2001 (2) TMI 1004 - SC - Customs

Whether search should be carried out in presence of Gazetted Officer or Magistrate? Held that - It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness P.W.1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O., particularly when he did not know that the substance was poppy husk., but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy-husk. In favour of assessee.

Summary

Issues:
1. Appeal against conviction under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Compliance with procedural requirements under Section 50, 52, 55, and 57 of the N.D.P.S. Act.
3. Evidence regarding arrest and seizure.
4. Admissibility of evidence and conduct of panch witness.

Analysis:

1. The appellant appealed against the conviction under Section 15 of the N.D.P.S. Act. The prosecution's case was based on the recovery of poppy straw from the appellant at a railway station. The appellant challenged the procedure followed by the Investigating Officer (I.O.) under Section 50 of the Act, which requires informing the accused of the right to be searched in the presence of a Gazetted Officer or Magistrate. The defense argued that since the contraband was recovered from a bag carried by the appellant and not his person, Section 50 did not apply, citing relevant case law.

2. The defense contended that the I.O. did not adhere to the procedural requirements of Sections 52, 55, and 57 of the N.D.P.S. Act. The court acknowledged that while violations of these sections are not necessarily fatal to the trial, they impact the evidence's credibility. The I.O. failed to seal the parcels as mandated by Section 55, and there was uncertainty regarding the sample sent to the Chemical Analyser. Additionally, the I.O. did not submit a full report of the arrest and seizure to his superior officer as required by Section 57, raising doubts about the investigation's integrity.

3. The evidence regarding the arrest and seizure raised questions about the conduct of the panch witness. The witness volunteered to testify despite not being asked by the I.O., and discrepancies emerged regarding the type of seal used. The court noted these irregularities and highlighted the lack of proper adherence to procedural guidelines, casting doubt on the reliability of the prosecution's case.

4. Considering the faulty investigation and procedural lapses, the court found it unsafe to uphold the appellant's conviction. The appeal was allowed, and the High Court's decision confirming the conviction was set aside. The appellant was ordered to be released immediately if not required in any other case, emphasizing the importance of procedural compliance and the integrity of evidence in criminal proceedings.