2017 (12) TMI 1512 - HC - Indian Laws

Smuggling - opium - Section 23(c) of the NDPS Act - acquittal of offence - rigorous imprisonment for a term of 12 years and a fine of ₹ 1,00,000/- with default clause - the prosecution case is that on information about a criminal, the police has raided the place and there was no prior information about the opium being kept by the accused appellant - Held that - In the present case there is absolutely nothing is available to show as to whether direction issued vide Standing Order No. 1 of 1989 or provisions of Section 52A of the Act have been complied or not - Further there is nothing available to show as how much quantity was taken from each packet and as whether it was properly sealed prior to sending it to the FSL. No doubt, in the present case, the informant has no prior information regarding the contraband to be kept by the accused appellant. In such a situation, there is no requirement for compliance of Sections 42 and 50 of Act. However, at the same time, once he came to know about having contraband in possession of the accused, he ought to have informed the superior officer about the same and he ought to have proceeded in accordance with the provisions under the NDPS Act but neither he has informed the superior officer as provided under Section 57 of the Act nor he has followed the provisions of Section 55 regarding taking charge of articles seized and delivered nor there is compliance of provisions of Section 52A of the Act or the Standing Orders issued under the aforesaid Act. Neither the recovered seized articles nor the samples and remaining of the samples sent back by the FSL has been produced before the court nor there is anything to show that it has been kept in Malkhana and there is also nothing on the record in support of the same, neither Malkhana register has been poduced nor Malkhala In-charge has been examined in the present case, which appears to be essential in this case. The trial court has not considered the aforesaid aspect of the matter and only being swayed by evidence of the police officers, coupled with the fact that recovery of opium and the opinion recorded he had convicted the appellant under Section 18(b) of the Act - the impugned judgment of conviction suffers from several inconsistencies, discrepancies and cumulative effect of the above discrepancies and infirmities certainly dented the finding of guilt recorded in the impugned judgment of conviction. Hence it does not appear to be sustainable in the eye of law. The judgment of conviction and the order of sentence of the appellant are set aside - appeal allowed.

Summary

Issues Involved:
1. Conviction under Section 18(b) of the Narcotic Drugs and Psychotropic Substance Act (NDPS Act).
2. Acquittal from the charge under Section 23(c) of the NDPS Act.
3. Compliance with Sections 42, 50, 52A, 55, and 57 of the NDPS Act.
4. Validity and reliability of the evidence and procedural adherence.
5. Delay in sending the sample to the Forensic Science Laboratory (FSL).
6. Non-production of seized articles and samples in court.

Detailed Analysis:

Conviction and Acquittal:
The sole appellant was convicted under Section 18(b) of the NDPS Act and sentenced to twelve years of rigorous imprisonment along with a fine of ?1,00,000/-. However, the appellant was acquitted from the charge under Section 23(c) of the Act. The co-accused, Ramanand Patel, was also acquitted after trial.

Compliance with Sections 42 and 50:
The appellant argued non-compliance with Sections 42 and 50 of the NDPS Act, which mandates that information received must be noted down and superior officers informed. Additionally, before searching the appellant, he should have been asked if he wanted to be searched before a Magistrate or a Gazetted Officer. The court, however, noted that the police acted on confidential information about a criminal's presence, not specifically about narcotics, thus Sections 42 and 50 were not applicable as per precedents set by the Apex Court in cases like Hamidbhai Azambhai Malik vs. The State of Gujarat and Durgo Bai vs. State of Punjab.

Compliance with Section 52A, 55, and 57:
The appellant contended that once the police knew about the contraband, they should have informed a superior officer as per Section 57. There was also no evidence that the seized articles were sealed properly or stored correctly. The court found that there was non-compliance with Section 52A regarding the preparation of samples and Standing Orders No. 1 of 1988 and 1 of 1989. The records did not show where the seized articles were kept from the time of seizure until they were sent to the FSL, raising doubts about possible tampering.

Validity and Reliability of Evidence:
The trial court relied heavily on the evidence provided by police officers and the FSL report. However, the appellate court found discrepancies in the handling and storage of the seized articles, which were not properly documented or produced in court. The non-production of seized articles and the Malkhana register, and the non-examination of the Malkhana In-charge, were critical lapses.

Delay in Sending Sample to FSL:
The sample was dispatched to the FSL on 11.10.2010 and received on 22.10.2010, with no explanation for the delay. This delay, coupled with the fact that the FSL report was prepared almost a year later, cast serious doubts on the genuineness of the sample and the report.

Non-production of Seized Articles:
The court emphasized that the physical evidence, being court property, must be produced in court. The non-production of the seized articles and samples, along with the Malkhana register, led to adverse inferences against the prosecution as per Section 114 G of the Evidence Act. The Supreme Court's decisions in Jitendra Kumar vs. State of U.P. and Ashok @ Dangra vs. State of U.P. were cited, highlighting the importance of producing material exhibits in court.

Conclusion:
The appellate court found that the trial court's judgment of conviction suffered from significant inconsistencies and procedural lapses. The cumulative effect of these discrepancies undermined the reliability of the prosecution's case. Therefore, the appeal was allowed, and the judgment of conviction and sentence was set aside. The appellant was ordered to be released forthwith if not required in any other case.