2020 (7) TMI 354 - HC - Indian Laws

Prosecution's Errors Lead to Appellant's Acquittal

AMANI FIDEL CHRIS Versus NARCOTICS CONTROL BUREAU

The court found in favor of the appellant due to the prosecution's failure to adhere to proper sampling procedures, non-compliance with mandatory ... Smuggling - Drug Trafficking - Heroin - Contraband Item - illegality while drawing samples from the seized substance - whether the procedure specified under the Standing Orders can be flouted? - HELD THAT:- A combined reading of paras of the Standing Orders would show that where more than one container/package is found, the respondent is required to draw a sample from each of the individual container/package and test each of the sample with the ‘field testing kit’. It is further provided that if the container/packages are identical in shape, size and weight then lots of 10 or 40 containers/packages may be prepared and thereafter representative samples from each container/package in a particular lot are to be drawn, mixed and sent for testing - Mixing of the contents of container/package (in one lot) and then drawing the representative samples is not permissible under the Standing Orders and rightly so since such a sample would cease to be a representative sample of the corresponding container/package. In the present case, four packets containing suspicious powdery substance were found concealed in a ‘stroller bag’. On testing with the ‘field testing kit’, the powder in each packet tested positive for heroin. The I.O., without weighing the contents of each individual packet, mixed the powder from all the 4 packets in one polythene bag and then drew the sample from the mixture - In the opinion of this court, the procedure adopted by the respondent in the present case for drawing samples neither conforms to the procedure prescribed under Section 52A of NDPS Act nor under the Standing Orders - At the cost of repetition, the respondent neither filed any application before the Magistrate for drawing the samples under his supervision nor followed the procedure of drawing a representative sample outlined in paras 2.4 or 2.5 read with 2.8 of the Standing Order 1/89. This court is of the view that the samples sent to the CRCL were not the representative samples. Besides, by mixing the contents of all the 4 packets before drawing any sample not only the sanctity of the case property in the individual packet was lost but also the evidence as to how much each individual packet weighed - the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Consecutively, the appeal succeeds and the appellant is acquitted. His bail bonds are cancelled. Issues Involved:1. Legality of sample drawing procedure.2. Compliance with Standing Orders and NDPS Act.3. Examination of independent witnesses.4. Impact of investigation conducted by the same officer who received the secret information.Detailed Analysis:1. Legality of Sample Drawing Procedure:The appellant challenged the legality of the procedure adopted for drawing samples from the seized substance. The prosecution mixed the contents of four packets of heroin before drawing two representative samples. The appellant argued that this method caused serious prejudice as it could not be ascertained whether all four packets contained heroin. The court agreed, stating that the procedure outlined in the Standing Orders required samples to be drawn from each packet separately before mixing and sending for analysis. The court cited various precedents, including *Charlse Howell @ Abel Kom v. N.C.B.*, to support the argument that mixing contents before sampling is impermissible and causes prejudice.2. Compliance with Standing Orders and NDPS Act:The court emphasized the importance of adhering to the procedures specified under the Standing Orders 1/88 and 1/89 issued by the Narcotics Control Bureau. These orders mandate that samples must be drawn on the spot, in duplicate, and from each individual package/container. The court noted that the respondent failed to follow these procedures, neither filing an application before the Magistrate for drawing samples under supervision nor drawing representative samples as outlined in the Standing Orders. The court further referenced *Noor Aga v. State of Punjab* and *Union of India (UOI) v. Mohanlal and Ors* to highlight the mandatory nature of these guidelines and the necessity for substantial compliance.3. Examination of Independent Witnesses:The court observed that the two independent public witnesses, Sher Singh and Pinkesh Kumar, who participated in the raid and signed various documents, were not examined during the trial. This omission was significant as it affected the credibility of the prosecution's case. The court referenced the decision in *Basant Rai v. State* to underline the importance of examining independent witnesses to substantiate the prosecution's claims.4. Impact of Investigation Conducted by the Same Officer:The court addressed the issue of the same officer, G.S. Bhinder, receiving the secret information and conducting the subsequent investigation. Although this could potentially vitiate the prosecution, the court noted that the Supreme Court's decisions in *Varinder Kumar v. State of Himachal Pradesh* and *Surinder Kumar v. State of Punjab* made the applicability of the decision in *Mohan Lal v. State of Punjab* prospective, thus no benefit could accrue to the appellant on this account.Conclusion:The court concluded that the prosecution failed to prove its case beyond reasonable doubt due to the improper sampling procedure, non-compliance with mandatory guidelines, and failure to examine independent witnesses. Consequently, the appeal succeeded, and the appellant was acquitted. The court ordered the cancellation of the appellant's bail bonds and immediate communication of the order to the concerned Jail Superintendent and trial court.