2010 (5) TMI 935 - HC - Customs

Summary

Issues Involved:
1. False implication and recovery evidence.
2. Contradictions in Form No. 29 (CFSL Form) preparation.
3. Non-examination of independent witness and seal handling.
4. Delay in sending the sample for examination.
5. Compliance with Section 42 of the NDPS Act.

Detailed Analysis:

1. False Implication and Recovery Evidence:
The appellant argued that he was falsely implicated and no recovery was made by SI Vishwa Mitter in the presence of DSP Ranvir Singh. The defense pointed out contradictions in the statements of the prosecution witnesses regarding the mobile numbers used during the raid and the vehicle details of DSP Ranvir Singh, creating doubt about the actual presence of DSP Ranvir Singh at the spot. The court noted these contradictions and the lack of clarity in the prosecution's narrative, which undermined the reliability of the recovery evidence.

2. Contradictions in Form No. 29 (CFSL Form) Preparation:
The defense highlighted significant contradictions in the preparation of Form No. 29. SI Vishwa Mitter stated that the form was filled by SHO Mandip Singh at the police station, whereas SHO Mandip Singh claimed it was filled by SI Vishwa Mitter at the spot. DSP Ranvir Singh also contradicted these statements, asserting that the form was filled at the spot by SI Vishwa Mitter. The court observed that these inconsistencies, along with the suspicious appearance of the original form with seals pasted on separate papers, cast serious doubt on the prosecution's case and suggested possible tampering with the evidence.

3. Non-examination of Independent Witness and Seal Handling:
The defense argued that the independent witness, Gurmail Singh, was not examined by the prosecution, and the seal used during the recovery was handed over to ASI Gurcharan Singh, a member of the police party, instead of an independent witness. The court noted that the non-examination of the independent witness and the handling of the seal by a police official raised concerns about the integrity of the evidence. The court emphasized that the seal should have been handed over to an independent person to prevent any possibility of tampering.

4. Delay in Sending the Sample for Examination:
The defense pointed out a delay of five days in sending the sample to the Forensic Science Laboratory, arguing that it created doubt about the prosecution's case. The court referred to previous judgments indicating that such delays are not necessarily fatal unless it is shown that the delay caused serious prejudice to the accused. However, in this case, the court found that the delay, combined with other inconsistencies, contributed to the overall doubt about the prosecution's case.

5. Compliance with Section 42 of the NDPS Act:
The defense argued that SI Vishwa Mitter did not comply with Section 42 of the NDPS Act, which requires written communication of secret information to higher authorities. The court, however, found that Section 42 was not applicable as the recovery was made from an open public place, not a residential premises. The court noted that Section 43, which governs seizures in public places, was applicable and did not require the same procedural formalities as Section 42.

Conclusion:
The court concluded that the prosecution failed to prove the case beyond a reasonable doubt due to significant contradictions in the evidence, possible tampering with Form No. 29, non-examination of the independent witness, and improper handling of the seal. The appeal was allowed, and the conviction and sentence were set aside, resulting in the appellant's release.