UNION OF INDIA Vs. ATINDRANATH SARKAR

JUDGEMENT

(1.) The short question that arises in this appeal is as to the effect of admitted non-compliance with the condition laid down in the second proviso to Sec. 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and the impact of such non-compliance on the seizure.

(2.) By the judgment and order impugned dated February 22, 2011, the two accused persons were acquitted by the trial court primarily on the ground that the sanctity of the seizure of contraband could not be accepted and on an incidental ground that Sec. 55 of the said Act had also not been complied with.

(3.) The Union, through the Customs Department, is in appeal since it was a Customs official who had made the alleged recovery. According to the Union, there was substantial compliance with the relevant provision and, in any event, since the recovery was made from a vehicle in a public place, the trial court ought to have read the situation in the light of Sec. 43 of the said Act instead of Sec. 42 thereof. As to the incidental ground indicated in the impugned judgment pertaining to Sec. 55 of the said Act, the Union claims that such provision would have no manner of application since the seizure in this case was not by the police but by Customs authorities. The Union submits that the appropriate provision in this case, instead of Sec. 55 of the Act, would have been Sec. 52(3)(b) thereof. However, the Union contends that in the light of the much larger issue as to whether the conditions precedent to the applicability of Sec. 42 of the Act were complied with, it is only upon the Union succeeding on such aspect would it be necessary to go into the incidental aspect, whether under Sec. 55 or under Sec. 52(3)(b) of the Act.