The criminal appeal filed against the order passed by Additional Session Judge Cum-Special Judge for NDPS Act, Pandharpur for exonerating all accused punishable under section 20(b)(ii)(c) of Narcotic Drugs and Psychotropic Substance Act 1985 (NDPS Act) in the case The State of Maharashtra v. Suabai Narhari Babar (CRIMINAL APPEAL NO.1154 OF 2004)
The Trial Court was of the opinion that the prosecution failed to prove on merit and also has not complied with the mandatory provision section 42 of the NDPS Act stating the power to entry, search, seizure, and arrest without warrant or authorization which states that any competent officer if has reasons to believe that person’s knowledge or information given any narcotic drug, or psychotropic substance, or controlled substance, documents or illegal acquired property commit offense committed punishable under this Act and liable for seizure under Chapter VA of this Act. the officer in charge of the above obligation shall require to furnish the send copy thereof to his immediate official superior within seventy-two hours.
The counsel pleads before the court that the decision of the trial court was apt and valid in its reasoning while taking into reference a case wherein apex court Dalel Singh Vs. State of Haryana in which, the court has quoted paragraph 12 of the judgment rendered by Constitution Bench of Apex Court in Karnail Singh Vs. The state of Haryana held that total non-compliance of subsection 1 and 2 of section 42 of this Act is not allowed but otherwise delay with explanation or reason would be acceptable and permissible. In this present case, there was a total non-compliance with Section 42 of this Act.
During witness examination, P.W.12, Sharad Ramrao Thonge Patil is an investigation officer who received information that accused no.1- Subabai Babar has kept a ganja bag in a tin shed opposite to her house in Ganesh Nagar, Shirpur. Consequently, he went to the police station and entered information in the station diary. There is no evidence of information that it has been reduced to writing which defiled the mandatory proviso which states that officers on receiving information reduced the same in writing and shall send a copy thereof to official superior contained under section 42 of this Act.
P.W.12 states that after making entry, he then made a call to S.P. Solapur and gave him the required information. The officer was required to send a copy thereof that he has reduced it to writing which was not complied with in this case. Bombay High court referred Gangaram Rama Gundkar & Anr. Vs. The State of Maharashtra in which investigating officers sent wireless messages to immediate superior officers and that information has been reduced to writing in a station diary for approving compliance of section 42(2) of this Act. The court held that it is insufficient for compliance of section 42 and such wireless message is equivalent to oral information.
The court was of the opinion that investigating officers must not only reduce it into writing but also record reasons while carrying out the arrest, seizure as provided under section 42(1) of this Act. The failure to which would lead to a vitiate prosecution case. In the given case, P.W.12 only recorded that accused no.1 has brought a ganja bag and kept it in a tin shed opposite to her house but has failed to even record the entire address of the accused. Such information was entered without any belief or reasons.
The court held that the failure to observe the mandatory requirement under section 42 has vitiated the trial of the case and has resulted in the approval of the trial court to decide the acquittal of the accused and thereby its decision cannot be held illegal and invalid in accordance to the law in force.
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