Summary
The prosecution failed to prove the identity and safe custody of the seized ganja samples, and the FSL report could not be relied on where sampling was not conducted under Section 52A before a Magistrate. The convictions also could not stand for two appellants who were not present at the seizure and whose alleged involvement rested on inadmissible police confessions.
Issues
- Whether contradictions in sampling, missing custody records and the absence of proceedings under Section 52A NDPS Act undermined the prosecution’s proof of the seized substance.
- Whether appellants not present at the seizure could be convicted on the basis of co-accused’s police interrogation statements without proof of possession or other admissible evidence.
Provisions considered
- Sections 43 and 49, Narcotic Drugs and Psychotropic Substances Act, 1985Because the alleged recovery was from a vehicle stopped in transit, search and seizure were governed by Sections 43 and 49. (¶¶ 17, 18)
- Section 52A, Narcotic Drugs and Psychotropic Substances Act, 1985No inventory and sampling proceedings were undertaken in the presence of the jurisdictional Magistrate. In the circumstances of this case, the FSL report could not be read in evidence. (¶ 22)
- Sections 8(c) and 20(b)(ii)(C), Narcotic Drugs and Psychotropic Substances Act, 1985The appellants were convicted under these provisions. The prosecution failed to prove the charge; two appellants were not shown to possess ganja and their alleged involvement rested on interrogation notes, while the sample and custody evidence concerning the seized substance was unreliable. (¶¶ 14, 22, 24, 25)
- Section 25, Indian Evidence Act, 1872Police-officer confessions recorded during interrogation were inadmissible and could not prove the alleged involvement of appellants A-3 and A-4. (¶¶ 22, 23)
Held
- The prosecution failed to establish reliable link evidence from seizure through storage and transmission to the FSL. The accounts of who collected and transmitted the samples conflicted; one sample was said to have been given to the accused although three reached the FSL; seals and identifying marks were absent; the malkhana record and relevant witnesses were not produced; and the original packets were changed without court permission. These defects undermined the sample identity and safe-custody chain. (¶¶ 13, 21)
- In the absence of proceedings under Section 52A of the NDPS Act for inventory and sampling before the jurisdictional Magistrate, the Court held that the FSL report could not be read in evidence in this case. (¶ 22)
- A-3 and A-4 were not present at the seizure and were not alleged to have possessed the ganja. Their alleged involvement rested on interrogation notes of A-1 and A-2; police confessions were inadmissible under Section 25 of the Evidence Act, leaving no admissible or tangible evidence to sustain their convictions. (¶¶ 14, 22, 23)
- Given the failures in proof and the contradictions in the police evidence, the prosecution had not proved the charges against the appellants beyond the evidence required to sustain conviction. (¶ 24)
Result
Appeals allowed; the convictions and sentences of appellants A-2, A-3 and A-4 were set aside and they were acquitted. They were directed to be released forthwith unless required in another case. Proceedings against A-1 had abated on his death.