CUTTACK: The Orissa High Court has set aside the conviction of two men sentenced to 10 years’ of rigorous imprisonment in a ganja trafficking case, holding that investigators failed to comply with the mandatory safeguards prescribed under section 42 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
The court stated that section 42 requires officers receiving prior information about transportation or possession of narcotic substances to record such information in writing before conducting a search. The provision further mandates that the information be communicated to a superior officer within 72 hours.
Describing these requirements as mandatory and not procedural formalities, Justice Sibo Sankar Mishra noted that the prosecution had failed to establish compliance with the requirement.
“It has become abundantly clear that the application of Section 42 was inevitable and the investigating agency had to comply with the rigours of the statutory procedural safeguard,” Justice Mishra observed.
The judgment was passed while considering two criminal appeals challenging a February 29, 2024 judgment of the 1st Additional Sessions Judge, Balangir, which had convicted the appellants under section 20(b)(ii)(C) of the NDPS Act and imposed a fine of Rs 1 lakh on each of them.
The case stemmed from a January 29, 2021 seizure by Bargarh police of 37.24 kg of ganja from a car. The trial court had held that section 42 of the NDPS Act was not attracted because the vehicle was intercepted in a public place and rejected the accused persons’ challenge regarding procedural lapses.
However, the high court found the reasoning contrary to settled legal principles. Referring to Supreme Court precedents, Justice Mishra observed that a private vehicle cannot automatically be treated as a “public place” merely because it is moving on a public road. Consequently, the search and seizure operation was governed by section 42 of the NDPS Act.
The two accused had already spent nearly five years in custody before being granted interim bail during the pendency of the appeals.
