2015 (9) TMI 342 - HC - Customs

Possession of Contrabands Appeal against Conviction Appellant stood convicted under Section 20(b)(ii)(c) of NDPS Act for being in possession of 61.49 kg ganja and has been sentenced to undergo Rigorous Imprisonment and to pay fine Held that - PW.4 along with PWs. 1, 3 and 6 have denied suggestions that nothing was recovered from possession of appellant and that all proceedings was conducted in police station PW.9 clearly demonstrates that only four sealed sample were send to FSL, and not FSL form along with same FSL form, is an important safe guard to avoid any suspicion and same not having been sent to laboratory along with sealed samples raises serious doubts about samples being tampered with There is no DD entry regarding such secret information having been received by PW.4. Total non-compliance with requirement of Section 42 has been held to be impermissible Though there has been delay of one and half months in sending sample to FSL, there is nothing on record to suggest or to come to opinion that said sealed samples were tampered with Based on findings, it is difficult to uphold conviction Appeal allowed and appellant directed to be released from custody Decided in favour of Appellant.

Issues Involved:
1. Non-compliance with Section 42 of the NDPS Act.
2. Delay in sending sealed samples to FSL.
3. Non-sending of FSL form along with samples.
4. Non-joining of public or independent witnesses.

Issue-wise Detailed Analysis:

1. Non-compliance with Section 42 of the NDPS Act:
The appellant argued that the secret information received by PW.4 was not reduced to writing as mandated by Section 42 of the NDPS Act, thus vitiating the entire prosecution case. The court examined the testimony of SI Shivraj Bisht (PW.4), who admitted that the secret information was not written down separately. The court referred to the Supreme Court's decisions in Abdul Rashid Ibrahim Mansuri vs. State of Gujarat and Sajan Abraham vs. State of Kerala, which had conflicting views on the mandatory nature of Section 42. The Constitution Bench in Karnail Singh vs. State of Haryana clarified that while total non-compliance with Section 42 is impermissible, delayed compliance with a satisfactory explanation is acceptable. In the present case, there was no evidence of the secret information being recorded or communicated to a superior officer, leading to a clear violation of Section 42.

2. Delay in sending sealed samples to FSL:
The appellant contended that there was a delay of one and a half months in sending the sealed samples to the FSL, violating the standing instruction of the NCB that samples must be dispatched within 72 hours. While the court acknowledged the delay, it found no evidence of tampering with the samples while they were in the malkhana. The court held that although timely dispatch is preferred to avoid suspicion, the delay alone, without evidence of tampering, does not invalidate the prosecution's case.

3. Non-sending of FSL form along with samples:
The appellant argued that the FSL form was not sent along with the samples, raising suspicion of tampering. However, the court found that the FSL report indicated the seals on the samples were intact and matched the specimen seals on the forwarding letter. The court presumed that PW.9 inadvertently missed mentioning the FSL forms being sent along with the samples, thus rejecting this ground of appeal.

4. Non-joining of public or independent witnesses:
The appellant highlighted the absence of public or independent witnesses during the search, seizure, and arrest, which raised doubts about the veracity of the proceedings. The court noted that the prosecution witnesses admitted to not making serious efforts to involve public witnesses, despite the arrest occurring in a busy public place. The court emphasized that while the absence of public witnesses alone may not invalidate the case, it assumes significance when combined with other factors such as non-compliance with Section 42, the large quantity of contraband, and the lack of information about the origin and destination of the contraband.

Conclusion:
The court concluded that the prosecution failed to comply with the mandatory provisions of Section 42 of the NDPS Act. Combined with the lack of effort to involve public witnesses and the other highlighted issues, the court found it difficult to uphold the conviction. Consequently, the appeal was allowed, and the appellant was ordered to be released forthwith, provided he was not wanted in any other case. The trial court record was returned, and copies of the judgment were sent to the Superintendent of the concerned jail for compliance. The bail application was disposed of as infructuous.

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