Case Note & Summary
The State of Maharashtra appealed against the acquittal of the respondents (Smt. Phallu @ Farida w/o Sayyed Ahmed and others) by the Special Judge for Greater Mumbai in NDPS Special Case No. 35/1994, for an offence punishable under Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The prosecution case was that on 3 January 1994, the respondents were found in possession of approximately 1 kg of heroin, a contraband under the Act. The Trial Court acquitted the respondents primarily on the ground that there was violation of Section 42(2) and Section 50 of the NDPS Act. The High Court heard the appeal and perused the record. The court noted that P.W.5 Yeshwant Vatkar admitted in his testimony that after the accused persons declined to be searched before a Gazetted officer, Police Inspector Mr. Surya, a member of the raiding party, informed them that he himself was a Gazetted officer and they could offer their search to him. This was held to be in violation of Section 50, as the officer cannot act as both the searcher and the independent authority. The court relied on the Supreme Court decision in State of Rajasthan v. Parmanand and anr. (2014 ALL MR (Cri.) 1475 (S.C.)). Additionally, the court found clear violation of Section 42(2) of the Act, as the information received was not reduced to writing and sent to superior officers. While mere violation of Section 42(2) may not vitiate the trial, coupled with the violation of Section 50, it did. Consequently, the High Court dismissed the appeal, upholding the acquittal.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Right to be searched before Gazetted Officer or Magistrate - The police officer informed the accused that he himself was a Gazetted officer after the accused declined search before a Gazetted officer, which is a violation of Section 50 as the officer cannot be both the searcher and the independent authority. The court held that such appraisal vitiates the search and seizure. (Paras 3-5) B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 42(2) - Reporting of information - There was clear violation of Section 42(2) as the information received was not reduced to writing and sent to superior officers. Coupled with violation of Section 50, the trial is vitiated. (Para 5)
Issue of Consideration
Whether the acquittal of the respondents by the Special Judge under the NDPS Act was justified in light of alleged violations of Sections 42(2) and 50 of the Act.
Final Decision
The High Court dismissed the appeal, upholding the acquittal of the respondents.
Law Points
- Violation of Section 50 of NDPS Act
- Violation of Section 42(2) of NDPS Act
- Right of accused to be searched before Gazetted Officer or Magistrate
- Non-compliance with mandatory provisions vitiates trial
