IMPORTANT POINT
Compensation u/s 250 CrPC cannot be granted in absence of any evidence of lapse on part of seizing officer, false implication or mala fide or malice.

JUDGMENT :

Dipak Misra, J.

The pivotal issue that emanates for consideration in this appeal, by special leave, is whether the learned Special Judge was justified in granting compensation of an amount of Rs.1,50,000/-to each of the respondents who had been arraigned as accused for the offences punishable under Sections 8/21(B) and 8/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, “the NDPS Act”) on the foundation that there was delay in obtaining the report from the Forensic Science Laboratory and further the test showed that the seized items did not contain any contraband article and, therefore, they had suffered illegal custody, and whether the High Court has correctly appreciated the fact situation to affirm the view expressed by the learned trial Judge by opining that the grant of compensation is not erroneous.

2. The facts which are necessary to be stated for adjudication of the limited issue are that on 02.11.2011, PW-5 Nemichand, SHO, PS Bhimganj along with PW4, Umrao, Constable and PW6, Om Prakash, Head Constable while carrying on patrolling duty, noticed the two accused persons together and seeing the police vehicle, accused Jainuddin speedily moved towards the kachcha passage near Mangal Pandey circle and on a query being made, he could not give any satisfactory reply. The accused was searched in presence of other persons and during the search a polythene bag allegedly containing intoxicant material was found in the back pocket pant of the accused-respondent no.1 but he had no licence for it. The polythene bag weighed 31 gram 170 milligrams. The police prepared two samples of alleged smack weighing 5 grams each and the remaining was kept in the polythene bag and sealed. Thereafter the accused-respondent no. 1 was arrested at the spot and seizure memo was prepared. At that time accused Shabbir was also taken into custody. Thereafter, an FIR was registered and after investigation, charge sheet was filed under Section 8/21(B) of the NDPS Act against the accused-respondent no.1 and under Section 8/29 of the NDPS Act against the accused Shabbir.

3. The accused persons denied the charges and stated in their statement under Section 313 CrPC that they had been falsely implicated.

4. The prosecution in order to establish the charges, examined six witnesses. Be it noted, the sample that was sent for examination to the Forensic Science Laboratory on 8.11.2011, chemical analysis thereof was done on 9.9.2013 and the report was submitted to the court on 28.9.2013 and it was exhibited as Exhibit P-11. The said document revealed that the sample contained “caffeine” and “paracetamol” and it did not contain Diacetylmorphine (heroine) or alkaloid of “Afeem” (Opium). As the report indicated that the said items were not covered under the category of intoxicant under NDPS Act, the trial court came to the conclusion that the charges were not established in any manner.

5. Learned trial Judge, while recording the said conclusion observed thus:

“In the present case certainly it is the matter of concern that the officer executing the seizure has no experience with respect to intoxicant material. Although PW5, Nemi Chand, had found the material as intoxicant in his testimony merely by checking. Certainly it shows ignorance of the officer about identification of intoxicant who executed seizure. No attempt was made by the officer making seizure that he should have either tasted the material, which was seized, or same should have been provided to other persons, who were present at the time of seizure, to ensure whether such material is intoxicant or not. The officer making seizure identified same as smack merely after smelling the material.

In this perspective it shall be in the interest of justice to mention that in case there being suspicion over the material being intoxicant or not, then it is the responsibility of the State Government that immediately such material should be subjected to chemical analysis, but in the