2012 (12) TMI 1084 - SC - Indian Laws

Whether non-compliance of Section 42 non-involvement of any independent witness at any stage of the investigation and the presence of PW5 at the spot being so very doubtful thus compel this Court to hold that the prosecution has failed to prove its case beyond reasonable doubt?

Issues Involved:
1. Compliance with Section 42(1) and (2) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
2. Contradictory judgments regarding the acquittal of one accused and conviction of another.
3. Validity of the recovery process and compliance with Section 50 of the NDPS Act.
4. Reliability of the presence of the Tehsildar-cum-Executive Magistrate at the recovery site.

Issue-wise Detailed Analysis:

Compliance with Section 42(1) and (2) of the NDPS Act:
The primary issue was whether there was compliance with the mandatory provisions of Section 42(1) and (2) of the NDPS Act. The Investigating Officer (PW7) admitted during cross-examination that the secret information was not reduced to writing, nor was it sent to a higher officer. The Trial Court and the High Court justified this non-compliance by stating that immediate action was necessary to prevent the accused from escaping. However, the Supreme Court held that the language of Section 42 is unambiguous and requires strict compliance. The Court emphasized that penal provisions with harsh punishments must be construed strictly and that the doctrine of substantial compliance is not applicable here. The Court referred to the Constitution Bench judgment in Karnail Singh v. State of Haryana, which clarified that total non-compliance with Section 42 is impermissible, although delayed compliance with a satisfactory explanation might be acceptable. Since there was total non-compliance in this case, the prosecution's case failed on this ground alone.

Contradictory Judgments:
The appellant argued that the acquittal of co-accused Ramphal on similar facts and evidence, particularly regarding the non-production of the scooter's diggy key, should also result in his acquittal. The Supreme Court noted the inconsistency in the judgments and found that the courts below had erred in their appreciation of evidence and application of law.

Validity of the Recovery Process and Compliance with Section 50 of the NDPS Act:
The appellant contended that the recovery process was vitiated as PW5, the Tehsildar-cum-Executive Magistrate, was not present at the site, and there was no compliance with Section 50 of the NDPS Act. The Supreme Court did not delve deeply into the compliance with Section 50 but noted the serious doubts raised about the recovery process. The Court highlighted that the presence of PW5 at the recovery site was questionable, as supported by the testimony of DW1, the driver of the Tehsildar's official vehicle, and the logbook entries.

Reliability of the Presence of the Tehsildar-cum-Executive Magistrate at the Recovery Site:
The Supreme Court found significant doubts regarding the presence of PW5 at the recovery site. DW1 testified that the Tehsildar's vehicle was used by another officer on the day of the alleged recovery, and the logbook supported this claim. This discrepancy, combined with the lack of independent witnesses and total non-compliance with Section 42, cast a shadow of doubt over the prosecution's case. The Court concluded that the prosecution failed to prove its case beyond a reasonable doubt.

Conclusion:
The Supreme Court accepted the appeal, acquitted the accused of the offence under Section 18 of the NDPS Act, and directed his immediate release. The Court ordered the disposal of the case property in accordance with the provisions of the Act.

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