Himachal Pradesh HC Upholds Acquittal In Alleged 1.05-Kg Opium Case, Citing Witness Denials And NDPS Section 42 Noncompliance

In brief

The question

Whether the prosecution established the alleged recovery and the respondent’s guilt despite the independent witnesses’ denial and contradictions in the police evidence

The court held

The High Court dismissed the State’s appeal and affirmed the respondent’s acquittal, finding both material infirmities in the prosecution evidence and non-compliance with Section 42 of the NDPS Act

It also directed

It directed the respondent to furnish bail bonds under Section 437-A of the Code of Criminal Procedure

01Facts

The prosecution alleged that, on 8 February 2009, police recovered 1 kg 50 g of opium from a thermos kept beneath the rear seat of the respondent’s Maruti van, following prior information that he was transporting narcotics

¶ 3(a)–(e)

The Special Judge acquitted the respondent of the charge under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), and the State appealed

¶ 1–2

The High Court noted that the independent witnesses denied the search and recovery, while the prosecution relied on the testimony of police witnesses

¶ 24, 26

02Issues

i.Whether the prosecution established the alleged recovery and the respondent’s guilt despite the independent witnesses’ denial and contradictions in the police evidence

¶ 24, 26–28

ii.Whether the investigating officer complied with the requirements of Section 42 of the NDPS Act after receiving prior information

¶ 17, 22

iii.Whether the trial court’s acquittal was one the appellate court could disturb on appeal

¶ 10–15

03Law Applied

Under Section 42(1) and (2) of the NDPS Act, information concerning an offence must be recorded and conveyed to the superior officer as required; total non-compliance is impermissible, though delayed compliance may be accepted where satisfactorily explained (Karnail Singh v. State of Haryana; Abdul Rashid Ibrahim Mansuri v. State of Gujarat)

¶ 18–20

The Court also referred to the principle that non-compliance with Section 42(2) vitiates the proceedings

¶ 21

On an appeal against acquittal, an appellate court may interfere where the acquittal is perverse, rests on misreading or omission of material evidence, or no reasonable view consistent with acquittal is available; where two reasonable views are possible, the acquittal should not be disturbed

¶ 13–15

Provisions in the judgment · 10 · Linked ones open on LawLens

Narcotic Drugs and Psychotropic Substances Act, 1985 Section 3 Section 18 Section 42 Section 50 Section 55 Section 57

Code of Criminal Procedure, 1973 Section 173 Section 378 Section 437

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 481

04Reasoning

The Court found that the police had acted on prior information, but the record contained no separate document showing that the investigating officer recorded reasons of belief before proceeding to the spot and communicated them to his superior officer; it therefore held that Section 42 had not been complied with

¶ 17, 22

The alleged recovery was also denied by the independent witnesses, and the Court noted material contradictions between the official witnesses concerning the preparation of documents and the personal search offered before the search

¶ 24, 26

Considering these deficiencies together, the trial court’s acquittal was a reasonable view of the evidence and did not warrant appellate interference

¶ 27–28