Case Note & Summary
The appellant, Kallumal Jaidmal Kukareja @ Kallumama, was convicted by the NDPS Special Judge, Greater Bombay, for an offence punishable under Sections 8(c) read with 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1 lakh. The prosecution case was that on 28th March 2008, PW7 Manisha Shirke, a Woman Police Sub-Inspector attached to the Anti Narcotic Cell, received secret information that the appellant would be selling charas near Byculla Railway Station. She recorded the information in the Station Diary but did not forward a copy to her superior officer as required under Section 42(2) of the NDPS Act. A raid was conducted, and charas was allegedly recovered from the appellant. The trial court convicted the appellant. On appeal, the Bombay High Court examined the compliance with Section 42 of the NDPS Act. The court noted that the secret information was not reduced to writing and forwarded to the immediate superior officer, which is a mandatory requirement. The court held that non-compliance with Section 42 vitiates the search and seizure, and the accused is entitled to the benefit of doubt. The appeal was allowed, the conviction and sentence were set aside, and the appellant was acquitted.
Headnote
A) Criminal Law - Narcotic Drugs - Section 42 of NDPS Act, 1985 - Compliance with mandatory provisions - Secret information received by PW7 regarding possession of charas was not reduced to writing and forwarded to superior officer as required under Section 42(2) of NDPS Act - Held that non-compliance vitiates the search and seizure, and the accused is entitled to acquittal (Paras 10-15).
Issue of Consideration
Whether the conviction under Sections 8(c) read with 20(b)(ii)(B) of the NDPS Act, 1985 is sustainable when the mandatory provisions of Section 42 of the NDPS Act regarding recording of secret information and forwarding it to superior officer were not complied with.
Final Decision
Appeal allowed. The impugned judgment and order dated 23rd November 2016 passed by the learned NDPS Special Judge, City Civil and Sessions Court, Greater Bombay, in NDPS Case No.95 of 2008 is set aside. The appellant is acquitted of the offence punishable under Sections 8(c) read with 20(b)(ii)(B) of the NDPS Act. The appellant be set at liberty forthwith, if not required in any other case.
Law Points
- Non-compliance with Section 42 of NDPS Act
- 1985
- Secret information must be reduced to writing and forwarded to superior officer
- Search and seizure vitiated if mandatory provisions not followed
- Benefit of doubt to accused
