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2017 (5) TMI 1646 - HC - CustomsSmuggling - poppy husk - NDPS Act - offence punishable under Section 15 of NDPS Act - Held that - In the instant case, Form No.29 was not prepared on the spot and was admittedly filled in after delay of two days, which has not been explained by the prosecution. Therefore, prosecution has failed to prove beyond reasonable doubt that the sample of contraband which was examined by the Forensic Science Laboratory was the same which was alleged to have been recovered from the appellants at the time of the alleged recovery. The next infirmity in the case of the prosecution is that the entire contents of the three bags were required to be put on a piece of paper of cloth in order to know the whole of the contents. Admittedly, the investigating officer did not follow the prescribed procedure and in this regard it is hard to believe that the whole of the contents of the bags were poppy husk. Also, the drawing of the samples has to be in the presence and supervision of the Magistrate, which has not been followed in the present case. The impugned judgment of conviction and order of sentence dated 20.07.2004, passed by the learned trial Court, is set aside and the appellants are acquitted of the charge framed against them - appeal allowed.
Issues Involved:
1. Conscious possession of contraband. 2. Delay in sending the case property to the Magistrate. 3. Role of the complainant and investigating officer. 4. Procedure for handling contraband. 5. Presence of FIR number on documents. 6. Compliance with Section 52-A of the NDPS Act. Detailed Analysis: 1. Conscious Possession of Contraband: The appellants were charged under Section 15 of the Narcotic Drugs and Psychotropic Substances Act for possession of 106.500 gms of poppy husk. The prosecution's case was that the contraband was found in three bags in a vehicle driven by the accused. However, significant contradictions arose regarding the location of the bags. SI Balkar Singh (PW4) testified that the bags were on the seat, while ASI Baldev Singh (PW3) stated they were under the seat. This inconsistency cast doubt on the conscious possession by the appellants, making the recovery highly doubtful. 2. Delay in Sending the Case Property to the Magistrate: The prosecution failed to explain a one-day delay in sending the case property to the Magistrate. The court emphasized that Form No.29, which should have been prepared on the spot, was filled in after two days. This delay undermined the prosecution's claim that the contraband examined by the Forensic Science Laboratory was the same as that recovered from the appellants. 3. Role of the Complainant and Investigating Officer: The court noted that the complainant and the investigating officer were the same person, which violated principles of fair and impartial investigation. Citing precedents, the judgment highlighted that such practices lead to miscarriage of justice and make the prosecution's case doubtful. 4. Procedure for Handling Contraband: The investigating officer failed to follow the prescribed procedure of turning out the entire contents of the bags to ascertain that all material was contraband. The court referenced previous judgments, stressing that without this procedure, it could not be believed that the entire contents were poppy husk. This procedural lapse significantly affected the prosecution's case. 5. Presence of FIR Number on Documents: Documents allegedly prepared on the spot, such as search and recovery memos, bore the FIR number, indicating that either the FIR was registered before the recovery or the number was inserted afterward. Both scenarios cast serious doubt on the veracity of the prosecution's version. 6. Compliance with Section 52-A of the NDPS Act: The court found that the procedure under Section 52-A(2)(c) of the NDPS Act, which mandates drawing representative samples of the contraband in the presence of a Magistrate, was not followed. This non-compliance was critical as it is obligatory to ensure the integrity of the samples. The failure to follow this procedure further weakened the prosecution's case. Conclusion: The cumulative effect of the identified flaws led to the conclusion that the prosecution failed to prove its case beyond a reasonable doubt. The judgment of conviction and the order of sentence dated 20.07.2004 were set aside, and the appellants were acquitted of the charges. Their bail bonds were discharged.
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