Case Note & Summary
The State of Gujarat filed an appeal under Section 378 of the Code of Criminal Procedure, 1973, against the judgment and order of acquittal dated 21.04.2008 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Ahmedabad City, in Sessions (NDPS) Case No.123 of 2006. The respondent-accused, Aslam Anwarkhan Pathan, was charged for an offence punishable under Section 8(C) read with Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution case was that on receiving secret information that the accused was dealing in illegal sale of Cannabis (Ganja) in his house, the complainant P.S.I. M.R. Sharma arranged two panchas and carried out a raid, recovering contraband. The trial court acquitted the accused, leading to this appeal. The High Court examined the evidence and found that the prosecution failed to comply with mandatory provisions of Sections 42 and 50 of the NDPS Act. The secret information was not recorded in writing as required under Section 42, and the report was not sent to the superior officer immediately. Further, the accused was not informed of his right to be searched before a Magistrate or Gazetted Officer as mandated by Section 50. The panch witnesses turned hostile, and the prosecution relied solely on police witnesses. The court held that non-compliance with these mandatory provisions vitiates the trial and the acquittal was justified. The appeal was dismissed.
Headnote
A) Criminal Procedure - Appeal against acquittal - Section 378 CrPC - State appeal against acquittal in NDPS case - Court dismissed appeal, upholding acquittal due to non-compliance with mandatory provisions of NDPS Act (Paras 1-19). B) Narcotic Drugs - Search and seizure - Section 42 NDPS Act - Mandatory requirement of recording information and sending report to superior officer - Prosecution failed to prove compliance - Held that non-compliance vitiates trial (Paras 7-12). C) Narcotic Drugs - Search of person - Section 50 NDPS Act - Right of accused to be informed of right to be searched before Magistrate or Gazetted Officer - Prosecution failed to prove that accused was informed of his right - Held that non-compliance renders search illegal (Paras 13-16). D) Evidence - Panch witnesses - Independent witnesses - Panch witnesses turned hostile - Prosecution case based solely on police witnesses - Held that in absence of independent corroboration, conviction cannot be sustained (Paras 17-18).
Issue of Consideration
Whether the trial court's acquittal of the respondent-accused under the NDPS Act was justified due to non-compliance with mandatory provisions of Sections 42 and 50 of the NDPS Act.
Final Decision
Appeal dismissed. Acquittal of respondent-accused upheld.
Law Points
- Non-compliance with mandatory provisions of NDPS Act
- Section 42 and Section 50
- vitiates trial
- Acquittal upheld if prosecution fails to prove compliance
- Burden on prosecution to show compliance with procedural safeguards
