2004 (12) TMI 672 - HC - Customs

Summary

Issues Involved:
1. Connection of the appellant with the premises.
2. Quality and reliability of public witnesses.
3. Compliance with procedural safeguards under the Narcotic Drugs and Psychotropic Substances Act.
4. Proper sealing, preservation, and testing of the seized contraband.

Issue-wise Detailed Analysis:

1. Connection of the appellant with the premises:
The prosecution failed to establish that the appellant had any connection with the premises from where the contraband was allegedly recovered. The hire agreement showed that one Ms. Mildred Itamere was the tenant, not the appellant. The prosecution did not record statements from the landlord or neighbors to establish the appellant's residence at the premises. This lack of evidence raises the possibility that the appellant was merely visiting the premises, as suggested by the defense.

2. Quality and reliability of public witnesses:
The prosecution's case was not supported by the public witness PW-7 Shanmugam, who was declared hostile. The Investigating Officer did not make efforts to include respectable residents of the locality in the raiding party, relying instead on two watchmen, one of whom was not produced in court, and the other did not support the prosecution's version. The Supreme Court's precedent in "State of West Bengal Vs. Babu Chakravarty" emphasizes the necessity of independent witnesses for a conviction under the Act.

3. Compliance with procedural safeguards under the Narcotic Drugs and Psychotropic Substances Act:
The prosecution did not comply with the procedural safeguards. The factum of breaking open the door was not mentioned in the search report, and there were contradictions in the testimonies of the officials regarding the presence of certain officers at the raid. The absence of entries in the log book of the official vehicle also cast doubt on the prosecution's narrative. The court found these procedural lapses significant enough to question the integrity of the prosecution's case.

4. Proper sealing, preservation, and testing of the seized contraband:
The prosecution failed to prove that the seized contraband was properly sealed, preserved, and sent for analysis without tampering. The seal was improperly handed over to an official witness instead of a public witness. There was no evidence on record about who transported the samples to the CRCL and whether they were tampered with. The Chemical Examiner's testimony that the analyzed samples were white, whereas the recovered powder was brown, further cast doubt on the integrity of the evidence. The court cited precedents such as "Valhalla Vs. State of Kerala" and "State of Rajasthan Vs. Daulat Ram" to emphasize the necessity of proving the chain of custody and the condition of the samples.

Conclusion:
The court concluded that the prosecution did not prove its case beyond reasonable doubt. The appeal was allowed, and the appellant's conviction and sentence were set aside, resulting in his release. The court underscored the importance of stringent evidence and procedural compliance in cases under the Narcotic Drugs and Psychotropic Substances Act, given the severe penalties involved.