Source: Bombay High Court

Why in News?

The Bombay High Court in the case of Kailas Pawar v. State of Maharashtra stated the strict implementation of the Narcotic Drugs and Psychotropic Substances (NDPS) Act to combat drug trafficking and abuse. Justice Govind Sanap, hearing a case involving 39 kilograms of ganja, warned that unchecked drug use could harm society and destroy the future of the younger generation.

• The court urged all stakeholders to ensure diligent enforcement to protect societal well-being.

What was the Background of Kailas Pawar v. State of Maharashtra Case?

• The case originated from a secret tip received by Police Inspector Sagar Hatwar (PW-7) of the Crime Branch, Akola, on 23^thSeptember, 2020, about two individuals - Raju Solanke and Kailas Pawar - possessing ganja for sale within the Akot Gramin Police Station jurisdiction.
• After receiving proper authorization from SP Akola, PSI Hatwar organized a raid team including panch witnesses, a photographer, a vendor with weighing equipment, and requested an SDPO as an independent gazetted officer.
• The raid was conducted at around 4:30 PM near Marimata temple, where both accused were found sitting in a tarpaulin hut under a Neem tree.
• During the search, police recovered 18 plastic packets contained in a sack, totaling 39 kilograms of suspected ganja, from which three samples of 100 grams each were drawn and properly sealed.
• Based on information from the two accused, the police then conducted a second raid at the house of one Shatrughna Chavhan (accused No. 3) in village Borva, where they recovered an additional 107.90 kilograms of ganja in five big sacks hidden beneath a cot.
• The entire process of recovery, search, seizure, and panchanama was video recorded, and all seized materials were properly inventoried under magistrate's supervision before being stored in the malkhana.
• Chemical analysis confirmed the seized substance as ganja, leading to the filing of a charge sheet against the two main accused (Kailas Pawar and Raju Solanke), Shatrughna Chavhan, and the owner of the vehicle used for transportation from Andhra Pradesh.
• The trial court convicted Kailas Pawar and Raju Solanke, sentencing them to 12 years of rigorous imprisonment and a fine of Rs. 1,20,000 each, while acquitting accused No. 3 and 4.

What were the Court’s Observations?

• The Court expressed concern that despite numerous observations by the Apex Court and High Court regarding proper implementation of NDPS Act provisions, these concerns have not effectively percolated down to the concerned authorities.
• The Court identified the present case as exemplifying a failure in the exercise of powers under Section 165 of the Indian Evidence Act, 1872, by the presiding officer, noting that such conduct of trial proceedings could lead to potential injustice.
• The Court emphasized that proper exercise of powers by the presiding officer can enhance trial quality and ultimate adjudication, particularly in cases under special legislation like the NDPS Act.
• Regarding the evidentiary aspects, the Court noted that proving the contents of the CD would necessitate recalling all witnesses from the raiding party to describe/translate the video recording's contents, making the option of recording additional evidence inappropriate.
• The Court found it "unfathomable" that the in-charge prosecutor did not recommend an appeal against the acquittal of accused No. 3 to the Law and Judiciary department, particularly given the recovery of 107.90 kilograms of ganja from his house.
• The Court determined that retrial would be the best option in the interests of both the appellants and prosecution, particularly considering the need for proper examination of electronic evidence and subsequent recording of statements under Section 313.
• The Court directed that the judgment be circulated to all Principal District Judges in Maharashtra for necessary steps and instructed the Registrar General and Registrar (Inspection-I) to ensure that similar drawbacks in proceedings are identified during court inspections to prevent such mistakes in future.
• The Court ordered the completion of the retrial within three months from the date of receipt of case records, while granting liberty to the accused/appellants to move bail applications before the trial judge.

What is the Impact of NDPS on the Young Generation?

• Impact on Younger Generation:
  • The misuse and trafficking of narcotics, if unchecked, can destroy the younger generation, which forms the future of the nation.
  • The judgment stresses that India has a predominantly young population, with an average age of 30-35 years, making the issue of drug abuse particularly concerning.
• Societal Concerns:
  • Drug addiction is described as a menace to society, capable of eroding its foundations by affecting the younger demographic.
• Responsibility of Stakeholders:
  • The judiciary, law enforcement, and other stakeholders are urged to scrupulously implement the Narcotic Drugs and Psychotropic Substances (NDPS) Act to prevent such societal damage.

What are the Provisions for Granting Probation Under the NDPS Act and Related Laws for Juveniles and Adults?

• A person who is aged 18 years or above, convicted under the NDPS Act, cannot claim benefits under Section 360 of CrPC or the Probation of Offenders Act, except for offenses under Sections 26 or 27.
• A person below 18 years of age (juvenile) convicted under the NDPS Act can get benefits of probation under Section 360 CrPC and Probation of Offenders Act, 1958.
• Juveniles (under 18) convicted under NDPS Act may be:
  • Released on probation of good conduct
  • Placed under supervision of a probation officer
  • Given a chance of reformation instead of imprisonment
• The special protection/benefits for juveniles reflect the reformative approach of justice system towards young offenders, even in serious NDPS cases.
• For offenses under Sections 26 (cultivation of cannabis) and 27 (consumption of drugs), probation benefits are available regardless of age of the convicted person.

Case Law

Shivraj Gorakh Satpute v. State of Maharashtra (2023)

• The case involved a bail application under Section 439 of CrPC by a 22-year-old accused found with 50 kg of ganja (commercial quantity), following a chain of arrests where two other accused were caught with 22 kg and 10 kg of ganja respectively.
• The Narcotic Control Bureau (NCB) team conducted the search and seizure between sunset and sunrise without any warrant/authorization and failed to comply with the mandatory provisions of Section 42 of NDPS Act.
• The court observed that since the NCB had specific information about the accused at 3 PM but conducted the search after sunset without justification, this made the recovery of contraband doubtful.
• The court noted procedural lapses in sample collection as the NCB took samples without following Section 52-A of NDPS Act, which created serious doubt about the prosecution's case regarding recovery of contraband.
• Considering the accused's young age, lack of criminal history, doubtful recovery circumstances, and the principle that prolonged custody infringes fundamental rights under Article 21, the High Court granted bail with conditions including restriction on leaving the state.