Non-compliance with mandatory provisions of the NDPS Act, contradictions in witness statements, and doubts regarding the custody and testing of seized contraband led to the acquittal of the respondent.

1. The present appeal, under Section 378(4) of the Code of Criminal Procedure, 1973 has been filed by the Union of India through Central Bureau of Narcotics, Neemuch against the judgment dated 24/12/1997 passed by the Additional Sessions Judge, Neemuch in Sessions Trial No. 60/1990. The respondent has been acquitted from the charge under Section 8/18 of the Narcotic Drugs & Psychotropic Substances Act, 1985.

2. Facts of the case reveal that on 28/7/1989, at about 7:45 pm., near Bhavsara Fata, the respondent – Suchchasingh was driving a Truck bearing registration No. MBV 5680 and the Truck was intercepted. Mr. Ranjan Pradhan, Assistant Narcotics Commissioner, Prevention Cell, along with Driver Lalchand, Sub Inspector D. K. Nagarkar and Inspector P. Ibrahim who were on patrolling duty and were returning from Gwalior, intercepted the Truck which was standing and in presence of witnesses Balveer Singh and Babulal a search was carried out. In the Truck, Driver Suchchasingh and its cleaner Manohar were present. While the search was going on, the Driver Suchchasingh took out a green polythene and threw it at the back seat. The green polythene was opened in front of witnesses and it was containing opium. The Truck Driver as well as the cleaner were arrested and even the owner of the truck was made an accused.

3. Ranjeet Singh, the owner of the Truck and Manoharlal, the cleaner of the Truck preferred a revision against framing of the charge and in Criminal Revision No. 95/1990, they were discharged by this Court. The charges were framed against the present respondent. The contraband was seized, sealed and statement of Suchachasingh and Manoharlal were recorded and thereafter a Panchnama was prepared.

4. On 28/8/1989 Sub Inspector D.K. Nagarkar lodged FIR and on 29/8/1989 one Malecha was appointed as Investigating Officer and the Investigating Officer recorded statement of the witnesses u/S. 161 of the Code of Criminal Procedure, 1973 and thereafter charges were framed and after holding the trial, the trial Court has acquitted the respondent herein.

5. Learned counsel for the appellant – Union of India has argued before this Court that the Court below has erred in law and facts in holding that the evidence of Ranjan Pradhan, Asstt. Commissioner, Narcotics (PW 5) and D. K. Nagarkar, Sub Inspector (PW 3) is having contradictions on material points and the consequential view of holding the seizure proceedings to be doubtful, is also incorrect on the part of the Court below. He has vehemently argued that the Court below has also erred in law in creating a doubt over the seizure panchnama only on the ground that it does not mention the fact from where the opium was seized. He has stated that there was a panchnama signed by the independent witnesses, opium was recovered, the prescribed procedure was duly followed and, therefore, the impugned judgment deserves to be set aside. Another ground has been taken by the learned counsel for the appellant stating that the Court below has not appreciated the evidence in its true perspective about sampling and the report of the analyst and has erred in holding that the prosecution has not proved beyond doubt that the material which was seized and sampled, is the same which was tested by the analyst. He has also argued that the learned Court below has wrongly interpreted Sec. 52 and Sec. 53 of the NDPS Act and even if there is a violation of the aforesaid Sections, they are not of mandatory nature. Further ground raised by the learned counsel for the appellant is that the statement of the accused Ex.P/5, recorded by D. K. Nagarkar Sub-Inspector (PW 3), was admissible in evidence, as it was not recorded by a Police Officer. Another ground has been taken by the learned counsel for the appellant stating that the trial Court has erred in overlooking the fact that the High Court has discharged the co-accused Manoharlal on the ground that as per his (Manoharlal's) statement recorded by D. K. Nagarkar Sub-