Narcotic Drugs and Psychotropic Substances Act, 1985 – s.52A – Disposal of seized narcotic drugs – Allegation of recovery of 7.2 kg of contraband material (opium) from respondent-accused – Conviction under s.8/18 r/w s.29 – Acquittal by High Court on the ground that the bulk quantity of the seized case property was not disposed of by the Executive Magistrate; that statement of accused under s.67 was recorded in police custody and the signature of accused was falsely obtained on blank papers – Held: In the impugned order, the High Court has observed that the order of the Executive Magistrate did not show that the property was disposed of, but it was recorded therein that after the preparation of the samples, the samples and the bulk quantity of property were returned to the investigating officer – Thus, it is apparent that the property was not disposed of – Omission on the part of the prosecution to produce the bulk quantity of seized opium created doubt on the genuineness of the samples drawn from the allegedly seized contraband – A bare perusal of the record showed that at no point of time any prayer was made by the prosecution for destruction of the said opium or disposal thereof otherwise – Even no notice was given to the accused before such alleged destruction/disposal – High Court committed no error in disbelieving the prosecution story by arriving at the conclusion that at the trial, the bulk quantities of contraband were not exhibited to the witnesses at the time of adducing evidence – The independent witnesses also turned hostile and did not support its case – It is manifest from the record that they had simply put their signatures on the papers at the whims of investigating agency – The version of prosecution that the accused voluntarily made the confessional statement cannot be believed in the light of admission by Narcotics Officer (PW 5), a key prosecution witness, that the statement of accused under s.67 of the Act was recorded while he was in his custody and the time was not mentioned on the statements – This fact was further corroborated with the statement of PW 6 also that the statement of accused was recorded after arrest and while in custody – Thus, it cannot be said that the statement of the accused confessing the crime was of voluntarily made under the provisions of the Act – Interference with the order of High Court not called for.
Dismissing the appeal, the Court
HELD: 1. From the proceedings of Executive Magistrate, it is crystal clear that the remaining seized stuff was not disposed of by the Executive Magistrate. The contraband stuff as also the samples sealed as usual were handed over physically to the Investigating Officer (PW 6). Also the trial Court in its judgment specifically passed instructions to preserve the seized property and record of the case in safe custody, as the co-accused was absconding. In such situation, it assumes importance that there was nothing on record to show as to what happened to the remaining bulk quantity of contraband. The absence of proper explanation from the prosecution significantly undermines its case and reduces the evidentiary value of the statements made by the witnesses. [Para 9] [624-B-D]
2. Omission on the part of the prosecution to produce the bulk quantity of seized opium would create a doubt in the mind of Court on the genuineness of the samples drawn from the allegedly seized contraband. However, the simple argument that the same had been destroyed, cannot be accepted as it is not clear that on what authority it was done. Law requires that such an authority must flow from an order passed by the Magistrate. A bare perusal of the record shows that at no point of time any prayer had been made by the prosecution for destruction of the said opium or disposal thereof otherwise. The only course of action the prosecution should have resorted to is to for its disposal is to obtain an order from the competent Court of Magistrate as envisaged under Section 52A of the Act. It is explicitly made under the Act that as and when such an application is made, the Magistrate may, as soon as may be, allow the application.[Para 10] [624-E-G]
3. There is no denial of the fact that the prosecution has not filed any such application for disposal/destruction of the allegedly seized bulk quantity of contraband material nor any such order was passed by the Magistrate. Even no notice has been given to the accused before such alleged destruction/disposal. The trial Court appears to have believed the prosecution story in a haste and awarded conviction to the respondent without warranting the production of bulk quantity of contraband. But, the High Court committed no error in dealing with this aspect of the case and disbelieving the prosecution story by arriving at the conclusion that at the trial, the bulk quantities of contraband were not exhibited to the witnesses at the time of adducing evidence. [Para 11] [624-H; 625-A-B]
4. Turning to the other discrepancies in the prosecution case, PWs 1 and 2 the independent witnesses portrayed by the prosecution have turned hostile and did not support its case. It is manifest from the record that they had simply put their signatures on the papers at the whims of investigating agency. Another aspect that goes in favour of the accused is that, the version of prosecution that the respondent voluntarily made the confessional statement cannot be believed in the light of admission by Narcotics Officer (PW 5), a key prosecution witness, that the statement of accused-respondent under Section 67 of the Act was recorded while he was in his custody and the time was not mentioned on the statements. This fact further gets corroborated with the statement of PW 6 also that the statement of accused was recorded after arrest and while in custody. Thus, it cannot be said that the statement of the accused confessing the crime was of voluntarily made under the provisions of the Act. [Para 12] [625-C-F]
Noor Aga v. State of Punjab & Anr. (2008) 16 SCC
417 : [2008] 10 SCR 379 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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