Failure to show safe custody of contraband sufficient for acquittal of accused in NDPS: HC

Excelsior Correspondent
SRINAGAR, Apr 17: High Court upheld the acquittal of persons involved in drug trafficking as the prosecution failed to show safe custody of seized substance and contradictions of evidence before the trial court.
The Division Bench headed by Justice Sanjeev Kumar held that the failure on part of the prosecution to show safe custody of seized contraband substance is sufficient for acquittal of the accused in drug trafficking.
The bench was hearing an appeal moved by the prosecution against the judgment of the trial court whereby two persons were acquitted from the charges made against them under NDPS Act.
The fact of the case is a Naka Party of Police Station had intercepted and checked an oil tanker on the national highway wherein it found in it as many as 18 bags containing poppy straw like material. The occupants of the vehicle were the driver and conductor of the vehicle respectively.
After seizing the material head of the Naka Party sent a docket to the Police Station through Constable and on the basis of such docket the Police Station registered an FIR under Section 8/15 NDPS Act.
The investigation officer was the then SHO Police Station who proceeded to the place of occurrence and seized the contraband item in question in the presence of the witnesses. The investigating officer recorded statements of witnesses under Section 161 and 164 Cr.PC . Eighteen samples out of 18 bags were taken and got resealed by the Executive Magistrate.
The sealed samples were sent to FSL for chemical examination. In the FSL examination, it was found that the samples contained poppy straw. The investigation was, thus, concluded and the charge-sheet presented before the competent Court. The trial Court framed charges against the respondents herein under Section 15 of the Act. However, the trial court acquitted the accused of all the charges stating that prosecution failed to prove the case beyond reasonable doubt.
The High Court while upholding the decision of the trial court said, there is nothing on record to show as to how the samples which were deposited in the Malkhana were taken out for resealing by the Executive Magistrate.
“As a matter of fact, the safe custody of the samples has been put in serious doubt. It remains to be explained by the prosecution as to why the samples which were picked up by the I/O on spot were not resealed from the Executive Magistrate on spot particularly when the Executive Magistrate was available”, DB recorded.
The court said, the inability to record statements of crucial witnesses and contradictions in the statements of the witnesses shows that prosecution miserably failed to prove its case beyond reasonable doubt.
Although the prosecution claimed that samples from all 18 bags were taken however the record showed that only 9 samples were received by the FSL and it remained to be explained as to what happened to the remaining 9 samples. The court noted that the investigating officer was also silent on the issue”, read the judgment.
“All of this goes on to show that neither the evidence collected connected the accused with the offence with which they were charged nor was the safe-custody of the contraband proved by the prosecution. The court upheld the judgment of the trial court in acquitting the accused of the offences under section 8/15 of the NDPS Act”, the court concluded.

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