Case Note & Summary
The appellants, Mobin Khan and Taslim Khan, were convicted by the learned District Judge-6 and Additional Sessions Judge, Nagpur in Special (N.D.P.S.) Case No.07/2013 for the offence punishable under Section 20(b)(ii)(C) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to rigorous imprisonment for ten years and a fine of Rs.1,00,000/- with default simple imprisonment for six months. The prosecution case was that on 25.11.2012, PW-9 PSI Patil, while on patrolling duty, along with other police officers, stopped a white Indigo car bearing registration MP-28/C-7572 at about 11.30 pm near Patansaongi Police Station. The car was occupied by the two appellants. Upon search of the car, 14 packets from the dicky and 4 packets from the rear seat were found, containing ganja weighing 85 kg 810 grams. Samples were taken and sent for chemical analysis, which confirmed the substance as ganja. The appellants were arrested and charged. The trial court convicted them. The appellants appealed to the High Court challenging the conviction primarily on the ground of non-compliance with the mandatory provisions of Sections 42 and 50 of the NDPS Act. The High Court examined the evidence and found that the prosecution had not established that the police officer had prior information as required under Section 42, nor was there any recording of grounds of belief. Further, the accused were not informed of their right to be searched before a gazetted officer or magistrate as mandated by Section 50. The court held that these procedural safeguards are mandatory and their non-compliance vitiates the trial. Consequently, the High Court allowed the appeal, set aside the conviction and sentence, and acquitted the appellants.
Headnote
A) Criminal Law - Narcotic Drugs and Psychotropic Substances - Non-compliance with Section 42 - NDPS Act, 1985, Section 42 - The prosecution failed to prove that the officer had prior information and recorded the grounds of his belief before conducting the search. The search was conducted without following the mandatory procedure under Section 42, which requires recording of information and sending a copy to superior officer. Held that non-compliance vitiates the trial. (Paras 10-15) B) Criminal Law - Narcotic Drugs and Psychotropic Substances - Non-compliance with Section 50 - NDPS Act, 1985, Section 50 - The accused were not informed of their right to be searched before a gazetted officer or magistrate. The search was conducted without offering the option to the accused, which is mandatory under Section 50. Held that the conviction cannot be sustained. (Paras 16-20) C) Criminal Law - Narcotic Drugs and Psychotropic Substances - Conviction and Sentence - NDPS Act, 1985, Section 20(b)(ii)(C) read with Section 29 - The appellants were convicted for possession of 85.810 kg of ganja and sentenced to 10 years RI and fine of Rs.1,00,000/-. Due to non-compliance with mandatory provisions, the conviction was set aside and the appellants were acquitted. (Paras 21-22)
Issue of Consideration
Whether the conviction of the appellants under Section 20(b)(ii)(C) read with Section 29 of the NDPS Act, 1985 is sustainable in law when the mandatory provisions of Sections 42 and 50 of the NDPS Act were not complied with.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellants acquitted. Fine, if paid, to be refunded.
Law Points
- Non-compliance with Sections 42 and 50 of NDPS Act
- 1985
- mandatory provisions
- search and seizure
- prior information
- recording of grounds
- right to be searched before gazetted officer or magistrate
- acquittal
