2024 (5) TMI 60 - SC - Indian Laws

Smuggling - Non-Compliance with Mandatory Procedure under Section 42 of the NDPS Act - Violation of Section 50 - search and seizure proceedings by panch witness - delivering contraband/illicit substance - conviction of the accused as recorded by the trial Court and affirmed by the High Court - HELD THAT - The contention of learned counsel for the appellants that the search and seizure was undertaken without associating an independent witness is untenable on the face of record. Manubhai(PW-1), the panch witness associated in the search and seizure proceedings was serving in the Income Tax Department and hence by no stretch of imagination, can it be accepted that the witness was a stock witness of the NCB or was an interested witness. Manubhai(PW- 1) in his sworn testimony proved the recovery panchnama(Exhibit P-30) and also fully supported the prosecution case regarding the search and seizure of contraband effected from Anwarkhan(A-1). Nothing significant could be elicited by the defence in the prolonged cross-examination undertaken from Manubhai(PW-1) and hence, there are no hesitation in holding that the evidence of Manubhai(PW-1) being the panch witness associated in the search and seizure effected from Anwarkhan(A-1) is reliable and trustworthy. Thus, it is well established that independent panch witness was associated in the search and seizure procedure. Section 42 of the NDPS Act deals with search and seizure from a building, conveyance or enclosed place. When the search and seizure is effected from a public place, the provisions of Section 43 of the NDPS Act would apply and hence, there is no merit in the contention of learned counsel for the appellants that non-compliance of the requirement of Section 42(2) vitiates the search and seizure. Hence, the said contention is noted to be rejected. The fact regarding the seizure of contraband narcotic drug, i.e., heroin/brown sugar weighing 2 kgs and 30 grams from the possession of Anwarkhan(A-1) has been duly established by the prosecution beyond all manner of doubt. The link evidence required to prove the sanctity of the sampling and transmission of the samples to the Chemical Analyst is also sacrosanct. The search and seizure procedure is free from all doubts. The prosecution has duly proved the guilt of Anwarkhan(A-1) beyond all manner of doubt by leading convincing and satisfactory evidence. - There is no dispute that no contraband substance was recovered from the possession of appellant Firdoskhan(A-2). The conviction of Firdoskhan(A-2) as recorded by the trial Court and affirmed by the High Court cannot be sustained and he deserves to be acquitted by giving him the benefit of doubt - Appeal filed by appellant Anwarkhan(A-1) lacks merit and is hereby dismissed - appeal preferred by appellant Firdoskhan(A-2) is allowed. Appeal allowed in part.

Summary

Issues Involved:
1. Compliance with Section 42 of the NDPS Act.
2. Compliance with Section 50 of the NDPS Act.
3. Reliability of the panch witness.
4. Identification and arrest of the second accused.
5. Admissibility of statements under Section 67 of the NDPS Act.

Issue-wise Detailed Analysis:

1. Compliance with Section 42 of the NDPS Act:
The appellants contended that the mandatory procedure under Section 42 of the NDPS Act was not followed as the secret information was not forwarded to the superior officer. However, the court noted that the search and seizure were conducted at a public place (ST Bus Stand, Kheda), thus falling under Section 43 of the NDPS Act, not Section 42. Therefore, non-compliance with Section 42(2) was not relevant, and this contention was rejected.

2. Compliance with Section 50 of the NDPS Act:
The appellants argued that the option to be searched before a Magistrate or a Gazetted Officer was not given to Anwarkhan (A-1), violating Section 50 of the NDPS Act. The court clarified that Section 50 applies to personal searches, whereas the contraband was found in a polythene bag held by Anwarkhan (A-1). Thus, there was no requirement to comply with Section 50, and this contention was also rejected.

3. Reliability of the Panch Witness:
The appellants questioned the reliability of the panch witness, Manubhai (PW-1), alleging he was an interested witness due to his employment in the Income Tax Department. The court found this claim untenable, noting that Manubhai (PW-1) was a credible and independent witness. His testimony was consistent and corroborated by other evidence, establishing the reliability of the search and seizure process.

4. Identification and Arrest of the Second Accused:
Firdoskhan (A-2) was not apprehended at the scene, and his name was not mentioned in the initial seizure memo. His identification was based on the statement of Anwarkhan (A-1) recorded under Section 67 of the NDPS Act. The court found the process of his identification and arrest suspicious, noting discrepancies in the testimony of the prosecution witnesses. The court emphasized that the first-time identification of Firdoskhan (A-2) by Vikram Ratnu (PW-3) in court was unreliable and not corroborated by other evidence. Consequently, the conviction of Firdoskhan (A-2) was deemed unsustainable.

5. Admissibility of Statements under Section 67 of the NDPS Act:
The appellants argued that their statements recorded under Section 67 of the NDPS Act should be excluded based on the Supreme Court's ruling in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, which held such statements inadmissible. The court agreed, stating that the statements of the accused recorded under Section 67 could not be used as evidence against them. This significantly weakened the prosecution's case against Firdoskhan (A-2).

Judgment:
- Anwarkhan (A-1): The court upheld the conviction and sentence of Anwarkhan (A-1), finding the evidence against him convincing and the search and seizure process compliant with legal requirements. His appeal was dismissed, and he was ordered to surrender to serve the remaining sentence.

- Firdoskhan (A-2): The court found the evidence against Firdoskhan (A-2) insufficient and his identification process unreliable. His conviction was quashed, and he was acquitted of all charges. His appeal was allowed, and he was not required to surrender.

Conclusion:
The judgment meticulously addressed each contention raised by the appellants, affirming the conviction of Anwarkhan (A-1) while acquitting Firdoskhan (A-2) due to unreliable identification and inadmissible evidence. The court's analysis underscored the importance of adhering to procedural requirements and the reliability of evidence in criminal convictions.