2020 (5) TMI 492 - HC - Indian Laws

Smuggling - Cocaine - applicability and compliance of of Section 50 of the NDPS Act - HELD THAT - Admittedly, Laya was searched. Thus, plainly, provisions of Section 50 of the NDPS Act would be applicable notwithstanding that the recovery was made from the bag carried by her. The question whether provisions of Section 50 have to be complied with in case a search of a person is carried is no longer res integra. In Raju @ Abdul Haque @ Jagga v. State of West Bengal 2018 (9) TMI 845 - SUPREME COURT , the Supreme Court had reiterated the above. The Court also referred to the Constitution Bench decision in Vijaysinh Chandubha Jadeja v. State of Gujarat 2010 (10) TMI 934 - SUPREME COURT , wherein the Court had held that provisions of Section 50 of the NDPS Act are mandatory. The court held that the concept of substantial compliance is not borne out from the language of the said Section, therefore, strict compliance with Section 50(1) of the NDPS Act is required. Whether provisions of Section 50 have been complied with? - HELD THAT - The fact that Laya was not searched in presence of a Magistrate or a Gazetted Officer does not ipso facto mean that provisions of Section 50 were not complied with - but, merely because Laya was not searched in the presence of a Gazetted Officer or a Magistrate, would not invalidate her search or the recovery of the contraband from her bag. In the present case, all of the witnesses present at the Airport had deposed that Laya was handed over a notice under Section 50 of the NDPS Act. PW-1 and PW-3 had testified that Laya was duly informed of her rights of being searched in presence of a Magistrate or a Gazetted Officer. She had, thereafter, desired to be searched by a lady officer and did not want her search to be conducted before a Magistrate/Gazetted Officer - It is established that Laya is familiar with the English language and the notice clearly informed her of her rights to be searched before a Gazetted Officer or a Magistrate, if she so desires. In view of the above, this Court is unable to accept that provisions of Section 50 of the NDPS Act were not complied with. Whether there was any infirmity in the search conducted by the NCB officials? - HELD THAT - The fact that the seizure memo bears the signatures of the independent witnesses is quite meaningless in view of the fact that (a) none of them have testified that they had signed the same at the spot but testified contrary to the case of the prosecution that all documents (apart from the notice) were prepared at the NCB office; (b) that neither of the public witnesses were proficient in English; (c) that the testimony of PW-12 regarding the recovery of contraband from cardboard boxes is contrary to the facts as stated in the seizure memo; and (d) the alleged statement made in Hindi by PW-14, is not on record - All of these assertions are inconsistent with the Prosecution s case. Whether there was any infirmity in drawing the samples of the contraband and whether there is any doubt that the integrity of the samples was maintained? - HELD THAT - The official witnesses have testified that contraband was recovered and the samples were taken at the spot. PW-1 had testified that on opening the blue bag, seven silver-coloured pouches were found. The said pouches were opened and they were found to contain transparent polythene packets. On cutting the same, white-coloured powder was recovered. He testified that he took out a small quantity from each of the packets and all of them tested positive for cocaine. Because all the packets had tested positive for cocaine, they mixed the contents of all the pouches and made one packet and took out two samples from the same. These samples were marked as A-1 and A-2. PW-1 testified that he sealed the said two samples in a white envelope. Paper slips, which were signed by Laya as well as the two public witnesses, were affixed to the two samples marked as A-1 and A-2. The said paper slips were also signed by PW-1. These were then sealed with the seal of Narcotics Control Bureau DZU-5 - this Court is unable to accept that there is any apparent infirmity with the procedure of drawing of the samples as adopted by NCB. Whether it is established that the integrity of the sample was maintained? - HELD THAT - There is break in the chain of custody of the samples. It is well settled that the prosecution is required to establish the complete chain as to the movement of the sample in order to establish that the same had remained intact. In the present case, this chain had not been established as there is no material or evidence to indicate as to how PW-10 came in possession of the said sample. This does raises some doubts in the matter. Whether there is any evidence on record to establish beyond reasonable doubt that Laya and Okafor had entered into a conspiracy committing an offence punishable under the NDPS Act? - HELD THAT - There is a raging debate whether any statement made to officials of NCB would be admissible in evidence. It is contended that officials of NCB are police officers for all intents and purposes; therefore, any confessional statements made before them would be inadmissible in evidence. The NCB contends that their officials are not police officers and therefore, the confessional statements made before them and recorded under Section 67 of the Act would be admissible in evidence - The consequential question whether the statement recorded under Section 67 of the NDPS Act is required to be treated as a statement under Section 161 of the CrPC or whether it is in the nature of the statement made under Section 164 of the CrPC, has also been referred to a larger bench. A statement, which is made and signed by a person before any officer empowered under Section 53 of the NDPS Act for investigation of offences during the course of any inquiry or proceeding by such officer, it would be relevant for proving in any prosecution, the facts contained therein. However, this is subject to certain conditions. There is no dispute that powers under Section 53 of the NDPS Act have been conferred on certain NCB officials and such signed statements are admissible in evidence provided the conditions as set out in Section 53A of the NDPS Act are met. Concededly, these conditions are not in this case. However, NCB does not seek to rely on the provisions of Section 53A of the NDPS Act but Section 67 of the NDPS Act. In the present case, there is little doubt that the statement of Laya had been recorded while she was in effective custody of the officials of NCB. Although it had been suggested that she was served with the notice under Section 67 of the NDPS Act and had voluntarily come to the office of the NCB, it is obvious that this contention is without any merit. There is no doubt that Laya had little choice in the matter. She had been apprehended at the airport and had been served with the summons (allegedly) to appear before the NCB officials forthwith - In the first part of her statement, which is stated to have been concluded at around 3 30 PM, Laya had disclosed the name of Okafor and his address. PW-6 had testified that during recording of the statement he did not give any information to the IO. However, after conclusion of the statement, Laya was arrested and her second part of the statement was recorded after she had identified Okafor, who had been produced before her. This Court has serious doubts whether the statement of Laya can be stated to be voluntary. She had been apprehended at the airport and there is no doubt that she was compelled to accompany the officials of NCB to their office. She had been allegedly searched earlier. She was accompanied by Savitri Jaswani and she remained in the presence of at least two other NCB officials, namely, Insp. Akhilesh Kumar Mishra (PW-6) and IO Vikash Kumar. She had also been interrogated while she was in the vehicle on the way to the airport to the NCB office - prosecution s case regarding Laya s disclosure of Okafor and his address and their actions are also inconsistent. This Court is unable to sustain the conviction of Okafor. He is, accordingly, acquitted of the charges for which he was convicted (commission of an offence under Section 29 of the NDPS Act). Accordingly, Laya is also acquitted of committing an offence under Section 29 of the NDPS Act and her conviction is set aside - Laya s conviction for commission of an offence punishable under Section 21(c) of the NDPS Act also cannot be sustained, as there was no charge framed against her for committing the said offence - there is considerable doubt as to the manner in which the contraband was recovered and the chain of custody of samples has also not been established. The possibility of tampering with the same also cannot be ruled out. Thus, her conviction for committing of an offence punishable under Section 23(c) of the NDPS Act also cannot be sustained. The appeals are allowed - The appellants are acquitted.

Summary

Issues Involved:
1. Compliance with Section 50 of the NDPS Act.
2. Validity of the search and seizure process.
3. Integrity and chain of custody of the samples.
4. Admissibility and voluntariness of statements recorded under Section 67 of the NDPS Act.
5. Evidence supporting the conspiracy charge.

Detailed Analysis:

Compliance with Section 50 of the NDPS Act:
The court addressed whether the provisions of Section 50 of the NDPS Act were applicable and complied with. It was established that since Laya was searched, the provisions of Section 50 were indeed applicable. The Supreme Court's precedents, including State of Rajasthan v. Parmanand and Anr. and Vijaysinh Chandubha Jadeja v. State of Gujarat, were cited to affirm that strict compliance with Section 50 is mandatory. The court found that Laya was informed of her right to be searched before a Magistrate or Gazetted Officer and had voluntarily consented to be searched by a lady officer, thus complying with Section 50.

Validity of the Search and Seizure Process:
The court scrutinized the search process, noting inconsistencies in the testimonies of the witnesses regarding whether Laya's baggage was searched in her presence. The Drug Law Enforcement Field Officers Handbook's requirement for searches in the presence of the person being searched was highlighted. The court found significant discrepancies in the testimonies about the search's execution, raising doubts about the prosecution's case. The court also noted inconsistencies in the description of the bag from which the contraband was recovered.

Integrity and Chain of Custody of the Samples:
The court examined whether the samples' integrity was maintained. It found inconsistencies in the testimonies regarding who handled the samples and the chain of custody. The court cited the Supreme Court's decision in Union of India v. Mohan Lal, which mandates that samples be drawn in the presence of a Magistrate as per Section 52A of the NDPS Act. The court concluded that the chain of custody was not adequately established, raising doubts about the samples' integrity.

Admissibility and Voluntariness of Statements Recorded under Section 67 of the NDPS Act:
The court analyzed the admissibility and voluntariness of the statements made by Laya and Okafor under Section 67 of the NDPS Act. It noted that both statements were retracted and made while the accused were in custody, raising questions about their voluntariness. The court referred to the Supreme Court's decision in Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence, which emphasized that a confession cannot be the sole basis for conviction and must be corroborated by other evidence. The court found no corroborative evidence to support the statements, rendering them insufficient for conviction.

Evidence Supporting the Conspiracy Charge:
The court found no material evidence, apart from the retracted statements, to establish a conspiracy between Laya and Okafor. It highlighted the lack of follow-up investigation to corroborate the statements and the absence of any technical evidence, such as call detail records, to establish contact between the accused. The court concluded that the prosecution failed to prove the conspiracy charge beyond reasonable doubt.

Conclusion:
The court acquitted both appellants, Okafor and Laya, of all charges. It found significant doubts in the prosecution's case, inconsistencies in witness testimonies, and a failure to establish the integrity of the samples and the conspiracy charge. The court emphasized the importance of strict compliance with legal provisions and the need for corroborative evidence to sustain a conviction. The appellants were ordered to be released forthwith.