1999 (7) TMI 672 - HC - Customs

Summary

Issues Involved:
1. Compliance with Section 50 of the N.D.P.S. Act.
2. Credibility of Prosecution Witnesses.
3. Legitimacy of Investigation Conducted by P.W. 5.
4. Presence of Independent Witnesses at the Scene.
5. Validity of Documents Created at the Scene.

Summary:

1. Compliance with Section 50 of the N.D.P.S. Act:
The appellants contended that the mandatory provisions u/s 50 of the N.D.P.S. Act were not adhered to. The evidence showed discrepancies regarding whether the appellants were informed about their right to be searched before a Judicial Magistrate or Gazetted Officer. P.W. 4 admitted that the appellants wanted to be searched in the presence of a Magistrate or Gazetted Officer, which was denied by P.Ws. 3 and 5. This non-compliance with Section 50 was deemed to vitiate the entire proceedings.

2. Credibility of Prosecution Witnesses:
The prosecution relied on the testimonies of P.Ws. 3 to 5, who were police officials. The Court found material contradictions in their evidence, particularly regarding the compliance with Section 50. The only independent witness, P.W. 1, turned hostile, and another witness, Srinivasan, could not be secured due to a false address. The Court concluded that the testimonies of P.Ws. 3 to 5 were unreliable.

3. Legitimacy of Investigation Conducted by P.W. 5:
P.W. 5, the Inspector of Police, conducted the search and also investigated the case, which was argued to be improper. The Court agreed that the investigation should have been conducted by another agency, and this procedural lapse further vitiated the proceedings.

4. Presence of Independent Witnesses at the Scene:
The incident occurred in a busy locality, yet no independent witnesses were secured. The prosecution failed to explain why no shopkeepers or other individuals present at the scene were called as witnesses. This lack of independent corroboration weakened the prosecution's case.

5. Validity of Documents Created at the Scene:
Documents Ex. P5 to P9, running to 12 pages, were allegedly created at the scene at 4.30 p.m. during heavy rain. The Court found it improbable that these documents were written at the scene, suggesting they were prepared later in the office. This discrepancy indicated that the documents were fabricated to suit the prosecution's case.

Conclusion:
The appeals were allowed, and the conviction and sentence imposed by the Trial Court were set aside. The appellants were acquitted u/s 8(c) read with 21 of the N.D.P.S. Act, and the fine amount, if paid, was ordered to be refunded. The appellants were to be set at liberty forthwith if not required for any other case.