2017 (12) TMI 630 - HC - Indian Laws

Offence under NDPS Act - compliance of the provisions of Section 50 of NDPS Act - case of recovery of 05kg and 150gm heroin/smack or even of little more than 1 kg heroin - guilty of charge under Section 21(ii)(C) of NDPS Act - Held that - In view of above position of law, in the case at hand from record it is absolutely clear as recorded in the recovery memo itself and also narrated by PW-1 and PW-5 that accused were apprised only about their rights to be searched in presence of a Gazetted Officer and not in presence of a Magistrate. Hence, on facts it is found that the prosecution has failed to make full compliance of the provisions of Section 50 of NDPS Act in this case which will adversely affect the prosecution s case and would vitiate the conviction. It is evident from the above discussion that the prosecution has failed to make full compliance of Section 50 of NDPS Act. There is infirmity found in regard to the seal used in sealing the sample contraband which was sent to the F.S.L. The procedure which is prescribed for collecting the sample by the Narcotics Control Bureau, New Delhi has not even remotely been followed. The five packets which were allegedly recovered of heroin/smack each weighing little more than 01kg, were not weighed separately nor was it established as to from which particular packet the sample was taken, therefore, the recovery of the said quantity would be doubtful. The cumulative effects of all these infirmities found by this Court appears to have escaped attention of the lower court or it may be said that the lower court did not make proper appreciation of the evidence on record. Thus, the prosecution has failed to establish its case of recovery of 05kg and 150gm heroin/smack or even of little more than 1 kg heroin as held by court below from the accused-appellants beyond shadow of doubt. Both the appeals are allowed. The judgment and order under challenge of the court below is set aside and the accused-appellants are held not guilty of charge under Section 21(ii)(C) of NDPS Act. They be released in this case forthwith, if not detained in any other case.

Summary

Issues Involved:
1. Compliance with Section 50 of the NDPS Act.
2. Validity of the recovery process and sample collection.
3. Departmental bias in investigation.
4. Delay in sending the sample for testing.
5. Adequacy of evidence and procedural lapses.

Issue-wise Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act:
The appellants argued that the police did not properly inform them of their legal rights under Section 50 of the NDPS Act, which mandates that the accused must be informed of their right to be searched before a Gazetted Officer or a Magistrate. The court found that the accused were only informed about their right to be searched before a Gazetted Officer but not a Magistrate. This partial compliance was deemed insufficient, referencing the Supreme Court ruling in C. Ali Vs. State of Kerala, which emphasized the necessity of informing the accused of both options. The court concluded that the failure to fully comply with Section 50 vitiated the trial and conviction.

2. Validity of the Recovery Process and Sample Collection:
The court noted significant discrepancies in the recovery process. The prosecution failed to establish from which of the five packets the sample was taken, and the exact weight of each packet was not recorded. The seal used for the sample was unclear, and there was no evidence that the sample seal matched the seal on the sample sent to the F.S.L. The court referred to the Narcotic Control Bureau’s standing instructions, which were not followed, particularly the requirement to draw samples from each packet and properly seal them. These lapses created doubt about the integrity of the evidence, leading the court to question the validity of the recovery.

3. Departmental Bias in Investigation:
The appellants contended that the investigation was biased as it was transferred from a senior officer to a subordinate. The court, however, found no merit in this argument, stating that the lower court had rightly negated the plea of departmental bias.

4. Delay in Sending the Sample for Testing:
The appellants argued that there was a delay in sending the sample for testing, which could have compromised the evidence. The court observed that the sample was sent to the F.S.L. within seven days of the recovery, which was not considered a delay. However, the court found issues with the handling and sealing of the sample, which were more critical.

5. Adequacy of Evidence and Procedural Lapses:
The court found several procedural lapses, including the failure to weigh each packet separately and the lack of clarity on the seal used. The prosecution's inability to establish that the sample taken was representative of the entire recovered substance further weakened the case. The court emphasized that in cases involving severe penalties, the prosecution must prove its case beyond a shadow of doubt, which was not done here.

Conclusion:
The court allowed the appeals, setting aside the lower court's judgment and order. It held that the prosecution failed to establish its case beyond a reasonable doubt due to non-compliance with Section 50 of the NDPS Act, procedural lapses in recovery and sample collection, and inadequacies in evidence. The accused-appellants were ordered to be released forthwith if not detained in any other case. The case property was directed to be destroyed after the appeal period, and the lower court record was to be returned promptly with a copy of the judgment for compliance.