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IN THE HIGH COURT OF SIKKIM, GANGTOK
BHASKAR RAJ PRADHAN, J.
Sushil Sharma S/o Late Kharananda Sharma – Appellant
Versus
State of Sikkim – Respondent
Crl. Appeal No. 08 of 2018
Decided On : 01-12-2018
The accused was convicted for possession of controlled substances, consumption of controlled substances, and possession of ganja. The court examined the compliance of various provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and the Sikkim Anti Drugs Act, 2006 (SADA). The court found that the prosecution failed to establish the charges beyond reasonable doubt due to non-compliance with the mandatory provisions of the NDPS Act and SADA, including the failure to conduct a search in accordance with the law, failure to keep the seized articles in safe custody, and failure to prove the quantity of ganja possessed by the accused. The court also found that the expert opinion on the seized items was not reliable and that the investigation was unfair and biased. The court set aside the conviction and sentence imposed by the trial court.
Fact of the Case:
The accused was apprehended by the police on suspicion of possessing contraband substances. A search was conducted, and the police allegedly recovered controlled substances, Spasmo Proxyvon capsules, N-10 tablets, and a pouch of ganja from the accused. The accused was charged with possession of controlled substances, consumption of controlled substances, and possession of ganja under the NDPS Act and SADA. The trial court convicted the accused and sentenced him to imprisonment and a fine.
Finding of the Court:
The court found that the prosecution failed to establish the charges beyond reasonable doubt due to non-compliance with the mandatory provisions of the NDPS Act and SADA. The court found that the search was not conducted in accordance with the law, the seized articles were not kept in safe custody, and the prosecution failed to prove the quantity of ganja possessed by the accused. The court also found that the expert opinion on the seized items was not reliable and that the investigation was unfair and biased.
Issues: 1. Whether the prosecution established the charges beyond reasonable doubt. 2. Whether the mandatory provisions of the NDPS Act and SADA were complied with. 3. Whether the search was conducted in accordance with the law. 4. Whether the seized articles were kept in safe custody. 5. Whether the prosecution proved the quantity of ganja possessed by the accused. 6. Whether the expert opinion on the seized items was reliable. 7. Whether the investigation was fair and unbiased.
Ratio Decidendi: The court held that the prosecution failed to establish the charges beyond reasonable doubt due to non-compliance with the mandatory provisions of the NDPS Act and SADA. The court found that the search was not conducted in accordance with the law, the seized articles were not kept in safe custody, and the prosecution failed to prove the quantity of ganja possessed by the accused. The court also found that the expert opinion on the seized items was not reliable and that the investigation was unfair and biased.
Final Decision: The court set aside the conviction and sentence imposed by the trial court.
Certainly. Please provide the legal document content so I can analyze it and generate the key points with the appropriate references.
JUDGMENT :
BHASKAR RAJ PRADHAN, J.
1. The NDPS Act, 1985 has been enacted to consolidate and amend the law relating to narcotic drugs; to make stringent provisions for control and regulations of operations relating to narcotic drugs and psychotropic substances; to implement the provisions of the International Convention on Narcotic Drugs and Psychotropic Substances and for matters connected therewith.
2. Although the NDPS Act, 1985 was applicable in Sikkim, the State however faced further challenges of abuse of prescription drugs and other substances which do not fall within the definition of drugs like eraz-ex, polish etc. As per the statement of object and reasons of the Sikkim Anti Drugs Bill, 2006:
“The Sikkim Anti Drugs Bill, 2006 has been framed to tackle the problem of drug abuse and other controlled substances that are being abused in the State. The drug abuse scenario in the State is increasing day by day and the unique problem is the abuse of prescription drugs that are sold by the licensed pharmacies/ medical stores on the prescription by registered medical practitioners and abuse of other substances that are not drugs like eraz-ex, polish etc. There is no law that could deal with these problems specifically, in the absence of which the menace of abuse and trafficking is going unabated. Because of this, it is necessary to have a law that could deal with these kind of offences. Hence the Sikkim Anti Drugs Bill 2006, has been framed under which stringent penalties have been prescribed for offences under this Act.”
3. The Sikkim Anti Drugs Act, 2006 (SADA, 2006) sought to:
“Control, regulate and prevent the abuse of drugs and control substances with abuse potential being misused by addicts and traffickers, to make stringent provisions to deal with the ever increasing phenomenon of abuse of medicinal preparations and matters connected therewith.”
4. The Sikkim Anti Drugs Bill, 2006 having received the assent of the Governor on 25.03.2006 was published in the Sikkim Government Gazette on 17.04.2006 from which date the SADA 2006 came into force in Sikkim.
5. Both the NDPS Act, 1985 as well as the SADA 2006 makes stringent provisions for control and regulations of operations relating to narcotic drugs or psychotropic substances or controlled substances. The enactments seek to meet the problems facing society today. The SADA 2006 sought to deal with the problems faced by Sikkim for which, as per the objects and reasons, there was no law. It deals with the menace of abuse and trafficking. Both the enactments seek to deal with specific operations and addiction.
The prosecution story and the trial.
6. On 04.01.2017, at around 1030 hours “credible source information” that the Appellant was suspected to be in possession of contraband substances and was in the process of selling it to prospective buyers at Gyalshing Bazar, near the taxi stand, West Sikkim was received. The place was visited in the presence of the Sub-Divisional Magistrate, Gyalshing (SDM) and two witnesses. The Appellant was searched and was found in possession of one blue bag containing one black “fastrack” container with 59 capsules of Spasmo Proxyvon, 29 capsules of “N-10” and one pouch of “ganja.” The recovered articles were photographed, seized, packed and sealed in presence of independent witnesses and the SDM. Thereafter, the Appellant was medically examined at the District Hospital Gyalshing and his urine sample preserved by the Medical Officer for chemical examination. The Appellant was then brought to the police station along with the seized articles for further legal action. Stating the above facts, Police Inspector-Mahindra Pradhan, Station House Officer (SHO), Gyalshing Police Station (PW-6) would lodge the First Information Report (FIR) (exhibit-1) as the informant under Section 9/14 of SADA, 2006 and endorse the case for investigation to the Investigatin
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