india

Updated: Sep 23, 2019 14:45 IST

A special anti-narcotics court in Mumbai has acquitted a drug peddler after a police officer failed to explain his rights before being searched in Hindi, the language he knew.

The special court under Narcotic Drugs and Psychotropic Substances (NDPS) Act found that there were several gaps in the procedure followed by the officers of Mumbai Police’s anti-narcotic cell (ANC) in arresting Shadab Shaikh in 2015.

“There has been gross violations of mandatory provisions contained in Sections 42 and 50 of the NDPS Act, which entitles the accused of acquittal,” Shaikh’s lawyer, Munira Palanpurwala had argued.

She also said that the process of sealing and sampling by the cell was defective.

The sections 42 of the NDPS act deals with an officer’s power of entry, search, seizure and arrest without warrant or authorisation. And section 50 is about conditions under which search of a person suspected to be dealing with narcotics has to be conducted.

It entails the procedure from the receipt of information to seizure of drugs and sampling for forensic analysis.

ANC officers said Shaikh, a resident of south Mumbai, was caught with 40 gram of mephedrone (MD) on August 7, 2015, under NDPS Act.

The prosecution claimed an ANC officer had received information from his sources that Shaikh was supposed to come to Hans Bhugra Road in Santacruz (East) to sell mephedrone. A team of ANC laid a trap and caught Shaikh with a bag containing the drug.

The special court said on September 19 that there were gaps in the procedure followed by the officer right from the time he received information about Shaikh. It noted that it is mandatory for an officer to inform his seniors about the information received within 72 hours in writing. This was not done, it found.

The officer admitted that there was no corresponding entry about the information received from his sources in the ‘information book’.

The court further noted that an accused can be searched only after he is informed and explained his rights in front of the nearest magistrate. The prosecution, however, claimed the accused was informed about his rights and was given a form, which was in English, to sign.

“The said appraisal is defective in the eyes of law in the sense that the accused was not knowing English language and therefore, it was necessary to explain to him the meaning of NDPS in the Hindi language, which has not been done,” the court observed after going through evidence.

“On minute perusal of the appraisal, it becomes clear that the appraisal is not properly worded and it does not appear to have been explained as of his right and the authorities which are unknown to the NDPS Act have been referred.”

The court said the failure to follow these procedure creates a doubt in the process of seizure of narcotics substances from an accused.

The NDPS act is strict when it comes to the right of accused while they are being searched for possession of a narcotic substance. Failure of compliance of any of the provisions of search and seizure and rights of accused vitiates the entire process.