Total non-compliance with Section 42 NDPS Act vitiates conviction and warrants acquittal.

On 20 April 2017, the Station House Officer of Madanpur Police Station allegedly received prior information that the appellants were engaged in the illegal trade of ganja.

A raiding team searched the house occupied by the appellants at Village Ghoshta in the presence of two villagers and allegedly recovered six kilograms of ganja packed in four packets.

A seizure list was prepared, samples were drawn, and Madanpur P.S. Case No. 81 of 2017 was registered.

The appellants were charged under Section 8 read with Section 20(b)(ii)(B) of the NDPS Act.

The prosecution examined twelve witnesses and produced seizure, forwarding, forensic, and related documentary evidence.

The trial court convicted both appellants and sentenced each to four years’ rigorous imprisonment, a fine of ₹40,000, and six months’ simple imprisonment in default of payment of fine.

In appeal, the appellants challenged the conviction on the grounds of non-compliance with Section 42 of the NDPS Act, failure to prove conscious possession, hostility of an independent witness, deficiencies in the chain of custody, and non-production of the seized material exhibits.

1. Whether the alleged search and seizure was vitiated by total non-compliance with the mandatory requirements of Section 42(1) and Section 42(2) of the NDPS Act, where the prior information was neither reduced into writing nor communicated to the immediate superior officer?

2. Whether the prosecution established the foundational fact of the appellants’ conscious possession of the recovered ganja so as to justify the reverse presumptions under Sections 35 and 54 of the NDPS Act?

3. Whether the prosecution proved the recovery and identity of the contraband beyond reasonable doubt in view of the hostile independent witness and the alleged deficiencies in sealing, malkhana custody, preservation of seals, forensic dispatch, and production of the seized material?

The Court applied Section 42(1) and (2) of the NDPS Act, which require prior information relating to a search of a building or enclosed place to be reduced into writing and communicated to the immediate superior officer; total non-compliance with these requirements vitiates the prosecution, subject to the principles stated in Karnail Singh v. State of Haryana, (2009) 8 SCC 539, and State of Rajasthan v. Jagraj Singh @ Hanja, (2016) 11 SCC 687.

The Court further applied Sections 35 and 54 of the NDPS Act, holding that the reverse burden arises only after the prosecution first proves the foundational fact of conscious possession beyond reasonable doubt.

It also relied on the principle that an admitted signature on a seizure or procedural document does not, by itself, prove the contents of the document or the underlying recovery, and that the prosecution must establish an unbroken chain of custody of the seized narcotic substance.

The substantive charge arose under Section 8 read with Section 20(b)(ii)(B) of the NDPS Act.

The Court found that the police acted on prior information received at the police station but failed to record that information in writing or transmit it to the immediate superior officer.

This amounted to total non-compliance with Section 42 and, applying Karnail Singh and Jagraj Singh, constituted a fundamental defect in the search and seizure process.

The Court also held that the prosecution had not independently established that the appellants exercised exclusive control over the particular room or premises from which the ganja was allegedly recovered.

Their mere presence in a house allegedly belonging to their father was insufficient to prove conscious possession and to activate the presumptions under Sections 35 and 54.

In addition, one independent seizure witness had turned hostile; the signatures of the witnesses did not substantively establish the recovery; and the prosecution failed to satisfactorily prove the malkhana entries, safe custody, preservation of seals, and continuity of the samples until forensic examination.

These cumulative defects rendered the conviction unsafe.

Accordingly, it set aside the judgment of conviction dated 3 August 2018 and the order of sentence dated 7 August 2018 passed by the 1st Additional Sessions Judge-cum-Special Judge (NDPS), Aurangabad.

The appellants, Kaushal Kumar and Vivesh Kumar, were acquitted of all charges and directed to be released forthwith if not required in any other case; their bail bonds were discharged.

The appeal was allowed and any pending interlocutory applications were disposed of.