Case Note & Summary
The case pertains to an appeal against the judgment of conviction and order of sentence dated 21.04.2011 passed by the Principal District and Sessions Judge & Special Judge, Dharwad in Special NDPS CC No.4/2008, convicting the appellants for an offence under Section 20(b)(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution alleged that on 07.01.2008 at about 2.45 p.m., the police received credible information that the accused were carrying ganja in a cardboard box at Hubballi railway station on platform No.2. The information was passed to superiors, panch witnesses were secured, and the accused were apprehended. A cardboard box containing 1 kg each of ganja was seized, and a complaint was registered. The trial court convicted the appellants. In appeal, 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 did not prove that the credible information was reduced to writing and forwarded to the superior officer as required under Section 42(2). Further, the police officer did not inform the accused of their 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 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 - Recording of Information - Mandatory Requirement - The prosecution failed to prove that the credible information received by the police officer was reduced to writing and forwarded to the superior officer as required under Section 42(2) of the NDPS Act - Held that non-compliance with Section 42 vitiates the search and seizure (Paras 5-7). B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Personal Search - Right of Accused - The police officer did not inform the accused of their right to be searched before a Gazetted Officer or Magistrate - Held that non-compliance with Section 50 renders the search illegal and the conviction unsustainable (Paras 8-10). C) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(1) - Conviction - Sustainability - In the absence of compliance with Sections 42 and 50, the conviction under Section 20(b)(1) cannot be sustained - Held that the appellants are entitled to acquittal (Paras 11-12).
Issue of Consideration
Whether the conviction of the appellants under Section 20(b)(1) of the NDPS Act is sustainable when the mandatory provisions of Sections 42 and 50 of the NDPS Act were not complied with by the prosecution.
Final Decision
The appeal is allowed. The judgment of conviction and order of sentence dated 21.04.2011 passed by the Prl. Dist. & Sessions Judge & Special Judge, Dharwad in Spl. NDPS CC No.4/2008 is set aside. The appellants are acquitted of the offence under Section 20(b)(1) of NDPS Act. Their bail bonds stand cancelled.
Law Points
- Non-compliance with Section 42 of NDPS Act
- Non-compliance with Section 50 of NDPS Act
- Credible information must be recorded in writing
- Personal search requires informing accused of right to be searched before Gazetted Officer or Magistrate
- Conviction cannot be sustained on illegal search
