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High Court Of Delhi
JACOB LAWNSON - Appellant
Versus
STATE OF DELHI - Respondent
Decided On : 03/01/1996
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 42, 50, 57 - VIOLATION - IRREGULARITIES IN SEARCH AND SEIZURE - NON-COMPLIANCE WITH MANDATORY PROVISIONS - DEFECTIVE NOTICE - DELAY IN DEPOSIT OF SAMPLES - TAMPERING WITH SAMPLES - DOUBTFUL CASE - CONVICTION SET ASIDE.
Fact of the Case:
The appellant, a Nigerian national, was arrested on 14th April 1991 in possession of 75 grams of heroin. During investigation, he made a disclosure statement leading to the recovery of 205 grams of heroin concealed in capsules from the rooftop of the hotel where he was staying. He was convicted and sentenced to 10 years of rigorous imprisonment and a fine of Rs. 1 lakh under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
Finding of the Court:
The court found that there were several irregularities in the search and seizure procedure, including non-compliance with the mandatory provisions of Sections 42, 50, and 57 of the NDPS Act. The search was not conducted in the presence of a Gazetted Officer or Magistrate, as required by Section 50, and the notice under Section 50 was defective and not served on the appellant before the search. The CFSL report was also vague and defective, and there was a delay in the deposit of samples, raising doubts about their integrity.
Issues: 1. Whether the mandatory provisions of Sections 42, 50, and 57 of the NDPS Act were violated during the search and seizure procedure? 2. Whether the notice under Section 50 was defective and not served on the appellant before the search? 3. Whether the CFSL report was vague and defective, and whether there was a delay in the deposit of samples? 4. Whether the prosecution had established the guilt of the appellant beyond a reasonable doubt.
Ratio Decidendi: 1. The court held that the mandatory provisions of Sections 42, 50, and 57 of the NDPS Act were violated during the search and seizure procedure. The search was not conducted in the presence of a Gazetted Officer or Magistrate, as required by Section 50, and the notice under Section 50 was defective and not served on the appellant before the search. The CFSL report was also vague and defective, and there was a delay in the deposit of samples, raising doubts about their integrity. 2. The court held that the prosecution had failed to establish the guilt of the appellant beyond a reasonable doubt. The irregularities in the search and seizure procedure, the defective notice under Section 50, the vague and defective CFSL report, and the delay in the deposit of samples all raised doubts about the integrity of the evidence against the appellant.
Final Decision: The court accepted the appeal, set aside the conviction and sentence, and acquitted the appellant.
( 1 ) JACOB Lawnson, a Nigerian National was arrested on 14th April, 1991. He was found in possession of 75 grams of heroin. He was apprehended in front of Hotel Konark Erakashan Road, Nabi Karim, Delhi. Later, during investigation he made a disclosure statement. On the basis of which the raiding party went to the rooftop of the said hotel, wherefrom he got recovered another quantity of 205 grams of heroin concealed in capsules 18 in number. These were found hidden under the sandbags lying on the rooftop. He was thus booked under section 21 of the Narcotic Drugs Psychotropic Substances Act 1985 (in short the Act ).
( 2 ) THE prosecution examined members of the raiding party as well as the independent witness. On the basis of their testimony the Trial Court held the appellant guilty. He has been accordingly convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lakh and in default of payment of fine, to undergo further rigorous imprisonment for two years.
( 3 ) IT is against this judgement the present appeal has been preferred TO, inter alia, on the grounds that there had been a violation of the mandatory provisions, namely, Section 42, 50 and 57 of the Act. Investigating Officer did not comply with these provisions. He did not send the report to his superiors as required under Section 57 of the Act. Moreover, CFSL form was not filled up at the spot nor deposited with Moharar Malkhana nor the same was sent to the office of CFSL. It has not been proved that the samples with the CFSL form were deposited in the office of CFSL. Since the case property and samples remained with the police alongwith seals from 14th April, 1991 till 9th May, 1991, there is every reason to apprehend that samples must have been tampered with. Even otherwise prosecution has not given any explanation for this delay in deposit of the samples in the office of CFSL.
( 4 ) TO appreciate the challenge we may refer to Sections 42, 50 and 57 of the Act. Section 42 (1) provides that if any officer described under this Section has reason to believe that any narcotic drug or psychotropic substance is kept or concealed in any building, enclosed place etc. he may between sun rise and sun set enter into and search such building or enclosed place etc. He is empowered to arrest such a person provided he believes that a search warrant or authorisation cannot be obtained without affording opportunity and this way facilitate escape of the officer. Once he forms this belief he will record the grounds of his belief. Sub-section (2) of Section 42 requires that where an officer takes down the information in writing or records ground for his belief, he shall forthwith send a copy of the said report to his immediate official superior. But in this case though raid was admittedly conducted between sun rise and sun set still no report was reduced into writing nor sent by the I. O. to his immediate official superior. Pointing to this lapse on the part of the I. O. Mr. Jitender Sethi counsel for the appellant contended that since the statutory and mandatory provisions have been violated hence the case ofthe prosecution stands vitiated. Countering this argument Mr. Paw an Behl appearing for the State contended that there was no necessity to send the report because the SHO was very much present at the spot. He being the immediate senior officer got the report from the I. O. at the spot itself. There was thus sufficient compliance of the provisions of Sub-section (2) of Section 42. This argument of Mr. Behl has in fact no force in view ofthe admission made by Mr. Satish Kumar, Public Witness-7, the Investigating Officer of this case. He in his cross examination admitted that he did not record secrete information nor informed about the same to his senior officer. The S. H. O. came at the spot per chance and that too after the search of the person of the appellant. Hence, it would not be right to say that since S. H. O. came by per ch
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