There must be strict compliance of procedure enumerated in the Narcotic Drugs and Psychotropic Substances Act, 1985 so as to convict an person under the same. The single judge bench consisting of J. H.P. Sandesh set aside the decision of the Trial Court in the matter of Channabasappa S/o Kalappa v. State of Karnataka [Criminal Appeal No. 101/2011], wherein the accused was convicted for illegally planting ganja.
On receiving credible information, a police inspector raided a land and found that the accused had cultivated 15 ganja plants without any license or permit. After investigation, a charge sheet was filed against the accused for the offence punishable under Section 20(a) and 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985. On appearing in the Trial Court, the accused denied all the allegations on which he was convicted and sentenced to 3 months of rigorous imprisonment and a fine of Rs.2,000/- .
The learned counsel of the accused, relying on Shanthappa and Others v. State by Arehalli Police Station [(2001) Crl.L.J. 2822], contended that the investigating officer himself cannot be permitted to file the charge sheet. Hence, the officer had some vested interest in the proceedings. Witnesses were also called upon who did not support the prosecution and stated on cross-examination that the gazetted officer was not present at the spot and hence, the evidence was not to be relied upon. The HC government pleader appearing for the State said that the evidence could not be discarded in toto just because the witnesses had turned hostile.
The High Court held that “The non-compliance of Section 42 and 43 of the NDPS Act is fatal to the case of the prosecution. It has to be noted that special enactment was brought into force to combat the menace in the society. At the same time, in order to book a person, it requires strict compliance of the procedures. Hence, the absence of non-compliance of strict procedure envisaged under the NDPS Act, amounts fatal to the case of the prosecution”. The court said that the prosecution had failed to prove that the ganja was seized in the presence of the gazetted officer. Additionally, the court held that the trial court had not considered the legal evidence available on record and had hence, erred in convicting the accused and sentencing him for offence punishable under Section 20(a) of the NDPS Act.
The Court held that the benefit of doubt goes in favour of the accused with regards to non-compliance of provisions enumerated in the NDPS Act and hence, allowed the appeal.
