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HindustanTimes Fri,29 Aug 2014

Accused let off as cops can’t get their Act right

Charul Shah, Hindustan Times  Mumbai, March 04, 2013
First Published: 01:50 IST(4/3/2013) | Last Updated: 01:52 IST(4/3/2013)

Several cases made by the Anti-Narcotic Cell (ANC) of Mumbai police under the Narcotic Drug and Psychotropic Substances (NDPS) Act have not been going their way in the designated court on account of the police’s failure to follow mandatory procedures while making arrests. This has resulted in the acquittal of numerous accused, including some involved in sensational cases.

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The record in the past two months shows that in as many as six cases made out by the ANC the court has acquitted the accused on the technical ground that the police had failed to follow the mandatory provisions of the NDPS Act, 1985, while making arrests.

The Act prescribes a different procedure for arrest than the Code of Criminal Procedure (CrPC), and also the steps to be followed by officers during the search and arrest of the accused.

An accused under the Act has a right to be searched only by a gazetted officer and he needs to be informed about his rights before the search is conducted. Further, as per the provisions of the Act, an accused cannot be searched by any officer below the rank of a head constable. There are many other intricate procedures which must be followed while arresting an accused under NDPS Act.

However, in the last few cases decided by the court, the police officers failed to comply with these mandatory provisions. Taking advantage of such technical loopholes, the accused went scot-free.

In one of these cases (see box), which was decided in January, the trial ended in just a day. The accused, Pratima Prasad, was acquitted within hours after the court examined the first witness — the investigation officer of the case. The officer, when cross-examined by the defence advocate, stated that while arresting Prasad, the mandatory provision under the NDPS Act — narrating the procedure of conducting search of an accused — was not followed by arresting officers.

In the latest such case, which was decided on February 22, 35-year-old Irfan Kotwal, accused of supplying charas in the city, was acquitted by the special court as the police failed to comply with the mandatory provisions during his arrest.

When contacted for comments, public prosecutors, who spoke on condition of anonymity, said that they could do little if the police do not follow the mandatory procedure. “In such cases, even if we try hard to prove the guilt of the accused, they always get the benefit of doubt.”

Kishor Jadhav, deputy commissioner of police who heads the ANC, refused to comment on the developments. “I will have to check,” he said. Even after repeated attempts, joint commissioner of police (crime) Himanshu Roy was unavailable for comments.


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