This is an appeal impugning an order and judgment dated 15-5-2004
passed by Learned Additional Sessions Judge Cum – Special Judge for NDPS
Act, Pandharpur, acquitting all the accused of offence punishable under
Section 20(b)(ii)(c) of Narcotic Drugs and Psychotropic Substance Act 1985 (NDPS Act).
Turning to the facts of the present case, looking from any angle,
i.e., whether the officer concerned, for the purposes of Section 42(1)
of the NDPS Act, was SDPO, Shri Shekhar, or it was Police Inspector,
P.W. 6 Raut, clearly there has been total noncompliance of Section 42.
It deserves to be noticed that SDPO, Shri Shekhar was not examined as
a witness by the prosecution. Further, as already noticed, the
information to immediate official superior, namely, SP, was given on
telephone only. According to P.W. 6, no record of any such information
was prepared or kept, or if it was so prepared, it was not produced by
the prosecution for the reasons best known to it. Exhibit 28 though
records that intimation in writing was given to superiors, no such
writing has been produced. This very document, in fact, notices that
SDPO Shekhar was dealing with the matter. It was at his direction that
the police party went to the residence of the appellant. He is stated to
have told P.W. 6 to inform his immediate superior, namely, SP, who is
said to have been informed on telephone, as per the testimony of P.W.
6, and in writing, as per Exhibit 28, though none was produced. In
fact, there has been non-compliance both of Sub-section (2) and Subsection
(1) of Section 42 of the NDPS Act. On the facts of the present
case, Exhibit 28 cannot be pressed into service to show compliance of
Section 42(1) of the NDPS Act. It is only a document recording and
showing departure of the police party from the Police Station. It does
not record the reason of belief contemplated by Section 42(1) of the
NDPS Act. Alternatively, assuming that the officer to whom the
information was given about the appellant selling narcotic drug at his
residence was P.W. 6, in that eventuality, he was required to record
reasons to believe and was required to send a copy thereof to the
immediate official superior in terms of Section 42(2) of the NDPS Act.
In fact, P.W. 6 does not even claim to be an officer to whom such
information was given. According to P.W. 6, SDPO told him that he
should inform about the receipt of information to SP, which he
informed to SP on telephone. On these facts, we find no substance in
the contention of the learned Additional Public Prosecutor that since
information was given to P.W. 6 by SDPO Shekhar, on the facts and
circumstances of the case it was neither necessary to comply with
Section 42 of the NDPS Act, nor there has been substantial compliance
thereof. Section 42 of the NDPS Act is mandatory. The object of the
NDPS Act is to make stringent provisions for control and regulation of
operations relating to those drugs and substances. At the same time, to
avoid harm to the innocent persons and to avoid abuse of the
provisions by the officers, certain safeguards are provided which in the
context have to be observed strictly. Therefore, these provisions make
it obligatory that such of those officers mentioned therein, on
receiving an information, should reduce the same to writing and also
record reasons for the belief while carrying out arrest or search as
provided under the proviso to Section 42(1), and to that extent, they
are mandatory. Consequently, the failure to comply with these
requirements affects the prosecution case and, therefore, vitiates the
trial. [See Balbir Singh's case (supra)].
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1154 OF 2004
The State of Maharashtra V/s. Suabai Narhari Babar
CORAM : K.R.SHRIRAM, J.
DATED : 18th DECEMBER 2020
Print Page