'Person With Contraband Would Not Sit On Roadside': Punjab & Haryana High Court Acquits NDPS Accused Citing Infirmities In Prosecution Case

The Punjab & Haryana High Court has acquitted a man who was convicted under the NDPS Act and sentenced to 10 years of rigorous imprisonment in 2013, upon noting infirmities in the prosecution case and missing links in the evidence presented. 

In setting aside the trial Court verdict which found the appellant guilty, a single bench of Justice Ritu Tagore said, "The prosecution case appears quite improbable. A person having contraband would not sit on the roadside a thoroughfare, in day time, that too in open noticeable to all and prepare pouches of contraband. No person would commit any criminal activity in open. A natural tendency of an offender is to commit such illegal acts in secrecy and under cover."

The Court also noted the discrepancies in testimonies given by the witnesses about types of measuring weights possessed by the I.O, "These discrepancies coupled with other infirmities in the case of prosecution, assumes importance," said the bench.

These observations came in response to an appeal filed by accused Kashmir Singh, challenging his conviction under Section 22 of NDPS Act. Singh was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh.

It was alleged that the accused was found in possession of 1kg and 10 grams of intoxicant powder ‘Alprazolam’, without any permit or licence.

According to the prosecution, the accused was sitting on the roadside and carrying a plastic bag, in his hand. He was allegedly taking out some material from the polythene, on a piece of paper and making pouches. 

On suspicion, an SI apprehended Singh with the help of police officials. It was stated that the Intoxicant powder was noticed on the fingers of his right hand, and in the pouches.

After examining the plea, the Court found that the chemical report did not indicate who deposited the case property and whether it reached the office intact.

"Report does not even indicate the description of seals, number of seals or if it matches with the sample seal. In these circumstances, it cannot be asserted that link evidence is complete," said the Court.

It further added that the evidence presented displayed significant gaps in the prosecution case, casting serious doubts in the mind of the Court. "Whether a sample of contraband allegedly prepared from the contraband recovered from the appellant was actually sent to the office of Chemical Examiner for analysis or if sent whether it remained intact?", it asked.

It noted that the Trial Court had overlooked these material discrepancies in the case of the prosecution, leading to an "erroneous conclusion regarding the link evidence."

"It is reasonably concluded that in the present case link evidence is incomplete", the Court observed.

In noting another "material infirmity", the Court observed that the investigating officer did not comply with the provisions of Section 52-A (2) (c) of the Act, which provides for a drawing of the sample before the Magistrate. "Evidence does not indicate that any representative sample was drawn before the  Magistrate as mandated under Section 52-A (c) of the Act," it noted. 

Justice Tagore pointed out the "un-explained delay in sending sample to Chemical Examiner", and noted that the recovery was stated to be made on December 26, 2010, while the sample was sent to the examiner on January 05, 2011.

Referring to the standing of 1988 issued by the Narcotics Control Bureau, the Court said: "A representative sample of any contraband after its seizure and deposit in Malkhana or with concerned SHO is required to be sent to Chemical Examiner within 72 hours."

The bench observed that the investigating officer was obliged to follow the procedural safeguards as provided in the instructions as long as they did not override the provisions of the NDPS Act and supplement the procedural protection given in the Act, but had failed to do so in the present case. 

Justice Tagore also noted that the police had made no effort to involve any independent witnesses, and the informant himself served as the investigator.

"After scrutinizing the infirmities in the case of the prosecution, mentioned above, when tested in the light of the observations made above, it becomes clear that the investigating officer failed to conduct a proper investigation. This failure has not only prejudiced the appellant but has also undermined the prosecution’s case," the Court observed.

Furthermore, it held that while it was the bounden duty of the prosecution to establish its case beyond reasonable doubt by bringing cogent and qualitative evidence, which would be necessary to convict a person under the NDPS Act, the same had not taken place in the present case. 

Accordingly, the Bench set aside the conviction observing that on the "cumulative effect of the infirmities, the prosecution had failed to prove its case against the accused beyond a shadow of reasonable doubt" and that the trial Court had overlooked significant deficiencies, in the prosecution case erroneously held the appellant guilty.

Consequently, the appeal was allowed and the appellant was acquitted.

Appearance: Narender Kumar Vashisht, Advocate (Legal Aid Counsel) for the appellant.

Sandeep Vermani, Addl. AG, Punjab.

Citation: 2023 LiveLaw (PH) 247

Title: Kashmir Singh v. State of Punjab

Click here to read/download the order.