Case Note & Summary
The appeal arises from the judgment and order of the Special Court (NDPS) in Special Case No. 3/2011, whereby the appellants, Satpalsingh @ Raja s/o Jeetsingh Pujari and Shankar s/o Chandu Padthe, were convicted and sentenced for offences under Sections 15, 22, 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and Section 18(C) of the Drugs and Cosmetics Act. The prosecution case was that on 19.3.2011, Smt. Nirmala Devi, Deputy Superintendent of Police, received information that the appellants were in illegal possession of poppy straw powder at Amar Complex, Gurudwara Chowk, Nanded. She made an entry in the station diary, obtained permission from the District Superintendent of Police, collected panch witnesses and a photographer, and proceeded to the spot. At the spot, the accused were found in possession of poppy straw powder and other articles. After following the procedure, samples were taken and sent for analysis, which confirmed the contraband. The trial court convicted the appellants. The appellants challenged the conviction on the ground of non-compliance with mandatory provisions of Sections 42 and 50 of the NDPS Act. The High Court examined the evidence and found that the prosecution failed to prove that the information received by the officer was reduced to writing and forwarded to the immediate superior officer as required under Section 42(2) of the NDPS Act. Further, the accused were not informed of their right to be searched before a Gazetted Officer or Magistrate as mandated by Section 50 of the NDPS Act. The panch witnesses did not depose about such information being given. The High Court held that non-compliance with these mandatory provisions vitiates the search and seizure, and consequently, the conviction cannot be sustained. The appeal was allowed, the conviction and sentence were set aside, and the appellants were acquitted.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 42 - Search and Seizure - Compliance with Section 42(2) - The information received by the officer was not reduced to writing and forwarded to immediate superior officer as required under Section 42(2) of NDPS Act. The prosecution failed to prove that the information was recorded and sent to superior officer. Held that non-compliance with Section 42(2) vitiates the search and seizure (Paras 7-9). B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Right of Accused - The accused were not informed of their right to be searched before a Gazetted Officer or Magistrate. The panch witnesses did not depose about such information being given. Held that non-compliance with Section 50 of NDPS Act renders the search illegal and the conviction cannot be sustained (Paras 10-12). C) Drugs and Cosmetics Act, 1940 - Section 18(C) - Conviction - Since the search and seizure under NDPS Act was illegal, the conviction under Section 18(C) of Drugs and Cosmetics Act also fails as it was based on the same search. Held that the entire prosecution case fails due to non-compliance with mandatory provisions (Para 13).
Issue of Consideration
Whether the conviction of the appellants under Sections 15, 22, 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 18(C) of the Drugs and Cosmetics Act is sustainable in law when there was non-compliance with the mandatory provisions of Sections 42 and 50 of the NDPS Act.
Final Decision
The appeal is allowed. The judgment and order of conviction and sentence passed by the Extra Jt. Adhoc Additional Sessions Judge, Nanded in Special Case (NDPS) No. 3/2011 is set aside. The appellants are acquitted of all charges. Their bail bonds stand cancelled.
Law Points
- Non-compliance with Section 42 of NDPS Act
- 1985
- Non-compliance with Section 50 of NDPS Act
- Right of accused to be informed of right to search before Gazetted Officer or Magistrate
- Mandatory provisions of NDPS Act
- Strict compliance required for search and seizure
- Burden of proof on prosecution to show compliance
- Conviction cannot be sustained if mandatory provisions not followed
