2017 (12) TMI 173 - HC - Indian Laws

Conviction and order of sentence under Section 22 of NDPS Act - Held that - The trial Court has completely ignored the defence evidence led by the appellant and has failed to evaluate the prosecution evidence in the light of defence set up by the appellant. The appellant has set up a defence that a complaint was lodged with the SSP, Mansa that one Sanjiv Kumar, in collusion with SHO, Police Station, Jhunir, is involved in the selling of intoxicants. The appellant has proved on record the complaint Ex.DW4/A, the inquiry report conducted on the same by DSP as Ex.DW4/D and final report Ex.DW4/E. Both the defence witnesses DW1 and DW2, Sarpanch and Panch have stated that PW3 Inspector Dalbir Singh, SHO, PS, Jhunir had come to the village 5-6 days before registration of the FIR and had threatened the appellant, for the reason that the appellant has filed the said complaint against him and immediately thereafter, the appellant was implicated in the present FIR. In the light of this defence set up by the appellant, the evidence of the prosecution, if examined minutely, proves the conduct of PW3 Inspector Dalbir Singh SHO that he has not acted and followed procedure in accordance with law. The statement of PW3 Inspector Dalbir Singh, on careful scrutiny, clearly make out a case that provisions of Section 50 of NDPS Act were not at all followed. This witness has clearly admitted that he has not informed the accused regarding his right under Section 50 of NDPS Act. The prosecution has examined only three witnesses, out of which PW1 HC Gurdeep Singh is a formal witness, who has deposited the sample parcel to FSL. However, there is no explanation given by him that why the sample was not deposited on the same day, as this witness has stated that after obtaining the sample on 16.06.2010, he stayed in police station, Mansa on 16.06.2010 and deposited the same with FSL on 17.06.2010. Even the statement of Investigating Officer PW2 ASI Gurdip Singh do not inspire much confidence. The trial Court, while convicting the appellant, has wrongly held that the provisions of Section 50 of NDPS Act were complied with, as the Investigating Officer himself was the SHO of police station and it has come in the evidence that he has kept the sealed parcel with him and has not deposited the same in judicial malkhana. It has also come in the evidence that he has sent the sealed parcels after a delay of about 11 days and therefore, the finding recorded by the trial Court that there is a compliance of Section 50 of NDPS Act, is erroneous. The trial Court has further ignored FIR Ex.DX dated 24.04.2013, vide which aforesaid Sanjiv Kumar was arrested in connection with an FIR under the NDPS Act. For the reasons stated above, this appeal is allowed. The impugned judgment of conviction and order of sentence of even date i.e. 05.09.2013 are set aside. The appellant-accused is acquitted of the charge under Section 22 of NDPS Act and he shall be released forthwith, if he is not involved in any other case.

Summary

Issues Involved:
1. False Implication Allegation
2. Non-compliance with Section 50 of the NDPS Act
3. Improper Sampling Procedure
4. Custody and Handling of Sealed Samples
5. Non-examination of Independent Witness
6. Non-compliance with Section 42(a) of the NDPS Act

Detailed Analysis:

1. False Implication Allegation:
The appellant argued that he was falsely implicated due to a complaint he lodged against a police officer. The defense presented evidence including the complaint (Ex.DW4/A), inquiry report (Ex.DW4/D), and final report (Ex.DW4/E). Defense witnesses DW1 and DW2 corroborated that the police officer had threatened the appellant before his arrest. The court found merit in this defense, noting that the trial court failed to evaluate this evidence properly.

2. Non-compliance with Section 50 of the NDPS Act:
The prosecution witnesses admitted that they did not inform the appellant of his right to be searched before a Magistrate or a Gazetted Officer. This non-compliance was deemed significant, especially since the personal search of the appellant was conducted, making the recovery suspect. The court cited the Supreme Court's stance that non-compliance with Section 50 vitiates the conviction.

3. Improper Sampling Procedure:
The appellant argued that the sampling procedure did not follow the mandatory guidelines. Only 20 tablets were separated from the total 22700 tablets, which were in loose form. The court agreed that the procedure was flawed, as per the Standing Order No.1/89, which mandates proper mixing and representative sampling. This improper sampling raised doubts about the integrity of the evidence.

4. Custody and Handling of Sealed Samples:
The court found that the Investigating Officer (PW3) kept the sealed samples with him for 11 days instead of depositing them in the judicial malkhana, despite the Magistrate's order. This raised serious doubts about the possibility of tampering. The court noted that the seal was with PW3 during this period, further compromising the integrity of the samples.

5. Non-examination of Independent Witness:
The independent witness, Ami Chand, was not produced by the prosecution and was given up as "won over by the accused." The court found this to be a significant lapse, as the independent witness could have corroborated the prosecution's version. In the absence of this witness, the defense's claim of false implication gained more credibility.

6. Non-compliance with Section 42(a) of the NDPS Act:
The court noted that the secret information was not reduced to writing, violating Section 42(a) of the NDPS Act. This non-compliance was deemed fatal to the prosecution's case, as it raised questions about the legality of the search and seizure operations.

Conclusion:
The court allowed the appeal, setting aside the judgment of conviction and order of sentence dated 05.09.2013. The appellant was acquitted of the charge under Section 22 of the NDPS Act and ordered to be released forthwith if not involved in any other case. The court emphasized the multiple procedural lapses and non-compliance with mandatory provisions, which rendered the prosecution's case highly doubtful.