DAVID JOSEPH KITINA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD Counsel for the Appellant, who is appearing as amicus curiae.

(2.) THIS Appeal takes exception to the Judgment and Order passed by the Special Judge, Greater Bombay dated March 19, 1997 in NDPS Special Case No.180 of 1994 recording finding of guilt against the Appellant for offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act') and ordering him to undergo rigorous imprisonment for a term of 10 years and to pay a fine of Rs.1,00,000.00 (Rupees One Lakh) and in default of payment of fine, to undergo additional sentence of rigorous imprisonment for a term of two years.

(3.) IT is not necessary to burden this Judgment with other facts as in my opinion, the Appellant ought to succeed on the short question that the prosecution has failed to establish in evidence that mandatory procedure required in terms of Section 42 of the NDPS Act has been complied with. Insofar as this aspect is concerned, the main evidence with regard to compliance of Section 42 is only of P.W.1 Suresh Gopalrao Thakare, PSI. P.W.1 was attached to Narcotic Cell of Azad Maidan Unit as PSI at the relevant time. In his examination-in-chief, he has deposed that in the morning of 15th July 1994 when he reported to duty in the Office of Sr.PI Arote, API Parmar was present. The informant then approached API Parmar at around 1.55 p.m. and gave requisite information to API Parmar. He has then deposed that API Parmar then conveyed this information to Sr.PI Arote, who in turn, called P.W.1, PSI Suryavanshi, PSI Kale and other staff and disclosed that there was information that one negro person aged about 20-22 years of slim built, wearing sky blue coloured shirt and blue coloured jeans was likely to arrive at J.B.Petit High School at around 3.30 to 4.00 p.m. for the purpose of narcotic deal. It is then deposed by P.W.1 that Sr.API Arote then instructed Havildar Hari Anna Ikke to get the panchas. Besides, Sr.PI Arote reduced the said information in writing in the information book maintained for recording such information. It is stated that he (Sr.PI Arote) then conveyed this information to his superiors Assistant Commissioner of Police (ACP) and Deputy Commissioner of Police (DCP), Narcotic Cell. This is the material evidence of P.W.1 in the examination-in-chief with regard to compliance of Section 42(2) of the NDPS Act, which mandates that where an Officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within 72 hours send a copy thereof to his immediate official superior.