2004 (2) TMI 542 - HC - Indian Laws

Evidence - Panch witnesses chosen having vulnerable antecedents - Seized goods - Disposal of - Stricutres against Department

Summary

Issues Involved:
1. Conviction and sentencing of the accused under the N.D.P.S. Act.
2. Credibility and admissibility of evidence, including chemical examiner's report and voluntary statements.
3. Compliance with procedural requirements during search and seizure.
4. Legal interpretation of Methaqualone's chemical composition.
5. Admissibility and voluntariness of statements under Section 67 of the N.D.P.S. Act.
6. Proper handling and custody of seized articles.

Detailed Analysis:

1. Conviction and Sentencing of the Accused:
The accused No. 1 was convicted under Section 22 and sentenced to 12 years of rigorous imprisonment with a fine of Rs. 1,25,000/-. Accused Nos. 2, 4 to 7 were convicted under Section 29 and sentenced to 10 years of imprisonment with a fine of Rs. 1,00,000/-. Accused Nos. 3 and 8 were acquitted, and the State filed an appeal against their acquittal.

2. Credibility and Admissibility of Evidence:
The trial court found discrepancies in the weights of the samples seized and those received by the chemical examiner. The chemical examiner's report (Ex. P. 14) was not satisfactorily proved. The voluntary statements of accused Nos. 3 and 8 were found to be not proved. However, the voluntary statements of other accused were accepted as valid. The trial court accepted the prosecution's theory of the raid, search, and seizure despite disbelieving the chemical examiner's report, relying instead on the trained testimony of P.W. 1.

3. Compliance with Procedural Requirements:
The court noted the failure to ensure safe custody of the seized articles and the non-production of photographs before the court. The panchanama recitals were vague, and the panch witnesses chosen had vulnerable antecedents. The court emphasized the need for accurate and faithful mahazar proceedings in the presence of respectable independent panch witnesses.

4. Legal Interpretation of Methaqualone's Chemical Composition:
The court discussed the different versions of Methaqualone and whether only the chemical composition listed in Item 20 of Schedule-I of the N.D.P.S. Act is prohibited. The court did not express an opinion on this aspect due to the lack of necessary expert oral evidence.

5. Admissibility and Voluntariness of Statements under Section 67 of the N.D.P.S. Act:
The court found that the summons issued to the accused under Ex. P. 33 was in a threatening language and coercive tenor, making it illegal and bad in law. However, informing the legal consequences of disobedience was not considered an unlawful threat. The court clarified that Section 67 of the N.D.P.S. Act does not authorize a quasi-judicial enquiry but is similar to an interrogation under Section 161 of Cr.P.C.

6. Proper Handling and Custody of Seized Articles:
The court noted non-compliance with proper sealing and custody of the articles, leading to doubts about tampering. The evidence on record disclosed the non-compliance of proper sealing and proper custody of the articles to allay the doubts about tampering.

Conclusion:
The court found the view taken by the trial court holding the accused No. 1, accused No. 2, accused No. 4 to accused No. 7 guilty to be untenable. The appeals filed by the convicted accused were allowed, and the appeal of the State was dismissed. The accused in custody were set at liberty forthwith. The court directed the Registry to send a copy of the judgment to the Director of D.R.I. Bangalore and the Director of N.C.B. to take note of the observations and suggestions for improving investigation protocols and procedures.