[S.55 NDPS Act] Prosecution Obliged To Prove 'Safe Custody' Of Contraband Upon Seizure, Non-Compliance Leads To Acquittal: Jammu & Kashmir High Court

Highlighting the significance of Section 55 of the NDPS Act, the Jammu & Kashmir and Ladakh High Court has said that this provision was specifically introduced to deter any attempts to tamper with contraband. It stresses the crucial need for promptly transferring it to the secure storage of police stations and timely forwarding it to the Forensic Science Laboratory (FSL)

The burden lies on the prosecution to prove these crucial steps were followed and failure to demonstrate proper handling of contraband raises doubts about its authenticity and integrity, it maintained.

Justices Sanjeev Kumar and Rajesh Sekhri was hearing an appeal against a judgment acquitting the respondent for offences under Sections 20/29 of the NDPS Act, read with Sec 3/25 of Arms Act.

According to the prosecution's case, accused, Yousuf Massi disclosed to Police the presence of a pistol, live cartridges, and packets of heroin in his house and in the possession of the respondent-accused. Subsequently, recoveries were made based on these disclosures, and the accused were charged under the relevant sections of the NDPS Act and the Arms Act.

The prosecution examined 16 witnesses to establish the guilt of the respondent. However, upon analyzing the evidence, the trial court found numerous contradictions and discrepancies, along with a failure to comply with mandatory provisions of the NDPS Act. Consequently, the trial court acquitted the respondent.

The Appellant-State challenged the acquittal.

Upon closely examining the prosecution witnesses the bench noted that the prosecution claimed that the respondent was in the custody of Crime and Railways before being handed over to the investigating agency in the present case. However, the prosecution failed to provide any evidence or documentation to support this claim, which in turn has resulted in a significant lapse in their case, the court said.

Deliberating on the admissibility of the disclosure statements attributed to the respondent, which led to the recovery of contraband, the bench said that confessions made to police officers are not admissible as evidence against the accused, unless the accused was in custody at the time of the disclosure and the subsequent recovery was made based on that information. The prosecution failed to provide evidence of either, so the disclosure and recovery are deemed weak and unreliable, the bench underscored.

Pointing to the discrepancies concerning the involvement of independent witnesses, the court said that the witnesses who were expected to corroborate the prosecution's version of events either turned hostile or did not support the prosecution's claims and which in turn has affected the strength of the prosecution.

The bench while noting that the prosecution has failed to demonstrate that the contraband was handled in accordance with the law as the strict provisions of the NDPS Act observed,

“It is pertinent to note that in view of stringent provisions regarding punishment and grant of bail, the legislature in its wisdom enacted section 55 of the NDPS Act to ensure that officer Incharge of Police Station shall immediately take charge and keep the alleged contraband in safe custody, in order to rule out any possibility of tampering with the contraband”.

In light of these procedural lapses, discrepancies in evidence, and non-compliance with legal requirements, the court observed that it do not find any illegality much less impropriety in the well-reasoned impugned judgment of acquittal and hence dismissed the appeal.

Case Title: State of J&K Vs Sham Lal

Citation: 2023 LiveLaw (JKL) 165

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