This appeal arises out of a judgment and order rendered by City Sessions Court, Ahmedabad on 14/05/1993 in Sessions Case No.84 of 1990 acquitting the respondent of the charge of an offence punishable under Sections 20(b)(2) and 29 of the Narcotic Drugs and Psychotropic Substances Act and under Sections 66(1)(b), 65(e) read with Section 81 of the Bombay Prohibition Act. 2. As per the prosecution case, the alleged incident took place on 29/04/1987. On that day, PSI, Mr.Jadeja of Gomtipur Police Station received a secret information through Police Constable, Dilipsinh Jagatsinh that one person named Tabarakhussain Jammiruddin is engaged in drawing of large number of quantity of Charas and is going to sell some of the contraband to accused No.2 i.e. present appellant Ambalal @ Khodidas Bhikhabhai Thakor. On basis of that information, PSI, Mr.Jadeja arranged for a watch and raided near Raipur Mill. They noticed a person coming wearing white shirt with some heavy material in a pocket. Police Constable, Dilipsinh identified him as Tabarakhussain. The Police thereafter kept him under surveillance and found that he went to one of the houses in the Chawl where a person came out limping of a room while walking with the help of stick. Thereafter, Tabarkhussain went into the room alongwith him. Therefore, PSI, Mr.Jadeja alongwith others including Panch Witnesses, went inside the room to find A1 and A2 in the room. At that time, A2, present respondent, had a bag in his hand. The said bag was checked in presence of Panch Witnesses and quantity of Charas in a polythene bag was found from the pocket. The substance found from the pocket was black in colour and smelt like Charas. The contraband was weighed over there and was found to be 3.850 Kilograms, out of which, 150 Grams of Charas was drawn as a sample. The sealing was done, Panchnama was concluded and FIR was lodged by Mr.D B Jadeja, PSI. Offence was registered, investigation was started and the sample of the contraband was sent to FSL for analysis. Ultimately, chargesheet was filed in the Court of learned Metropolitan Magistrate, who in turn, committed the case to the Court of Sessions and Sessions Case No.84 of 1990 came to be registered.
2.1 Charge was framed against the accused persons at Exh.1, to which they pleaded not guilty and claimed to be tried. It appears that org. accused No.1 – Tabarakhussain is absconding and, therefore, the trial proceeded against accused No.2 present respondent. The trial Court found that the prosecution was not able to establish case against the accused and therefore recorded acquittal and hence this appeal.
3. We have heard learned Additional Public Prosecutor Mr.Dabhi, whereas the respondent is represented by learned advocate Mr.K P Shah.
4. On perusal of record and proceedings, we find that at the time of investigation, the Police was acting on a previous secret information. It was, therefore, expected of the Investigating Officer to reduce the said information in writing and to inform his immediate Superior Officer. This is not done by the Investigating Officer, which amounts to non compliance of requirement of Section 42(2) of the NDPS Act which is mandatory.
4.1 It also appears that mandatory requirement of Section 50 of giving an opportunity of being searched in presence of any other Gazetted Officer or Magistrate, has not been complied with. Similarly, second requirement of Section 57 of the NDPS Act is also not complied with.
5. If the mandatory requirements have not been complied with, the entire investigation stands vitiated.
6. In light of this, the trial Court was justified in acquitting the respondent. We do not find any reason to interfere with the judgment of the Court below in exercise of our appellate jurisdiction. The judgment is not de hors the evidence on record. The view taken by the trial Court is not an impossible one and it is not palpably erroneous. The appeal must fail and stands dismissed.
(A L DAVE, J.)
(A J DESAI, J.) sompura