2011 (4) TMI 1223 - SC - Customs

Whether Appellant conviction under Sections 8/21(b) of the Narcotics Drugs & Psychotropic Substance Act, 1985 (hereinafter referred to as the NDPS Act ) and sentenced to undergo rigorous imprisonment for 7 years and a fine of Rs.25,000/- with the direction that in default of payment of fine, he would undergo rigorous imprisonment for a further period of one year was correct? Held that - Appeal allowed. The view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched. The appellant is entitled to the benefit of doubt and acquit him of the charges and set aside the judgments and orders passed by the trial court and the High Court.

Issues involved:
Conviction under Sections 8/21(b) of the NDPS Act, 1985 based on seizure of narcotics from accused; Reliability of seizure witnesses; Handling and deposition of seized substance for forensic examination; Non-production of seized substance in court; Benefit of doubt and acquittal for accused; Extension of judgment benefit to co-accused.

Detailed Analysis:

1. Conviction under NDPS Act:
The appellant was convicted under Sections 8/21(b) of the NDPS Act based on the seizure of narcotics from him and two other accused. The prosecution relied on the recovery of smack powder from the accused during a raid at a cinema hall owned by the appellant. The forensic report confirmed the presence of diacetylmorphine (heroin) in the samples taken from the seized substance.

2. Reliability of Seizure Witnesses:
The prosecution's case heavily relied on the testimony of the Station House Officer who conducted the raid and the seizure of the narcotics. However, the independent witnesses of the seizure, Ajay Purohit and Udaipal Singh, turned hostile and did not support the prosecution's case. The lack of support from these witnesses raised doubts about the reliability of the seizure.

3. Handling and Deposition of Seized Substance:
There were discrepancies in the handling and deposition of the seized substance for forensic examination. The samples taken from the seized substance were not deposited at the Forensic Science Laboratory (FSL) promptly, and there were delays and uncertainties in the process from seizure to forensic analysis. The deposition of the seized substance in the Malkhana was also delayed, raising questions about the integrity of handling.

4. Non-Production of Seized Substance:
A crucial point of contention was the non-production of the seized narcotic powder in court as a material exhibit. The failure to produce the seized substance created a gap in the evidence connecting the forensic report to the substance recovered from the accused. This non-production significantly weakened the prosecution's case.

5. Benefit of Doubt and Acquittal:
Considering the inconsistencies, lapses, and lack of conclusive evidence, the Supreme Court found it difficult to sustain the conviction of the appellant. Citing a similar precedent, the Court emphasized the necessity of establishing the seizure of narcotics from the accused beyond a reasonable doubt. Consequently, the appellant was acquitted based on the benefit of doubt.

6. Extension of Judgment Benefit to Co-Accused:
The Court extended the benefit of the judgment to the co-accused, reasoning that the lapses in the prosecution's case applied equally to all three accused. The co-accused, who received the same sentence as the appellant, were also acquitted and directed to be released unless required in connection with any other case.

In conclusion, the Supreme Court's judgment highlighted the importance of stringent evidence in NDPS cases, emphasized the need for procedural integrity in handling seized substances, and underscored the principle of benefit of doubt in criminal cases. The decision not only acquitted the appellant but also extended the same relief to the co-accused based on the identified shortcomings in the prosecution's case.

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