2018 (1) TMI 63 - HC - Indian Laws

Smuggling - illegal recovery of Nepali Charas - compliance with section 50 of NDPS Act or not? - Held that - Nothing significant has been asked in the cross-examination by the defence counsel from this witness as regards compliance of section 50 of the Act. Similarly the other witness of fact, Anuradha Singh (PW 3) has repeated the same version and has gone on to say in the examination in chief that the appellant was told that she could get herself searched in presence of a Gazetted Officer or Magistrate and that the same was her legal right, but the appellant stated that she was ready to be searched by the police party as she had already been arrested. Thereafter at the instruction of the staff the three lady Constables, which included PW 3 as well, took search. The appellant came out after getting the thaili of cloth detached from her body by lady Constable Anita Dhruve, from which 6 packets of Nepali charas of bigger size and 12 packets of oval-shaped Nepali charas were taken out. From PW 4, Rampal Singh, the investigating officer, the defence has not asked anything regarding non-compliance of section 50 of the Act - It was essential for the prosecution witnesses to bring on record that the seal which was used at the time of sealing the alleged recovered contraband substance was compared with the seal on the said material when brought before Court for being exhibited and only after the seal was found matching, it could be held that it was the same case property which was recovered from the accused and sealed on the spot. This has not been done and hence it is an important missing link in this case. Whether the prosecution has been able to prove successfully that the said contraband substance (charas) was recovered from the appellant? - Held that - there is no evidence found on record of keeping the sample of the alleged recovered contraband substance, remainder and sample seal in safe custody in Malkhana, till the sample along with sample seal was sent to the Forensic Science Lab and the remainder contraband substance was produced before Court to prove that on it was found seal of SI Ram Pal Yadav at the time of statement of PW 1 in cross-examination, whose seal was affixed on the spot. This leaves gnawing gap in the prosecution s case to prove that the sample of the same contraband substance was sent for being tested to the Forensic Science Lab which was recovered from the accused on the spot - there is huge missing link which would leave doubt in the mind as to whether the sample sent to the FSL was that of alleged recovered contraband which was recovered from the accused on the spot and consequently the recovery of said contraband would itself become suspect. Whether the prosecution has made compliance of section 57 of the NDPS Act, which required the police party to send a report of arrest of the accused and seizure of contraband substance made from her, to its higher authorities? - Held that - There is no evidence on record to the effect that any such report was prepared by the police party making arrest of the accused and seizing the contraband substance from her, hence question does not arise of having sent any such report to the higher authorities. The purpose behind this compliance is that no false plantation of any contraband substance be allowed to be made by keeping a check of such kind. All the above-mentioned link evidence being missing it cannot be held beyond doubt that prosecution has been able to prove that the said amount of charas was recovered from the accused, to possess which she did not have valid license. The learned lower Court has not made proper appreciation of evidence on record and has omitted to notice these irregularities/infirmities in the prosecution evidence. In view of this the conviction judgment of the accused appellant may not be sustained. The accused appellant deserves to be acquitted of the charge. Appeal allowed.

Issues Involved:
1. Compliance with Section 50 of the NDPS Act.
2. Proof of recovery of contraband substance.
3. Chain of custody and handling of seized contraband.
4. Discrepancies in the quantity of sample sent to the Forensic Science Lab.
5. Non-examination of independent witnesses.
6. Compliance with Section 57 of the NDPS Act.
7. Definition and percentage of resin in charas.
8. Procedural lapses and their impact on the prosecution's case.

Issue-wise Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act:
The court evaluated whether the accused was informed of her right to be searched in the presence of a Gazetted Officer or Magistrate. The evidence indicated that the accused was apprised of this right, and she consented to be searched by the police party. The court concluded that the prosecution complied with Section 50, despite the defense's contention that the search was conducted by a lady constable who was not examined in court.

2. Proof of Recovery of Contraband Substance:
The prosecution claimed the recovery of 5 KG and 120 grams of charas from the accused. However, the court found inconsistencies in the testimonies of the witnesses regarding the sealing and handling of the contraband. The primary witness (PW 1) admitted that the contraband produced in court did not have any seal, which cast doubt on the integrity of the evidence.

3. Chain of Custody and Handling of Seized Contraband:
The court emphasized the importance of maintaining a clear chain of custody for the seized contraband. The prosecution failed to prove that the contraband was kept in safe custody and was not tampered with. The absence of a sample seal and discrepancies in the handling of the contraband led the court to question the prosecution's case.

4. Discrepancies in the Quantity of Sample Sent to the Forensic Science Lab:
The court noted a significant discrepancy between the quantity of the sample sent to the Forensic Science Lab (100 grams) and the quantity received by the lab (60.50 grams). This raised doubts about whether the same sample was tested, further weakening the prosecution's case.

5. Non-examination of Independent Witnesses:
The prosecution failed to examine the independent witnesses who had signed the recovery memo. The court found this omission significant, as these witnesses could have corroborated the recovery of the contraband from the accused.

6. Compliance with Section 57 of the NDPS Act:
The court found no evidence that the police party sent a report of the arrest and seizure to higher authorities, as required by Section 57. This non-compliance further weakened the prosecution's case and suggested a lack of procedural rigor.

7. Definition and Percentage of Resin in Charas:
The defense argued that the percentage of resin in the sample was only 35.4%, which should not qualify as charas. The court referred to legal precedents, clarifying that the presence of resin, regardless of percentage, is sufficient to classify a substance as charas under the NDPS Act.

8. Procedural Lapses and Their Impact on the Prosecution's Case:
The court highlighted several procedural lapses, including the failure to produce the sample seal, discrepancies in the chain of custody, and the non-examination of key witnesses. These lapses created significant doubt about the prosecution's case, leading the court to conclude that the recovery of contraband from the accused was not proven beyond a reasonable doubt.

Conclusion:
Due to the numerous procedural flaws and inconsistencies in the prosecution's evidence, the court allowed the appeal, acquitting the accused of charges under Section 8/23(C) of the NDPS Act. The court ordered the immediate release of the accused and directed the destruction of the case property after the appeal period, subject to legal provisions. The court also awarded a fee to the amicus curiae for assisting in the case.

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