2017 (12) TMI 620 - HC - Indian Laws

Offence under NDPS Act - accused was found in possession of 500 grams of illegal charas - Held that - Though non-production of Malkhana Register cannot be the sole ground for passing the acquittal order, but the said fact coupled with other evidence on record, may impact adversely the prosecution s case, in case necessary steps are not taken by the prosecution in proving the case against the accused to the hilt. As mentioned here that it could be possible that the accused drove the said motorcycle without having any knowledge that the same contained any contraband/Charas in its dicky. Had the same been owned by him or there would be some link that some person had directed him to reach the said contraband to a particular place, he could very easily be imputed its knowledge, but the evidence to that offences has not come on record. It need not be stated that stricter the punishment, higher the burden of prosecution to prove the case against the accused beyond any shadow of doubt. In view of above infirmities found it is held that the learned court below has not been able to appreciate evidence on record in proper perspective in the light of the latest position of law and according to this Court s view, the prosecution has failed to prove its case beyond reasonable doubt that the accused was found in possession of 500 grams of illegal charas, of which he could not show the license. The appeal is liable to be allowed and is, accordingly, allowed. The judgment of learned court below is set-aside. Accused is held not guilty and is acquitted of the charges levelled against him. Let the accused be released forthwith in this case, if not wanted in any other case.

Issues Involved:
1. Compliance with Section 50 of NDPS Act.
2. Compliance with Sections 41, 42, and 43 of NDPS Act.
3. Proof of recovery and weighing of contraband.
4. Safe custody and handling of contraband samples.
5. Delay in sending samples to Forensic Science Laboratory.
6. Ownership and seizure of the motorcycle used for carrying contraband.
7. Burden of proof and presumption of culpable mental state under Sections 35 and 54 of NDPS Act.

Issue-Wise Detailed Analysis:

1. Compliance with Section 50 of NDPS Act:
The court analyzed whether the recovery of contraband from the dicky of the motorcycle driven by the accused required compliance with Section 50 of NDPS Act, which mandates informing the accused of their right to be searched in the presence of a Magistrate or Gazetted Officer. The court concluded that since the contraband was recovered from the dicky and not from the person of the accused, Section 50 was not applicable. The court relied on the precedent set in State of Rajasthan Vs. Parmanand, where it was held that Section 50 applies to personal searches and not to searches of bags or containers carried by the accused.

2. Compliance with Sections 41, 42, and 43 of NDPS Act:
The court noted that the contraband was recovered during a routine law and order duty, without prior information. Citing Babubhai Odhavij Patel Vs. State of Gujarat, the court held that in cases of sudden recovery, the provisions of Section 42 (requiring a warrant or authorization for search) are not applicable. Thus, the court found no violation of Sections 41, 42, and 43 in the present case.

3. Proof of Recovery and Weighing of Contraband:
The court found discrepancies in the recovery memo, which did not specify how the contraband was weighed on the spot. The only evidence of weighing came from PW-4, who stated that the contraband was weighed at the police station. The court highlighted that the Narcotic Control Bureau's standing instructions require samples to be drawn and weighed on the spot. The absence of such procedures raised doubts about the recovery and weighing process.

4. Safe Custody and Handling of Contraband Samples:
The court observed that there was no evidence on record regarding the safe custody of the contraband and its samples between the time of recovery and their dispatch to the Forensic Science Laboratory. The prosecution failed to prove where the contraband and samples were stored and how they were sealed. The court emphasized the need for unimpeachable evidence to establish the integrity of the samples, which was lacking in this case.

5. Delay in Sending Samples to Forensic Science Laboratory:
The court noted a delay of two weeks in sending the samples to the Forensic Science Laboratory. Citing State of Rajasthan Vs. Tara Singh, the court held that the prosecution failed to clarify the custody of the samples during this period, leading to the possibility of tampering. The court concluded that this delay and lack of evidence regarding sample custody benefited the accused.

6. Ownership and Seizure of the Motorcycle:
The court criticized the prosecution for not seizing the motorcycle used to carry the contraband and for failing to establish its ownership. The Investigating Officer admitted to not investigating the ownership of the motorcycle. The court highlighted the importance of seizing the vehicle under Section 60 of NDPS Act, which mandates confiscation of conveyances used in carrying contraband. The failure to do so raised doubts about the accused's conscious possession of the contraband.

7. Burden of Proof and Presumption of Culpable Mental State:
The court reiterated that under Sections 35 and 54 of NDPS Act, once the prosecution proves possession of contraband, the burden shifts to the accused to prove their innocence. However, the court found that the prosecution failed to establish beyond reasonable doubt that the contraband was recovered from the accused's possession. The court emphasized that stricter the punishment, higher the burden on the prosecution to prove the case beyond any shadow of doubt.

Conclusion:
The court found multiple infirmities in the prosecution's case, including non-compliance with procedural safeguards, lack of evidence on safe custody of contraband, unexplained delay in sending samples for analysis, and failure to establish ownership and seizure of the motorcycle. Consequently, the court allowed the appeal, set aside the lower court's judgment, and acquitted the accused of all charges. The court ordered the immediate release of the accused and directed the disposal of the case property in accordance with the law.

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