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Following of procedure and complying with safeguards must be strictly adhered to: Bombay High Court

Mandate of law is required to be strictly complied in view of the grave consequences which are likely to be followed on proof of illicit article under the Act. A bench of Revati Mohete Dere J; while adjudicating the matter in Gurmeet Singh v. State of Maharashtra; [CRIMINAL APPEAL NO.351 OF 2015], dealt with the issue of following the procedure of Section 42(1) of NDPS Act.

An individual was accused on the ground that he is engaging in the sale of drugs. Thereafter, the officers of the Narcotic Control Bureau (‘NCB’), organised a raid and maintained surveillance at the spot. It appears that shortly thereafter, a vehicle was parked in front of the ICICI Prudential Bank Building. After some time, a middle-aged person of wheatish complexion arrived near the said vehicle carrying a white polythene bag. It is alleged that after a brief talk with the driver of the said car, the said person sat on the rear seat of the car. Immediately, thereafter, the officers of NCB encircled the car and asked the occupants to come out of the car. The officers introduced themselves and asked the persons in the car their names. The officers disclosed the information so received to both the appellants. On enquiry, the appellant allegedly disclosed that a total of 40 packets of Hashish were concealed in the gas cylinder and in the cavity made in the rear seat and rear door panels. Accordingly, the officers of the NCB took the car to the NCB office for conducting inspection. Thereafter, a detailed search and examination of the car was undertaken and the said examination resulted in recovery of 40 packets of 1 kg Hashish from the cavity of the said car. All the packets were opened. They tested positive for Hashish when examined by the field-testing kit. Thereafter, samples were taken and necessary formalities with respect to sealing were completed. Charge was framed as against the appellants, to which they pleaded not guilty and claimed to be tried. The question for consideration was whether it was legally valid that no officer had applied for any search warrant or authorisation nor reasons recorded for not obtaining the said authorisation/search warrant as mandated by the proviso to sub-section (1) of Section 42 of the NDPS Act.

The Court upon considering the aforesaid facts stated that; “The mandate of law as incorporated under the Act, is required to be strictly complied in view of the grave consequences which are likely to be followed on proof of illicit article under the Act; that the legislature had enacted and provided certain safeguards in various provisions of the Act including sections 42 and 50, in all cases which must be proved to have been strictly followed; and that the harsh provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and comply with the safeguards. Having regard to the legal position as stated aforesaid and the evidence on record in the present case, it is clear that there is total non-compliance of the proviso to sub-section (1) of Section 42 of the NDPS Act. The non-compliance of the said provision vitiates the trial and as such both the appeals ought to succeed only on the aforesaid premise.”

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