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2016 (9) TMI 1476 - HC - Indian LawsSmuggling - Heroin - NDPS Act - Held that - The learned Court took into consideration mainly the evidences of P.W. 1, P.W.2 and P.W. 7 to prove the search, recovery and seizure of Heroin from the possession of the appellant and also took into consideration the chemical analysis report where the expert had opined that the sample sent for analysis to contain Heroin to arrive at the conclusion that prosecution has been able to prove the charge against the accused/appellant beyond all reasonable doubt. Considering the entire facts and circumstances, with regard to the non adhering to the procedure relating to search and seizure of the contraband articles, non-compliance of the provisions of Section 50 of the NDPS Act, anomaly in the weight of the seized articles in between the Malkhana register, seizure list, FIR and the report of the analyst, unexplained inordinate delay in sending the contraband article for chemical examination, complainant himself acting as the investigating officer violating the principles of fair and impartial investigation, lead us to interfere with the impugned judgment. The impugned judgment, order of conviction and sentence are quashed and set aside. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Non-compliance with mandatory provisions of search and seizure under the NDPS Act. 2. Anomaly in the weight of the seized contraband. 3. Delay in sending the contraband for chemical analysis. 4. The complainant acting as the investigating officer. Issue-wise Detailed Analysis: 1. Non-compliance with mandatory provisions of search and seizure under the NDPS Act: The appellant contended that the mandatory provisions related to search and seizure under Sections 42 and 50 of the NDPS Act were not complied with. The court scrutinized the evidence and found that the search was conducted in a public place in the presence of independent witnesses, thus invoking Section 43 of the NDPS Act, not Section 42. The court referred to the decision in *State of Haryana Vs. Jarnial Singh* and others (2004) 5 SCC 188, affirming that there was no requirement for the officer to record the grounds of his belief as per the proviso to Section 42. However, the court found non-compliance with Section 50, which mandates informing the accused of their right to be searched before a Gazetted Officer or Magistrate. The court cited *State of Punjab vs Baldev Singh* (1999) 6 SCC 172 and *Vijaysinh Chendubha Jadeja vs. State of Gujarat* (2011) 1 SCC 609, emphasizing the imperative nature of this provision. The failure to inform the appellant of this right caused prejudice, rendering the search and seizure procedure improper. 2. Anomaly in the weight of the seized contraband: The appellant highlighted discrepancies in the recorded weight of the seized heroin. The FIR and seizure list mentioned 3 ml. gm., which P.W.7 admitted was a mistake. The Malkhana register indicated the entire seized article was sent for chemical examination, but the analyst's report showed a weight of 1.5085 gm. The prosecution failed to explain this anomaly, raising doubts about the integrity of the evidence. 3. Delay in sending the contraband for chemical analysis: The court noted an unexplained delay in sending the seized heroin for chemical analysis. The seizure occurred on February 12, 1987, but the sample was sent only on April 3, 1987. This inordinate delay further cast doubt on the prosecution's case. 4. The complainant acting as the investigating officer: The court found it problematic that P.W.7, the complainant, also acted as the investigating officer, contravening principles of fair and impartial investigation. The court referenced *Megha Singh Vs. State of Haryana* (1996) 11 SCC 709 and *State by Inspector of Police, Narcotic Intelligence Bureau, Madurai Vs. Rajangam* (2010) 15 SCC 369, which disapproved of such practices. Conclusion: Considering the non-compliance with mandatory search and seizure provisions, the anomaly in the weight of the seized contraband, the unexplained delay in sending the sample for chemical analysis, and the complainant acting as the investigating officer, the court found substantial grounds to interfere with the impugned judgment. The conviction and sentence were quashed and set aside, and the appellant was ordered to be released forthwith unless wanted in connection with any other case. The judgment and lower court records were directed to be sent to the trial court immediately for necessary action.
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