2021 (10) TMI 884 - HC - Indian Laws

Smuggling - Methaqualone - contraband item - evidence of any independent witness or not - conscious possession of the contraband item or not - framing a charge against the accused - Section 50 of the NDPS Act - HELD THAT - Before analyzing the oral evidence adduced by the appellant, it is apparent that the prosecution case itself stands vitiated on account of non compliance of section 42 (2) and section 50 of the NDPS Act - It is equally important to note that except officials of the NCB, there is no evidence of any independent witness except the owner of the tempo, P.W.8-Ankush Bhoite, who turned hostile. The appellant emphasized on the testimony of it s witnesses coupled with statements of the accused recorded by them. There is no evidence in the complaint that the copy of the information received by the officer was forwarded to the superior official. The complaint is also silent as regards appraisal of the legal right to the accused and that thereafter his search was made. In his cross-examination, P.W.3-Shastrinath Sawant though had stated that the accused was appraised of his legal right, nevertheless, it does not find place in the complaint and, therefore, it can safely be inferred that P.W.3-Shastrinath Sawant, by way of an afterthought, stated about the said fact only with a view to suit the prosecution story. This indeed goes to the root of the prosecution case - It reveals from the record that most of the evidence of the prosecution comprises testimonies of their officers from NCB. Statement of the accused came to be recorded on four occasions which the prosecution wants this Court to rely upon and accept as a voluntary statement made while in their custody. Confessional statement alleged to have been given by the accused is essentially a weak piece of evidence which does not have any corroboration from the other evidence on record. The prosecution has not adduced any evidence as to from which place the consignment was loaded and was destined to which foreign country. P.W.8-Ankush Bhoite who is the owner of the tempo bearing No MMS-1580 did not support the prosecution case. Sum and substance of his evidence is that he could not identify the accused in the dock as to the person who had engaged his tempo on hire at the relevant time for transporting goods. Rather, it is his evidence that on the date of the incident besides the cleaner, the person who was owner of that consignment were with him. There is no compliance of section 42 (2) of the NDPS Act which would go to the root of the matter and vitiate the trial. There are no independent witnesses. The overall evidence does not at all inspire confidence and, therefore, it is highly unsafe to rely upon such evidence. The learned Special Judge has rightly appreciated the entire evidence and circumstances on record and reached a legal and proper conclusion in acquitting the accused - there are no reason to interfere with the impugned judgment in view of the settled principle of law that while considering the appeal against acquittal, the Appellate Court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable and if the Court answers above questions in the negative, acquittal cannot be disturbed. Petition dismissed.

Summary

Issues Involved:

1. Compliance with Section 42(2) and Section 50 of the NDPS Act.
2. Reliability of evidence from NCB officials and lack of independent witnesses.
3. Establishing "conscious possession" of the contraband.
4. Examination of co-accused and other relevant witnesses.
5. Overall credibility and sufficiency of prosecution evidence.

Issue-wise Detailed Analysis:

1. Compliance with Section 42(2) and Section 50 of the NDPS Act:

The prosecution's case was significantly weakened due to non-compliance with Sections 42(2) and 50 of the NDPS Act. It was noted that there was no evidence in the complaint indicating that the information received by the officer was forwarded to the superior official. Furthermore, there was no mention of the accused being appraised of his legal right to be searched by a Gazetted Officer or Magistrate, which is a mandatory safeguard under Section 50. The court observed that this omission was not a mere formality but a crucial safeguard against misuse of power by authorized officers.

2. Reliability of Evidence from NCB Officials and Lack of Independent Witnesses:

The court highlighted that the prosecution's evidence primarily consisted of testimonies from NCB officials, with no independent witnesses corroborating the claims. The only independent witness, P.W.8-Ankush Bhoite, turned hostile and could not identify the accused. This lack of independent corroboration raised doubts about the reliability of the prosecution's case. The court emphasized that the testimonies of NCB officials alone, without independent verification, could not be accepted as conclusive proof.

3. Establishing "Conscious Possession" of the Contraband:

The court referred to the legal requirement of proving "conscious possession" of the contraband, which necessitates demonstrating the accused's direct control over the narcotics. It was noted that the prosecution failed to establish that the accused had such control. The court cited the case of Premnarayan Prabhulal Mina and another Vs. State of Maharashtra, emphasizing that mere presence in the vehicle containing contraband does not suffice to prove conscious possession. The court concluded that the prosecution did not provide sufficient evidence to establish that the accused was in conscious possession of the Mandrax tablets.

4. Examination of Co-accused and Other Relevant Witnesses:

The court pointed out that the prosecution did not examine key witnesses, such as Mr. Rane, from whose possession a crucial document was seized. The non-examination of Mr. Rane was seen as prejudicial to the defense, leading to an adverse inference against the prosecution. Additionally, the statements of co-accused, which were recorded but not relied upon, could not be used as evidence against the appellant. The court stressed that the prosecution's failure to examine these witnesses weakened its case.

5. Overall Credibility and Sufficiency of Prosecution Evidence:

The court found that the overall evidence presented by the prosecution did not inspire confidence. The testimonies of NCB officials were inconsistent, and there were significant gaps in the prosecution's narrative. The court noted that the prosecution did not provide evidence regarding the origin and destination of the consignment, further undermining its case. The court also referred to the Supreme Court's judgment in Gangadhar alias Gangaram Vs. State of Madhya Pradesh, which emphasized that conviction cannot be based on conjectures and surmises.

Conclusion:

The court concluded that the prosecution failed to establish its case beyond reasonable doubt. The non-compliance with mandatory provisions of the NDPS Act, lack of independent witnesses, failure to prove conscious possession, and overall weak evidence led the court to uphold the acquittal. The appeal was dismissed, affirming the trial court's judgment.