Abdul Rajik vs State of M.P.

Held: Judgment of conviction and order of sentence passed by the trial Court and affirmed by High Court, set aside – Prosecution failed to prove that the substance recovered from the accused-appellants was charas – Consequently, their conviction is unsustainable in law – Testimony of the Inspector/seizure officer (PW-7) gives rise to serious concerns regarding the identification and integrity of the samples allegedly drawn from the seized contraband – None of the witnesses examined by the prosecution stated about the sanctity, safekeeping, or condition of the samples in oral evidence nor did the prosecution prove any document, viz., the forwarding letter of the police station, the road certificates, etc., which are essential documents pertaining to the link evidence necessary for lending credence to the prosecution case regarding safe custody of the samples from the time of seizure till the same reached the FSL – No evidence on record to establish the movement of the samples from the maalkhana at Police Station Gorakhpur for being carried to the FSL – Thus, prosecution failed to account for the custody and movement of the samples from the date of deposit in the maalkhana and their eventual receipt at the FSL – There is yet another material inconsistency in the prosecution case which further undermines the prosecution’s case regarding the chain of custody – The forwarding letter issued from the Office of Superintendent of Police (Exhibit P-45) bears the date 01.12.2004 whereas the FSL report (Exhibit P-46) records that the samples were received through Constable on 06.12.2004 – Even PW-2 (maalkhana in-charge) in his oral evidence, stated that the samples were sent to the FSL on 06.12.2004 – Prosecution has offered no explanation whatsoever as to where and in whose custody the samples remained during the period between 01.12.2004 and 06.12.2004 – This grave discrepancy and the gap of five (5) days, completely breaches the link in the chain of custody, which was required to be established if the prosecution was desirous of placing reliance on the FSL report (Exhibit P-46) – However, neither was the carrier Constable examined in evidence nor did the prosecution offer any plausible explanation for the aforesaid discrepancy – Prosecution has to prove, by proper link evidence, that the samples extracted by seizure officer from the recovered contraband were properly sealed and remained in safe and secure condition from the time of seizure till their receipt at the FSL – For the FSL report to be admitted in evidence, the prosecution would have to establish, by credible oral and documentary evidence, the complete chain of custody essential to establish the integrity and sanctity of the samples – Additionally, the procedural safeguard provided u/s.52-A, NDPS Act is also a relevant factor while evaluating whether the prescribed procedure was duly followed and, if not, the effect of such non-compliance on the finding of guilt recorded against the accused-appellants – No effort whatsoever was made by the Inspector/seizure officer (PW-7) to undertake the procedure provided u/s.52 A, NDPS Act for drawing representative samples in presence of a Magistrate and thus, there is total non-compliance with the said provision – The link evidence has been totally breached leading total collapse of the sanctity and integrity of the samples – Thus, the FSL Report loses its significance and must be discarded from consideration – Once the FSL report is excluded from consideration, there is no other legally admissible evidence available to establish that the substance allegedly recovered from the accused-appellants was charas within the meaning of s.2(iii)(a), NDPS Act so as to attract the penal consequences u/s.20 thereof – Accused-appellants are entitled to the benefit of doubt and are acquitted of the charges. [Paras 20, 27, 29, 30, 33, 35, 37-39]

Narcotic Drugs and Psychotropic Substances Act, 1985 – Absence of scientific or other reliable material to establish that the nature or identity of the contraband could be determined as charas merely by burning a part thereof – The story set up in the testimony of the Inspector/seizure officer (PW-7) was that the suspected contraband was tested by burning a part thereof and that, on the basis of such test, the said officer could conclude that the substance was charas:

Held: Said story is unworthy of credence – No scientific material on record to establish that the nature or identity of the contraband could be determined as charas merely by burning a part thereof – Thus, in the absence of any scientific or other reliable material supporting such an identification, the testimony of the witness (PW-7) cannot, by itself, be relied upon to establish that the substance allegedly recovered from the accused-appellants was charas. [Para 36]

Narcotic Drugs and Psychotropic Substances Act, 1985 – FSL Report – Reliance upon – Integrity of the sampling process as well as unbroken chain of custody of the samples to be established before FSL report can be relied upon: Held: An unexplained gap in the custody of the samples, compromises their sanctity and casts a serious doubt on the prosecution case – Prosecution must establish the integrity of the sampling process as well as an unbroken chain of custody of the samples before the FSL report can safely be relied upon. [Paras 34, 35]

Narcotic Drugs and Psychotropic Substances Act, 1985 – s.52-A – Non-compliance with:

Held: Mere non-compliance of the procedure provided u/s.52-A or the Standing Orders/Rules made thereunder may not, by itself, vitiate the trial or result in an automatic acquittal – The determinative factor would be whether, and to what extent, such non-compliance has caused prejudice to the accused – s.52-A was incorporated in the Act with the object of providing a statutory mechanism to eliminate the possibility of investigational taint in the procedure of drawing of samples and to ensure expeditious disposal of seized narcotic drugs – Under this provision, the Investigating Agency is obligated to present the seized contraband before the Executive Magistrate/Judicial Magistrate, who is required to cause the representative samples to be drawn in his presence and certify the correctness of the inventory so prepared, the photographs taken thereof and the list of samples so drawn – Upon such certification, the inventory, photographs and list of samples may be treated as primary evidence of the seized goods, thereby obviating the necessity of producing the muddamal before the trial Court – Minor lapses or procedural delay in compliance with the said provision may not, by itself, result in an automatic acquittal – However, total non-compliance would definitely be a relevant factor to be taken into account while assessing the mandatory requirement of proving that the samples were kept in a safe and secure condition, i.e., the link evidence from the time of seizure till the time the samples came to be deposited in the FSL – No effort whatsoever was made by the Inspector/seizure officer (PW-7) to undertake the procedure provided u/s.52 for drawing representative samples in presence of a Magistrate and thus, there is total non-compliance with the said provision. [Paras 31-33]