2013 (2) TMI 917 - HC - Indian Laws

Summary

Issues Involved:
1. Non-compliance with procedural safeguards u/s 52A(2) and 55 of the N.D.P.S. Act.
2. Possibility of tampering with the seized contraband.
3. Bias in investigation due to the complainant also being the investigating officer.
4. Applicability of Sec. 50 of the N.D.P.S. Act to the search of a bag.
5. Adequacy of evidence to establish possession of contraband and prohibited items under the Prohibition Act.

Summary:

1. Non-compliance with procedural safeguards u/s 52A(2) and 55 of the N.D.P.S. Act:
The court noted significant lapses in the procedure followed by the Investigating Agency. The contraband articles were left unsealed and unattended for about five hours, which goes against the prescribed procedures meant to ensure the safety and integrity of the seized items. The failure to affix seals and maintain a proper chain of custody was seen as a fundamental flaw in the prosecution's case.

2. Possibility of tampering with the seized contraband:
The court observed that the seized articles were left open and unprotected, which could have led to tampering. The lack of evidence regarding the presence of the second panch witness during the critical period further weakened the prosecution's case. The court emphasized that the immediate sealing of seized articles is crucial to prevent tampering and ensure their integrity.

3. Bias in investigation due to the complainant also being the investigating officer:
The court discussed the principle that a police officer who is part of the raiding party should not investigate the case to ensure fairness and impartiality. However, in this case, the court found no evidence of bias or prejudice caused by the investigating officer being the complainant. The court referred to the Supreme Court's decision in S. Jeevanantham v. State, which held that such investigations are not inherently biased unless specific prejudice is shown.

4. Applicability of Sec. 50 of the N.D.P.S. Act to the search of a bag:
The court rejected the contention that non-compliance with Sec. 50 of the N.D.P.S. Act vitiated the trial. It referred to the Supreme Court's decision in Ajmer Singh v. State of Haryana, which clarified that Sec. 50 applies only to personal searches and not to searches of bags or containers.

5. Adequacy of evidence to establish possession of contraband and prohibited items under the Prohibition Act:
The court found that the prosecution failed to establish beyond a reasonable doubt that the accused was in possession of the contraband articles. The evidence regarding the safe custody and proper sealing of the seized items was insufficient. Additionally, there was no attempt to analyze the contents of the whisky bottle to confirm it was a prohibited item under the Prohibition Act.

Conclusion:
The court affirmed the acquittal of the accused, emphasizing that the prosecution failed to prove its case beyond a reasonable doubt. The procedural lapses, potential for tampering, and lack of evidence regarding safe custody of the seized items were critical factors in the decision. The appeal was dismissed, and the acquittal of the accused was upheld.