2008 (5) TMI 762 - HC - Indian Laws

Summary

Issues Involved:

1. Compliance with Section 50 NDPS Act.
2. Absence of weighing machine or field kit.
3. Handling of the seal by the police.
4. Lack of independent witnesses.
5. Preparation of documents before FIR registration.
6. Delay in sending the sample to CFSL.
7. Safe custody and handling of the sample.

Issue-wise Detailed Analysis:

1. Compliance with Section 50 NDPS Act:

The appellant contended that the mandatory notice under Section 50 of the NDPS Act was not properly given, as the appellant was only asked if he wished to be searched by a Gazetted Officer and not given an alternative choice to be searched before a Magistrate. The court noted that the requirement of compliance with Section 50 was not mandatory as per several judgments of the Supreme Court. Therefore, this issue was not considered fatal to the prosecution's case.

2. Absence of Weighing Machine or Field Kit:

The appellant argued that there was no evidence of a field kit or weighing machine being present to weigh the seized substance. The prosecution countered that no questions regarding the absence of a weighing machine or field kit were asked during the cross-examination of the Investigating Officer (I.O.). The court did not find this argument persuasive enough to undermine the prosecution's case.

3. Handling of the Seal by the Police:

The appellant claimed that the seal of the SHO was given to the Constable, which was impermissible. However, there was no significant emphasis on this issue in the court's judgment, suggesting that it was not considered a critical flaw in the prosecution's case.

4. Lack of Independent Witnesses:

The appellant highlighted the absence of independent witnesses during the arrest and search in a crowded area. The prosecution argued that non-joining of public witnesses is not fatal to the case, relying on precedents where similar circumstances were upheld by the courts. The court did not consider this issue as significantly detrimental to the prosecution's case.

5. Preparation of Documents Before FIR Registration:

The appellant pointed out that documents concerning arrest and seizure were prepared before the FIR was registered, yet they contained the FIR number, indicating they were prepared subsequently. The prosecution cited Supreme Court precedent stating that mere mentioning of the FIR number in documents does not invalidate the prosecution's case. The court did not find this issue persuasive enough to affect the outcome.

6. Delay in Sending the Sample to CFSL:

The court focused significantly on the nearly three-month delay in sending the sample for testing, which was a critical issue. The prosecution failed to provide a satisfactory explanation for this delay, and there was no evidence of the sample being kept in proper custody during this period. The court referenced previous judgments emphasizing the importance of timely sample testing to prevent tampering. The delay was deemed fatal to the prosecution's case, as it raised doubts about the integrity of the sample.

7. Safe Custody and Handling of the Sample:

The court scrutinized the handling of the sample, noting discrepancies and lack of evidence regarding its custody. The evidence did not convincingly demonstrate that the sample was kept safe and untampered during the delay. The court emphasized that the reliability of the test report depended on the assurance that the sample tested was the same as the one seized. The prosecution's failure to establish this chain of custody led to the benefit of the doubt being given to the accused.

Conclusion:

The court found the prosecution's case lacking due to the unexplained delay in sending the sample for testing and the failure to demonstrate proper custody and handling of the sample. Consequently, the court set aside the conviction and sentence, acquitting the accused of the offence under Section 21 of the NDPS Act. The appeal was allowed, and the accused was ordered to be released unless required in any other case.