Surprising That Probe In NDPS Cases Is Being Entrusted To Incompetent Officers, Casual Approach Undermines Public Faith In Criminal Justice: J&K HC

While upholding the acquittal order passed by the trial court for possessing contraband in commercial quantity, the Jammu, Kashmir & Ladakh High Court observed that the Non-compliance with mandatory provisions, such as proper sampling, immediate reporting and informing the accused of arrest grounds, renders the prosecution's case defective.

A bench of Justices Sanjeev Kumar, Mohd Yousuf Wani dismissed the appeal, affirming the trial court's judgment of acquittal. The prosecution's failure to comply with mandatory procedural safeguards necessary for the protection of the accused has rendered the evidence unreliable and insufficient to convict the accused. The court said:

Every day we hear about the seizure of Narcotic Drugs and Psychotropic Substances especially from the youth. 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. Casual, unfair and non-scientific investigations in NDPS cases is uncalled for...It is equally surprising that investigations in NDPS cases are most often being entrusted to incompetent officers. A casual approach of the Investigating agencies in the matter of the investigation in NDPS cases creates a sense of insecurity and undermines the faith of the common man in the administration of the criminal justice.

The court observed that the prosecution failed to prove the seizure of the alleged drug through cogent, consistent, and trustworthy evidence which is required to invoke Sections 35 and 54 of the NDPS Act. These provisions provide for presumptions of culpable mental state and possession. These presumptions are never irrebuttable and only arise when the prosecution establishes prima facie evidence of proper seizure and handling of contraband and it is only after that the burden falls on the accused to rebut the same.

It also said that after the arrest and seizure the accused must be given the grounds for his arrest and a report regarding the arrest and seizure of the contraband ought to be given to the superior officer within the period of 48 hours, both of these mandatory provisions have not been complied with. These rules are necessary to prevent prosecution from ante-dating or improving its case and in absence of the compliance doubt is cast on the genuineness of the prosecution story.

The court was hearing the appeal filed by the Union Territory of J&K against the trial court's judgment of acquitting the accused person after citing procedural irregularities and lack of compliance with mandatory provisions under the NDPS Act.

The Appellant argued that The recovery and seizure of the 10,000 capsules from accused persons, containing tramadol, a psychotropic substance were fully established through prosecution witnesses and that the trial court did not appreciate the prosecution's version in the correct perspective and gave undue weight to these minor contradictions which did not affect the case's core merits. It was further argued that the accused failed to account for possession of a commercial quantity of psychotropic substances deserving conviction on that account.

In response, the Respondent argued that there was a contravention of mandatory provisions necessary for safeguarding the interest of the accused. The contradictions in key witness statements regarding the time and manner of the seizure undermined the prosecution's case. It was further argued that non-compliance with sampling procedures and reporting to a superior officer, raised doubts about the evidence's integrity.

However, the court upheld the trial court's verdict stating that the total failure of the prosecution to prove the seizure of the alleged drug containing tramadol a psychotropic substance, as a constituent through cogent, uncontradictory, and trustworthy evidence, the presumptions under Sections 35 and 45 of the Act loose significance.

Appearance:

Mr. Ravinder Gupta, AAG represented State

Advocate Arun Dev Singh appeared for Respondents.

Case title: Union Territory of Jammu and Kashmir vs Farman Ali(Criminal Appeal 42/2022)