2018 (1) TMI 122 - HC - Indian Laws

Offence u/s 8/22 of the NDPS Act - recovery of 120 grams Alprazolam powder from him - compliance of Section 42 and Section 50 of NDPS Act - Held that - Upon perusal of the said consent memo, it is found that it has been signed by some officer on 18.7.2013, and has also been signed by the accused-appellant and it is recorded in this memo that accused was arrested on 18.7.2013 by police party with Aprazolam powder and was apprised about his legal right that he could give his search in presence of a Gazetted Officer or a Magistrate but he had told them that they could take his search and it was not required to call any such officer as he was satisfied with them. Beneath that, signature of some officer appears to have been made although it has not been got clarified in cross-examination by defense as to who had put that signature. The said consent memo not being signed by the person who had prepared the same would not cause prejudice to the accused because it bears the signature of the accused and has also been signed by some officer who was member of raiding party. Had there been no signature of the accused on the said consent memo, doubt could have been raised as to whether the accused had given any such consent - there is no doubt that there was sufficient compliance made of Section 50 of NDPS Act by apprising the accused of his above right. Since the possession of contraband substance (Alprazolam) has been found established, the burden shifts on the accused in view of provision under Section 35 and 54 of the NDPS Act as to how he came in possession of such a huge quantity of contraband substance. He has not adduced any evidence in defense so as to discharge burden shifted upon him. Therefore, there seems to be no infirmity in the judgment delivered by the court below holding the accused guilty. Appeal dismissed - decided against appellant.

Summary

Issues Involved:
1. Compliance with Sections 42 and 50 of the NDPS Act.
2. Weight discrepancy of the recovered contraband.
3. Validity of the consent memo.
4. Injury on the accused.
5. Evidence not put to the accused under Section 313 Cr.P.C.
6. Details of weighing units and discrepancy in witness statements.
7. Discrepancy in dates related to the FSL report.

Issue-wise Detailed Analysis:

Compliance with Sections 42 and 50 of the NDPS Act:
The court found adequate compliance with Sections 42 and 50 of the NDPS Act. The accused was informed of his right to be searched before a Magistrate or a Gazetted Officer, and he consented to be searched by the police party. The court held that it is not necessary to inform the accused in writing about his right; oral communication is sufficient.

Weight Discrepancy of the Recovered Contraband:
The appellant argued that the weight discrepancy (120 grams at recovery vs. 118.10 grams at FSL) casts doubt on the prosecution's case. The court found this difference negligible and attributed it to potential variations in weighing machines, thus dismissing this ground as insufficient to discredit the prosecution's case.

Validity of the Consent Memo:
The appellant contended that the consent memo was not signed by the officer who prepared it. The court noted that the memo was signed by the accused and another officer, and emphasized that the absence of the preparer's signature did not prejudice the accused. The court reiterated that oral communication of the right to be searched before a Magistrate or Gazetted Officer suffices.

Injury on the Accused:
The appellant highlighted an injury on his buttock, suggesting police brutality. The court dismissed this point, noting the injury was minor, could have been self-inflicted, and was not significant enough to impact the case.

Evidence Not Put to the Accused under Section 313 Cr.P.C.:
The appellant argued that not all evidence was put to him during his examination under Section 313 Cr.P.C., causing prejudice. The court acknowledged that while specific questions about the consent memo were not asked, the overall evidence against the accused was presented, and he was given an opportunity to defend himself. The court found no gross violation of Section 313 Cr.P.C.

Details of Weighing Units and Discrepancy in Witness Statements:
The appellant pointed out discrepancies regarding the source of the weighing machine and the units used. The court found these discrepancies minor and attributed them to the time lapse between the incident and the recording of statements. The court held that these minor inconsistencies did not undermine the prosecution's case.

Discrepancy in Dates Related to the FSL Report:
The appellant highlighted inconsistencies in the dates related to the FSL report. The court acknowledged the discrepancies but attributed them to clerical errors. It emphasized that the seal on the contraband was intact, indicating no tampering, and thus upheld the integrity of the evidence.

Conclusion:
The court dismissed the appeal, finding that the prosecution had adequately complied with legal requirements and that the evidence against the accused was credible. The appellant's arguments were deemed insufficient to overturn the conviction. The court affirmed the sentence of 10 years of rigorous imprisonment and a fine of ?1,00,000/-, with an additional six months of imprisonment in default of payment. The court also ordered the return of the lower court record for further necessary action and directed payment of ?7,500/- to the amicus curiae for his assistance.