The Orissa High Court has acquitted two individuals in a ganja trafficking case, ruling that the investigating authorities failed to adhere to mandatory procedures outlined under Section 42 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The court emphasized that due process is fundamental to the equitable enforcement of narcotics laws and that the safeguards embedded in the NDPS Act are not optional formalities but binding legal obligations.
Mandatory Provisions Under Section 42
Section 42 of the NDPS Act stipulates that any officer receiving prior information regarding the possession or transportation of contraband must document it in writing and communicate it to a superior officer within 72 hours before taking any action. Justice Sibo Sankar Mishra, in a recent judgment, stated, “The application of Section 42 of the NDPS Act was inevitable and the investigating agency had to comply with the rigours of the statutory procedural safeguard as contemplated under that provision.”
Case Background
The case pertains to the seizure of 37.24 kilograms of ganja from a private SUV intercepted by Bargarh police on January 29, 2021. The trial court, on February 29, 2024, had sentenced the two accused to 10 years of rigorous imprisonment and imposed a fine of Rs 1 lakh each under Section 20(b)(ii)(C) of the NDPS Act. The trial court rejected the accused's argument regarding non-compliance with Section 42, asserting that the vehicle was intercepted on a public road, thereby rendering the provision inapplicable.
However, the High Court found this reasoning inconsistent with established legal principles set forth by the Supreme Court. Justice Mishra noted that when narcotics are recovered from a private vehicle, the mandatory requirements of Section 42 are applicable, even if the vehicle is traveling on a public road.
High Court's Ruling
Upon examining the evidence, Justice Mishra found no material indicating that the mandatory requirements had been followed. The court held that this lapse prejudiced the accused and undermined the prosecution's case. Since compliance with Section 42 is mandatory, the conviction could not be upheld. The judgment stated, “The accused are entitled to an acquittal solely on the ground” of non-compliance with the statutory safeguard.
Considering both appeals, the High Court quashed the conviction and sentence. The appellants, who were arrested in January 2021, spent nearly five years in custody before being granted interim bail during the pendency of their appeals.
