The Jammu and Kashmir & Ladakh High Court took note of the casual approach being adopted in investigating NDPS matters and observed that the Central and State/UT Governments need to authorize experienced & competent officers of Central Excise, Narcotics, Customs, Revenue Intelligence, Police etc to exercise powers under Sections 41, 42 and 43 etc. of the NDPS Act.

The High Court was considering an appeal filed by the Union Territory of Jammu and Kashmir against the judgment of acquittal passed by the Trial Court.

The Division Bench comprising Justice Mohd. Yousuf Wani and Justice Sanjeev Kumar said, “A casual approach of the Investigating agencies in the matter of the investigation in NDPS cases creates a sense of insecurity and undermines the faith of the common man in the administration of the criminal justice.”

AAG Ravinder Gupta represented the Appellants while Advocate Arun Dev Singh represented the Respondent.

Factual Background

The incident dates back to the year 2013 when a police party witnessed two persons coming from the Punjab side carrying bags and packets in their hands. On seeing the Officials both of them tried to escape under suspicious circumstances, but were caught. When a search was conducted, 6000 capsules of SPM-PRX came to be recovered from the bag carried by the respondent no. 1 and 4000 of such capsules came to be recovered from the polythene packet that was carried by the respondent no. 2 in his hand. Accordingly, an FIR came to be registered.

The Investigating Officer was satisfied that the respondents had brought the contraband capsules from Punjab for sale thereof to the young generation in Kathua town. The total weight of the recovered capsules was found 6 Kg and 70 Gms, thus, falling within the commercial quantity. The trial court framed formal charges against the respondents under Sections 8/21/22 of NDPS Act. As the accused were acquitted, the State approached the High Court.

Reasoning

Affirming the accepted principle of Criminal Jurisprudence that an accused person is presumed to be innocent till he is proven guilty and the burden of proving everything essential to establish his/her guilt lies on the prosecution/State, the Bench said, “There must be a clear and unequivocal proof of, ‘corpus delicti’. The prosecution should stand or fall on its own legs and it cannot derive any benefit from the weaknesses of the defense. Suspicion however, strong cannot take the place of legal proof. There lies a long mental distance between” may be true” and “must be true”. The vital distinction between conjectures and sure conclusions needs to be maintained in criminal trials.”

Going through the evidence of the prosecution witnesses, the Bench found that there appeared to be fatal discrepancies and contradictions in the statements of the witnesses examined at the trial in respect of material particulars of the case, especially about time of occurrence, recovery and seizure of contraband substance, manner of investigation, resealing, sampling and recording of statements of the witnesses during the investigation. Noting that one of the flaws in the prosecution case was regarding the time of occurrence, the Bench said, “The investigation in the case appears to have been conducted in a casual and cavalier manner while observing the mandatory provisions of the NDPS Act in breach.”

On a perusal of the prosecution case, the Bench also held that the sampling of the seized psychotropic substances i.e., spasmo proxyvon tablets was not done as per the procedure. The same was a fatal flaw in the prosecution version of the case. Moreover, it was proved at the trial that the Investigating Officer SI did not personally take the packets before the Executive Magistrate for sampling purposes. It was equally astonishing that the Magistrate deposed at the trial that two packets bearing Mark ‘A’ and ‘B’ were brought before him, who without opening the same impressed his seal thereon and also impressed the same seal on a separate paper under his attestation. This, as per the Bench, destroyed the whole prosecution case.

The Bench explained, “Sampling and resealing of the seized narcotic drugs or psychotropic substances or some manufacture drug containing the aforesaid drug/substances in mixture is an important step/phase in the investigation process in NDPS cases. It is not appropriate even for the Investigating Officer to separately seize some quantity of the recovered drug/substances as sample but the proper procedure is that the Investigating Officer has to seize the recovered drug/substances or the manufactured drug containing the aforesaid substances in one pack/palanda or more packs/palandas having regard to the quantity of the recovered contraband and to produce the same before a competent officer especially an Executive Magistrate for sampling purpose who shall break the packets /palandas in comparison of the relevant memos and then to take the sample there from and thereafter reseal back all the packets under his seal and signature.”

As per the provisions of Sections 52 and 52-A of the NDPS Act, once any contraband is seized, it shall be immediately produced before the competent Magistrate for disposal and sampling. There cannot be two provisions for drawing of samples, one, whether the Investigating Officer draws the samples on spot and the other one taken in presence of the Magistrate.“ It was established at the trial that undue and unexplained delay has been occasioned in sending the samples to the laboratory for expert opinion…As per the standing instructions issued under No. 1/88 dated 15th March, 1988, by the Narcotic Control Bureau New Delhi, the sample is needed to be sent to the FSL either through insured post or through a special messenger at an earliest and latest within 72 hours of the seizure”, it said.

The Court also noticed that as per the mandatory provisions of Section 52 (1) read with Section 43, the respondents/accused needed to be informed of the grounds of their arrest which had not been done. The report regarding the arrest of the respondents and the seizure of the alleged psychotropic substance from them which was needed to be sent to the immediate superior officer by the SHO, Rajouri within 48 hours as per Section 57 of the Act, had also not been so sent in the case.

“The reason is that the right to be informed about the grounds of arrest guaranteed by section 52 (1) and the requirement regarding making of full report regarding arrest and seizure to the immediate superior officer within 48 hours under section 57 of the Act confer a valuable right on the accused”, the Bench said while adding, “The making of reports within 72 hours as per the provisions of section 42 (2) and within 48 hours as per section 57 respectively will also bring to an end the possibility of antedating or improving the prosecution case/version.”Upholding the judgment of the Trial Court, the Bench observed that the opinion of the trial court to the effect that the prosecution failed at the trial to establish the guilt of the accused i.e., respondents beyond any shadow of doubt didn’t call for any interference.

The Bench concluded the matter by directing, “The Central and State/UT Governments, as such, need to authorize the experienced and competent officers of Central Excise, Narcotics, Customs, Revenue Intelligence, Police etc to exercise powers under Sections 41, 42 and 43 etc of the NDPS Act. A casual approach of the Investigating agencies in the matter of the investigation in NDPS cases creates a sense of insecurity and undermines the faith of the common man in the administration of the criminal justice.”

Cause Title: Union Territory of Jammu and Kashmir v. Farman Ali & Anr. (Case No.:CrlA (AD) No. 42/2022)

Appearance:

Appellants: AAG Ravinder Gupta

Respondent: Advocate Arun Dev Singh

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