2021 (1) TMI 1053 - HC - Indian Laws

Smuggling - contraband narcotics - compliance of Section 50 of the Act or not? - HELD THAT - Admittedly, the said contraband narcotic was recovered from personal search of appellant Munnan, concealed in his belly region below kurta and lunghi, worn by him. In addition to above, consent memo (Ex.Ka.4) was prepared in presence of police party and appellant Munnan. According to prosecution, the said recovery was made by S.I. Narendra Singh Yadav (PW-4) in presence of S.I. Kripa Shankar Dixit, S.I. Mukhram Yadav (PW-3), Constable 194 Chandrika Prasad and Constable Kamlesh Mishra (PW-2) who have put their signatures on recovery memo (Ex.Ka.5) but the consent memo (Ex.Ka.4), prepared by S.I. Kripa Shankar Dixit does not show the signature either of S.I. Mukhram Yadav (PW-3) or Const. Chandrika Prasad or Const. Kamlesh Mishra (PW-2). Mukhram Yadav (PW-3) has stated that the said consent memo (Ex.Ka.4) was prepared by S.I. Kripa Shankar Dixit which was read over to the appellant and thereafter the appellant put his thumb impression and S.I. Kripa Shankar Dixit had also put his signature. This witness has not stated that Narendra Singh Yadav (PW-4) had also put his signature on this consent memo (Ex.Ka.4), whereas, Narendra Singh Yadav has stated that on consent memo (Ex.Ka.4), prepared by S.I. Kripa Shankar Dixit, he had also put his signature - Admittedly, S.I. Kripa Shankar Dixit, who was star witness of the prosecution, who prepared the consent memo (Ex.Ka.4) and recovery memo (Ex.Ka.5) and the said recovery was made in his presence has not been examined by the prosecution and the prosecution has also not given any explanation, as to why, this important witness was not examined. Thus, in view of the above, the consent for search, given by the appellant, before his personal search as well as the preparation of consent memo is also doubtful. The prosecution has failed to prove the compliance of mandatory provision of Section 50 of the Act, whereby the prosecution story as well as said recovery, becomes doubtful. The prosecution has miserably failed to prove its case beyond reasonable doubt, against the appellant. The trial Court, without considering, the compliance of mandatory provision of N.D.P.S Act, has passed the said impugned judgment and order in cursory manner which is liable to be set aside - appellant is on bail. His bail bonds are cancelled and sureties are discharged - Appellant is acquitted and the appeal is allowed.

Summary

Issues Involved:
1. Compliance with mandatory provisions of Section 50 of the NDPS Act.
2. Reliability of evidence and witnesses.
3. Procedural lapses in handling and testing of contraband.
4. Absence of independent witnesses.
5. Discrepancies in the prosecution's case.

Detailed Analysis:

1. Compliance with Mandatory Provisions of Section 50 of the NDPS Act:
The court emphasized the importance of strict compliance with Section 50 of the NDPS Act, which mandates that an accused must be informed of their right to be searched before a Gazetted Officer or a Magistrate. The court noted that the appellant was given three options, including being searched by the police officer himself, which is not provided for under Section 50. This deviation from the statutory requirement rendered the recovery of the contraband suspect and vitiated the conviction.

2. Reliability of Evidence and Witnesses:
The prosecution's case was weakened by the non-examination of a key witness, S.I. Kripa Shankar Dixit, who prepared crucial documents like the consent memo and recovery memo. The court found inconsistencies in the testimonies of the police officers regarding the preparation and signing of these documents, further casting doubt on the prosecution's narrative.

3. Procedural Lapses in Handling and Testing of Contraband:
The court highlighted significant procedural lapses, such as the failure to document the separation of the sample from the recovered contraband at the place of recovery. Additionally, there were discrepancies regarding the identity and quantity of the sample sent for chemical examination. The prosecution's failure to provide a clear chain of custody for the contraband further undermined the reliability of the evidence.

4. Absence of Independent Witnesses:
The court noted that no independent witnesses were produced, despite the recovery taking place in a public area. The prosecution's explanation that no public witnesses were willing to come forward due to fear was not substantiated. The absence of independent witnesses and the reliance solely on police testimony weakened the prosecution's case.

5. Discrepancies in the Prosecution's Case:
The court found several discrepancies in the prosecution's case, including contradictions in the testimonies of police officers regarding the handling of the contraband and the appellant's bicycle. The prosecution's failure to produce the torch used during the recovery and the lack of documentation for the appellant's bicycle further cast doubt on the credibility of the prosecution's narrative.

Conclusion:
The court concluded that the prosecution failed to prove its case beyond a reasonable doubt, primarily due to non-compliance with the mandatory provisions of the NDPS Act, procedural lapses, and the absence of independent witnesses. Consequently, the court set aside the trial court's judgment, acquitted the appellant, and allowed the appeal. The appellant was directed to furnish a personal bond and sureties in compliance with Section 437-A of the Code.