2017 (12) TMI 1510 - HC - Indian Laws

Smuggling - Heroin - Sections 21 of NDPS Act - whether, in the light of evidence on record, compliance of Section 50 of NDPS Act has been properly made in this case by the prosecution or not? Held that - It is mandatory for the prosecution to prove that the accused was apprised of his right to be searched in presence of a Magistrate or a Gazetted Officer. In case such right has not been apprised the conviction would vitiate. The compliance of provision of Section 50 of NDPS Act is extremely important right of the accused, non-compliance of which would make the recovery suspect - In the case at hand, it is apparent that the accused was given option of being taken before a Magistrate or a Gazetted Officer for being searched to find whether he possessed any contraband substance - It would be noted here that the provisions of Section 50 have been amended with effect from 2.10.2001 by adding Clause 5 and 6 also, but in this case those clauses would not be operational because the occurrence belongs to the year 1995 when the unamended Act was in force, provisions of which have been reproduced by the learned lower court in judgment - In the case at hand, in the light of evidence on record, it is apparent that the accused was given option to be taken before a Magistrate or a Gazetted Officer as has been stated by both the witnesses of fact i.e. PW-1 and PW-3 and entry in that regard has also been made in the recovery memo, but they certainly had not apprised him about his legal right of being searched before a Magistrate or a Gazetted Officer in right earnest, in letter and spirit, as has been laid-down in the Vijaysinh Chadubha Jadeja s case (Supra) which goes to the extent to lay down that an endevour should be made to produce the suspect before the nearnest Magistrate who enjoys more confidence of common man, hence this Court finds that compliance of section 50 of NDPS Act was not made in right earnest by apprising the accused of his legal right that he could opt to be searched before a Magistrate or a Gazetted Officer, but only such option was given to him, hence the finding of lower court in this regard is found to be erroneous. Whether the prosecution has been able to prove that the alleged recovered contraband (Heroin) from the accused was the same which was sent for being examined by the FSL and was found to be heroin and whether not recording the weight of recovered contraband, would cause prejudice to the accused? - Held that - when the contraband material from the accused was brought to police station with the accused and the recovery memo along with sample seal, the entry of the same ought to have been proved by the prosecution to have been made in the Malkhana register, to prove that the said contraband material along with the sample seal were deposited in Malkhana and were kept there in safe custody till it was taken out for being sent to the FSL and thereafter also when the same material was received back from the FSL with seal which was used by FSL. The same should have been kept at safe place until at the time of trial, when the case property was supposed to be opened before court for being exhibited. Then only it could have been held that substance which was examined and found to be heroin by the FSL was produced before court at the time of examination of witnesses in intact condition. Therefore, link evidence is found to be missing in this case. Non-compliance of Section 57 of the NDPS Act - Held that - non-compliance of Section 57 by itself may not be held to vitiate the conviction or trial in this case but certainly it would have adverse impact on probabative value of the evidence adduced by the proseuction. In the case at hand, it has to be taken into consideration and to see whether non-compliance of this provision has caused any prejudice to the accused. Here a very small quantity of heroin is alleged to have been recovered from the accused which can easily be procured and may be planted, hence, looking to the fact that huge penalty has been provided under law under Section 21 of the NDPS Act, therefore, it was strict liability of the prosecution to prove the said recovery genuinely from the accused. For this, they ought to have prepared a report under Section 57 of NDPS Act of arrest of the accused and seizure of the recovered contraband and should have sent it to the superior authority within stipulated time or even beyond that with a proper justification of delay which has not been done. It certainly has caused prejudice to the accused. This court finds that prosecution has failed to adduce proper evidence on record which weakens the prosecution s case. It has not been able to prove its case to the hilt beyond shadow of doubt against the accused regarding illegal recovery of heroin - accused is held not guilty of offense under Section 21 of NDPS Act and deserves to be released forthwith in this case - appeal allowed.

Summary

Issues Involved:
1. Compliance with Section 50 of the NDPS Act.
2. Weight and sample testing of the recovered contraband.
3. Chain of custody and integrity of the evidence.
4. Compliance with Section 57 of the NDPS Act.
5. Impact of procedural lapses on the conviction.

Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act:
The court examined whether the accused was properly informed about his right to be searched in the presence of a Magistrate or a Gazetted Officer. The lower court concluded that the accused was informed and consented to be searched by the police. However, the High Court found that the compliance was not in "right earnest" as the accused was not properly apprised of his legal right, which is mandatory as per the judgments in *State of Punjab Vs. Baldev Singh* and *Vijaysinh Chandubha Jadeja Vs. State of Gujarat*. The court held that mere mentioning in the recovery memo was insufficient, and the provision's strict compliance was necessary to avoid misuse of power and false implications.

2. Weight and Sample Testing of the Recovered Contraband:
The defense argued that the weight of the recovered heroin was not measured on the spot and that proper samples were not taken from each packet for testing. The High Court noted that the prosecution failed to weigh the contraband on the spot, which was crucial since the alleged recovery was of a very small quantity. The court emphasized that the entire quantity should have been weighed, and samples from each packet should have been tested to ensure the integrity of the evidence.

3. Chain of Custody and Integrity of the Evidence:
The court found discrepancies in the chain of custody. The FSL report mentioned a seal of "P.K. Pandey S.I. UPP" on the contraband, whereas the prosecution claimed the seal was broken in court and replaced with the court's seal. The prosecution failed to explain this discrepancy, creating doubt about whether the tested substance was the same as the one recovered. Additionally, there was no proof that the contraband was kept securely in the Malkhana, and the case property was not produced before the court during witness examination.

4. Compliance with Section 57 of the NDPS Act:
The court noted that the prosecution did not provide evidence of compliance with Section 57, which mandates reporting the arrest and seizure to a superior officer within 48 hours. The absence of such a report or any explanation for the delay adversely affected the prosecution's case. The court referred to *Md. Idrish Singh Vs. State of U.P.*, emphasizing the importance of this procedural step to ensure the integrity of the investigation.

5. Impact of Procedural Lapses on the Conviction:
The cumulative effect of the procedural lapses, including non-compliance with Sections 50 and 57, discrepancies in the chain of custody, and failure to weigh the contraband, led the court to conclude that the prosecution failed to prove its case beyond a reasonable doubt. The court highlighted that strict adherence to procedural safeguards is crucial in cases involving severe penalties under the NDPS Act.

Conclusion:
The High Court found significant procedural lapses and discrepancies in the prosecution's case, leading to the conclusion that the conviction was unsustainable. The court set aside the conviction, ordered the immediate release of the accused, and directed the destruction of the case property after the appeal period. The judgment underscores the importance of strict compliance with procedural safeguards to ensure fair trials and prevent wrongful convictions.