2012 (7) TMI 1115 - HC - Indian Laws

Offences punishable u/s 20(b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 'NDPS Act') for having been found in unlawful possession of 3.5KGs of charas - HELD THAT - Admittedly, the samples were drawn after breaking small pieces from 08 of the polythene bags which were allegedly kept in a green coloured bag by the appellant in his right hand. IO prepared two samples of 25 grams each after taking a small quantity from each of the slabs. Though the settled law is that if it is not practicable to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination. Otherwise, result thereon, may be doubted. For example, if the 08 packets were allegedly recovered from the appellant and only two packets were having contraband substance and rest 6 packets did not have any contraband; though all may be of the same colour, when we mix the substances of all 8 packets into one or two; then definitely, the result would be of the total quantity and not of the two pieces. The process adopted by the prosecution creates suspicion. In such a situation, as per settled law, the benefit thereof should go in favour of the accused. It does not matter the quantity. Proper procedure has to be followed, without that the results would be negative. In view of above discussion, instant appeal is allowed. Consequently, impugned judgment dated 18.10.2005 and order on sentence dated 21.10.2005 are hereby set aside. Appellant is acquitted from the charges.

Summary

Issues:
Challenge to conviction under Section 20(b)(ii)(C) of the NDPS Act for possession of charas; Challenge to the sentencing order; Discrepancy in the time of depositing parcels in malkhana; Lack of establishment of chain of custody; Reliability of FSL report; Failure to send representative samples for chemical examination; Non-examination of public witnesses; Process of taking samples; Benefit of doubt in favor of the accused.

Issue 1: Conviction under Section 20(b)(ii)(C) of the NDPS Act for possession of charas:
The appellant challenged the conviction under Section 20(b)(ii)(C) of the NDPS Act for possession of 3.5KGs of charas. The defense argued that the samples sent to the FSL were not representative of the entire quantity of the recovered substance, thus casting doubt on the nature of the substance. Citing legal precedents, the defense contended that if representative samples from each packet are not sent for examination, it cannot be conclusively inferred that the entire seized substance was charas. The defense further raised concerns about the reliability of the FSL report, highlighting the lack of details on the scientific tests conducted. The High Court ultimately found merit in the defense's arguments and allowed the appeal, acquitting the appellant from the charges.

Issue 2: Sentencing Order:
The appellant also challenged the sentencing order, which imposed a ten-year rigorous imprisonment term and a fine of Rs. 1.00 Lac. The defense raised procedural issues regarding the process of taking samples, emphasizing that the samples should have been taken from each packet individually rather than mixing them into two representative samples. By highlighting the importance of following proper procedures in such cases, the defense successfully argued for the benefit of doubt to be given to the accused. Consequently, the High Court set aside the impugned judgment and sentencing order, acquitting the appellant.

Issue 3: Discrepancy in the Time of Depositing Parcels in Malkhana:
A significant issue raised was the discrepancy in the time of depositing parcels in the malkhana. Testimony conflicted regarding the timing of the deposit, raising doubts about the integrity of the arrest and seizure process. The defense contended that such discrepancies create reasonable doubt, which should benefit the accused. This discrepancy was crucial in challenging the prosecution's case and contributed to the High Court's decision to acquit the appellant.

Issue 4: Lack of Establishment of Chain of Custody:
The defense highlighted the failure to establish a clear chain of custody, particularly concerning the seal used to secure the contraband. The absence of crucial witness testimony regarding the handling of the seal after use raised questions about the integrity of the evidence. Citing legal precedents, the defense argued that the non-examination of essential witnesses, such as the malkhana incharge, undermined the prosecution's case. This lack of establishment of the chain of custody further supported the defense's stance for the benefit of doubt in favor of the accused.

Issue 5: Reliability of FSL Report and Failure to Send Representative Samples:
The defense challenged the reliability of the FSL report, emphasizing the need for detailed scientific testing procedures to be included in such reports. Moreover, the defense argued that sending representative samples from each packet for chemical examination was essential to ensure accurate results. By pointing out deficiencies in the FSL report and the sampling process, the defense successfully cast doubt on the prosecution's case, leading to the acquittal of the appellant.

Issue 6: Non-examination of Public Witnesses and Process of Taking Samples:
The defense criticized the non-examination of public witnesses and highlighted flaws in the process of taking samples. By referencing legal precedents and procedural inadequacies, the defense raised suspicions about the prosecution's narrative. The failure to follow proper sampling procedures and the absence of essential witness testimonies further weakened the prosecution's case, ultimately resulting in the High Court granting the benefit of doubt to the accused and acquitting the appellant.

In conclusion, the High Court allowed the appeal, setting aside the impugned judgment and sentencing order, and acquitted the appellant. The decision was based on various factors, including discrepancies in the evidence, lack of chain of custody establishment, procedural irregularities in sampling, and doubts regarding the reliability of the FSL report. The defense's arguments successfully highlighted these issues, leading to the favorable outcome for the appellant.