The Indian judiciary is an important pillar of criminal Justice System. Various Judgments pronounced on different aspects take form of case laws and become the guiding force for the law enforcement agencies. Eg. Recent landmark Judgment by the Hon’ble Apex Court in state of Kerala vs. Rajesh where the Hon’ble Court has cited twin condition for releasing accused on bail in NDPS matters has a bearing effect on enforcement of NDPS Act and prosecution.
the Director General of Police concerned of all the States to issue appropriate instructions directing the investigating officers to duly comply with the provisions of Section 42 of NDPS Act at the appropriate stage to avoid such acquittals. Compliance to the provisions of Section 42 being mandatory, it is the incumbent duty of every investigating officer to comply with the same in true substance and spirit in consonance with the law stated by this Court in the case of Karnail Singh (supra).
As rightly held by the High Court, the said contention should have satisfied the twin conditions, namely, that the contents of the narcotic substance should not be more than 100 mg. of codeine, per dose unit and with a concentration of not more than 2.5% in undivided preparation apart from the other condition, namely, that it should be only for therapeutic practice. Therapeutic practice as per dictionary meaning means contributing to cure of disease.
In such a fact-situation, determination of the contents of morphine in the opium becomes totally irrelevant for the purpose of deciding whether the substance would be a small or commercial quantity. The entire substance has to be considered to be opium as the material recovered was not a mixture and the case falls squarely under Entry 92. Undoubtedly, the FSL Report provided for potency of the opium giving particulars of morphine contents. It goes without saying that opium would contain some morphine which should be not less than the prescribed quantity, however, the percentage of morphine is not a decisive factor for determination of quantum of punishment, as the opium is to be dealt with under a distinct and separate entry from that of morphine.
The Apex Court held that if the delay in sending samples for forensic examination was unintentional and the samples seal was intact then such forensic report is admissible in law and does not vitiate trial.
It is mandatory to inform the suspect of existence of his right to be searched before a Gazetted Officer or a Magistrate and in case he so opts failure to conduct search before such officer or Magistrate would render the recovery of article suspect and vitiate conviction if it is recorded on the base of recovery alone. Information need not be communicated in a prescribed form or in writing.
Compliance of section 41 by electronic media like wireless etc. : information having been transmitted through wireless and in our opinion would be a substantial compliance of Section 42 of the NDPS Act since the situation was of emergency.
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