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2021 (2) TMI 970 - HC - Indian LawsSmuggling - Smuggling - ganja - Whether the conviction of the appellant by the trial court for the offence under Section 8(c) which is punishable under Section 20(b)(ii)(C) of the NDPS Act is just and proper, having regard to the oral and documentary evidence available on record? - HELD THAT - From the appreciation of the evidence of the witnesses examined by the prosecution, it is found that statements of all these witnesses under Section 161(3) of the Code do not bear any date. Further, statement under Section 161(3) of the Code of PW-1, who is the star witness of the prosecution around whom the entire case of the prosecution revolves, has not at all been recorded. Statements of the witnesses under Section 161 of the Code recorded by the Police during the course of investigation plays a major role during the course of trial. After lodging of the FIR and registering the case, investigation commences with the Investigating Officer visiting the scene of crime, drawing panchanama, seizing any incriminating articles found at the spot, recording the statements of the witnesses, arrest of accused, recovery, etc., and this part of investigation is covered under Sections 161 and 162 of the Code and the credibility of the witnesses, who are examined before the court, depends largely on this part of investigation - Statement under Section 161 of the Code forms a part of the charge sheet and this statement can be used by the accused for the purpose of contradicting thewitnesses in the manner as provided under Section 145 of the Evidence Act and the right of accused to cross-examine the witness, who has made a statement underSection 161(3) of the Code is a right guaranteed to the accused under Section 162 of the Code. Even without recording the statement of a witness under Section 161(3) of the Code, the said witness can be examined before the court, but the evidence of such a witness has to beappreciated very carefully and evidence of such witness shall carry less value and credibility. It is a settled principle of law that non-recording of statement under Section 161(3) of the Code or delayed recording of statement under Section 161(3) of the Code or improper recording of statement under Section 161(3) of the Code is a serious irregularity which is incurable. This irregularity gives rise to infer that prosecution has procured such statement to suit their case and therefore, such statement loses its credibility. When delay in recording statement under Section 161 of the Code itself casts cloud of suspicion on the case of the prosecution, non-recording of such statement or recording of such statement without mentioning the date, totally discredits the evidence of these witnesses - A witness, who contradicts his earlier statement and makes improvement in his subsequent statement or when there are omissions in his statement, such witness loses credibility. In the case on hand, non-recording of statement of PW-1 under Section 161(3) of the Code and non-mentioning of the date of recording of statement under Section 161(3) of the Code of all other witnesses is fatal to the case of the prosecution. For an offence punishable under the provisions of the NDPS Act, compliance of the requirement of law has to be scrutinized in a higher pedestal because the penalties imposed under this statute are very severe. The manner in which the investigation has been conducted in this case vitiates the entire investigation and resultantly it also affects the trial of the case. The order of conviction, therefore, cannot berecorded on the basis of evidence adduced by these witnesses. The investigation in the case appears to be totally tainted and unreliable. In the case on hand, the prosecution has failed to show that the materials were kept in safe custody as required under Section 55 of the NDPS Act and they have also failed to explain the inordinate delay of nearly two months in sending the sample articles to the FSL. Having regard to the manner in which investigation is conducted in the case, foul play cannot be completely ruled out - the investigation in the case is vitiated for improper recording and non-recording of statement of the witnesses under Section 161(3) of the Code, who have been examined in the court. The Investigation Officer has admittedly not maintained a case diary, wherein such statements are required to be recorded which is a mandatory requirement of law under Section 161(3) of the Code. Such an irregularity seriously prejudices the case of the accused and if the order of conviction is required to be based on the evidence of these witnesses, it will result in miscarriage of justice. There is also total non-compliance of mandatory requirements of Section 42 of the NDPS Act and there is an unexplained delay in forwarding the samples to the FSL. The prosecution has failed to establish that the car and the house from where the contraband articles were seized either belonged to the accused or his wife. It has come on record that the car belonged to accused No.2 and the prosecution has admitted that they have no record to prove that the house stands in the name of wife of the accused. The contraband articles were seized in the absence of the accused. A presumption under Section 54 of the NDPS Act can only be raised after the prosecution has established that the accused was found in possession of the contraband articles in a search conducted in accordance with the mandate of law and illegal search does not entitle the prosecution to raise such a presumption under Section 54 of the NDPS Act - this Court is of the considered opinion that the trial court was not justified in convicting the appellant for the offence under Section 8(c) which is punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Compliance with Section 42 of the NDPS Act. 2. Credibility and admissibility of evidence and witness statements. 3. Delay in forwarding samples to the Forensic Science Laboratory (FSL). 4. Ownership and possession of the seized contraband. 5. Procedural irregularities and their impact on the investigation and trial. Detailed Analysis: 1. Compliance with Section 42 of the NDPS Act: The appellant argued that the complainant failed to record the credible information in writing or inform higher officers in writing, violating Section 42 of the NDPS Act. The court noted that the complainant received the information at 1.30 p.m. and left the office at 2.15 p.m., giving him sufficient time to comply with Section 42(1). The court found no evidence that the complainant recorded the information or obtained authorization. The court cited precedents, including State of Rajasthan vs. Jagraj Singh alias Hansa and Sarju alias Ramu vs. State of U.P., emphasizing the necessity of strict compliance with Section 42. The court concluded that the prosecution failed to establish compliance with Section 42(1) and (2), rendering the search and seizure illegal. 2. Credibility and Admissibility of Evidence and Witness Statements: The court observed that the statements of witnesses under Section 161(3) of the Code of Criminal Procedure were either not recorded or lacked dates, impairing their credibility. The court highlighted that the statement of the star witness, PW-1, was not recorded under Section 161(3), and the complaint lacked material particulars. The court referred to Gopal Krishna vs. State and Panna Fodaliya vs. State of Madhya Pradesh, stressing that non-recording or delayed recording of statements under Section 161(3) is a serious irregularity that discredits the evidence. The court concluded that the evidence of the witnesses lacked credibility and could not be solely relied upon to convict the appellant. 3. Delay in Forwarding Samples to the Forensic Science Laboratory (FSL): The appellant contended that there was an unexplained delay of two months in forwarding the samples to the FSL. The court noted that PW-9, the investigating officer, admitted that the delay was not explained in the charge sheet. The court referred to State of Gujarat vs. Ismail U. Haji Patel and Another, emphasizing the importance of establishing that seized articles were in proper custody and form. The court found that the prosecution failed to show that the seized articles were kept in safe custody as required under Section 55 of the NDPS Act, raising doubts about the integrity of the samples. 4. Ownership and Possession of the Seized Contraband: The prosecution failed to establish that the car and house from which the contraband was seized belonged to the appellant or his wife. The court noted that the car belonged to accused No.2, and there was no record proving the house was in the name of the appellant's wife. The court emphasized that a presumption under Section 54 of the NDPS Act could only be raised if the prosecution proved that the accused was found in possession of the contraband in a lawful search. The court concluded that the prosecution failed to prove the appellant's possession of the contraband. 5. Procedural Irregularities and Their Impact on the Investigation and Trial: The court identified several procedural irregularities, including non-recording and improper recording of witness statements, non-maintenance of a case diary, and non-compliance with Section 42 of the NDPS Act. The court emphasized that these irregularities seriously prejudiced the appellant's case and vitiated the entire investigation. The court concluded that the investigation was tainted and unreliable, and the trial court's conviction of the appellant was unjustified. Conclusion: The court allowed the appeal, set aside the trial court's judgment and order of conviction and sentence, and acquitted the appellant of the charges. The bail bonds were canceled, and any fine amount deposited by the appellant was ordered to be refunded after the appeal period.
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