NDPS - Omission on part of prosecution to produce bulk quantity of seized opium would create a doubt in mind of Court on genuineness of samples drawn from allegedly seized contraband: SC
By TIOL News Service
NEW DELHI, MAY 16, 2018: THE High Court allowed the appeal of the respondent herein and acquitted him of the charges leveled against him under the Narcotic Drugs and Psychotropic Substances Act, 1985.
The facts: A trap was laid and three accused persons including the respondent herein were found to be in possession of 7.2 kg of contraband material (opium). Two samples were then prepared weighing 30 grams each and marked as 'A1' and 'A2' and the remaining material was sealed and marked as 'A'. The accused confessed to have committed the offence. After depositing the seized contraband at Malkhana, the samples were sent for chemical examination and a complaint under the NDPS Act against the accused was filed. Taking cognizance of the Complaint, the Special Judge, Neemuch by his judgment dated 21st April, 2008 convicted the accused and sentenced him to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/-.
In appeal, the High Court observed that the bulk quantity of the seized case property was not disposed of by the Executive Magistrate; the statement of the accused under Section 67 of the Act was recorded when the accused was in police custody after arrest and the signature of the accused were falsely obtained on blank papers and hence his statement cannot be taken as that of voluntarily made under the provisions of the Act. Therefore, the High Court allowed the appeal of the accused and acquitted him of the charges.
The aggrieved State is in appeal before the Supreme Court.
After considering the rival submissions and the material on record, the Supreme Court extracted paragraph 8 of the High Court judgment and inter alia observed -
++ It is crystal clear that the remaining seized stuff was not disposed of by the Executive Magistrate. …Also the trial Court in its judgment specifically passed instructions to preserve the seized property and record of the case in safe custody, as the co-accused Bhanwarlal was absconding. The trial Court more specifically instructed to put a note with red ink on the front page of the record for its safe custody. In such situation, it assumes importance that there was nothing on record to show as to what happened to the remaining bulk quantity of contraband. The absence of proper explanation from the prosecution significantly undermines its case and reduces the evidentiary value of the statements made by the witnesses.
++ Omission on the part of the prosecution to produce the bulk quantity of seized opium would create a doubt in the mind of Court on the genuineness of the samples drawn and marked as A, B, C, D, E, F from the allegedly seized contraband. However, the simple argument that the same had been destroyed, cannot be accepted as it is not clear that on what authority it was done. Law requires that such an authority must flow from an order passed by the Magistrate.
++ On a bare perusal of the record, it is apparent that at no point of time any prayer had been made by the prosecution for destruction of the said opium or disposal thereof otherwise. The only course of action the prosecution should have resorted to is to for its disposal is to obtain an order from the competent Court of Magistrate as envisaged under Section 52A of the Act. It is explicitly made under the Act that as and when such an application is made, the Magistrate may, as soon as may be, allow the application.
++ There is no denial of the fact that the prosecution has not filed any such application for disposal/destruction of the allegedly seized bulk quantity of contraband material nor any such order was passed by the Magistrate. Even no notice has been given to the accused before such alleged destruction/disposal. It is also pertinent here to mention that the trial Court appears to have believed the prosecution story in a haste and awarded conviction to the respondent without warranting the production of bulk quantity of contraband.
++ The High Court committed no error in dealing with this aspect of the case and disbelieving the prosecution story by arriving at the conclusion that at the trial, the bulk quantities of contraband were not exhibited to the witnesses at the time of adducing evidence.
++ Independent witnesses portrayed by the prosecution have turned hostile and did not support its case. It is manifest from the record that they had simply put their signatures on the papers at the whims of investigating agency.
++ Version of prosecution that the respondent voluntarily made the confessional statement cannot be believed in the light of admission by Narcotics Officer (PW 5), a key prosecution witness, that the statement of accused-respondent under Section 67 of the Act was recorded while he was in his custody and the time was not mentioned on the statements…Thus, it cannot be said that the statement of the accused confessing the crime was voluntarily made under the provisions of the Act.
Concluding that there is no reason to interfere with the well-reasoned judgment of the High Court, the appeal by the State was dismissed.