Appeal Granted, Acquittal Secured: NDPS Act Violations

The appellate court allowed the appeal, setting aside the judgment of conviction and sentence under Section 18(b) of the NDPS Act. The appellant was acquitted from the charge under Section 23(c) of the Act due to significant inconsistencies and procedural lapses in the trial court's judgment. The court highlighted non-compliance with various sections of the NDPS Act, including Sections 42, 50, 52A, 55, and 57, and emphasized the importance of proper handling and production of seized articles in court. The appellant was ordered to be released immediately if not involved in any other case.

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Issues Involved:
1. Conviction under Section 18(b) of the Narcotic Drugs and Psychotropic Substance Act (NDPS Act).
2. Acquittal from the charge under Section 23(c) of the NDPS Act.
3. Compliance with Sections 42, 50, 52A, 55, and 57 of the NDPS Act.
4. Validity and reliability of the evidence and procedural adherence.
5. Delay in sending the sample to the Forensic Science Laboratory (FSL).
6. Non-production of seized articles and samples in court.

Detailed Analysis:

Conviction and Acquittal:
The sole appellant was convicted under Section 18(b) of the NDPS Act and sentenced to twelve years of rigorous imprisonment along with a fine of Rs. 1,00,000/-. However, the appellant was acquitted from the charge under Section 23(c) of the Act. The co-accused, Ramanand Patel, was also acquitted after trial.

Compliance with Sections 42 and 50:
The appellant argued non-compliance with Sections 42 and 50 of the NDPS Act, which mandates that information received must be noted down and superior officers informed. Additionally, before searching the appellant, he should have been asked if he wanted to be searched before a Magistrate or a Gazetted Officer. The court, however, noted that the police acted on confidential information about a criminal's presence, not specifically about narcotics, thus Sections 42 and 50 were not applicable as per precedents set by the Apex Court in cases like Hamidbhai Azambhai Malik vs. The State of Gujarat and Durgo Bai vs. State of Punjab.

Compliance with Section 52A, 55, and 57:
The appellant contended that once the police knew about the contraband, they should have informed a superior officer as per Section 57. There was also no evidence that the seized articles were sealed properly or stored correctly. The court found that there was non-compliance with Section 52A regarding the preparation of samples and Standing Orders No. 1 of 1988 and 1 of 1989. The records did not show where the seized articles were kept from the time of seizure until they were sent to the FSL, raising doubts about possible tampering.

Validity and Reliability of Evidence:
The trial court relied heavily on the evidence provided by police officers and the FSL report. However, the appellate court found discrepancies in the handling and storage of the seized articles, which were not properly documented or produced in court. The non-production of seized articles and the Malkhana register, and the non-examination of the Malkhana In-charge, were critical lapses.

Delay in Sending Sample to FSL:
The sample was dispatched to the FSL on 11.10.2010 and received on 22.10.2010, with no explanation for the delay. This delay, coupled with the fact that the FSL report was prepared almost a year later, cast serious doubts on the genuineness of the sample and the report.

Non-production of Seized Articles:
The court emphasized that the physical evidence, being court property, must be produced in court. The non-production of the seized articles and samples, along with the Malkhana register, led to adverse inferences against the prosecution as per Section 114 G of the Evidence Act. The Supreme Court's decisions in Jitendra Kumar vs. State of U.P. and Ashok @ Dangra vs. State of U.P. were cited, highlighting the importance of producing material exhibits in court.

Conclusion:
The appellate court found that the trial court's judgment of conviction suffered from significant inconsistencies and procedural lapses. The cumulative effect of these discrepancies undermined the reliability of the prosecution's case. Therefore, the appeal was allowed, and the judgment of conviction and sentence was set aside. The appellant was ordered to be released forthwith if not required in any other case.

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