2021 (11) TMI 891 - HC - Indian Laws

Smuggling - narcotic drugs concealed in a suit case - offences under Sections 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - HELD THAT - On perusal of the testimony of witness recorded before the learned trial court, impugned judgment and order on sentence as well as decisions relied upon, this Court finds that there are material contradictions in the story put-forth by the prosecution. It is a settled law that an accused is presumed to be innocent unless proven guilty and to prove the guilt, the prosecution is required to substantiate its case by showing that the due procedures prescribed under the NDPS Act have been followed, coupled with the assistance of material witnesses. However, in the present case, prosecution has not made any efforts to trace out the co-accused Sanjay, who had purportedly brought the substance for delivery to the appellant. The prosecution has even failed to examine the panch witnesses namely, Raj Kumar and Ombir, who would have proved the arrest and recovery. The Panchnama prepared at the spot did not bear signatures of any of the panch witnesses. In addition, the manner in which the offending vehicle was traced, apprehended and recovery was made, also casts a doubt upon the credibility of prosecution case. Also, prosecution has failed to substantiate as to how two reports obtained from CRCL had different analysis and as to why opinion of PW-19 with regard to two different reports, one of Diactyl Morphin (Heroin) and the other for Opium being drawn from two different samples, be not accepted. This Court finds that prosecution has immensely failed to prove its case beyond reasonable doubt, therefore, it is a fit case to grant benefit of doubt to appellant/accused - Petition allowed.

Issues Involved:
1. Legality of the search and seizure proceedings.
2. Reliability of witness testimonies and evidence.
3. Admissibility of the appellant's confessional statement.
4. Discrepancies in forensic reports.
5. Procedural lapses and failure to follow due process.

Detailed Analysis:

1. Legality of the Search and Seizure Proceedings:
The appellant contended that the search and seizure proceedings were not conducted in accordance with the law. It was argued that the Panchanama was signed only by the Investigating Officer and not by all members of the DRI team. Additionally, the personal search of the appellant was conducted at the DRI office rather than at the spot, despite the notice under Section 50 of the NDPS Act purportedly being served at the spot. The court found significant procedural lapses, including the failure to inform local police and the absence of efforts to apprehend the vehicle at various checkpoints, which cast doubt on the prosecution's story.

2. Reliability of Witness Testimonies and Evidence:
The appellant argued that key witnesses, such as the driver Manoj Sharma and two panch witnesses, were non-existent and not examined before the trial court. The court noted material contradictions in the prosecution's story, including discrepancies in the testimonies of witnesses and the failure to produce key witnesses. The court observed that the Panchanama prepared at the spot bore only the Investigating Officer's signature and did not include signatures from any panch witnesses, which undermined the credibility of the prosecution's case.

3. Admissibility of the Appellant's Confessional Statement:
The appellant claimed that his confessional statement under Section 67 of the NDPS Act was obtained under coercion and physical violence. The court referred to the Supreme Court's decision in Tofan Singh v. State of Tamil Nadu, which held that officers under Section 53 of the NDPS Act are "police officers" within the meaning of Section 25 of the Evidence Act, and any confessional statement made to them is barred under Section 25 of the Evidence Act. Consequently, the appellant's confessional statement could not be used to convict him.

4. Discrepancies in Forensic Reports:
The appellant highlighted discrepancies between two forensic reports regarding the substance recovered. The first report dated 22.10.2008 indicated high purity percentages of Diacetylmorphine (Heroin), while the subsequent report dated 21.01.2015 showed significantly lower purity percentages. The court noted that the prosecution's own witness admitted that a sample could not give two different results for Diacetylmorphine (Heroin) and Opium, suggesting that the samples tested were different. This discrepancy further weakened the prosecution's case.

5. Procedural Lapses and Failure to Follow Due Process:
The court found that the prosecution failed to trace and examine key individuals, including the driver Manoj Kumar Sharma and the co-accused Sanjay. The prosecution also failed to inform local police and did not make efforts to apprehend the vehicle at various checkpoints. Additionally, the court noted that the recovery of the contraband was from the car's dickey, which was opened by the driver, and nothing incriminating was found during the appellant's personal search. These procedural lapses and the failure to follow due process raised significant doubts about the prosecution's case.

Conclusion:
The court concluded that the prosecution failed to prove its case beyond a reasonable doubt due to material contradictions, procedural lapses, and the failure to follow due process. The court allowed the appeal, set aside the impugned judgment and order on sentence, and acquitted the appellant of the alleged offences. The appellant's surety bonds were discharged, and a copy of the judgment was sent to the concerned Jail Superintendent for information.

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