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2016 (11) TMI 1505 - HC - Indian LawsOffence punishable under Sections 20(b) & (c) of the N.D.P.S. Act - Smuggling - charas - Held that - So far facts of the present case is concerned it is evident that search and seizure as alleged happens to be from public place being Platform of Hajipur Railway Station and on account thereof there would be application of Section 43 of the Act. Section 57 of the N.D.P.S. Act - Held that - From the written report it is evident that the informant along with Inspector RPF Akhilesh Singh (PW-2) led the raiding team on account thereof an intimation with regard to apprehension of culprits along with Charas would have been given immediately to superior officer by PW-2 which provision has not been satisfied. Thus from the consistent evidence of PW-2 himself along with informant PW-3 it is evident that they utterly failed to inform superior officer within 48 hours as prescribed under Section 57 of the N.D.P.S. Act. PW-2 as well as PW-3 failed to discharge their due duty in complying with the directions issued under Circular No. 1/88 and on account thereof the narration of recovery of Charas from a bag possessed by appellant Pratibha Devi become duly afflicted. On account of non-compliance of the mandatory provisions of law the prosecution case is found adequately dented. As a result of which judgment of conviction and sentence dated 11.6.2014 and 16.6.2014 passed in Sonepur (Hajipur) Rail Police Station Case No. 1 of 2010/GR Case No. 11 of 2010 by Sri Brajendra Kumar Tewari Special Judge N.D.P.S. Act Vaishali at Hajipur) would not survive. Appeal allowed.
Issues Involved:
1. Compliance with mandatory provisions under the N.D.P.S. Act. 2. Reliability of prosecution witnesses. 3. Proper procedure for search, seizure, and sampling. 4. Delay in sending samples to the Forensic Science Laboratory (FSL). 5. Non-compliance with Section 57 of the N.D.P.S. Act. 6. Impact of procedural lapses on the prosecution case. Detailed Analysis: 1. Compliance with Mandatory Provisions under the N.D.P.S. Act: The appellants argued that the mandatory provisions prescribed under the N.D.P.S. Act were not complied with, thus invalidating the prosecution's case. The court referenced several Supreme Court judgments, including State of Punjab vs. Balbir Singh and Karnail Singh vs. State of Haryana, to emphasize the necessity of complying with these provisions. The court noted that the failure to comply with Section 57 of the N.D.P.S. Act, which requires the informant to inform his superior officer within 48 hours of the arrest and seizure, was a significant lapse. 2. Reliability of Prosecution Witnesses: The court observed that all material, independent witnesses had turned hostile, leaving only police officials as witnesses. The court stressed that the testimony of police officers, especially when the informant is a police officer, should be scrutinized with suspicion. The inconsistencies in the testimonies of the police officers further weakened the prosecution's case. 3. Proper Procedure for Search, Seizure, and Sampling: The court found that the prosecution failed to follow the proper procedure for search and seizure as mandated by the N.D.P.S. Act. Specifically, the court noted the lack of compliance with Standing Order No. 1 of 88, which requires samples to be drawn on the spot in the presence of witnesses and the accused. The court highlighted that neither PW-2 nor PW-3 mentioned the preparation of samples at the spot or the involvement of the accused in the process. 4. Delay in Sending Samples to the Forensic Science Laboratory (FSL): The court pointed out the unexplained delay in sending the samples to the FSL, which was prejudicial to the prosecution. The samples were sent on 3.2.2010 but were received by the FSL only on 16.2.2010. The court noted that none of the prosecution witnesses, including the Investigating Officer (PW-15), provided any explanation for this delay. 5. Non-compliance with Section 57 of the N.D.P.S. Act: The court emphasized that the informant (PW-3) and the Inspector (PW-2) failed to inform their superior officer about the arrest and seizure within the prescribed 48-hour period, as required under Section 57 of the N.D.P.S. Act. This non-compliance was a critical lapse that undermined the prosecution's case. 6. Impact of Procedural Lapses on the Prosecution Case: The court concluded that the numerous procedural lapses, including non-compliance with mandatory provisions, failure to follow proper search and seizure procedures, and unexplained delays, severely dented the prosecution's case. As a result, the court set aside the judgment of conviction and sentence dated 11.6.2014 and 16.6.2014, respectively. Conclusion: The court allowed the appeal, acquitting both appellants due to the prosecution's failure to comply with mandatory legal provisions and procedural requirements. The court directed the immediate release of the appellants if they were not wanted in any other case. Additionally, the court highlighted the need for better training and adherence to legal procedures by the prosecuting authorities to prevent similar lapses in future cases.
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