Case Note & Summary
The appellant, Shaikh Ibrahim Shaikh Usman, was convicted by the Additional Sessions Judge, Malegaon in Sessions Case (NDPS) No.11 of 2004 for an offence punishable under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to 7 years rigorous imprisonment and a fine of Rs.15,000/-. The prosecution case was that on 20th August 2004, PW.2 API Ashok Bagul received secret information from Dy.S.P. Kumbhare that the appellant was bringing ganja to his house for sale. The information was passed on to other officers, panchas, a photographer, and a Tahsildar were called, and the information was communicated to the Superintendent of Police on paper by a special messenger. The raiding party proceeded to the appellant's house and saw him coming with an aluminum utensil. On search, 1 kg of ganja was found, samples were taken, and a panchanama was prepared. The appellant was convicted and sentenced. The appellant challenged the conviction on the ground that the mandatory provisions of Section 42 of the NDPS Act were not complied with, as the secret information was not reduced to writing and sent to the immediate official superior forthwith. The High Court examined the evidence and found that PW.2 API Bagul admitted that he did not record the information in writing before proceeding for the raid, and that the information was sent to the Superintendent of Police only after the raid. The court held that non-compliance with Section 42 vitiates the trial, and the appellant is entitled to acquittal. The appeal was allowed, the conviction and sentence were set aside, and the appellant was directed to be released forthwith unless required in any other case.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 42 - Compliance with Mandatory Requirements - Secret information received by an officer must be reduced to writing and a copy sent to the immediate official superior forthwith - Failure to do so renders the search and seizure illegal and the accused is entitled to acquittal - The court held that the prosecution failed to prove compliance with Section 42, as the information was not recorded in writing and sent to the superior officer before the raid (Paras 6-10). B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(ii) - Conviction for Possession of Ganja - Conviction set aside due to non-compliance with Section 42 - The appellant was convicted for possession of 1 kg ganja, but the court found that the mandatory safeguards under Section 42 were not followed, vitiating the trial - Held that the appeal must be allowed and the appellant acquitted (Paras 1-11).
Issue of Consideration
Whether the conviction under Section 20(b)(ii) of the NDPS Act is sustainable when the mandatory provisions of Section 42 of the NDPS Act regarding recording of secret information and sending it to the superior officer were not complied with.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted. Bail bonds cancelled. Appellant to be released forthwith unless required in any other case.
Law Points
- Non-compliance with Section 42 of NDPS Act
- Secret information must be reduced to writing
- Information must be sent to superior officer forthwith
- Search and seizure illegal if mandatory provisions not followed
- Benefit of doubt to accused
