Deficiency To Prove Safe Custody And Timely Submission Of Contraband Samples Can Render Prosecution's Version Doubtful: J&K High Court

A bench comprising Justices Rajnesh Oswal and Rajesh Sekhri highlighted that the absence of a seal sample sent to the Chemical Analyst could render the prosecution's case doubtful.

Citing Supreme Court in State of Rajasthan v. Gurmail Singh reported as AIR 2005 the bench reiterated that if the link evidence adduced by the prosecution is not satisfactory and Malkhana Register is not produced to prove that contraband was kept in the safe custody of the Malkhana and further that if no sample of seal is sent along with samples to the Chemical Analyst, the prosecution case can be viewed doubtful.

The case originated from an incident in September 2010, when respondents Parshotam Singh and Chaman Lal were stopped by a police party at a checkpoint in Lakhanpur. Upon searching the scooter driven by Singh, with Lal as the pillion rider, the police recovered 3,700 Pyremal Spas capsules suspected to contain narcotics. The capsules were seized, and the men were charged under Sections 7/20/21 of the NDPS Act.

The trial court in Kathua acquitted the accused in August 2014, citing procedural lapses and discrepancies in the evidence. Unhappy with the outcome, the State appealed to the High Court, arguing that the trial court had not properly assessed the evidence presented.

The State contended that the recovery and seizure of the capsules were conducted lawfully, in strict compliance with the NDPS A and the accused failed to produce any documentation justifying their possession of the capsules, implying their involvement in illegal activities.

It was further argued that the trial court's acquittal was incorrect, as it did not give due weight to the prosecution's evidence, which was adequate to establish guilt.

High Court's Observations:

The High Court, in its detailed examination, upheld the trial court's decision to acquit the respondents reiterating that under the NDPS Act, the prosecution is required to prove that after recovery and seizure, the contraband was kept in safe custody in the Malkhana (the police station's storage) with proper entry in the Malkhana register.

The prosecution must also ensure that the sample of the contraband is forwarded to the FSL without any delay and the absence of a sample of the seal sent along with the contraband to the Chemical Analyst could cast doubt on the authenticity of the evidence.

The Court pointed out several discrepancies in the prosecution's evidence, particularly overwriting in the site plan concerning the number of capsules and the distance from the occurrence site to the police station.

“There is over-writing in the site plan regarding the number of capsules, which appears to have been written as 3800, overwritten as 3700 and distance of the place of occurrence from Police Station appears to have been over-written from 150/175 to 050/075. The scribe of site plan PW-8 Surinder Rao has not been examined by the prosecution, during the trial to explain the aforesaid interpolations in the site plan”,the bench recorded.

Highlighting the inconsistencies in witness testimonies the Court observed that there were contradictions in the testimonies of the police officers about where and how the capsules were counted and the samples were drawn. These inconsistencies raised serious doubts about the credibility of the prosecution's narrative, the court reasoned.

Commenting on the non-compliance with mandatory provisions of the NDPS Act the Court highlighted that the prosecution's failure to comply with mandatory provisions of the Act, particularly regarding the proper handling and documentation of seized contraband, was detrimental to their case.

It added, “.. 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. Prosecution is obliged to prove that the contraband after its recovery and seizure from the accused was kept in safe custody, in the Malkhana of the concerned Police Station under proper entry in the Malkhana register”.

Referencing State of Punjab v. Makhan Chand, 2004 the Court underlined that non-compliance with mandatory provisions can be fatal to the prosecution's case, especially in NDPS matters where procedural integrity is paramount.

In view of these patent flaws on part of the prosecution and investigating authorities the bench dismissed the appeal and upheld the acquittal of the accused persons.

Case Title: State of J&K Vs Parshottam Singh

Citation: 2024 LiveLaw (JKL) 245

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