Acquittal due to lack of evidence; Contradictions in testimony noted. Contraband to be destroyed.

The court acquitted the accused due to the prosecution's failure to prove the recovery of charas beyond reasonable doubt. Significant procedural lapses and contradictions in evidence were noted, leading to the appeal being allowed, the accused acquitted, and immediate release ordered. The court also directed the destruction of the recovered contraband (charas) after the appeal period expired.

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Issues Involved:
1. Legality of the recovery and seizure process under the NDPS Act.
2. Compliance with mandatory procedural requirements under the NDPS Act.
3. Validity of evidence and contradictions in witness statements.
4. Burden of proof and presumption of possession under Sections 35 and 54 of the NDPS Act.
5. Impact of non-compliance with Section 57 of the NDPS Act.

Detailed Analysis:

1. Legality of the Recovery and Seizure Process under the NDPS Act:
The court examined whether the recovery of 1kg of charas from the accused was conducted legally. The police officers on duty at the G.R.P. Chauki, Chandauli, apprehended the accused when he was seen acting suspiciously. The accused was found with a soiled bag containing charas. The court noted that this was a chance recovery, and thus, the provisions of Section 50 of the NDPS Act were not applicable, as per the Supreme Court ruling in State of Himachal Pradesh Vs. Sunil Kumar.

2. Compliance with Mandatory Procedural Requirements under the NDPS Act:
The court scrutinized whether the procedural requirements under the NDPS Act were strictly followed. It was highlighted that the officer who made the recovery, S.I. Sri Vinaya Kumar Singh, was an empowered officer under Section 42 of the NDPS Act. However, the court found that there was non-compliance with Section 57 of the NDPS Act, which mandates reporting the seizure and arrest to a superior officer within 48 hours. This non-compliance was deemed to have caused prejudice to the accused.

3. Validity of Evidence and Contradictions in Witness Statements:
The court observed several discrepancies in the prosecution's evidence. There was no mention in the recovery memo of how the charas was weighed or how the sample was taken and sealed. The witnesses did not clarify the sealing process or the safekeeping of the seals. The F.S.L. report did not confirm that the seal on the sample matched the seal used at the time of recovery. These gaps in the chain of custody and contradictions in witness statements cast doubt on the prosecution's case.

4. Burden of Proof and Presumption of Possession under Sections 35 and 54 of the NDPS Act:
The court referred to the Supreme Court's ruling in Gian Chandra & others Vs. State of Haryana, which states that once possession is established, the burden shifts to the accused to prove that the possession was not conscious. However, in this case, the prosecution failed to establish beyond reasonable doubt that the charas recovered from the accused was the same substance tested by the F.S.L. Therefore, the presumption of possession under Sections 35 and 54 could not be applied.

5. Impact of Non-compliance with Section 57 of the NDPS Act:
The court emphasized that while Section 57 is directory and not mandatory, non-compliance without proper explanation can affect the prosecution's case. In this case, the failure to report the seizure and arrest to a superior officer within the stipulated time was considered to have prejudiced the accused.

Conclusion:
The court concluded that the prosecution failed to prove the recovery of charas from the accused beyond reasonable doubt. The court noted significant procedural lapses and contradictions in the evidence presented. Consequently, the court allowed the appeal, acquitted the accused, and ordered his immediate release. The court also directed the destruction of the recovered contraband (charas) following the expiry of the appeal period.

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