Non-Compliance Of Section 42 Of NDPS Act Vitiates Trial: Bombay High Court

The Learned Special Judge passed an order on May 15^th, 2004 acquitting all the accused of the offences under Section 20 (b) (ii) (c) of the NDPS Act. The court noted that not only did the prosecution fail on merits, but the trial court too, had noted the failure to comply with section 42 of the NDPS Act.

The court referred to the deposition of the Investigating Officer, who despite having knowledge of the possession of ganja by one of the accused and the whereabouts of the same, did not reduce the information into writing as required under Section 42. The court made further reference to his deposition, noting that he had written the said information in the station diary and communicated the same via telephone to his immediate officer. The court noted that mere entry of the information does not suffice and reasons for the belief must also be reduced to writing. Accordingly, the court did not consider this to be strict compliance with Section 42 (2) of the NDPS Act.

Justice K.R. Shriram relied upon Gangaram Rama Gundkar vs. the State of Maharashtra, 2002 Cri LJ 2578 which held that even a wireless message sent to the immediate superior official does not comply with Section 42 (2). Further reliance was placed on Sayed Yusuf Syed Noor vs. State of Maharashtra, 2000 (70) ECC 696 where the court noted that the information was given to the superior officer on the telephone only and nothing was brought into evidence to show that on attaining the information, the same was reduced to writing by the concerned officer. On the basis of these authorities, the court held: "Since this mandatory provision of Section 42 of the NDPS Act has not been followed in the instant case, the trial itself is vitiated."

The court accordingly upheld the acquittal order of the Special Judge.

CASE: THE STATE OF MAHARASHTRA vs. SUABAI NARHARI BABAR [CA NO: 1154 OF 2020]

CORAM: Justice K.R. Shriram