1994 (12) TMI 354 - HC - Indian Laws

Summary

Issues Involved:
1. Chain of custody and tampering of evidence.
2. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).
3. Admissibility of the CFSL report without the expert's testimony.
4. Lapses in police investigation.

Detailed Analysis:

1. Chain of Custody and Tampering of Evidence:
The appellants contended that the prosecution failed to prove beyond a reasonable doubt that the samples taken at the spot and duly sealed were the same samples analyzed by the CFSL expert. The prosecution did not provide evidence that the CFSL form, containing specimen seals, was deposited in the Malkhana or taken to the CFSL. The defense argued that the possibility of tampering with the samples could not be ruled out. The court noted that the entries in the Malkhana Register did not show that the CFSL form was deposited along with the case property. The court found that there was no evidence to show that the CFSL form remained intact and reached the CFSL office with the samples.

2. Compliance with Section 50 of the NDPS Act:
The court examined whether the mandatory provisions of Section 50 of the NDPS Act were complied with. Section 50 requires that the accused be informed of their right to be searched before a gazetted officer or a magistrate. The FIR mentioned that the appellants were informed of their right to be searched before a gazetted officer but did not mention a magistrate. The court found this to be a significant omission, indicating non-compliance with Section 50. The court emphasized that compliance with Section 50 is mandatory and failure to do so vitiates the trial.

3. Admissibility of the CFSL Report:
The CFSL report was tendered in evidence without the expert being called to testify. The court noted that the expert who prepared the report did not fall within the categories of experts mentioned in Section 293 of the Code of Criminal Procedure (CrPC), which allows certain government scientific experts' reports to be admissible without their testimony. The court held that the report could not be admitted without the expert's testimony, as the defense had not raised any objection to the mode of proof at the time the report was tendered. The court overruled previous single bench decisions that allowed objections to the mode of proof to be raised at a later stage.

4. Lapses in Police Investigation:
The court criticized the police investigation for being shoddy and highlighted several lapses. The court noted that photographs of the case property were taken by press photographers on May 9, 1987, and published in newspapers, which indicated that the case property did not remain duly sealed. The court found that the investigating officers failed to provide an explanation for how the case property came to be photographed outside the Malkhana. The court emphasized the need for more efficient and scientific investigations in serious cases like those under the NDPS Act and recommended a probe by the Police Commissioner to take action against the defaulting officials.

Conclusion:
The court allowed the appeal, set aside the judgment and order of the Additional Sessions Judge, and acquitted the appellants of the charges. The court directed that the appellants be released forthwith if not required to be detained in any other case. The court also required that a copy of the judgment be sent to the Police Commissioner for necessary action.