Procedural violations and unexplained delays in evidence preservation led to reasonable doubt, resulting in the acquittal of accused under the NDPS Act.

JUDGMENT :

JOHNSON JOHN, J.

1. The appellants are accused Nos. 1 and 2 in S.C. (NDPS) No. 4 of 2007 on the file of the Special Judge for NDPS Act Cases, Thodupuzha and they are challenging the conviction and sentence imposed on them for the offence under Section 20 (a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act” for short).

2. The prosecution case is that on 23.02.1998, while the Excise Circle Inspector of Narcotic Enforcement Squad, Adimaly was checking the vehicles at Top Station Kovilloor road, he got information about ganja cultivation in the Government forest area near Vadavari and accordingly, after recording the information and forwarding the same to the higher officials, he proceeded to the forest area along with the excise party by walking and when they reached the place of occurrence, they saw two persons engaged in nursing the ganja cultivation. They saw a shed covered by plastic sheet at a distance of 100 metres from the ganja cultivation.

3. The Circle Inspector arrested the accused persons and out of the ganja plants numbering 2280, three plants were taken as sample and the remaining ganja plants were destroyed. Thereafter, the shed was searched in the presence of the accused persons and implements for cultivation, utensils for manufacturing food etc. were recovered. It is stated that they also recovered a country-made gun and 4 bullets from the shed. The Excise Circle Inspector of the Narcotic Enforcement Squad, Adimaly conducted the investigation and filed final report against the accused persons for the offence under Section 20 (a)(i) of the NDPS Act.

4. When the accused persons appeared before the trial court, after hearing both sides, charge was framed under Section 20 (a)(i) of the NDPS Act and when the accused persons pleaded not guilty, PWs 1 to 7 were examined and Exhibits P1 to P13 and MOs 1 to 4 series were marked from the side of the prosecution. From the side of the accused, Exhibits D1 and D2 were marked.

5. After hearing both sides and considering the oral and documentary evidence on record, the learned Special Judge, as per the impugned judgment dated 07.02.2008, convicted and sentenced the accused persons to undergo rigorous imprisonment for four years and to pay a fine of Rs.50,000/- each and in default of payment of fine, to undergo simple imprisonment for six months each for the offence under Section 20 (a)(i) of the NDPS Act.

6. Heard Sri. George Vinci Jose, the learned counsel representing the learned counsel for the appellant on record and Sri. Alex M. Thombra, the learned Senior Public Prosecutor for the State and perused the records.

7. The point that arise for consideration is whether the conviction and sentence passed against the accused are legally sustainable.

8. The main contentions raised on behalf of the appellants are the following:

I. The prosecution has not produced any notification under Section 53 of the NDPS Act empowering the Circle Inspector of the Narcotic Special Squad, Adimaly with the powers of an officer in charge of a Police Station for the investigation of the offences under the Act.

II. The prosecution has not explained the delay in producing the sample before the court.

III. The prosecution has not explained the inordinate delay in producing the sample in the Chemical Examiner's Laboratory.

IV. There is non compliance of Sections 42 and 57 of the NDPS Act and the same caused prejudice to the accused and resulted in failure of justice.

V. No satisfactory evidence is adduced to prove the manner of sampling as well as its safe custody in ta