Case Note & Summary
The State of Maharashtra appealed against the judgment and order dated 23-8-1988 passed by the Additional Sessions Judge, Solapur, acquitting the respondents (Gafoor Yusuf Shaikh, Razak Yusuf Shaikh, Salim Yusuf Shaikh, and Chand Yusuf Shaikh) of offences punishable under Section 20(b) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution case was that on 9-5-1986, at about 8:30 p.m., PSI Ghode of Akluj police station received information that the accused had kept a stock of ganja in a bungalow situated on Akluj-Indapur road. He consulted PSI Shinde, called three panch witnesses, and along with two constables proceeded to the spot. The accused were seen in front of the bungalow but fled upon seeing the police. A search of the bungalow revealed 135 gunny bags containing ganja and a spring weighing machine. The trial court acquitted the accused on the ground that the mandatory provisions of Section 42 of the NDPS Act were not complied with, as the information received was not recorded in writing. The High Court, in appeal, examined the evidence and found that PSI Ghode admitted that he did not record the information in the station diary or any other document. The court held that Section 42 of the NDPS Act is mandatory and requires that any information received by a police officer regarding the commission of an offence under the Act must be recorded in writing. The failure to do so vitiates the search and seizure. The court further noted that the prosecution did not offer any explanation for the non-compliance. Consequently, the High Court dismissed the appeal and upheld the acquittal of the respondents.
Headnote
A) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 42 - Mandatory Recording of Information - The court held that the failure of the police officer to record the information received regarding the possession of ganja in the prescribed manner as required under Section 42(1) of the NDPS Act, 1985, vitiates the search and seizure. The court observed that the provisions of Section 42 are mandatory and non-compliance renders the entire prosecution unsustainable. (Paras 3-5) B) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b) read with Section 29 - Possession of Ganja - The court held that in the absence of compliance with Section 42, the conviction under Section 20(b) read with Section 29 cannot be sustained. The acquittal of the accused by the trial court was upheld. (Paras 5-6)
Issue of Consideration
Whether the acquittal of the respondents for offences under Section 20(b) read with Section 29 of the NDPS Act, 1985, was justified on the ground of non-compliance with the mandatory provisions of Section 42 of the Act.
Final Decision
The appeal was dismissed. The acquittal of the respondents was upheld.
Law Points
- Non-compliance with Section 42 of NDPS Act
- 1985
- mandatory recording of information
- search and seizure
- acquittal upheld
