2016 (7) TMI 44 - SC - Indian Laws

Acquittal of the accused from the charges u/s 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) - Held that - Section 43 being not attracted search was to be conducted after complying the provisions of Section 42. We thus, conclude that the High Court has rightly held that non compliance of Section 42(1) and Section 42(2) were proved on the record and the High Court has not committed any error in setting aside the conviction order. - The High Court has given the sufficient reasons and grounds for setting aside the conviction order in which we do not find any infirmity so as to interfere in this appeal. - Decided against the state.

Summary

Issues Involved:
1. Compliance with mandatory provisions of Section 42(1) and 42(2) of the NDPS Act.
2. Applicability of Section 43 of the NDPS Act.
3. Validity of the recovery and sealing process.
4. Reliability of independent witnesses.

Detailed Analysis:

1. Compliance with Mandatory Provisions of Section 42(1) and 42(2) of the NDPS Act:
The High Court found that there was a breach of the mandatory provisions of Section 42(1) and 42(2). Specifically, the secret information recorded in Exh. P-14 and Exh. P-21 did not match the information sent to the Circle Officer, Nohar (Exh. P-15). The court noted: "Exh. P-15, the letter which was sent, it is not the copy of Exh. P-14, but it is the separate memo prepared of their own." This discrepancy indicated non-compliance with Section 42(2), which requires that the information taken down in writing be sent to the immediate superior within 72 hours.

Additionally, the proviso to Section 42(1) mandates that if a search is to be conducted between sunset and sunrise, the officer must record the grounds of belief. In this case, the Station House Officer did not record any such grounds. The High Court observed: "Shishupal Singh PD-11 by whom search has been conducted, on reaching at the place of occurrence by him no reasons to believe have been recorded before conducting the search of jeep bearing HR 24 4057 under Section 42(1), nor any reasons in regard to not obtaining the search warrant have been recorded."

2. Applicability of Section 43 of the NDPS Act:
The Special Judge had held that the vehicle was a public transport vehicle, making Section 43 applicable and negating the need for compliance with Section 42. However, the High Court found that the jeep was a personal vehicle and not a public transport vehicle. The court stated: "Jeep was personal, it is clear on the record. In this manner, just on this ground that he has given the jeep to his brother-in-law and he used it to carry the passengers, the personal jeep could not be treated as public transport vehicle."

The High Court concluded that Section 43, which allows for search and seizure in public places without a warrant, was not applicable. Therefore, the mandatory provisions of Section 42 had to be complied with.

3. Validity of the Recovery and Sealing Process:
The High Court found irregularities in the sealing process. The material sample was not properly sealed, and the sample of the seal was not deposited in the stock house. The seal remained in the possession of the officer who conducted the search, which compromised the integrity of the evidence. The court noted: "The sealing of the material sample was not proper nor the sample of seal was deposited in the stock house. The seal vide which material has been sealed has not been kept safe anywhere, it remained in the possession of the officer who conducted the search."

4. Reliability of Independent Witnesses:
The independent witnesses, PD-2 Hawa Singh and PD-3 Karam Singh, were declared hostile and did not support the prosecution's case. The High Court observed: "The independent witnesses have not supported the case of prosecution at all." This lack of corroboration from independent witnesses further weakened the prosecution's case.

Conclusion:
The Supreme Court upheld the High Court's decision to acquit the accused due to non-compliance with mandatory provisions of Section 42(1) and 42(2) of the NDPS Act. The court also found that Section 43 was not applicable as the jeep was not a public transport vehicle. Additionally, irregularities in the sealing process and the unreliability of independent witnesses further justified the acquittal. The appeal was dismissed, affirming the High Court's judgment.