Gauhati HC Sets Aside NDPS Conviction, Cites Irreconcilable Contradictions In Prosecution Evidence, Failure To Follow Mandatory Procedure

The Gauhati High Court on Monday set aside a judgment and order passed by a Trial Court by which it convicted and sentenced a person under Section 21(c) of the NDPS Act, on the ground that there are irreconcilable contradictions in the evidence of the prosecution and lapses in not following the mandatory procedural requirements.

The single judge bench of Justice Mridul Kumar Kalita was hearing an appeal under Section 374(2) of CrPC impugning the judgment dated July 27, 2023 passed by the Trial Court by which the appellant was convicted under Section 21(c) of the NDPS Act, 1985 (NDPS Act) and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- vide sentence order dated August 02, 2023.

Facts

On September 28, 2021, an FIR was lodged at Moirabari Police Station alleging that the appellant has stored huge quantities of suspected narcotic drugs in his house. The police found the appellant in his residence and on conducting search therein 13 numbers of Eskuf Codeine Phosphate Syrup were recovered from his possession.

On the basis of the said FIR, a case was registered under Sections 21(c) and 25 of the NDPS Act, 1985 and the investigation was initiated. The Trial Court convicted and sentenced the appellant as mentioned above. Hence, the present appeal was filed by the appellant challenging the judgment and order passed by the Trial Court.

Arguments

The Counsel appearing for the appellant submitted that the trial was vitiated due to non-compliance with the mandatory provisions under Section 52A of the NDPS Act. It was contended that as per Section 52A(2)(c), the Investigating Officer or Officer-In-Charge of the Police Station has to make an application to any Magistrate for the purpose of allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of the list of such samples so drawn.

It was argued that in the instant case, no list of samples was prepared and certified as mandated by Section 52A of the NDPS Act. It was submitted that the prosecution side had failed to exhibit the seized contraband or the representative sample thereof, which was necessary to be produced before the Trial Court during the trial and such non-production is fatal to the prosecution case.

The appellant's counsel further argued that the prosecution side had failed to prove the chain of custody of the samples after it was drawn from the contraband before the Magistrate, till they reached the forensic laboratory for examination, which makes the prosecution case very weak and on that ground itself, the appellant is liable to be acquitted.

On the other hand, the Additional Public Prosecutor (APP) submitted that all the mandatory requirements of Section 52A of the NDPS Act were duly followed by the prosecution side and the inventory which is required to be prepared under Section 52A of the NDPS Act was duly prepared and correctness of the same has also been certified by the Magistrate.

It was further argued that as the inventory and photographs of the sample of the seized contraband after certification may be used as primary evidence in respect of offence, the production of seized contraband or the representative sample thereof during the trial is not necessary and such non-production would not in any manner affect the prosecution case adversely.

Court's Observation

The Court noted that all the seizure witnesses have given different account of the seizure of the contraband and these inconsistencies adversely affect the probative value of the evidence tendered by such witnesses and create reasonable doubt regarding the seizure of the contraband from the house of the appellant as alleged.

It was further highlighted by the Court that no list of representative samples drawn was prepared, hence certification regarding the correctness of same by the Magistrate does not arise which is in violation of the mandatory procedural requirement as envisaged by section 52 A of NDPS Act.

“This Court is of considered opinion that as the Apex Court has observed in a catena of its rulings that the compliance with the procedural requirement of Section 52A of the NDPS Act, 1985 is mandatory in nature and any non-compliance would create serious doubt about the veracity of the prosecution case. Hence, in the instant case also, this court is of considered opinion that due to non-compliance of the mandatory procedural requirement of Section 52A of the NDPS Act, 1985, the prosecution side has failed to prove the guilt of the appellant beyond all reasonable doubt,” the Court noted.

The Court further observed that the penal provisions of the NDPS Act prescribe very harsh punishment for the offender, therefore, it is incumbent for the prosecution side that the mandatory procedural requirement to be followed by the prosecution in such a case are to be strictly followed and any lapse on that count would dent the prosecution's case and would give advantage to the accused.

Thus, the Court set aside the impugned judgement and sentence order passed by the Trial Court.

Citation: 2024 LiveLaw (Gau) 60

Case Title: Md. Manirut Jaman @ Moni v. The State of Assam

Case No.: Crl.A No. 392/2023

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