2017 (4) TMI 69 - HC - Indian Laws

Court upholds acquittal due to prosecution lapses in NDPS Act case.

The High Court affirmed the trial court's judgment, dismissing the appeal and upholding the acquittal of the accused. Significant lapses in the ... Acquittal of the accused tried for alleged offences punishable under the NDPS Act - Held that:- The respondents were originally accused nos.1, 3 to 5 , 8, 9 & 11. According to the appellant, PW-1, an Intelligence Officer of the Narcotics Bureau was in his office at 9:00 PM on 11.12.1999, a Saturday, which in itself is unusual, when he had received information, in writing, from a person, whose identity is not disclosed. The said information was in turn said to have been reduced to writing by him and thereafter forwarded to his immediate superior, a Superintendent, examined at the trial as PW-20. The said document so forwarded is marked as Exhibit P-1. It is stated in evidence by PW-1 that the information received by him in writing was kept in a sealed cover in the office of the NCB. It is also stated that it was not in his custody. Further, that there were other officers present in the office at that point of time (PW-2, 4 and 16). The emphasis on the circumstance that normally, the office of the NCB is closed on Saturdays and Sundays and the unusual presence of the officers on that Saturday not being explained or disclosed is indeed curious. Thus the contention as to the document at Exhibit P-1 being a false and concocted document cannot be ruled out. More importantly, the original information said to have been received in writing by PW-1 is not brought on record. The explanation offered that it would have placed the informant in a vulnerable position, is not acceptable. There was no impediment in taking the court into confidence and requesting that the identity of the informant be screened. The non-production of the said crucial document would add to the suspicion created about the receipt of any information as stated. There is no way to ascertain whether Exhibit P-1 is a true reproduction of the original information, especially when PW-1 has stated that Exhibit P-1 is a translated version of the original. The employment of expressions such as 'narcotic drug', 'mount surveillance' and 'intercept heroin a narcotic drug', therein is especially suspicious. This is a serious lacuna on which ground alone the prosecution has failed. The trial court has rightly held that there is a patent violation of Section 42 of the NDPS Act. Issues Involved:1. Compliance with Section 42(1) of the NDPS Act.2. Maintenance of general or personal diaries by NCB officers.3. Evidence of criminal conspiracy among the accused.4. Admissibility and reliability of confessional statements.5. Validity of search consent given before a Gazetted Officer.6. Quantity of Diacetylmorphine in the contraband.Issue-wise Detailed Analysis:1. Compliance with Section 42(1) of the NDPS Act:The prosecution contended that the trial court erred in holding that Exhibit P-1, the First Information Report (FIR), did not comply with Section 42(1) of the NDPS Act. The Special Public Prosecutor argued that PW-1 had duly reduced the information into writing and submitted it to his superior, PW-13, thus complying with the statutory mandate. However, the trial court found the non-production of the original written information, which was claimed to be kept in a sealed cover, suspicious. The court emphasized that the unusual presence of officers in the Narcotics Bureau office on a Saturday, coupled with the non-production of the original document, raised doubts about the authenticity of Exhibit P-1. The court concluded that there was a patent violation of Section 42 of the NDPS Act, leading to the failure of the prosecution on this ground.2. Maintenance of General or Personal Diaries by NCB Officers:The trial court noted that none of the NCB officers maintained general or personal diaries regarding their day-to-day functioning, which is crucial for demonstrating the sequence of events and the conduct of the officers. This lapse was found to seriously affect the prosecution's case, as it hindered the ability to verify the actual sequence of events and the officers' activities. The court referred to the decision in Directorate of Enforcement v. Deepak Mahajan, which mandates the maintenance of diaries by enforcement officers, further weakening the prosecution's case.3. Evidence of Criminal Conspiracy Among the Accused:The prosecution's case relied heavily on the theory of a criminal conspiracy among the accused, who were from various towns and cities. However, the trial court found that the evidence presented, primarily records of telephonic calls, did not establish the conspiracy with any degree of certainty. The court noted that no phones were recovered from the accused, and the records did not conclusively link the accused to the alleged conspiracy. Additionally, the court highlighted the failure to investigate key individuals like Munna of Sri Lanka and Athabai of Pakistan, further undermining the conspiracy theory.4. Admissibility and Reliability of Confessional Statements:The trial court found that the alleged voluntary statements made by the accused were retracted at the earliest opportunity, with the accused complaining of ill-treatment and coercion. This led the court to conclude that the accused had been kept under illegal confinement, and the statements attributed to them could not be accepted as voluntary. The court's decision to reject the confessional statements was based on the retraction and the circumstances under which the statements were obtained.5. Validity of Search Consent Given Before a Gazetted Officer:The court noted that the accused were given an option to be searched before a Gazetted Officer, who was PW-20 himself. This rendered any consent obtained invalid, as held by the Apex Court in Myla Venkateshwarlu v. State of Andhra Pradesh. The court found that the search consent procedure was not properly followed, further vitiating the prosecution's case.6. Quantity of Diacetylmorphine in the Contraband:The Forensic Science Laboratory report indicated that the percentage of Diacetylmorphine in the contraband was of an 'intermediate quantity' and not a commercial quantity. This meant that the alleged offence was not punishable with a minimum sentence under the NDPS Act. The court referred to the decision in Micheal Raj v. Intelligence Officer, which applies to cases involving intermediate quantities. Given that the accused had already suffered almost nine years of judicial remand, the court found that the minimum sentence prescribed would not be applicable.Conclusion:The High Court affirmed the trial court's judgment, dismissing the appeal and upholding the acquittal of the accused. The court found significant lapses in the prosecution's case, including non-compliance with Section 42(1) of the NDPS Act, failure to maintain diaries, insufficient evidence of criminal conspiracy, unreliable confessional statements, invalid search consent, and the intermediate quantity of the contraband. The appeal was dismissed, and the trial court's judgment was affirmed.