2017 (7) TMI 1085 - HC - Indian Laws

Offence under section 20 N.D.P.S. Act - smuggling - charas - Held that - the alleged yellow coloured polythene containing 7 plates and 11 sachets of Charas was picked by the first informant S.I. Arvind Singh from the platform and does not appear to have been recovered from the right hand of accused-appellant in his personal search as mentioned in recovery memo. There is nothing on record to show that the accused-appellant was holding the polythene bag in his right or left hand. It is also not disputed that there is no independent witness of recovery - the very recovery of prohibited contraband from accused appellant becomes doubtful and the prosecution has failed to prove such recovery beyond reasonable doubt. The prosecution has also failed to prove that the sample from the allegedly recovered material was taken in accordance with law or the forensic lab report correspond to the alleged recovery. The trial court has failed to correctly analyze the evidence on record and has acted wrongly and illegally in relying on the prosecution evidence without considering it in correct perspective and has also acted wrongly and illegally in holding the accused-appellant to be guilty for carrying on prohibited contraband Charas in commercial quantity. The impugned judgment and order of conviction and sentence is set aside - appeal allowed.

Summary

Issues Involved:
1. Compliance with Section 50 of the N.D.P.S. Act.
2. Validity of the recovery of contraband.
3. Proper sampling and chemical analysis.
4. Integrity of the seal on the sample.

Issue-wise Detailed Analysis:

(i) Compliance with Section 50 of the N.D.P.S. Act:
The court examined whether the accused was informed of his right to be searched before a Gazetted Officer or Magistrate as mandated by Section 50 of the N.D.P.S. Act. The F.I.R. and recovery memo did not indicate that the accused was made aware of this right. The presence of the Circle Officer, who was part of the raiding party, did not fulfill this requirement. The court referenced the Supreme Court rulings in Union of India v. Shah Alam and State of Rajasthan v. Parmanand, which held that compliance with Section 50 is necessary whenever a personal search is conducted, regardless of where the contraband is found. The court concluded that the prosecution failed to comply with the mandatory provisions of Section 50.

(ii) Validity of the Recovery of Contraband:
The court noted discrepancies in the testimonies of the prosecution witnesses regarding the recovery of contraband. The recovery memo stated that the contraband was found in the accused's right hand, but witness statements indicated it was picked from a platform. The lack of independent witnesses further weakened the prosecution's case. The court found these contradictions significant enough to cast doubt on the actual recovery of the contraband from the accused.

(iii) Proper Sampling and Chemical Analysis:
The court scrutinized the process of sampling and found inconsistencies. The prosecution claimed that a sample was taken from each of the 7 plates and 11 sachets of Charas, but this was not recorded in the recovery memo. The forensic lab report indicated only 49 grams of Charas, not the entire 2 kg allegedly recovered. The court noted that the sample did not represent the entire quantity and questioned the integrity of the sampling process. The delay of 12 days in sending the sample for analysis was not deemed material, but the inconsistencies in sampling were critical.

(iv) Integrity of the Seal on the Sample:
The court found a discrepancy in the seal on the sample sent for chemical analysis. The recovery memo mentioned the seal of "Arvind Singh," but the forensic lab report indicated a seal of "V.Y. VIVEK YADAV SI. UPP." This unexplained change in the seal raised suspicions of tampering. The court concluded that the prosecution failed to prove that the same sample recovered from the accused was sent for chemical analysis, further undermining the prosecution's case.

Conclusion:
The court found that the prosecution failed to prove its case beyond a reasonable doubt. The trial court's judgment was based on unreliable evidence, and the mandatory provisions of Section 50 of the N.D.P.S. Act were not complied with. The discrepancies in the recovery, sampling, and sealing processes cast significant doubt on the prosecution's case. Consequently, the court set aside the conviction and sentence, acquitting the accused of all charges. The appeal was allowed, and the accused was ordered to be released forthwith if not wanted in any other case.