2017 (12) TMI 637 - HC - Indian Laws

Illegal export of narcotic drugs and psychotropic substances in commercial quantities - extraction of contents in two hard disks and the report of an expert in Ex.P148 informing calculation details for each substance - Held that - The evidence of PW-1 to the effect that immediately on receipt of Ex.P1 he decided about the house search, in our view, depicts the true state of affairs i.e., as a person authorised, he acted within his own powers u/s.42 of the Act but failed to comply with the requirements of Section 42(2) of the Act in reducing the information received by him into writing as also in recording the grounds of his belief that a search warrant or authorisation could not have been obtained by him without affording opportunity for concealment of evidence or facility for the escape of an offender, both of which are to be forwarded to the immediate official superior within 72 hours as required under section 42(2) of the Act. The genuineness of Ex.P1 itself is rendered highly doubtful since the same finds no mention in Ex.P33 - Section 57 report. PW-2 has spoken to his not knowing who made the endorsement even while confirming that the Zonal Director had signed the same and the Zonal Director himself has not been called as a witness. Finding that the mandatory provision u/s.42(2) of the Act stands not complied with and finding much more that is wrong with the prosecution case as indicated above, this Criminal Appeal is allowed. The judgment of learned Additional Sessions Judge/Presiding Officer, Special Court for Essential Commodities Act Cases, Coimbatore is set aside. Appellants are acquitted of all charges. First appellant is directed to be released forthwith unless his detention is required in connection with any other case. Fine, if any, paid shall be refunded.

Summary

Issues Involved:
1. Legality of the search and seizure conducted on 25.01.2008.
2. Validity and voluntariness of the confession made by A1.
3. Compliance with mandatory provisions under Sections 41 and 42 of the NDPS Act.
4. Admissibility and reliability of evidence obtained from hard disks.
5. Prosecution's adherence to procedural safeguards.

Detailed Analysis:

1. Legality of the Search and Seizure:
The prosecution's case revolves around the search conducted on 25.01.2008, where psychotropic substances were allegedly seized. The defense argued that the search was illegal and the recoveries were false. The court noted that the search was conducted during night hours, which required specific compliance with Section 42 of the NDPS Act. The court found that the search and seizure were not conducted in accordance with the mandatory provisions of the Act, rendering the prosecution's case unestablished.

2. Validity and Voluntariness of the Confession:
The prosecution relied on the confession of A1, obtained during the inquiry. The defense contended that the confession was not voluntary, as it was recorded in the presence of police officials and later retracted. The court observed that the confession was recorded at the 'Q' Branch Office and noted the defense's argument that it was not voluntary. Given the procedural lapses, the court found the confession to be unreliable.

3. Compliance with Mandatory Provisions under Sections 41 and 42 of the NDPS Act:
The court emphasized the importance of compliance with Sections 41 and 42, which provide safeguards against illegal search and seizure. The court found that the requirements of Section 42, including recording the grounds of belief and forwarding them to the immediate superior within 72 hours, were not met. This non-compliance was deemed fatal to the prosecution's case.

4. Admissibility and Reliability of Evidence Obtained from Hard Disks:
The prosecution presented evidence from two hard disks seized during the search. The defense argued that the hard disks were not properly attested, and there were discrepancies in their serial numbers. The court noted these discrepancies and the lack of proper attestation, which cast doubt on the integrity of the evidence. The court also highlighted the absence of a modem, which was necessary for the alleged email communications.

5. Prosecution's Adherence to Procedural Safeguards:
The court scrutinized the prosecution's adherence to procedural safeguards, including the presence of independent witnesses during the search. The court found that the witnesses were not truly independent, as one was an Inspector of Police and the other was unavailable for cross-examination. The court also questioned the authenticity of the Section 57 report, which did not mention the crucial Ex.P1 document.

Conclusion:
The court concluded that the prosecution failed to comply with the mandatory provisions of the NDPS Act, particularly Section 42. The procedural lapses, discrepancies in evidence, and the questionable validity of the confession led the court to acquit the appellants. The judgment of the trial court was set aside, and the appellants were acquitted of all charges. The first appellant was ordered to be released unless required in connection with any other case, and any fines paid were to be refunded.