2014 (2) TMI 1195 - HC - Customs

Non-compliance of provision of NDPS act Appeal aginst Conviction Appeal is directed against judgment of trial whereby appellant was convicted for offence under Section 15 of NDPS Act, 1985 and sentenced to undergo rigorous imprisonment alongwith fine Appellant assailed case of prosecution on ground that appellant was apprehended on outskirts of village but no independent witness from village joined and also that there was non-compliance of provisions of Section 50 Held that - It cannot be believed that Inspector was not aware of fact that his colleague Inspector posted at same place was not gazetted officer Where statute has provided deterrent type of punishment for person found in possession of narcotic it is required that case be investigated by complying all required legal formalities Manner in which search for contraband and recover was conducted reflects that only formality was completed by police without having any real intention of giving option to appellant for his search before gazetted officer or Magistrate Non-joining of independent witness is not such circumstance which render official witnesses totally unreliable Case of prosecution suffers from lapses, entire process of recovery from appellant; joining of independent witness; calling of gazetted officer at spot; non-production of case property before SHO of police station reflect casual manner in which police had proceeded Therefore, judgment of trial Court set aside Decided in favour of Appellant.

Summary

Issues involved:
1. Conviction under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Compliance with legal formalities during the search and seizure process.
3. Non-joining of independent witnesses and production of case property before authorities.
4. Interpretation of Section 50 and Section 57 of the NDPS Act.

Analysis:
1. The judgment deals with an appeal against a conviction under Section 15 of the NDPS Act. The appellant was sentenced to ten years of rigorous imprisonment and a fine for possessing poppy husk. The prosecution's case was based on a search and seizure operation conducted by the police party led by Inspector Randeep Singh. The appellant was apprehended, and poppy husk was found in bags hanging from the mare he was riding. Samples were taken, and the contraband was sent for analysis.

2. The defense challenged the prosecution's case on various grounds. It was argued that there were lapses in the search process, including the non-joining of a gazetted officer despite the appellant's request, and doubts regarding the presence and role of independent witnesses. The defense also highlighted discrepancies in the production of case property before the authorities as required by law.

3. The State counsel contended that the search was conducted in the presence of an independent witness and argued that the non-joining of another witness was not fatal to the case. The State emphasized that the sample sent for analysis remained intact, even though there were procedural lapses in the investigation process.

4. The judgment scrutinized the compliance with Section 50 and Section 57 of the NDPS Act. It was noted that the search was not conducted before a gazetted officer as opted by the appellant, raising questions about the validity of the search process. The failure to produce the case property before the SHO and the Magistrate as required by law was also highlighted as a significant lapse.

5. Ultimately, the court found merit in the appeal due to the various procedural lapses and deficiencies in the investigation process. The judgment emphasized the importance of strict adherence to legal formalities in cases involving serious offenses like possession of contraband. Consequently, the trial court's judgment was set aside, and the appellant was acquitted of all charges.