Case Note & Summary
The appellant, Dnyandeo s/o Atmaram Aswar, was convicted by the 1st Adhoc Additional Sessions Judge, Akola, in Sessions Trial No. 8/2002 for an offence punishable under Section 20(a)(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to three years' rigorous imprisonment and a fine of Rs. 2000. The prosecution case was that on 13.5.2002, PSI Kailash Phundkar (PW2) received written information from Police Head Constable Ganesh Pachpor that the appellant had cultivated ganja plantation in his field. PW2 arranged a raid, and in the presence of panchas, 82 ganja plants were found in the appellant's field. Samples were taken, seized, and sent to the Chemical Analyser. The appellant was arrested and charge-sheeted. The trial court convicted him. The appellant appealed to the Bombay High Court, Nagpur Bench. The main legal issue was whether the mandatory provisions of Section 42 of the NDPS Act were complied with. The appellant argued that the information received was not recorded in writing and a copy was not forwarded to the superior officer as required. The respondent State argued that the information was in writing and a report was sent to the SDPO after the raid. The court analyzed the evidence and found that PW2 admitted that he did not record the information in writing and did not forward a copy to the SDPO before the raid. The court held that compliance with Section 42 is mandatory and the failure to do so vitiates the trial. The court set aside the conviction and acquitted the appellant, giving him the benefit of doubt.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 42 - Mandatory Compliance - Recording of Information - The court held that the failure to record the information received in writing and to forward a copy of the same to the immediate superior officer as required under Section 42(2) of the NDPS Act is a serious irregularity that vitiates the trial. The prosecution's case was based on the search and seizure conducted without complying with these mandatory provisions, and the accused was entitled to the benefit of doubt. (Paras 6-8) B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 42 - Forwarding Report to Superior Officer - The court observed that the Investigating Officer (PW2) did not forward the information to the SDPO as required by Section 42(2). The mere sending of a report after the raid was insufficient. The non-compliance with the mandatory provision rendered the entire search and seizure illegal, and the conviction was set aside. (Paras 7-8)
Issue of Consideration
Whether the non-compliance with the mandatory provisions of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regarding recording of information and forwarding a copy to the superior officer, vitiates the trial and entitles the accused to acquittal.
Final Decision
The appeal is allowed. The judgment and order of conviction dated 12.03.2003 passed by the 1st Adhoc Additional Sessions Judge, Akola in Sessions Trial No. 8/2002 is set aside. The appellant is acquitted of the offence punishable under Section 20(a)(b)(i) of the NDPS Act. The appellant is directed to be set at liberty forthwith, if not required in any other case.
Law Points
- Mandatory compliance with Section 42 of NDPS Act
- Recording of information in writing
- Forwarding report to superior officer
- Illegal search and seizure
- Benefit of doubt to accused
