'Beyond Imagination How Seized Items Were Termed Contraband Without FSL Report': Patna High Court Acquits NDPS Accused After 27 Years

The Patna High Court has acquitted a man convicted under the NDPS Act, holding that the prosecution failed to prove recovery of contraband in accordance with law and that non-compliance with mandatory safeguards, coupled with evidentiary gaps, vitiated the conviction. A Single Judge Bench of Justice Alok Kumar Pandey was hearing a criminal appeal against the judgment dated 27.12.2010 passed by the Additional District & Sessions Judge, 3rd, Ara, Bhojpur in N.D.P.S. Case No. 2 of 1998, arising out of Shahpur P.S. Case No. 7 of 1998. The trial court had convicted the appellant under Section 20(b) of the NDPS Act and sentenced him to 10 years' rigorous imprisonment along with a fine of ₹20,000. As per the prosecution case, on 20.01.1998, the police, acting on secret information, conducted a raid at a thatched hut in Shahpur Bazar, where the appellant was allegedly found in possession of ganja. It was alleged that approximately 500 grams of ganja along with smaller packets and a weighing scale were recovered from the spot, and the appellant was apprehended while attempting to flee. The appellant contended that the alleged recovery was only about 530 grams, which, at the relevant time, fell within “small quantity,” attracting a maximum punishment of six months or fine. It was argued that the trial court erred in imposing a sentence of ten years. The appellant further submitted that mandatory compliance with Section 50 of the NDPS Act was not adhered to, as he was not informed of his right to be searched before a Gazetted Officer or Magistrate. It was also pointed out that independent seizure witnesses had turned hostile, the place of occurrence was not properly established, and no chemical examination report was produced to establish that the seized substance was ganja. The State argued that the testimony of the informant (P.W.2) and another police witness (P.W.4) sufficiently established recovery and seizure. It was submitted that hostility of independent witnesses does not necessarily vitiate the prosecution case. However, the State fairly conceded that the quantity involved was less than commercial quantity and that the sentence imposed by the trial court did not align with the applicable statutory provisions. Examining whether the offence under Section 20(b) stood proved, the Court scrutinised the evidentiary record and found significant deficiencies. It noted that the informant failed to clearly establish the place of occurrence and admitted that the seized articles were not produced before the court during trial. The Court also took note of the fact that independent witnesses had not supported the prosecution case and had stated that their signatures were obtained on blank papers, thereby rendering their testimony unreliable. On the seizure itself, the Court observed that the entire prosecution case rested on the seizure list. However, the seized materials were not sent for chemical examination, nor was any forensic report brought on record to establish that the substance recovered was ganja. The Court held that this went to the root of the prosecution case and rendered the alleged recovery unproved. The Court noted:“From perusal of the record, it is crystal clear that seized item/Ganja was not sent for chemical examination. The question arises how the seized item was alleged to be Ganja without having any FSL report. The very pertinent question arises how the Investigating Officer submitted charge sheet under Section-20(B) of N.D.P.S. Act without having report of FSL regarding Ganja and how the case has been proceeded. It is beyond the imagination that without any examination, the recovered materials were declared to be narcotic substance and the contention of learned counsel for the appellant is quite convincing that the very basis to prove the case of NDPS is doubtful in the absence of FSL report regarding the recovered materials and the prosecution has failed to prove its case on several counts including non-compliance of mandatory provision of Section 50 of the NDPS Act under which it was statutory obligation of the searching officer to inform the accused of his right to be searched in presence of a gazetted officer or a Magistrate and in absence of compliance of said provision, the alleged search and seizure stands vitiated”On the aspect of conscious possession, the Court held that the prosecution had failed to establish that the alleged recovery was made from the exclusive possession of the appellant. It noted that there was no reliable evidence to show that the hut from which the contraband was allegedly recovered belonged to the appellant or that he had exclusive control over the said premises. The Court further observed that even the place of occurrence had not been properly proved. In view of these infirmities, the Court held that the prosecution had failed to prove its case beyond reasonable doubt. Accordingly, the appeal was allowed and the conviction and sentence were set aside. Case Title:...

'Beyond Imagination How Seized Items Were Termed Contraband Without FSL Report': Patna High Court Acquits NDPS Accused After 27 Years

Rushil Batra

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