“Undermines Faith Of Common Man In Criminal Justice”: J&K High Court Calls For SITs To Address “Casual Probes” In NDPS Cases

Directing that investigations henceforth be carried out by specialized teams trained specifically for NDPS cases and supervised by officers not below the rank of Sub-Inspector, with oversight from gazetted officers a bench of Justices Atul Sreedharan and Mohammad Yousuf Wani observed,

“It is shocking that most factual and genuine cases in relation to offences under NDPS Act end in acquittals mainly on account of casual, cavalier, unfair, faulty and non-scientific investigations. The mandatory provisions under NDPS Act are being taken casual and observed in breach. Such non-observance of mandatory provisions prescribed under the Act No.61 of 1985, which provide for stringent bail provisions and punishments specifying mandatory minimum imprisonment and fine results in the failure of genuine cases at the trials. Casual, unfair and non-scientific investigations in NDPS cases is uncalled for”,

The case involved an appeal filed by the Union Territory of Jammu and Kashmir challenging the acquittal of two individuals, Irfan Qayoom and Farooq Ahmad, by the Principal Sessions Court, Rajouri.

The respondents were arrested in 2015, after a police patrolling team found them in possession of 50 bottles of Corex, a psychotropic substance. The trial court had acquitted the accused, citing procedural lapses and insufficient evidence to prove guilt beyond a reasonable doubt. Dissatisfied with this outcome, the prosecution appealed to the High Court, asserting that the trial court had failed to appreciate the evidence correctly.

The prosecution argued that the trial court had disregarded the evidence presented and placed undue emphasis on minor discrepancies. It asserted that the investigation had been conducted according to law and that the respondents' actions clearly established their culpability under the NDPS Act.

Justice Wani, writing for the Bench, scrutinized the evidence, legal compliance of the investigation pointed out that the investigation in the matter had commenced before the registration of the FIR thus violating the procedure mandated under the NDPS Act.

The Court noted that a docket sent by the patrolling party to the police station constituted the first information report. Despite this, the investigation had been initiated by the officer in charge of the police station even before the formal registration of the FIR. This procedural lapse cast doubts on the integrity of the investigation, the court emphasised.

The Court expressed concern over the inconsistencies and contradictions in the testimonies of key prosecution witnesses. These discrepancies included conflicting accounts of the time and circumstances of the seizure, the chain of custody of the contraband, and the procedures followed for sampling and resealing the seized substances, it underscored.

Spotlighting the Non-compliance with Sections 52 and 57 of the Act requiring immediate reporting of arrests and seizures to superior officers was deemed a significant flaw, as these provisions provide critical protections to the accused.

The Court expressed serious concerns about delays in sending samples for chemical analysis. It was observed that the samples were sent 15 days after the seizure, a lapse that casts doubt on the reliability of the evidence.

The y also highlighted inconsistencies in the testimonies of prosecution witnesses, including conflicting accounts of the seizure process, the number of bottles recovered, and the sequence of events. Such contradictions undermined the credibility of the prosecution's case.

Relying on precedents, the Court referred to Noor Aga vs. State of Punjab (2008) 16 SCC 417 and Balwinder Singh vs. Narcotics Control Bureau (2023 SCC Online SC 1213) to reiterate that procedural safeguards under the NDPS Act are not mere formalities but are mandatory to ensure fair trials. These safeguards are intended to strike a balance between combating drug trafficking and protecting the rights of the accused.

Delving into Sections 35 and 54 of the NDPS Act, which deal with presumptions of culpable mental state and possession, respectively, Justice Wani noted that these provisions place a reverse burden of proof on the accused, deviating from the general principle of criminal law that presumes innocence until proven guilty. However, the Court clarified that these presumptions are not absolute and are contingent upon the prosecution establishing foundational facts beyond a reasonable doubt.

Quoting from Noor Aga's judgment, the Court emphasized that “the extent of burden to prove the foundational facts on the prosecution is more onerous,” particularly given the stringent punishments under the NDPS Act. The prosecution must first establish possession of the contraband and compliance with procedural requirements before the burden shifts to the accused to prove lack of culpability, the court maintained.

Justice Wani further cited the recent three-judge bench ruling in Balwinder Singh vs. Narcotics Control Bureau, where the Supreme Court held that the presumption under Section 54 arises only after the prosecution establishes the foundational facts of possession through credible and untainted evidence. The High Court reiterated that mere recovery of contraband without proper compliance with the Act's procedural safeguards cannot sustain a conviction.

Lamenting the broader issue of inadequate investigations in NDPS cases, attributing many acquittals to procedural lapses and casual approaches by investigating agencies the court described the drug menace as a grave societal threat, requiring robust and scientific investigations to bring offenders to justice effectively.

While upholding the acquittal, the Court issued specific directives to prevent future lapses. It directed that NDPS investigations be conducted by specialized teams trained in handling such cases and these teams should be led by an officer not below the rank of Sub-Inspector and supervised by a gazetted officer to ensure compliance with the law.

Additionally, the Court emphasized the need for refresher courses for investigators to enhance their understanding of drug laws and improve their investigative skills.

“We shall be failing in our duty, by not directing that NDPS cases shall be tried under law, by the Special Courts under the Act and by other Sessions Court with utmost diligence as priority sector litigation”, the court concluded.

Case Title: UT Of J&K Vs Irfan Qayoom

Citation: 2024 LiveLaw (JKL) 344

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