HC acquits 2 in ganja case, says safeguards can’t be ignored during trial

Cuttack: Orissa high court has acquitted two men in a ganja trafficking case as investigators failed to follow mandatory procedures under Section 42 of NDPS Act.The court iterated that due process is central to fair enforcement of narcotics laws and held that safeguards under the NDPS Act were not optional formalities but binding legal requirements.Section 42 mandates that any officer receiving prior information about possession or transport of contraband must record it in writing and share it with a superior officer within a stipulated timeframe of 72 hours before taking action. “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," Justice Sibo Sankar Mishra ruled in a recent judgment.Justice Mishra set aside a Feb 29, 2024, judgment of the first additional sessions judge, Balangir, which 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 case related to the seizure of 37.24 kg of ganja from a private SUV intercepted by Bargarh police on Jan 29, 2021. The trial court rejected the accused persons' contention regarding non-compliance with Section 42, holding that the vehicle was intercepted on a public road and therefore the provision was not applicable.The high court, however, found the trial court's reasoning inconsistent with settled legal principles laid down by the Supreme Court. It noted that when narcotics are recovered from a private vehicle, the mandatory requirements of Section 42 come into play, even if the vehicle is travelling on a public road.Examining the evidence on record, Justice Mishra found no material to show that the mandatory requirements were followed. It held that the lapse caused prejudice to the accused and struck at the root of the prosecution case.Since compliance with Section 42 is mandatory, the court ruled that the conviction could not be sustained. "The accused are entitled to an acquittal solely on the ground" of non-compliance with the statutory safeguard, the judgment said.Considering both appeals, the high court quashed the conviction and sentence. The appellants, arrested in Jan 2021, spent nearly five years in custody before being granted interim bail during the pendency of their appeals.