Case Note & Summary
The appellant, B. Chandramohan, was convicted by the Special Judge, NDPS Court, Mapusa, Goa, under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, for possession of 2.2 kgs of charas. The prosecution alleged that on 31.01.2002, Police Inspector Paes received reliable information at 11:00 hours that a person would deliver charas on a black Kinetic Scooter near Cortalim between 15:00 and 16:00 hours. A raid was conducted, and the appellant was apprehended with the contraband. The appellant pleaded false implication, claiming he was at INS Hansa for work and had borrowed the scooter from Lt. Commander Jayathilagan. He examined defence witnesses including himself, Lt. Commander Jayathilagan, and Lt. Commander Sanjay Sharma, and produced documents (gate pass and register) showing he was at the naval base until 12:30 p.m. The learned Special Judge convicted the appellant, relying on the testimony of PI Paes. On appeal, the High Court examined the compliance with Section 42(2) of the NDPS Act, which requires that information be reduced to writing and forwarded to a superior officer. The court noted that the prosecution did not produce the written information or prove its forwarding. The court also found the testimony of PI Paes unreliable due to contradictions and the plausible alibi raised by the defence. The High Court held that the non-compliance with Section 42(2) was fatal to the prosecution and that the conviction was unsustainable. The appeal was allowed, the conviction and sentence were set aside, and the appellant was acquitted.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 42(2) - Compliance - Mandatory - The prosecution must prove compliance with Section 42(2) which requires that information received be reduced to writing and forwarded to superior officer. Failure to do so renders the search and seizure illegal and the conviction unsustainable. (Paras 6-8) B) Evidence Act, 1872 - Section 114 - Presumption - Police witnesses - The testimony of police officers cannot be presumed to be credible without corroboration, especially when there are contradictions and the defence raises a plausible alibi. (Paras 9-10) C) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(ii)(C) - Conviction - Appeal - The appellant was convicted for possession of 2.2 kgs of charas. The High Court found that the prosecution failed to prove compliance with Section 42(2) and the police witnesses were not reliable. The conviction was set aside and the appellant was acquitted. (Paras 11-12)
Issue of Consideration
Whether the conviction under Section 20(b)(ii)(C) of the NDPS Act, 1985 is sustainable when there is non-compliance with Section 42(2) and the prosecution witnesses are not credible.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted.
Law Points
- Non-compliance with Section 42(2) of NDPS Act
- 1985 is fatal to prosecution
- Credibility of police witnesses must be scrutinized
- Burden of proof on prosecution to establish compliance with mandatory provisions
