2014 (1) TMI 586 - HC - Customs

Conviction under NDPS Act - Search and seizure of Contraband article - Non fulfillment of requirement u/s 42 - Trial Court sustained conviction - Held that - appellant was arrested by the raiding party with contraband article though was arrested from a public place but they were having a wireless set with them but they did not make any effort even to partially comply with the mandatory provisions of Section 42 of Act appears to be correct as from the evidence of the P.W. 1 and P.W. 2 it is apparent that they had admitted before the trial court in their evidence that they did not inform the superior officers about the arrest of the appellant with contraband article nor they even tried to incorporate the same in the G.D. of the concerned police station when they had reached with the appellant along with the recovered article at the concerned police station. The instant case appears to be a case of totally non compliance of the mandatory provisions of Section 42 of the Act. In a prosecution relating to the NDPS Act, the question as to how and where the samples had been stored or as to whom they had been dispatched or received in the laboratory is a matter of great importance on account of the huge penalty involved in these matters. Thus on that count also the conviction of the appellant by the trial court is not sustainable in the eyes of law - From the record it is further evident that the alleged sample did not bear any signature or thumb impression of the appellant and the offence under the N.D.P.S. Act is a technical offence and the safeguard in the enactment requires strict compliance. Failure, in the evidence by the prosecution witnesses, to show that when the sample were taken from the same contraband article creates doubt on the authenticity of the prosecution case. In this connection the absence of signature of the accused on the sealed bag raises doubt about the recovery of contraband article from the possession of the appellant. 29 packets have been recovered from a white bag with which the appellant was found sitting and the appellant has stated the contraband article weighed about 25 Kgs. Charas but P.W.1, who had made the arrest and seizure of the appellant did not weighed the contraband article recovered from him and only on the statement of appellant it was believed to be 25 Kgs. Charas and no actual weight was taken by P.W.1 which further creates doubt whether the alleged contraband article was the same which was recovered from the possession of the appellant and sent to chemical analysis - it is apparent that the recovery of the contraband article from the possession of the appellant appears to be doubtful and the prosecution has not proved its case beyond reasonable doubt against the appellant proving the recovery against him in strict compliance of the provisions of N.D.P.S. Act, hence his conviction and sentence by the trial court is not sustainable in the eyes of law - Decided in favour of appellant.

Summary

Issues Involved:
1. Compliance with Section 42 of the NDPS Act.
2. Compliance with Section 57 of the NDPS Act.
3. Production and handling of contraband evidence.
4. Validity and credibility of the prosecution's evidence.
5. Weight and sampling of the contraband article.

Detailed Analysis:

1. Compliance with Section 42 of the NDPS Act:
The court examined whether the mandatory provisions of Section 42 of the NDPS Act were adhered to by the police. It was found that the police did not inform their superior officers about the arrest and recovery of the contraband article, nor did they record the information in the General Diary (G.D.) of the police station. This was deemed a total non-compliance with Section 42, which requires officers to record information and inform their superiors before proceeding with a search and seizure. The court cited the Supreme Court judgment in Kishan Chand vs. State of Haryana, which emphasized that total non-compliance with Section 42 is impermissible and can be fatal to the prosecution's case.

2. Compliance with Section 57 of the NDPS Act:
The court scrutinized whether Section 57, which mandates reporting the arrest and seizure to the superior officer within 48 hours, was complied with. The prosecution failed to produce evidence, such as the daily report, to show compliance with this provision. The court referenced the case of Lala Ram vs. State of U.P., which highlighted the necessity of adhering to Section 57 to validate the seizure and arrest.

3. Production and Handling of Contraband Evidence:
The court noted discrepancies in the handling and production of the contraband article. The Malkhana register, which records the custody and movement of seized items, was not produced in court. P.W.4 admitted that the contraband article was in his custody for three months, creating doubt about whether the same article was produced before the Chief Judicial Magistrate (C.J.M.) and sent for chemical analysis. The court referred to the Supreme Court's judgments in Valsala vs. State of Kerala and State of Orissa vs. Sitansu Shekhar Kanungo, which stress the importance of maintaining a clear chain of custody for seized items.

4. Validity and Credibility of the Prosecution's Evidence:
The prosecution's evidence was found to be inconsistent and lacking in credibility. P.W.1 and P.W.2 did not weigh the contraband article at the time of seizure, relying instead on the appellant's statement that it was 25 kgs of Charas. The court found this approach flawed and cited the Supreme Court's judgment in State of Rajasthan vs. Tara Singh, which underscores the importance of proper documentation and handling of evidence in NDPS cases.

5. Weight and Sampling of the Contraband Article:
The court observed that no sample of the contraband article was taken at the spot, and the sample that was eventually taken did not bear the appellant's signature or thumb impression. This raised doubts about the authenticity of the sample sent for chemical analysis. The court cited the Supreme Court's judgment in Kuldeep Singh vs. State of Punjab, which held that non-collection of samples at the initial stage of seizure is a significant defect that cannot be rectified later.

Conclusion:
The court concluded that the prosecution failed to prove its case beyond a reasonable doubt due to non-compliance with mandatory provisions of the NDPS Act, improper handling of evidence, and inconsistencies in the prosecution's evidence. Consequently, the conviction and sentence of the appellant were set aside, and the appellant was ordered to be released forthwith if not required in any other case.