2017 (12) TMI 1513 - HC - Indian Laws

Smuggling - Ganja - Section 8/20 of NDPS Act - compliance of Section 50 of NDPS Act - Held that - it is well settled law that unless personal search is made of the suspect, the compliance of Section 50 of NDPS Act would not be required - It appears that here during search, person of the accused was not searched rather only the search was made of the bag which he was carrying, hence, in the light of law stated above, Section 50 of the NDPS Act shall not be applicable. Whether the compliance of Section 57 of the NDPS Act has been made? - Held that - it is clear that though the non-compliance of Section 57 of the NDPS Act by itself may not be treated mandatory but if its non-compliance has resulted in prejudice to the accused, it will certainly have an adverse effect on the prosecution s case. Therefore, this Court would like to see whether there are other serious infirmities which may point to non-compliance of necessary provisions of law. It may also be pointed out here that the severer the punishment provided under law, stricter compliance of statutory provisions is required to be made & very meticulously. It is apparent that not only it is on record that the prosecution has failed to follow these guidelines in detail but even broadly the prosecution has failed to establish that any sample of contraband substance was taken and was sealed on the spot and the sample of the same was sent to the FSL for being tested - it would not be safe to hold that the prosecution has proved beyond doubt that the contraband substance (500 grams, Ganja) was recovered from the accused and the sample of same was found to be Ganja as has been held by the court below. These infirmities coupled with non-compliance of Section 57 of the NDPS Act would make a huge dent in the prosecution s case - the prosecution has failed absolutely to prove beyond doubt that any recovery of contraband substance (Ganja) was made from him - appeal allowed.

Summary

Issues Involved:
1. Compliance with Section 50 of NDPS Act.
2. Compliance with Section 57 of NDPS Act.
3. Adequacy of evidence and corroboration.
4. Proper handling and sampling of contraband substance.
5. Reliability of prosecution witnesses and documentary evidence.

Issue-wise Detailed Analysis:

1. Compliance with Section 50 of NDPS Act:
The court examined whether the accused was informed of his right to be searched before a Magistrate or a Gazetted Officer. The prosecution argued that the accused was apprised of this right, but the accused expressed faith in the police and consented to the search. The court found that the search was of the bag carried by the accused and not a personal search, thus Section 50 was not applicable. The court relied on the Supreme Court's interpretation in *State of Himachal Pradesh Vs. Pawan Kumar* which clarified that bags or containers are not considered part of the person for the purposes of Section 50.

2. Compliance with Section 57 of NDPS Act:
Section 57 requires a report of arrest and seizure to be sent to higher authorities within 48 hours. The court noted that non-compliance with this section does not automatically invalidate the trial unless it causes prejudice to the accused. Referring to *State of Punjab Vs. Balbir Singh*, the court stated that procedural lapses under Sections 52 and 57 do not nullify the acts done by officers but may affect the probative value of the evidence.

3. Adequacy of Evidence and Corroboration:
The court observed that only one police witness (PW-1) was examined, despite other officers being present during the seizure. The lack of corroboration from other witnesses weakened the prosecution's case. The court emphasized the importance of corroborative evidence, especially when public witnesses were not available.

4. Proper Handling and Sampling of Contraband Substance:
The court found significant discrepancies in the handling and sampling of the contraband. The recovery memo and PW-1's testimony did not mention taking a sample on the spot. The seal on the sample sent to the FSL was different from the one used during the seizure. The court highlighted the guidelines from Narcotic Control Bureau's Standing Instruction No. I/88, which were not followed. The guidelines require samples to be drawn on the spot, sealed, and properly documented, which was not done in this case.

5. Reliability of Prosecution Witnesses and Documentary Evidence:
The court found contradictions between the statements of PW-1 and PW-2 regarding the sampling of the contraband. PW-1 stated no sample was taken, while PW-2 claimed otherwise. The court criticized the lower court for dismissing these contradictions lightly. The absence of Malkhana records further weakened the prosecution's case. The court concluded that the prosecution failed to establish a clear chain of custody for the contraband.

Conclusion:
The court concluded that the prosecution failed to prove beyond reasonable doubt that the contraband substance was recovered from the accused. The significant procedural lapses, lack of corroborative evidence, and improper handling of the contraband led to the acquittal of the accused. The appeal was allowed, and the accused was ordered to be released immediately if not detained in any other case. The case property was ordered to be destroyed after the appeal period, subject to legal provisions.

Order:
The appeal is allowed. The accused is held not guilty of the offense under Section 20 of NDPS Act. Immediate release is ordered if the accused is not detained in any other case, following compliance with Section 437-A of Cr.P.C. The lower court record is to be returned immediately with a copy of this judgment for compliance. The case property shall be destroyed after the appeal period is over or as permitted by law.