Safe Custody Of Alleged Contraband And Swift Forensic Analysis Essential: Jammu & Kashmir High Court On Prosecution's Obligations In NDPS Case

The Jammu and Kashmir and Ladakh High Court has emphasized on the prosecution's obligation under Section 55 of the Narcotic Drugs and Psychotropic Substances Act to prove that the contraband after its recovery and seizure from the accused was kept in safe custody and that the sample of the contraband was forwarded to Forensic Science Laboratory without any delay.

A bench of Justices Sanjeev Kumar and Rajesh Sekhri was hearing an appeal directed against judgment passed by the Court of Principal Sessions Judge, Jammu for offences under Section 8/15/29 of Narcotic Drugs and Psychotropic Substance Act, 1985 (for short, ‘NDPS Act’), vide which, respondent had been acquitted of the charges.

On appreciation of the prosecution evidence, the trial court was of the view that prosecution had failed to prove its case beyond reasonable shadow of doubt, therefore, respondent has been acquitted of the charges.

Appellant-State questioned the impugned judgment of acquittal on the conventional grounds that respondent has been acquitted by the trial court despite sufficient material on record to sustain conviction as trial court has failed to appreciate the law and facts of the case in the right perspective.

Dealing with the matter, the bench apart from pointing to the glaring contradictions in the prosecution witnesses highlighted the infringement of Section 55 (Police to take charge of articles seized and delivered) of NDPS Act by the prosecution.

Observing that the prosecution has failed to prove that contraband recovered in the present case was kept in safe custody and forwarded to FSL in accordance with law and without any delay, the bench recorded,

"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".

The bench said the prosecution neither produced incharge Malkhana in trial court to establish safe custody of the contraband nor Executive Magistrate First Class from whom the sealed packets are stated to have been re-sealed by the Investigating officer.

It also found violation of Section 42 NDPS Act which obligates investigating officer to reduce the information received by him into writing and forwarding a copy thereof to his immediate superior officer within 72 hours. "I.O. has stated that on receipt of source information, he telephonically informed his superior officer. It implies that I.O. did not reduce the information received by him into writing as mandated by Section 42 of the NDPS Act," the bench noted.

"The inevitable effect of this omission is that prosecution has failed to rule out the possibility of the samples being changed or tampered with. The prosecution has failed to prove that right from the stage of seizure of the contraband to the stage of handing over samples to the public analyst, the samples remained in safe custody and were got properly re-sealed and also that seals remained intact. This is a serious infraction and vitiates the trial", the bench maintained.

In view of the above, the court did not find any merit in the appeal.

Case Title: UT of J&K Vs Pradeep Singh( Now Dead)

Citation: 2023 LiveLaw (JKL) 109

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