Case Note & Summary
The appellant, Mohd. Akram Mohd. Majij Shaikh, was convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) by the Special Judge (under NDPS Act) for Greater Bombay at Bombay on March 31, 2001, in NDPS Special Case No. 111 of 2000. He was sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1,00,000, with default sentence of 2 years. The prosecution case was that on June 1, 2000, acting on prior information, officers of the Narcotic Cell, C.B., C.I.D., Mumbai laid a trap at a B.E.S.T. bus-stop near Dharavi-Bandra Road and Bandra-Kurla Complex Junction, Bandra (East), Mumbai. At about 14.45 hours, the appellant and another accused alighted from Bus No. 310. The appellant was found carrying a dark blue plastic bag containing 42 pieces of black resinous substance weighing 1.750 kgs, which tested positive for charas. The appellant challenged his conviction on the ground that the mandatory provisions of Sections 42 and 50 of the NDPS Act were not complied with. The court examined the evidence and found that the prosecution failed to prove that the officer had recorded reasons for his belief before conducting the search, as required under Section 42. Additionally, the prosecution did not establish that the appellant was informed of his right to be searched before a Gazetted Officer or Magistrate, as mandated by Section 50. The court held that non-compliance with these mandatory provisions vitiates the trial and renders the conviction unsustainable. Consequently, the court allowed the appeal, set aside the conviction and sentence, and ordered the appellant's release from custody unless required in any other case.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 42 - Compliance with mandatory requirement - Recording of reasons for belief - The prosecution failed to prove that the officer had recorded reasons for his belief before conducting the search, which is a mandatory requirement under Section 42 of the NDPS Act, 1985. The court held that non-compliance vitiates the trial. (Paras 1-10) B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Right of accused to be searched before Gazetted Officer or Magistrate - The prosecution did not establish that the appellant was informed of his right to be searched before a Gazetted Officer or Magistrate, as mandated by Section 50 of the NDPS Act, 1985. The court held that this omission renders the search and seizure illegal. (Paras 1-10) C) Criminal Appeal - Acquittal - Non-compliance with mandatory provisions - The court allowed the appeal, set aside the conviction and sentence, and ordered the appellant's release, holding that the mandatory provisions of Sections 42 and 50 of the NDPS Act, 1985 were not complied with, making the conviction unsustainable. (Paras 1-10)
Issue of Consideration
Whether the conviction of the appellant under the NDPS Act, 1985 is sustainable in law when the mandatory provisions of Sections 42 and 50 of the Act were not complied with by the prosecution.
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 of NDPS Act
- 1985
- Non-compliance with Section 50 of NDPS Act
- Mandatory provisions
- Recording of reasons
- Right to be searched before Gazetted Officer or Magistrate
- Acquittal
