2019 (10) TMI 9 - HC - Indian Laws

Smuggling - Charas - offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Disbelieving the testimony of the witness - the register of the Hotel where the witness stayed had not been produced - presumption under section 35 and 54 of NDPS Act - HELD THAT - After careful appreciation of the entire evidence, application of law and judicial precedents, the findings returned by the trial Court, convicting the accused, are not based on the correct and complete appreciation of testimonies of prosecution witnesses. It does not lead to an irresistible conclusion of the guilt of the accused, beyond reasonable doubts. The appreciation of the evidence and application of law cited, take this Court to only one conclusion that the possibility of the investigating team not revealing the true and correct facts cannot be ruled out. After careful scrutiny, the evidence of the police officials, does not inspires confidence, being neither trustworthy nor reliable, and it cannot from basis of conviction. The prosecution has miserably failed to prove its case beyond reasonable doubts. Appeal allowed.

Issues Involved:
1. Legality of the High Court's approach in the initial judgment.
2. Legality of the conviction under Section 20(b)(ii)(C) of the NDPS Act.
3. Procedural compliance during the investigation and trial.
4. Non-association of independent witnesses.
5. Compliance with Section 50 of the NDPS Act.
6. Handling and sealing of the seized contraband.
7. Link evidence and chain of custody.
8. Application of Sections 35 and 54 of the NDPS Act.
9. Standard of proof required for conviction under the NDPS Act.

Issue-wise Detailed Analysis:

1. Legality of the High Court's Approach in the Initial Judgment:
The Supreme Court remanded the matter to the High Court, stating, "We are of the view that approach adopted by the High Court in the impugned judgment is not sound in law." This necessitated a fresh decision on merits.

2. Legality of the Conviction under Section 20(b)(ii)(C) of the NDPS Act:
The appellant challenged the conviction and sentence of twelve years rigorous imprisonment and a fine of INR 1,20,000/- imposed by the Special Judge, Mandi, Himachal Pradesh. The appeal was filed under Section 374 of the CrPC.

3. Procedural Compliance During the Investigation and Trial:
The investigation and trial were scrutinized step-by-step, focusing on the presence of the police party at the spot, the conduct of the accused, and the procedural safeguards followed during the search and seizure. The Court found several procedural lapses, including non-production of the hotel register and lack of evidence showing the police party carried an investigation kit.

4. Non-association of Independent Witnesses:
The Court noted that the Investigating Officer did not make any effort to associate independent witnesses despite being in a populated area. The absence of independent witnesses, despite the availability, led to an inference of a skewed investigation. The Court cited multiple precedents, emphasizing the need for independent witnesses to lend credibility to the prosecution's case.

5. Compliance with Section 50 of the NDPS Act:
Since the charas was recovered from a bag held by the accused and not from his person, the Court held that Section 50 of the NDPS Act did not apply. This was supported by the Supreme Court's decision in State of H.P. v. Pawan Kumar, which clarified that Section 50 does not extend to bags or containers carried by the accused.

6. Handling and Sealing of the Seized Contraband:
The Court found inconsistencies in the prosecution's story regarding the sealing of the contraband. The absence of evidence showing the police carried an investigation kit raised doubts about whether the sealing occurred at the spot or later at the police station. This lapse, coupled with the non-association of independent witnesses, made the seizure and sealing process doubtful.

7. Link Evidence and Chain of Custody:
The Court found that the prosecution failed to prove the link evidence. The contradiction regarding the stitching of the parcel containing charas and the absence of any mention of stitching in the initial documents led to doubts about the integrity of the chain of custody. The Court emphasized that the prosecution must prove the case property remained untampered from seizure to production in court.

8. Application of Sections 35 and 54 of the NDPS Act:
The presumption under Sections 35 and 54 of the NDPS Act would apply only if the prosecution discharged its initial burden of proof. The Court found that the prosecution failed to meet this burden, rendering the presumption inapplicable.

9. Standard of Proof Required for Conviction under the NDPS Act:
The Court reiterated that the graver the punishment, the stricter the proof required. Given the stringent punishment under the NDPS Act, the prosecution's evidence must be scrutinized zealously. The Court concluded that the prosecution's evidence did not meet the required standard of proof beyond a reasonable doubt.

Conclusion:
The appeal was allowed, and the judgment of conviction and sentence dated 10th June 2011 was set aside. The accused was acquitted of the charged offense, and the fine amount, if deposited, was ordered to be refunded. The bail bonds furnished by the accused were discharged. The Court emphasized that the prosecution failed to prove its case beyond reasonable doubt, leading to the acquittal of the accused.

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