2019 (2) TMI 837 - HC - Indian Laws

Smuggling - poppy husk - offences punishable under Section 15(c) and 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Held that - In the instant case, there is nothing on record to suggest that these Rules were followed while producing case property in the Court and on returning the same. These Rules have been framed to ensure that case property from its initial stage of seizure till production in the Court remains safe/intact and is restored to store room in the presence of senior police officer. Property taken out of the main store-room for production in court is required to be signed by the court orderly concerned in Register No. 2 and the prosecuting officer authorizing the removal is required to initial this entry. Such officer shall similarly, after personal check, initial the entry of return of the property to the main store-room on the closing of the courts. Their Lordships of the Hon ble Supreme Court in Sukhdev Singh vs. State of Haryana, 2012 (12) TMI 982 - SUPREME COURT have underlined the objects and purpose of ensuring strict compliance of Section 42. Their Lordships have held that Section 42 is mandatory which ought to be construed and complied with strictly. The compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. Appellants are acquitted. Appellant Harbhajan Singh alias Bhajan Singh is on bail. His bail bonds and surety bonds are discharged. Remaining accused are in custody. They be released forthwith - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Conviction and sentencing under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
2. Compliance with procedural requirements under the NDPS Act.
3. Validity of the search and seizure process.
4. Admissibility of evidence and chain of custody.
5. Confiscation of the truck used in the commission of the offense.

Detailed Analysis:

1. Conviction and Sentencing Under the NDPS Act:
The appellants were charged and convicted for offenses under Sections 15(c) and 8(c) of the NDPS Act, with one appellant charged under Section 25 of the NDPS Act. They were sentenced to 12 years of rigorous imprisonment and fined one lakh rupees each, with an additional two years of rigorous imprisonment in case of default in payment of the fine.

2. Compliance with Procedural Requirements Under the NDPS Act:
The judgment highlighted significant procedural lapses by the prosecution. The mandatory provisions of Section 42 of the NDPS Act, which require recording reasons of belief and taking down information in writing, were not complied with. The prosecution failed to prove that the owner of the vehicle had consciously permitted its use for the commission of the offense. The court emphasized that compliance with Section 42 is mandatory and any non-compliance affects the prosecution's case and vitiates the trial.

3. Validity of the Search and Seizure Process:
The search and seizure process was scrutinized for adherence to the NDPS Act's requirements. The court found that the police did not follow the proper procedure for maintaining the integrity of the seized property. The case property was not deposited in the judicial malkhana as ordered, and there were no corresponding entries in the malkhana register regarding the movement of the case property. This raised doubts about whether the case property remained intact from the time of seizure to its production in court.

4. Admissibility of Evidence and Chain of Custody:
The court noted serious lapses in the chain of custody of the seized contraband. The sample seal impressions were not directly put on the CFSL form at the spot but were prepared on separate chits and later affixed to the form. This irregularity cast doubt on the integrity of the evidence. The court emphasized that the case property must be kept in safe custody from the date of seizure until its production in court, and any deviation from this procedure raises questions about the authenticity of the evidence.

5. Confiscation of the Truck Used in the Commission of the Offense:
The court set aside the order of confiscation of the truck, finding that the prosecution did not provide sufficient evidence to prove that the owner had knowledge of the truck being used for transporting contraband. The court ordered the release of the truck to its registered owner.

Conclusion:
The court allowed the appeals, setting aside the judgment and order dated 27.05.2010. The appellants were acquitted, and those in custody were ordered to be released forthwith. The bail bonds and surety bonds of the appellant on bail were discharged. The truck in question was also ordered to be released to its registered owner.

← Previous Next →