Conviction overturned, Appellant released. Witness credibility questioned, evidence integrity doubted. Bail required for release.

The court set aside the conviction and sentence, allowing the appeal and ordering the release of the Appellant. The prosecution's failure to produce the panch witness raised doubts on the reliability of evidence. The retracted statement of the Appellant was deemed involuntary. Significant variation in the purity of samples was unexplained, casting doubt on their integrity. The court directed the trial court record to be sent back, and the Appellant was instructed to furnish bail and surety bonds for three months.

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Issues Involved:
1. Non-examination of the panch witness.
2. Retracted statement of the Appellant under Section 67 NDPS Act.
3. Purity of the samples.

Issue-wise Detailed Analysis:

1. Non-examination of the Panch Witness:

The Appellant's counsel argued that the prosecution failed to examine the panch witness, Rajiv Chauhan, whose presence was crucial during the arrest and seizure. Despite multiple attempts to serve summons to Rajiv Chauhan, the address provided was found to be false or incomplete. The trial court noted that the summons were repeatedly sent to an incorrect address, leading to the non-appearance of the witness. The prosecution's failure to ascertain the correct address and produce the witness raised doubts about the existence of Rajiv Chauhan. The court concluded that without the testimony of the independent witness, the evidence provided by the NCB officers was self-serving and not sufficiently reliable.

2. Retracted Statement of the Appellant under Section 67 NDPS Act:

The Appellant retracted his confession made under Section 67 of the NDPS Act, claiming it was not voluntary and was made under duress while in custody. The Appellant's medical examination revealed an abrasion, supporting his claim of being tortured. The court referred to the Supreme Court's observation in Union of India v. Bal Mukund, which emphasized that statements made while in custody are not voluntary. The court found that the Appellant's statement was not shown to be voluntary and thus could not be relied upon.

3. Purity of the Samples:

The purity of the samples taken from the seized contraband showed significant variation between the initial and subsequent tests. The first test reported a purity of 57.1% and 61.4%, while the second test, conducted three years later, reported a purity of 7.2% and 7.4%. The trial court attributed this variation to atmospheric conditions and other factors. However, the court, upon further examination, found that the expert witness could not satisfactorily explain the considerable variation in purity or the absence of certain constituents in the second set of samples. The literature presented indicated that while degradation of DAM to MAM is possible, the total absence of constituents in the second set raised doubts about whether both sets of samples were from the same source.

Conclusion:

The court found that the prosecution failed to produce the panch witness, casting doubt on the reliability of the NCB officers' testimonies. The retracted statement of the Appellant was not shown to be voluntary. The significant variation in the purity of the samples was not satisfactorily explained, raising doubts about the integrity of the samples. Consequently, the court set aside the conviction and sentence, allowing the appeal and ordering the release of the Appellant. The trial court record was directed to be sent back along with a certified copy of the judgment, and the Appellant was instructed to furnish bail and surety bonds for a period of three months.

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