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2016 (3) TMI 560 - HC - CustomsValidity of Trial Court order - Contravention of provisions of NDPS Act - Illegal possession and transportation of 342 kgs. of ganja punishable under section 20(b)(ii)(C) of N.D.P.S. Act - Surmises and conjectures - Held that - even though the samples were handed over to P.W.4 on 13.06.2008 by the Court but P.W.4 kept the samples with him because it was handed over to him in the evening hours on 13.06.2008 and thereafter there were three Government Holidays for which he kept the samples and produced it at the S.D.T & R.L. on 17.06.2008 and therefore the chance of tampering with the same cannot be ruled out. The samples were received at the S.D.T. & R.L. on 17.06.2008 and the seals on the sample cartoon and seventeen numbers of sample envelopes were found intact and identical with the specimen impression of the seal given on the forwarding memo. Therefore, the submissions based on surmises and conjectures cannot be accepted. Validity of Trial Court order - Contravention of provisions of NDPS Act - Illegal possession and transportation of 342 kgs. of ganja punishable under section 20(b)(ii)(C) of N.D.P.S. Act - Non-seizure of original of Ext.14 which was the full report in compliance of section 57 of the N.D.P.S. Act - Held that - in the column No.5, 6, 7 and 8 where name and address of the witness, points to prove, whether personally detected or on information and order of superior officer are required to be mentioned here have not been filled up. Similarly on the reverse side of C-4 where date and hour of submission of report, explanation of delay, if any in submission, date of receipt of the report in Excise Superintendent s office and brief history of the case are required to be mentioned and date have been left blank. No endorsement of Excise Commissioner regarding receipt of the report and date is available in Form No.C-4. Nobody has been examined from the office of Commissioner of Excise to prove the receipt of such report. The copy of the report which was sent to the Office of Commissioner of Excise has not been seized. Therefore, Ext.14 is not a full report as envisaged under section 57 of the N.D.P.S. Act and a reasonable doubt is created regarding submission of such report in the office of Commissioner of Excise. Therefore, in view of the glaring inconsistencies in the evidence of prosecution witnesses, non-compliance of provisions under section 100(4) of Cr.P.C., sections 52 (3) and 57 of the N.D.P.S. Act, absence of any clinching materials that the seized articles were kept in safe custody till its production in the Court, non-examination of relevant witnesses, non-production of brass seal in Court and other suspicious features, the Trial court order is set aside. Appeal disposed of
Issues Involved:
1. Compliance with Section 20(b)(ii)(C) of the N.D.P.S. Act. 2. Validity of search and seizure operations. 3. Reliability of witness testimonies. 4. Compliance with procedural safeguards under Sections 100(4) and 165(4) of Cr.P.C. 5. Compliance with Sections 52(3) and 57 of the N.D.P.S. Act. 6. Handling and custody of seized contraband. 7. Investigation by the officer who conducted the search and seizure. Issue-Wise Detailed Analysis: 1. Compliance with Section 20(b)(ii)(C) of the N.D.P.S. Act: The appellants were charged under Section 20(b)(ii)(C) of the N.D.P.S. Act for illegal possession and transportation of 342 kgs of ganja. The trial court found them guilty and sentenced them to ten years of rigorous imprisonment and a fine of Rs. 1,00,000 each. 2. Validity of Search and Seizure Operations: The search and seizure were conducted by P.W.4, who detained a TATA Safari based on information from excise constables. The vehicle was found to contain 342 kgs of ganja. However, the independent witnesses, P.W.1 and P.W.2, did not support the prosecution's case and were declared hostile. 3. Reliability of Witness Testimonies: P.W.1 and P.W.2, the independent witnesses, did not corroborate the prosecution's version and claimed their signatures were obtained under duress. P.W.3 and P.W.4, the official witnesses, provided testimonies supporting the search and seizure. The court noted that the evidence of official witnesses could be relied upon if found cogent and trustworthy. 4. Compliance with Procedural Safeguards Under Sections 100(4) and 165(4) of Cr.P.C.: The court found that P.W.4 did not comply with the provisions of Sections 100(4) and 165(4) of Cr.P.C., which mandate the presence of independent and respectable inhabitants of the locality during the search. The search and seizure were conducted in a market area where such witnesses could have been easily procured. 5. Compliance with Sections 52(3) and 57 of the N.D.P.S. Act: The court observed that P.W.4 did not produce the appellants and the seized articles at the nearest police station, as required under Section 52(3) of the N.D.P.S. Act. The evidence of D.W.1, the Officer in-charge of Balugaon Police Station, contradicted P.W.4's claim of producing the appellants and the seized articles at the police station. Additionally, the court found that Ext.14, the report under Section 57 of the N.D.P.S. Act, was not a full report as it lacked essential details and endorsements. 6. Handling and Custody of Seized Contraband: The court noted that neither the Inspector-in-Charge nor the Malkhana in-charge of Kharavel Nagar Police Station was examined to substantiate that the seized ganja was kept in safe custody. The brass seal used to seal the gunny bags was not produced in court, raising doubts about the integrity of the seized articles. 7. Investigation by the Officer Who Conducted the Search and Seizure: The court held that P.W.4, who conducted the search and seizure, should not have investigated the case and submitted the prosecution report, as it could lead to a biased investigation. This principle was supported by the Supreme Court's decision in the Rajangam case. Conclusion: The court found significant inconsistencies in the prosecution's evidence, non-compliance with statutory provisions, and procedural lapses. The appellants were acquitted of the charge under Section 20(b)(ii)(C) of the N.D.P.S. Act, and the impugned judgment and order of conviction were set aside. The appellants were ordered to be released forthwith if not required in any other case.
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