2017 (12) TMI 1508 - HC - Indian Laws

Smuggling - Charas - the accused in his statement recorded under Section 313 Cr.P.C. has denied any such recovery of contraband substance to have been made from him and has stated that he has been falsely implicated due to enmity - Held that - although the compliance of provisions of Section 57 of NDPS Act is not mandatory but directory. The compliance may be made even with delay with sufficient explanation therefor. The court conducting trial of an accused under the provisions of NDPS Act has to take into consideration whether non-compliance of this provision has resulted in causing prejudice to the accused. If yes, then certainly the benefit may be given to the accused. From the record it apparent that the prosecution has not made compliance of Section 57 of NDPS Act as nothing has come on record indicating that any such arrest and seizure report was prepared in respect of charas having been recovered from him which might have been sent to the higher authority within 48 hours or with delay with any explanation therefor. Hence, this Court is of the view that this certainly would cause prejudice to the accused. Whether the prosecution has been able to prove the recovery of 01kg charas from the accused from the place of occurrence as alleged? - Held that - the prosecution has failed to establish beyond reasonable doubt that 01kg charas was recovered from accused-appellant, hence without establishing the recovery, the burden under Section 35 & 54 of NDPS Act could not be thrust upon the accused to disclose as to how he came in possession of the said contraband. The court below has failed to take into consideration the infirmities pointed out by this Court in the body of this judgement. It is held that the court below did not make proper appreciation of evidence on record in right perspective particularly with regard to identification of recovered contraband substance (Charas) which is being alleged to have been recovered from the accused on the spot, to be the same, the sample of which has been found by the F.S.L. to be Charas. This being of core importance in this case, the same could not be allowed to be taken lightly. In view of the severe punishment provided under the Act, this aspect ought to have been taken into consideration with all circumspection which appears to be lacking. The appellant is held not guilty of charges under section 20(b)(ii) of NDPS Act. He be released from jail forthwith in this case, if not detained in any other case - The case property/recovered contraband (charas) be destroyed in accordance with rules after the period of appeal, provided if any, expires or if the law provides otherwise - appeal allowed.

Summary

Issues Involved:
1. Legality of the recovery and seizure process under the NDPS Act.
2. Compliance with mandatory procedural requirements under the NDPS Act.
3. Validity of evidence and contradictions in witness statements.
4. Burden of proof and presumption of possession under Sections 35 and 54 of the NDPS Act.
5. Impact of non-compliance with Section 57 of the NDPS Act.

Detailed Analysis:

1. Legality of the Recovery and Seizure Process under the NDPS Act:
The court examined whether the recovery of 1kg of charas from the accused was conducted legally. The police officers on duty at the G.R.P. Chauki, Chandauli, apprehended the accused when he was seen acting suspiciously. The accused was found with a soiled bag containing charas. The court noted that this was a chance recovery, and thus, the provisions of Section 50 of the NDPS Act were not applicable, as per the Supreme Court ruling in State of Himachal Pradesh Vs. Sunil Kumar.

2. Compliance with Mandatory Procedural Requirements under the NDPS Act:
The court scrutinized whether the procedural requirements under the NDPS Act were strictly followed. It was highlighted that the officer who made the recovery, S.I. Sri Vinaya Kumar Singh, was an empowered officer under Section 42 of the NDPS Act. However, the court found that there was non-compliance with Section 57 of the NDPS Act, which mandates reporting the seizure and arrest to a superior officer within 48 hours. This non-compliance was deemed to have caused prejudice to the accused.

3. Validity of Evidence and Contradictions in Witness Statements:
The court observed several discrepancies in the prosecution's evidence. There was no mention in the recovery memo of how the charas was weighed or how the sample was taken and sealed. The witnesses did not clarify the sealing process or the safekeeping of the seals. The F.S.L. report did not confirm that the seal on the sample matched the seal used at the time of recovery. These gaps in the chain of custody and contradictions in witness statements cast doubt on the prosecution's case.

4. Burden of Proof and Presumption of Possession under Sections 35 and 54 of the NDPS Act:
The court referred to the Supreme Court's ruling in Gian Chandra & others Vs. State of Haryana, which states that once possession is established, the burden shifts to the accused to prove that the possession was not conscious. However, in this case, the prosecution failed to establish beyond reasonable doubt that the charas recovered from the accused was the same substance tested by the F.S.L. Therefore, the presumption of possession under Sections 35 and 54 could not be applied.

5. Impact of Non-compliance with Section 57 of the NDPS Act:
The court emphasized that while Section 57 is directory and not mandatory, non-compliance without proper explanation can affect the prosecution's case. In this case, the failure to report the seizure and arrest to a superior officer within the stipulated time was considered to have prejudiced the accused.

Conclusion:
The court concluded that the prosecution failed to prove the recovery of charas from the accused beyond reasonable doubt. The court noted significant procedural lapses and contradictions in the evidence presented. Consequently, the court allowed the appeal, acquitted the accused, and ordered his immediate release. The court also directed the destruction of the recovered contraband (charas) following the expiry of the appeal period.