2023 (7) TMI 1482 - SC - Indian Laws

Conviction under Section 8(b) read with Section 15(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Seizure and disposal of narcotic substances - Compliance with procedural requirements under Section 52A of the NDPS Act - HELD THAT - The memorandum of informer s information dated 20.05.2010 exhibited under P-3 indicates signature of two witnesses, P.W.2 and P.W.6, both of them turned hostile. Though they admitted their signature it was clearly deposed that they were not present at the scene of occurrence. The Court below have wrongly construed the evidence, in fact these two witnesses were party to most of the exhibits running upto 13. Search warrant under Exhibit P-4 acknowledge the fact that procedure contemplated under the NDPS Act has not been followed. As noted, one of the witnesses to the seizure memo has not been examined while the other turned hostile. Both the witnesses to the arrest memo have not been examined. The record would also indicate that an order was passed by the trial Judge permitting the prosecution to keep the seized materials within the police station, to be produced at a later point of time. This itself is a sufficient indication that the mandate of Section 52A has not been followed. There is no explanation either for non-production of the seized materials or the manner in which they are disposed of. No order passed by the Magistrate allowing the application, if any, filed under Section 52A of the NDPS Act. P.W.10, Executive Magistrate has deposed to the fact that he did not pass any order for the disposal of the narcotics substance allegedly seized. Similarly, P.W.12 who is Incharge of Malkhana also did not remember any such order having been passed. Both the Courts have mechanically placed reliance on the FSL Report while taking the statement of P.W.11 as the gospel truth. The views expressed by him can at best be taken as opinion at least on certain aspects. There are too many material irregularities which create a serious doubt on the very case of the prosecution. On a proper analysis there are no hesitation in holding that the impugned judgments are liable to be set aside and the appellant is to be acquitted by rendering the benefit of doubt. The conviction and sentence rendered by the Additional Sessions Judge, Special Court NDPS, Jaora, District Ratlam, Madhya Pradesh as confirmed by the High Court of Madhya Pradesh, stands set aside - appellant is acquitted of all the charges - application allowed.

Summary

Issues Involved:

1. Compliance with procedural requirements under Section 52A of the NDPS Act.
2. Reliability of witness testimonies and evidence presented.
3. Legality of seizure and disposal of narcotic substances.
4. Evaluation of the role of the Magistrate in the process.
5. Burden of proof and the prosecution's failure to establish possession.

Issue-wise Detailed Analysis:

1. Compliance with Procedural Requirements under Section 52A of the NDPS Act:

The judgment scrutinizes the procedural compliance with Section 52A of the NDPS Act, which mandates the preparation of an inventory, taking photographs, and drawing samples of seized narcotic substances in the presence of a Magistrate. The court emphasized that non-compliance with these procedures results in the lack of primary evidence, as the certification by a Magistrate is crucial for validating the inventory and samples. The judgment reiterates that the guidelines issued by notifications in consonance with Section 52A must be mandatorily followed, and any deviation can undermine the prosecution's case.

2. Reliability of Witness Testimonies and Evidence Presented:

The judgment highlights the unreliability of witness testimonies, as several key witnesses, including public witnesses and panch witnesses, turned hostile. The court noted that the prosecution failed to examine some witnesses crucial to the arrest memo, which raised doubts about the credibility of the evidence. The court also pointed out that the testimony of P.W.5, who claimed the narcotic substance was present at the police station before the alleged occurrence, was not challenged by the prosecution, further weakening their case.

3. Legality of Seizure and Disposal of Narcotic Substances:

The court found that the prosecution did not adhere to the legal requirements for the seizure and disposal of narcotic substances. The absence of a Magistrate's order for the disposal of the seized materials and the lack of evidence regarding the destruction of the narcotics raised significant concerns. The court emphasized that the failure to produce the seized materials in court or provide a valid explanation for their disposal led to a negative inference against the prosecution.

4. Evaluation of the Role of the Magistrate in the Process:

The judgment underscores the importance of the Magistrate's role in certifying the inventory and samples of seized narcotics as per Section 52A. The court criticized the prosecution for not involving the Magistrate adequately in the process, which is essential for ensuring fair play and transparency in the investigation. The absence of a Magistrate's certification was deemed a critical flaw in the prosecution's case.

5. Burden of Proof and the Prosecution's Failure to Establish Possession:

The court reiterated that the burden of proof lies heavily on the prosecution, especially under the stringent provisions of the NDPS Act. The failure to produce physical evidence, such as the seized narcotics, and the reliance on the testimonies of hostile witnesses and police officers, did not meet the required standard of proof. The court concluded that the prosecution's inability to establish possession of the narcotics beyond a reasonable doubt warranted an acquittal.

Conclusion:

The Supreme Court set aside the conviction and sentence of the appellant, citing significant procedural lapses, unreliable witness testimonies, and the prosecution's failure to establish possession of the narcotics. The appellant was acquitted of all charges, and the court ordered their immediate release, emphasizing the importance of adhering to procedural requirements and maintaining the integrity of evidence in criminal cases under the NDPS Act.