Patna High Court Acquits Two Men In NDPS Case, Cites Unexplained Year-Long Delay In Sending 'Charas' Sample For Testing

A Single Judge Bench of Justice Sandeep Kumar observed that the issue was not merely the delay in sending the sample for examination, but the complete absence of evidence explaining where it had been kept, who transported it and whether its identity and integrity had been preserved during the intervening period.

The Court was hearing an appeal against the conviction of two men under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. In May 2014, the Additional Sessions Judge, Muzaffarpur had sentenced each appellant to five years' rigorous imprisonment and imposed a fine of Rs.25,000.

The prosecution case was that on December 23, 2011, police received secret information about suspected criminal activity near Shyam Cinema Hall in Muzaffarpur, where a fair was being held. A police party allegedly apprehended the two appellants after they attempted to flee and recovered 500 grams of charas from each of them. The appellants challenged their conviction on several grounds, including non-compliance with the statutory procedure for seizure and sampling under Section 52A of the NDPS Act and the failure to establish the custody of the seized substance.

The High Court noted that although the sample was produced before the trial court in a sealed envelope on December 24, 2011, and permission to send it for chemical examination was granted on March 21, 2012, it was received by the FSL only on March 5, 2013. The Court observed:

“The sample which was eventually sent for examination was one drawn by the police themselves. A sealed envelope said to contain the sample was produced before the court on 24.12.2011, and permission to send it for chemical examination was granted on 21.03.2012 but it was received at the Forensic Science Laboratory only on 05.03.2013. No witness has deposed as to where the sample remained during the period of nearly a year between the grant of permission and its receipt at the laboratory, who carried it there, or in what condition. Pertinently, no malkhana register was produced and no malkhana in-charge or carrier was ever examined.”

The State argued that the delay was not fatal because the sample had reached the FSL in a sealed condition and the laboratory report confirmed the presence of tetrahydrocannabinol.

However, the Court distinguished the Supreme Court's decision in Hardip Singh v. State of Punjab, where a delay of 40 days in sending samples for examination had been held not to be fatal because evidence established that the seized material had remained in safe custody with its seals intact. The High Court found that no comparable evidence was available in the present case. It emphasised:

“Not one of those links exists in the present case. The question is not one of delay simpliciter but of a complete absence of evidence as to the custody of the sample for the greater part of a year.”

The Court further noted that the seized substance itself had never been produced before the trial court. No inventory had been prepared, no application had been made to a Magistrate for certification or photography of the seized material, and no representative sample had been drawn in a Magistrate's presence, as contemplated under Section 52A of the NDPS Act. It also found that the prosecution had failed to produce contemporaneous records establishing the receipt of secret information, constitution of the raiding party or its departure from the police station. Both independent seizure witnesses had failed to support the alleged recovery.

On the question of whether the recovered substance was actually charas, the Court noted that the prosecution had relied upon statements allegedly made by the appellants to police officers identifying the substance. Such confessional statements were inadmissible under Section 25 of the Indian Evidence Act.

The Court held that the FSL report, even if accepted, merely established that the envelope received by the laboratory contained tetrahydrocannabinol. It did not establish that the contents of that envelope were the same substance allegedly recovered from the appellants in December 2011. The Bench also clarified that the statutory presumption under Section 54 of the NDPS Act could arise only after the prosecution had first established that a narcotic substance was recovered from the conscious possession of the accused. That foundational requirement had not been satisfied.

Considering the cumulative deficiencies in the investigation and prosecution evidence, particularly the unexplained custody of the sample for nearly a year, the Court held that the charges had not been proved beyond reasonable doubt.

Accordingly, the High Court allowed the appeal, set aside the judgment of conviction dated May 8, 2014 and the sentencing order dated May 13, 2014, and acquitted both appellants.

Appearance:

For the Appellants: Mr. Bhavesh Kumar, Advocate

For the Respondent: Mr. Abhay Kumar, APP