Case Note & Summary
The appellant, Usman Mohammad Hanif Shaik, was convicted under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of 1.630 grams of Methylmorphine (Codeine) found in the glove box of his scooter on 21 August 2000. He was sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1,00,000. The appellant challenged the conviction on the ground that the search and seizure were conducted in violation of Section 42(2) of the Act, which requires the officer to record reasons for the search before proceeding without a warrant. The High Court examined the evidence and found that the complainant, Superintendent of Customs, did not record any reasons for the search as mandated by Section 42(2). The court noted that the information received was reduced to writing but the reasons for the search were not recorded. The court held that Section 42(2) is mandatory and its non-compliance is fatal to the prosecution. The court also observed that the search was conducted from a public place, but the requirement of recording reasons applies irrespective of the place. Consequently, the court allowed the appeal, set aside the conviction and sentence, and ordered the appellant's release unless required in another case.
Headnote
A) Criminal Law - Narcotic Drugs - Section 42(2) NDPS Act, 1985 - Mandatory Recording of Reasons - The prosecution failed to prove that the officer recorded reasons for the search conducted without warrant - The court held that non-compliance with Section 42(2) is fatal to the prosecution case, as the provision is mandatory and requires strict adherence - The conviction and sentence were set aside (Paras 10-12).
Issue of Consideration
Whether the failure to record reasons for the search as required under Section 42(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 vitiates the conviction
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant ordered to be released forthwith unless required in any other case.
Law Points
- Non-compliance with Section 42(2) of NDPS Act
- 1985 is fatal to prosecution
- mandatory recording of reasons for search without warrant
- strict compliance required for search of person from public place
