2000 (2) TMI 860 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the investigation conducted by the same officer being the complainant and Investigating Officer.
2. Applicability of Section 22 versus Section 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
3. Exclusive possession of the room where the contraband was found.
4. Reliability and sufficiency of the evidence presented by the prosecution.

Issue-wise Detailed Analysis:

1. Legality of the Investigation:
The appellant's counsel argued that the investigation was invalid because the complainant and the Investigating Officer were the same person (PW. 11). The court referenced several judgments, including Megha Singh v. State of Haryana, which established that a complainant should not conduct the investigation to ensure fair and impartial proceedings. The court found that PW. 11, who received the information, conducted the search, and investigated the case, acted both as complainant and Investigating Officer. This dual role was against the settled propositions of law, leading to the conclusion that the conviction was not fair and had to be invalidated.

2. Applicability of Section 22 versus Section 27:
The appellant's counsel contended that even if the contraband was found in possession of the appellant, the quantity recovered was minimal, thus attracting Section 27 of the Act rather than Section 22. The court examined the quantities and types of substances recovered and noted that the recovered substances fell under the minimum quantity as per the relevant notifications. The court referenced the Supreme Court's ruling in Raju v. State of Kerala, which held that small quantities used for personal health purposes should be considered under Section 27. The court concluded that the conviction should have been under Section 27, not Section 22.

3. Exclusive Possession of the Room:
The appellant's counsel argued that there was no reliable evidence proving that the room where the contraband was found was in the exclusive possession of the appellant. The court noted that several witnesses, including neighbors and family members, did not support the prosecution's claim of exclusive possession. Witnesses PW. 1 and PW. 2 were declared hostile, and PWs. 3, 4, and 5 (family members) did not corroborate the prosecution's story. The court found no reliable and acceptable evidence to prove that the room was exclusively possessed by the appellant, making it difficult to accept the prosecution's case.

4. Reliability and Sufficiency of Evidence:
The court scrutinized the evidence presented by the prosecution. The materials recovered were sent for chemical examination, and the report confirmed the presence of psychotropic substances. However, the court emphasized the importance of fair investigation procedures and found that the dual role of PW. 11 compromised the investigation's integrity. Additionally, the court noted that the appellant had already been in custody for over four years, which aligned with the Supreme Court's observations in similar cases.

Conclusion:
The court concluded that the prosecution's case suffered from significant legal infirmities, including the improper role of the Investigating Officer and lack of evidence for exclusive possession. The conviction under Section 22 was not sustainable, and even under Section 27, the appellant had already served more than the maximum sentence. Therefore, the court allowed the appeal, acquitted the appellant, and directed his release, provided he was not required in any other case.