Non-Compliance Of Mandatory Provisions Under NDPS Act Be Dealt With Strict Hand, Caution Must While Deciding Cases Of Seizure: Rajasthan High Court

The Rajasthan High Court has observed that the non-compliance of mandatory provisions of NDPS Act has to be dealt with a strict hand and that courts have to be cautious while adjudicating matters concerning seizure of narcotics substance.

Justice Farjand Ali emphasized that no accused should be able to walk scot-free for want of proper implementation and following of the procedure established by law.

The court made the observations while suspending the 15-year sentence awarded to a man under Sections 8, 21 and 22 of the NDPS Act, till disposal of his appeal. It ordered for his release on bail subject to the condition that he will appear before the trial court in the month of January of every year till the appeal is decided.

“….non-compliance of mandatory provisions of the NDPS Act has to be dealt with a strict hand and it is imperative upon the courts to be cautious while adjudicating such matters where seizure is concerned under the NDPS Act as no accused should be able to walk scot-free for want of proper implementation and following of the procedure established by law,” the court said.

It was the case of the appellant that there was non-compliance of Section 42 of the NDPS Act, which is mandatory in nature. It was contended that there was a serious discrepancy casting a serious doubt in the story of the prosecution and veracity of the statement of the prosecution witness.

Granting relief to the man, the court said that the prosecution failed to prove the case beyond every shadow of reasonable doubt as it did not prove that the information under Section 42(2) of NDPS Act was properly supplied to the concerned superior officer.

The court also said that there was no evidence on record to corroborate the fact that the information under Section 42 was received by the superior officer and that no other document was produced to show the compliance of the mandatory provision.

“It baffles this Court as to how the investigating agency…did not have time and foresight to comply with the mandate of Section 42 of the NDPS Act and inform the superior officer regarding the same. As per the mandate of law, if the officer has prior information regarding breach of the provisions of NDPS Act, he is under a legal obligation to note down the information and before proceeding to search and seizure he has to send a report to the superior officers,” said the court.

Perusing the documents on record, the court said that there was a “strong possibility” of there being a mix-up between the forwarding letters sent by S.P. of Jaisalmer as well as in the samples sent for FSL in three different NDPS cases, one of which related to the appellant.

The court also relied on a Supreme Court judgment in Vijaysinh Chandubha Jadeja vs. State of Gujarat wherein it was observed that the failure to comply with the provisions of NDPS Act would render the recovery of illicit articles ineffective and vitiate the conviction.

Allowing the application, the court observed: “The NDPS Act is called a draconian law because of its stringent provision of punishment and that is why the mandatory provisions are required to be complied with stricto sensu, failure of which vitiates the recovery.”

Case Title: Shrawan Kumar vs. State of Rajasthan

Appearance:

For Appellant(s) : Mr. Vijay Raj Bishnoi

For Respondent(s) : Mr. Gaurav Singh, PP

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