'Arrest Memo, Body Search Memo Not Proved; Site Plan Incorrect' : Supreme Court Sets Aside Conviction Under NDPS Act

The Supreme Court recently acquitted a person, who was sentenced to 10 years imprisonment and pay Rs 1 lakh fine for the offence of possessing charas. Granting him benefit of doubt due to the lacunae and gaps in the prosecution, a bench comprising Justices Sanjiv Khanna and JK Maheshwari set aside the conviction of the appellant under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The appellant was sentenced by by Special Judge District Kullu, Himachal Pradesh, and the sentence was upheld by the High Court of Himachal Pradesh.

The Supreme Court noted that the site plan/spot map, which was prepared at the spot where the recovery of the drugs was made, was wrong and incorrect.

The bench observed that Head Constable (PW-4) had in its cross examination has accepted the site plan was wrongly prepared. The nakabandi and even the place where the appellant had allegedly thrown the rucksack was also stated wrong. The bench had also noted that another Head Constable (PW-5) who is the Investigating Officer had also accepted in the cross examination that the site plan was incorrect.

The bench observed that the prosecution has also not been able to show and prove the author of the arrest memo and the personal body search memo. PW-4 accepted that he had not put his signatures on the arrest memo or personal body search memo though his name was mentioned as an attesting witness. The bench also noted that the PW-4 had professed that the arrest memo was prepared by PW-5 however the PW-5 proffered that he is not the author of the arrest memo and the personal body search memo.

The bench also noted that the appellant had made the plea that he was arrested from the bus stand while he was waiting to board a bus. One unclaimed bag was found under a bench in which charas was found. It was the stand of the appellant that he was falsely implicated and there were no public witnesses as per the Police.

"In view of the aforesaid lacunae and gaps in the case of the prosecution, when taken collectively and together, we feel, that the conviction of the appellant under Section 20 of the NDPS Act cannot be sustained. The appellant must be given benefit of doubt", the bench noted.

Amar Chand vs. State of Himachal Pradesh – C. A. No. 2035/2022 arising out of SLP (Crl.) No. 752/2019

Citation : 2022 LiveLaw (SC) 1002

For Petitioner(s) Mr. Aditya Dhawan, Adv. Ms. Kiran Dhawan, Adv. Mr. Chander Shekhar Ashri, AOR

For Respondent(s) Mr. Mohan Lal Sharma, AOR Ms. Shikha Sharma, Adv. Mr. Rajbir Singh, Adv.

Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20- Supreme Court sets aside conviction- gives benefit of doubt after noting gaps in the prosecution case- arrest memo, body search memo not proved- site plan wrongly prepared- no independent witnesses

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