2017 (12) TMI 777 - HC - Indian Laws

State of Gujarat's Appeal Dismissed for Procedural Lapses in NDPS Case

The State of Gujarat's appeal was dismissed due to procedural lapses and non-compliance with mandatory provisions of the NDPS Act. The trial court's ... Offence punishable under Sections 20 (b), 8 (c) read with Section 29 of NDPS Act - equal weightage given to the defence witness and that of prosecution witness - Held that:- The manner in which investigation has taken place and deposition of defence witness, DW-2 clearly reveal that accused no.1 was falsely implicated. It has come on record that reasonable doubt having been created of striking of deal of replacing one man with another and that identity of accused no.1 as the tenant and the only possessor of the impugned flat since two years is not established and proved and learned trial Judge has rightly given benefit of doubt. Apart from failure to comply with procedure mandatory in nature under Section 42 of the NDPS Act, even as per law laid down by the Constitution Bench in the case of Karnail Singh (2009 (7) TMI 1144 - SUPREME COURT) at this stage of deciding the appeal finally, we find that there was a breach of above provision, and when there was a specific allegation by the informant himself that the information given to SP, Mr.Bhatti, was in respect of contraband article possessed by one Punjabi and such information if were sent in a sealed envelop to the superior officer, there would not have arisen any doubt at all. Besides no warrant was obtained from learned Metropolitan Magistrate nor there was any authorization given by SP, Mr.Bhatti and PW-2 relied on resolution under Section 42 before entering the premises. Even serious doubt is created about handing over muddamal to the PSO, as PW-4, who was a part of the raiding party himself has prepared muddamal receipt and he had registered the offence in the station diary. He continued to retain the muddamal and that samples prepared from it till the same were handed over to Mr.Polra on 12.6.2001 in the morning. No mention is made in the register maintained. Thus, according to learned trial Judge the prosecution has failed to prove its case beyond reasonable doubt and, on the contrary, the manner in which investigation made an attempt to implicate the accused, clearly emerging from the deposition of DW-2 and DW-3 is rightly believed by learned trial Judge. We are in agreement with the law laid down by the Apex Court in the case of Sanjeev Kumar (2006 (11) TMI 679 - SUPREME COURT) and Aadam Ajmeri (2014 (5) TMI 1161 - SUPREME COURT) that equal weightage shall have to be given to the defence witness and that of prosecution witness. That collective and cumulative effect of the discussion, as above, result into dismissal of the appeal filed by the State of Gujarat warranting no interference in exercise of powers under Section 378 read with Section 386 of the Code of Criminal Procedure and the appeal is hereby rejected. The impugned judgment and order of acquittal dated 21st April 2005 of the respondents herein for the offence punishable under Sections 20 (b), 8 (c) read with Section 29 of the NDPS Act passed by the learned Additional Sessions Judge, Court No.7, Ahmedabad in Sessions Caseis hereby confirmed. Bail bond, if any, of the accused stands discharged. Record and Proceedings be sent back to the concerned trial Court forthwith. Issues Involved:1. Compliance with Section 42 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), 1985.2. Compliance with Section 50 of the NDPS Act.3. Legality of the registration of the complaint.4. Credibility of defense witnesses.5. Safe custody and handling of seized contraband.6. Possession and ownership of the premises where contraband was found.Detailed Analysis:1. Compliance with Section 42 of the NDPS Act:The court scrutinized the mandatory nature of Section 42, which requires officers to record information in writing and send it to their immediate superior before conducting a search. The prosecution failed to produce evidence of compliance with these requirements. The trial court found that the information received by the police was not recorded in writing nor sent to a superior officer, which is a mandatory provision. The court referenced multiple judgments, including *State of Punjab v. Balbir Singh* and *Mohinder Kumar v. State*, which emphasize that non-compliance with Section 42 is fatal to the prosecution's case.2. Compliance with Section 50 of the NDPS Act:Section 50 mandates that the person to be searched must be informed of their right to be searched in the presence of a Magistrate or a Gazetted Officer. The court found that the accused were not properly informed of this right. The prosecution's failure to comply with this requirement was deemed a significant lapse, referencing judgments such as *Vinod v. State of Maharashtra* and *K.Mohanan v. State of Kerala*, which highlight the necessity of informing the accused of their rights under Section 50.3. Legality of the Registration of the Complaint:The defense argued that the CID Crime Intelligence is not a recognized police station, and thus, the registration of the complaint was illegal. The court agreed, noting the absence of a notification declaring CID Crime Intelligence as a police station and the lack of clarity on who the Officer In-charge was under Section 154 of the Code of Criminal Procedure.4. Credibility of Defense Witnesses:The court gave equal weight to the testimony of defense witnesses as that of prosecution witnesses, referencing *Sanjiv Kumar v. State of Punjab* and *Adambhai Sulemanbhai Ajmeri & Ors. v. State of Gujarat*. The defense witnesses provided credible accounts that raised reasonable doubt about the prosecution's case, particularly regarding the alleged replacement of one accused with another and the handling of the informant.5. Safe Custody and Handling of Seized Contraband:The court found serious lapses in the custody and handling of the seized contraband. The muddamal (seized items) was not properly recorded or handed over as required by law. The court referenced *State of Gujarat v. Ismail U Haji Patel & Anr.* and *Rajesh Jagdamba Avasthi v. State of Goa*, which underscore the importance of maintaining a clear chain of custody for seized items.6. Possession and Ownership of the Premises:The court noted that the prosecution failed to establish the accused's possession or ownership of the premises where the contraband was found. The identity of the actual tenant and possessor of the flat was not proven, leading to reasonable doubt about the accused's conscious possession of the contraband. The court referenced *Mohd. Alam Khan v. Narcotics Control Bureau*, which highlights the necessity of proving ownership or possession of the premises in such cases.Conclusion:The appeal by the State of Gujarat was dismissed due to multiple procedural lapses and non-compliance with mandatory provisions of the NDPS Act. The court upheld the trial court's judgment of acquittal, emphasizing the importance of strict adherence to legal procedures and the credibility of defense witnesses. The judgment underscores the necessity of following mandatory provisions to ensure a fair trial and the integrity of the judicial process.