without a warrant, must take the accused before a gazetted officer or magistrate. The court held that non-compliance with Section 42 vitiates the search and the conviction cannot be sustained. The court also noted that the prosecution failed to prove the case beyond reasonable doubt. Accordingly, the appeal was dismissed, and the acquittal was upheld.
Headnote
A) Criminal Procedure - Search and Seizure - Mandatory Compliance - Section 42 of Narcotic Drugs and Psychotropic Substances Act, 1985 - The court considered whether the search conducted by Central Excise officers without recording information in writing and without taking the accused before a gazetted officer or magistrate was valid. Held that non-compliance with Section 42 vitiates the search and the conviction cannot be sustained. (Paras 1-3) B) Narcotic Drugs - Cultivation of Cannabis - Burden of Proof - Sections 8(c), 10, 20(a)(i), 22(a)(i), 25, 29 of NDPS Act - The prosecution failed to prove that the accused cultivated cannabis plants as the search was illegal and the evidence was not reliable. Held that the acquittal by the trial court was correct. (Paras 2-3)
Issue of Consideration
Whether the search and seizure conducted by the officers of Central Excise and Customs without complying with the mandatory provisions of Section 42 of the NDPS Act is valid and whether the conviction can be sustained on the basis of such illegal search.
Final Decision
The appeal is dismissed. The judgment and order of acquittal passed by the Additional Sessions Judge, Pune, dated 5/5/1993, is confirmed.
Law Points
- Mandatory compliance with Section 42 of NDPS Act
- Search and seizure in presence of gazetted officer or magistrate
- Recording of information in writing
- Reasonable belief requirement
- Burden of proof on prosecution
- Acquittal upheld
