Case Note & Summary
The appellant, Majjidkha s/o Hanifkha Khan, was convicted by the Special Judge, Chandrapur in Special Case No.10/2004 for an offence punishable under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to rigorous imprisonment for seven years and a fine of Rs.50,000/-. The prosecution case was that on 17/8/2004, Police Inspector Ashok Jot (P.W.5) received secret information at 21.10 hours that the accused had stored contraband ganja in his house near Puja Colour Lab at Dadabhai Nouraji Ward, Ballarsha for sale. The information was reduced to writing in the station diary and given to Shri Walve, Sub-Divisional Police Officer, Chandrapur. Based on this, a raid was conducted at 22.40 hours and ganja was seized. The appellant challenged the conviction on the ground that the mandatory requirement of Section 42(2) of the NDPS Act was not complied with, as the information was not sent to the immediate official superior. The court examined the evidence and found that P.W.5 admitted that he did not send the information to his superior officer. The court held that Section 42(2) is mandatory and non-compliance vitiates the trial. The appeal was allowed, the conviction and sentence were set aside, and the appellant was acquitted.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 42(2) - Compliance with mandatory requirement - Secret information received by police officer must be reduced to writing and sent to immediate official superior forthwith - Failure to comply renders the search and seizure illegal and conviction unsustainable - Held that the prosecution failed to prove compliance with Section 42(2) as the information was not sent to the superior officer, vitiating the trial (Paras 5-7).
Issue of Consideration
Whether the conviction under Section 20(b)(ii) of the NDPS Act is sustainable when the mandatory requirement of Section 42(2) of the NDPS Act regarding sending of information to superior officer was not complied with.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted. Fine, if paid, to be refunded.
Law Points
- Non-compliance with Section 42(2) of NDPS Act
- Secret information must be sent to superior officer immediately
- Conviction based on illegal search and seizure cannot be sustained
