SC Sets Aside Conviction In NDPS Case As Search Memo, Arrest Memo Could Not Be Proved & Site Plan Was Incorrect
The Supreme Court has set aside conviction in an NDPS case as the search memo, and arrest memo could not be proved by the Prosecution and the site plan was also incorrect.
The Bench of Justice Sanjiv Khanna and Justice JK Maheshwari acquitted the convict by giving him the benefit of doubt and thus observed –
"In view of the aforesaid lacunae and gaps in the case of the prosecution, when taken collectively and together, we feel, that the conviction of the appellant under Section 20 of the NDPS Act cannot be sustained. The appellant must be given benefit of doubt."
In this case, the accused named Amar Chand was convicted and his conviction was upheld by the Himachal Pradesh High Court under Section 20 of the NDPS Act. The appellant was sentenced rigorous imprisonment of 10 years and pay fine of Rs. 1 lac in default, to undergo simple imprisonment for a period of 1 year.
Aggrieved, the appellant approached the Apex Court.
The Court noted, "It has come on record that the site plan/spot map, marked Ex. PW-5/D, which was statedly prepared at the spot where recovery was made on 03.05.2015, is wrong and incorrect."
Further, the Court also noted that PW4 in his examination-in-chief had accepted the site plan while it was incorrect, and also the location of the Police vehicle used for Nakabandi was wrongly indicated.
Additionally, the Bench noted that PW5 in his cross-examination had to accept that the site plan was incorrect and thus observed that such mistakes created a dent in the prosecution's version of the place and manner of recovery.
The Court held, "the prosecution has not been able to show and prove the scribe/author of the arrest memo, marked as Ex.PW-4/A, and the personal body search memo (Jamatalashi), marked as Ex. PW-4/B.Head Constable Hitesh Kumar (PW-4) has accepted that he had not put his signatures on the arrest memo, marked as Ex.PW-4/A, and the personal body search memo (Jamatalashi), marked as Ex. PW-4/B, though his name is mentioned therein as an attesting witness. The second attesting witness, Head Constable Janesh/Jinesh Kumar did not depose as a witness. Janesh Kumar has also not signed the arrest memo, marked as Ex.PW-4/A, and the personal body search memo, marked as Ex. PW-4/B as an attesting witness."
The Court thus held that these have been the lacunae and gaps in the case of prosecution when taken collectively and together.
Accordingly, the Court set aside the conviction of the accused by giving him the benefit of doubt and allowed the appeal, and directed for his release.
Cause Title – Amar Chand v. State of Himachal Pradesh