Telangana High Court
Komura Yadhav, Adilabad District And ... vs The State Of A.P., Rept. By Pp., High ... on 10 February, 2025
1
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.867 OF 2011
JUDGMENT:
1. This appeal is filed by the appellants aggrieved by the
judgment dated 22.07.2011 in N.D.S.C.No.15 of 2010, on the
file of Special Judge for Trial of Cases under NDPS Act-Cum-I
Additional Sessions Judge, Adilabad. The appellants are
convicted for the offence under Section 20(b) (ii) (B) of NDPS
Act.
2. Heard the learned counsel for the appellants/Accused
and Sri M.Vivekananda Reddy, learned Assistant Public
Prosecutor for respondent-State. Perused the record.
3. According to P.W.9, who was working as Sub-Inspector of
Police, P.S., Adilabad, he received information at 3:20 p.m., on
10.09.2010 about illegal transportation of ganja by two persons
from Kandala to Adilabad. Along with Constables and panch
witnesses, P.W.9 went to the scene around 3:30 p.m. and found
the appellants on a motor cycle and the pillion rider was
carrying two bags. They were stopped. Requisition was given
to P.W.8/Gazetted Officer for being present for personal search.
P.W.8 also arrived at the scene. In the presence of P.W.8, the
appellants revealed their names and also stated that they have
purchased ganja from A-3. Two samples from each bag were
drawn, M.Os.1 and 2 from 1st bag and M.Os.3 and 4 from 2nd
bag. Later panchanama was prepared and samples were sent
to FSL for the purpose of examination.
4. FSL report/Ex.P.10 confirmed that the samples sent were
ganja.
5. The only ground raised by the learned counsel appearing
for the appellants is that there is violation of Section 42 of
NDPS Act. P.W.9 states that he received information about
illegal transportation of ganja and he had informed to his
Inspector. However, the said information was neither taken
down in writing, nor informed to Superior Officer as required
under Section 42 of NDPS act.
6. Under Section 42 of NDPS Act, any information that is
received and reduced into writing has to be informed to the
Superior Officer within 72 hours and the copy thereof shall be
sent to Official Superior. Though P.W.9 stated that he had
informed the Inspector, however, no such document is filed to
show that there was any kind of information, or that within 72
hours, the information was given to immediate Superior Offficer
as required under Section 42(2) of NDPS Act.
7. In Union of India v. L.D.Balam Singh 1, the Hon'ble
Supreme Court held that when it is not proved by the
prosecution that search and seizure was in compliance of
Section 42 of NDPS Act, it is fatal to the prosecution case.
8. In Shahidkhan v. Director of Revenue Intelligence,
Government of India, Hyderabad and Another 2, this Court
held that when the provision makes it mandatory for informing
Superiors regarding information received, and no such proof is
filed regarding information being passed on to the Superior
Officer, it causes prejudice to the accused.
9. Admittedly, the procedure under Section 42 (1) and (2) of
NDPS Act was not followed by P.W.9.
10. In view of violation of procedure laid down which is
mandatory under Section 42 of NDPS Act, the Appeal deserves
to be allowed.
11. Accordingly, the Criminal Appeal is allowed.
_________________
K.SURENDER, J
Date: 10.02.2025
dv
2002(2) ALD Crl.298(SC)
2011 (1) ALD (Crl) 781 (A.P)
