2019 (9) TMI 1011 - HC - Indian Laws

Smuggling - Charas - Grant of leave to appeal - charge under Sections 20 of NDPS Act, 1985 - HELD THAT - The prosecution had miserably failed to prove the strict compliance of mandatory provisions of Section 42 of the NDPS Act. It was incumbent upon the Investigating Officer to reduce the secret information into writing and to send the same to his higher officers, but in the present case the said provision had not been complied with and the Investigating Officer, while stepping into the witness box as PW-3, had admitted that neither the secret information was reduced into writing nor the same was sent to the higher authorities or the concerned Police Station. In the present case, the mandatory provisions of Section 50 of the NDPS Act had also not been complied. Once the strict compliance was not made and defective offer was given to the respondent, the factum of the search of the respondent being carried out on the basis of search consent becomes inconsequential. In the present case, the link evidence was missing and there was failure of the prosecution to prove safe custody, transportation of case property and sanctity of the seals on the case property. The Investigating Officer had secret information that respondent was carrying 'Charas' and can be caught red handed but this secret information was not reduced into writing which is mandatory. From the facts of the present case, it is clear that provisions of Section 42 and Section 50 of the NDPS Act had not been complied with. Basic principle of criminal jurisprudence is that prosecution has to prove its case beyond reasonable doubt which has not been done in the present case. Learned State counsel has failed to point out any material illegality or perversity in the impugned judgment of acquittal - the application seeking leave to appeal is dismissed.

Summary

Issues:
Grant of leave to appeal against the judgment of acquittal under Section 378(3) Cr.P.C. for charge under Section 20 of NDPS Act.

Analysis:
1. The State filed an application under Section 378(3) Cr.P.C. seeking leave to appeal against the acquittal of the respondent charged under Section 20 of the NDPS Act. The prosecution's case involved the conscious possession of 'Charas' by the respondent without a permit. The respondent denied the charges and claimed false implication.

2. The trial court acquitted the respondent after examining witnesses and considering the evidence. The State argued for strict compliance with NDPS Act provisions and pointed out the recovery of 'Charas' from the respondent's possession as commercial quantity. The State sought conviction based on the recovery.

3. The High Court analyzed the compliance with the mandatory provisions of the NDPS Act. It noted the Investigating Officer's failure to reduce secret information into writing and send it to higher authorities, as required by Section 42. The court cited a Supreme Court judgment emphasizing adequate compliance with Section 42 and the implications of non-compliance.

4. The High Court further discussed the non-compliance with Section 50 of the NDPS Act regarding search procedures. It highlighted the defects in the search consent offer made to the respondent, rendering the search inconsequential. The court emphasized the legal rights of the respondent and the importance of proper compliance with search provisions.

5. The court also addressed the lack of link evidence, failure to prove safe custody of case property, and the absence of proper seals on the evidence. It emphasized the prosecution's burden to prove its case beyond reasonable doubt. The court concluded that the prosecution failed to establish compliance with Sections 42 and 50 of the NDPS Act.

6. The High Court found no material illegality or perversity in the trial court's judgment of acquittal. It dismissed the application seeking leave to appeal, declining to interfere with the trial court's well-reasoned decision. The court upheld the acquittal, stating that the prosecution did not meet the burden of proof beyond reasonable doubt.