2018 (1) TMI 119 - HC - Indian Laws

Smuggling - ganja - Section 8/20 of N.D.P.S. Act - non-compliance of the provision of Section 50 of the Act - personal search - Held that - it transpires that the accused-appellant was not apprised by the arresting police party that he had a right under law (under Section 50 of N.D.P.S. Act) to opt for being searched before a Gazetted Officer/Magistrate, which is a mandatory provision which would have adverse effect on the accused-appellant being held guilty - the principle of personal search would apply it would involve search of the body of human being as presented to public view usually with its appropriate coverings and clothings and not any briefcase, bag, container etc., which a person carries with him because these articles are not inextricable from his person. In the case at hand Section 50 of the Act would be applicable which has not been followed in letter and spirit by the prosecution by disclosing to him his legal right to be searched before a Gazetted Officer/Magistrate as is apparent from the evidence which has been taken into consideration above. It is not established beyond reasonable doubt that the contraband Ganja as well as the contraband sample were separately sealed properly and were kept intact in safe custody. It is also not clear as to whether the samples of their seals were also kept safely. Further it is also made clear that when the sample contraband was tested, it was returned with seal of the F.S.L., which was opened before court at the time of recroding of statement of witnesses. The accused-appellant deserves to be acquitted of charges under Section 8/20 of the Act - Appeal allowed.

Summary

Issues involved:
1. Compliance with Section 50 of the N.D.P.S. Act.
2. Weighing of the recovered contraband.
3. Proper sealing and custody of the contraband.

Issue-wise detailed analysis:

1. Compliance with Section 50 of the N.D.P.S. Act:
The appellant argued that the provisions of Section 50 of the N.D.P.S. Act were not complied with, as the accused was not informed of his right to be searched before a Magistrate or Gazetted Officer. The court examined the recovery memo and witness statements, finding that the accused was not apprised of this right. The court cited the Supreme Court's judgment in *Vijaysinh Chandubha Jadeja vs. State of Gujarat* (2011) 1 SCC 609, which mandates strict compliance with Section 50. The court concluded that the non-compliance with Section 50 adversely affected the prosecution's case.

2. Weighing of the recovered contraband:
The appellant contended that the contraband Ganja was not weighed on the spot. The court noted discrepancies in the witness testimonies regarding the weighing process. P.W.-2 admitted in cross-examination that the weight mentioned in the recovery memo was based on conjecture. The court found this lapse significant, as accurate weighing is crucial for establishing the quantity of the contraband.

3. Proper sealing and custody of the contraband:
The appellant argued that the prosecution failed to prove that the contraband was properly sealed and kept intact. The court found that the recovery memo and witness statements did not provide clear details about the sealing process. The court emphasized the importance of maintaining the integrity of the contraband from recovery to testing. The court found the lower court's findings on this issue unconvincing, noting that the prosecution did not adequately demonstrate that the contraband was properly sealed and kept intact.

Conclusion:
The court concluded that the prosecution failed to comply with the mandatory provisions of Section 50 of the N.D.P.S. Act, did not accurately weigh the contraband, and did not convincingly prove that the contraband was properly sealed and kept intact. These lapses led the court to set aside the lower court's judgment and acquit the accused-appellant of charges under Section 8/20 of the N.D.P.S. Act. The court ordered the destruction of the alleged recovered contraband in accordance with rules after the appeal period expires.