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2013 (5) TMI 809 - HC - CustomsSearch and arrest of person Seizure of goods Non-compliance Whether accused was liable to be acquitted on grounds of non-compliance of Section 42, 50, 55 and 57 of NDPS Act, 1985 Held that - P.W. 8 received secret information and recorded same vide Exh. P-21 and also communicated to Dy. SP, Crime Branch P.W-2 and P.W-8, specifically deposed that Dy. SP, Crime Branch reached house of appellant and joined in search party and search was made in presence of Dy. SP, Crime Branch Thus section 42 was complied with P.W-8 took consent of appellant, but did not informed about accused legal rights under Section 50 As search was made in house of appellant, therefore as per settled legal position, Section 50 of Act, 1985 would not be applicable Evidences of P.W-8, 9 and 10 revealed that after seizure of contrabands, samples were prepared 1-1/2 months after seizure P.W-7 deposed that he received only 16 packets of samples without sealed condition No evidence explaining delay regarding preparation of samples Therefore, FSL report cannot form basis of conviction of appellant Appellants Conviction order set-aside Appeal allowed Decided in favour of Appellant.
Issues Involved:
1. Compliance with Section 42 of the NDPS Act, 1985. 2. Compliance with Section 50 of the NDPS Act, 1985. 3. Compliance with Section 55 of the NDPS Act, 1985. 4. Integrity and handling of seized samples. 5. Adequacy of evidence supporting the prosecution's case. Issue-wise Detailed Analysis: 1. Compliance with Section 42 of the NDPS Act, 1985: The court examined whether the provisions of Section 42 were substantially complied with. Sub-Inspector R.C. Trivedi (P.W. 8) received secret information about the appellant possessing ganja and recorded this information as per Exh. P-21 and Exh. P-25. This information was communicated to the Deputy Superintendent of Police, Crime Branch, Bilaspur. Constable Ashok Chourasiya (P.W. 2) corroborated this sequence of events. The court concluded that Section 42 was substantially complied with. 2. Compliance with Section 50 of the NDPS Act, 1985: The court assessed whether Section 50 was mandatory in this case. Sub-Inspector R.C. Trivedi (P.W. 8) informed the appellant about the search but did not inform her of her right to be searched before a Gazetted Officer or Magistrate. The court referenced several Supreme Court rulings, including Jarnail Singh Vs. State of Punjab and State of Himachal Pradesh Vs. Pawan Kumar, which clarified that Section 50 applies to personal searches and not to searches of premises, vehicles, or containers. Since the search was conducted in the appellant's house, Section 50 was deemed not applicable. 3. Compliance with Section 55 of the NDPS Act, 1985: The court evaluated whether the provisions of Section 55 were followed. Sub-Inspector R.C. Trivedi (P.W. 8) conducted the search and seized 67.400 kg of ganja, which was handed over to the Malkhana for safe custody. Sub-Inspector D.P. Singh (P.W. 9) testified that the samples were prepared and sealed later. Head Constable Lakshmi Prasad (P.W. 10) confirmed the receipt and safe custody of the seized items. However, discrepancies were noted regarding the sealing and preparation of samples. 4. Integrity and Handling of Seized Samples: The court scrutinized the integrity of the sample handling process. It was found that samples were not prepared on the spot but 1.5 months after the seizure. Constable Chandrapal Khande (P.W. 7) testified that the samples were not sealed when he took them to the Forensic Science Laboratory (FSL). The court emphasized that it is crucial for the prosecution to prove that the samples remained sealed and intact until examination at the FSL. This was not established, leading to doubts about the integrity of the samples. 5. Adequacy of Evidence Supporting the Prosecution's Case: The court concluded that the prosecution failed to prove beyond a reasonable doubt that the samples were handled properly and remained intact. The delay in preparing and submitting the samples to the FSL, along with the lack of evidence regarding the custody of the samples, weakened the prosecution's case. The FSL report (Exh. P-32) could not be relied upon for conviction due to these lapses. Conclusion: The appeal was allowed, and the conviction and sentence under Section 20 (b) (ii) (c) of the NDPS Act, 1985 were set aside. The appellant was acquitted of all charges and ordered to be released immediately if not required in any other case.
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