2011 (3) TMI 1805 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of sending a second sample for examination under the NDPS Act.
2. Credibility of evidence and witnesses.
3. Possibility of tampering with the contraband.
4. Evaluation of conflicting expert reports.

Issue-wise Detailed Analysis:

1. Legality of Sending a Second Sample for Examination under the NDPS Act:
The core issue revolves around whether the NDPS Act permits sending a second sample for chemical analysis. The defense argued that the NDPS Act does not provide for a second sample examination, and the first sample tested at the Chemical Laboratory, Amritsar, showed no opium. In contrast, the prosecution contended that the second sample was necessary due to alleged connivance between the accused and the Chemical Examiner. The court noted that neither the NDPS Act nor its rules explicitly allow for a second sample to be sent for analysis, unlike the Prevention of Food Adulteration Act and the Insecticides Act, which have specific provisions for such circumstances. The court emphasized that in the absence of statutory provisions, the general law of evidence applies, and the prosecution must thoroughly discredit the first report before the second report can be accepted.

2. Credibility of Evidence and Witnesses:
The prosecution's case relied heavily on the testimonies of police officials (PW2 SI Jaspal Singh, PW3 ASI Gurdarshan Singh, and PW5-A DSP Narinderpal Singh), who claimed to have followed proper procedures during the seizure and sampling of the contraband. However, the court scrutinized the credibility of the independent witness Vinod Kumar, who was not examined during the trial. The court found that Vinod Kumar was a stock witness often used by the police, which cast doubt on the prosecution's case. The court stressed that employing a stock witness in serious criminal cases undermines the integrity of the investigation.

3. Possibility of Tampering with the Contraband:
The court examined the handling of the seals used on the samples and the bulk contraband. It was noted that the seals used by PW3 and PW5-A were retained by police officials, raising concerns about potential tampering. The court highlighted that while the law does not mandate handing over the seals to an independent witness, prudence and caution require such measures to prevent tampering. The court found that the first sample, which showed no opium, was handled correctly, but the second sample's integrity was questionable due to the possibility of tampering while in police custody.

4. Evaluation of Conflicting Expert Reports:
Two conflicting expert reports were presented: the first from the Chemical Laboratory, Amritsar, indicating no opium, and the second from the Central Forensic Science Laboratory, Hyderabad, confirming the presence of opium. The court emphasized that when two contradictory reports exist, the one favoring the accused should be considered, as per the principle laid down by the Supreme Court in State of U.P. v. Munni Ram. The court concluded that the prosecution failed to provide strong evidence to discredit the first report, and thus, the negative report from the Chemical Laboratory, Amritsar, was preferred.

Conclusion:
The court allowed the appeal, setting aside the trial court's judgment of conviction and sentence. The accused was acquitted of the charges, and the contraband was ordered to be confiscated by the state. The truck was to be returned to its owner upon proper identification. The judgment underscored the importance of adhering to statutory provisions and ensuring the integrity of evidence in criminal proceedings.