Absence Of Witness Signature On Arrest Memo Gives Reasonable Ground For Assuming Wrongful Detention Under NDPS Act: Calcutta HC [Read Order]

The Calcutta High Court last week highlighted the importance of witness signatures on the arrest memo while detaining a person under the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

The Bench comprising Justice Ravi Kishan Kapur and Justice Joymalya Bagchi asserted that the absence of such signature is sufficient to discharge the onus on the accused to establish that there exist reasonable grounds indicating wrongful detention.

It observed, “Signature on the arrest memo of a relation or respectable member of the locality is a requirement which stems from the mandate of the Apex Court in the case of D. K. Basu Vs State of West Bengal (AIR 1997 SC 610). It is not an empty formality and the presence of such signature gives a stamp of authenticity to the lawful apprehension of the accused at the place and time as stated therein.

Absence of signature in the arrest memo of a respectable member of the locality particularly when it is alleged that apprehension and recovery from the petitioner was at a public place in presence of independent witnesses gives rise to reasonable grounds that the arrest of the petitioner may not have occurred in the manner as alleged by the prosecution leading credence to the petitioner’s plea of prior arrest and wrongful detention.”

The accused in the case had been arrested and had been in custody for 88 days for the alleged possession of two cartons of MKDYL Cough Syrup containing codeine mixture beyond the permitted commercial quantity.

He had now contended that he had been falsely implicated in the case, out of “political animosity”, submitting that he was a candidate in the Panchayat Election which was scheduled to be held two days before his arrest.

He had further submitted that he was not produced before the jurisdictional Magistrate within 24 hours. Besides, it was also brought to the notice of the Court that he was produced before the Special Court only after the Magistrate sought a report from the police on his wife’s application.

The State had opposed the bail plea, submitting that the search and seizure had been conducted before independent witnesses who had duly signed on the seizure list as well as the labels attached to the seized articles.

Considering the rival submissions, the Court noted that any bail applicant needs to satisfy two criteria under Section 37 of the NDPS Act: a. that there are reasonable grounds to believe that the accused is not guilty of the alleged offence; and b. that he is not likely to commit any offence in future. A heavy duty is therefore cast on the petitioner to discharge such onus.

The Court then opined that there existed “gross inconsistencies and/or contradictions” in the documents relating to the case. It noted that the arrest memo did not contain any witness signatures, contrary to established law. Noting that in the case at hand, the column for signatures said that “no one turned up”, it emphasised on the necessity of such signatures.

The Court further noted that the statements of search witnesses were recorded one and a half months after the incident. The ones whose statements were recorded on the date of seizure, it noted, had not signed the seizure memo, arrest memo or labels prepared contemporaneously at the time of search and seizure.

It then observed that the Investigating Officer had failed to explain “these glaring lacunae in the prosecution case which go to its root and provide reasonable grounds to believe that the same may be false and fabricated.”

The Court, therefore, allowed the application for bail, directing him to be released upon furnishing a bond of Rs.50,000 with two sureties of like amount each. It was left open for the trial court to cancel his bail in case he fails to appear before the Court.

The Bench however clarified that the findings recorded by it shall have no bearing at the subsequent stages of the proceedings.