Non-Production Of Independent Eye Witness Is Serious Lacuna: Allahabad HC Acquits Man In 1991 NDPS Case
The Allahabad High Court acquitted a man in 1991 case under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) saying that non-production of an independent eye witness is serious lacuna.
The Lucknow Bench was deciding a criminal appeal filed by the accused against the judgment of the Special Judge by which he was convicted for a rigorous imprisonment of 6 years along with a fine of Rs. 25,000/-.
A Single Bench of Justice Shamim Ahmed observed, “Admittedly, the prosecution has not produced other independent eye-witnesses of the alleged recovery and even no explanation has been offered by the prosecution for their non-production. All the witnesses are police personnel. Non-production of independent eye witness is serious lacuna which has made the prosecution case very doubtful.”
The Bench said that there is breach or violation of Section 50 of the NDPS Act on behalf of the prosecution, because it is a statutory requirement of writing down or conveying information to Superior Officer.
Advocate A.P. Mishra represented the appellants while Advocate S.M. Singh Royekwar represented the respondent.
Factual Background -
As per the prosecution case, in 1991, the Inspector received confidential information that two individuals were staying at a hotel and they were expected to receive a consignment of heroin from the appellant/accused. Based on this information, a team was formed under the orders of the Superintendent, consisting of Inspector and other officers. The team surrounded the hotel and two suspicious individuals arrived on a motorcycle and signalled towards the upper floor of the hotel.
Subsequently, the said two individuals came out and engaged in conversation. During this exchange, a small packet was handed over to one of them, who placed it in his bag. The team then apprehended these two and on this allegation, the complainant lodged a written report against appellants under Sections 8, 21, and 29 of NDPS Act. As the accused was convicted by the Special Judge, he was before the High Court.
The High Court in view of the above facts noted, “In the case on hand, neither such intimation is sent to Superior Officer; nor any entry is made in the station diary. the respondent accused must be made aware of his right for being search to be carried out in presence of a Gazetted Officer or a Magistrate. Learned Public Prosecutor could not point out any evidence or document showing that respondent-accused was made aware of his right before the Magistrate or Gazetted Officer. On perusal of deposition of PW, the complainant, no evidence has been adduced to show that respondent-accused was communicated of his such right and thus there is a noncompliance of provisions of Section 50 read with Section 43 of the NDPS Act.”
Section 50 of the NDPS Act mandates that the accused must be informed of their right to be searched in the presence of a Gazetted Officer or a Magistrate. The Court in this regard emphasised that this is a crucial safeguard to ensure the fairness of the search process and to protect the rights of the accused.
“In this case, there is clear non-compliance with this mandatory provision, rendering the search and subsequent seizure legally flawed. The prosecution's failure to adhere to this statutory requirement further weakens its case”, it added.
Furthermore, the Court said that the defense has raised serious allegations regarding the manner in which the investigation was conducted and the accused stated that his signatures were forcibly obtained. It observed that such allegations cast doubt on the integrity of the investigation process and were not adequately addressed by the Trial Court.
“The handling and examination of the recovered narcotic substances did not comply with the prescribed legal protocols, raising doubts about the integrity and reliability of the evidence. Proper chain of custody and forensic examination are critical in cases involving narcotics to ensure that the evidence has not been tampered with or contaminated”, it also noted.
The Court added that the prosecution's case is primarily based on circumstantial evidence, with no direct evidence linking the appellants to the possession and distribution of the narcotics and in the absence of direct evidence, the prosecution has failed to establish the guilt of the appellants beyond a reasonable doubt.
“It is noteworthy that the individuals from whom the narcotics were allegedly recovered have been acquitted, while the appellants, from whom no recovery was made, have been convicted. This inconsistency highlights the arbitrary and unjust nature of the trial court decision. … Therefore, based on the analysis of the evidence and the legal precedents cited, this Court concludes that the prosecution has failed to establish its case beyond a reasonable doubt. The non-compliance with Section 50 of the NDPS Act, coupled with procedural irregularities and discrepancies in the evidence, casts serious doubt on the guilt of the accused. Consequently, the accused is entitled to the benefit of doubt”, it concluded.
Accordingly, the High Court allowed the appeal, set aside the impugned judgment, and acquitted the accused.
Cause Title- Ikrar and Another v. Union of India (Neutral Citation: 2024:AHC-LKO-50682)
Appearance:
Appellants: Advocate A.P. Mishra
Respondent: Advocates S.M. Singh Royekwar and Rakesh Kumar Awasthi.
