On Monday, The Jammu & Kashmir and Ladakh High Court, while hearing an appeal based on NDPS and Arms Act pronounced that section 55 of the NDPS Act is a stringent requirement. Under S. 55 of the NDPS act, it is the duty of the police station in charge to immediately take charge and keep the contraband safe. And based on the same, the prosecution is obligated to prove the same.
The obligation does not stop by keeping the contraband in safe custody. The person also has to forward the same to FSL without any delay. If the prosecution is not able to prove the same, it vitiates the trial.
The bench was presided over by Justice Sanjeev Kumar and Justice Rajesh Sekhri. The appeal was challenging the decision made by the trial court, inter alia, alleging that the trial court has failed to appreciate the evidence from the right perspective and had misconstrued the applicable law. The trial court in the case had provided acquittal to the accused against which the state had filed the current appeal.
The Case Before the Trial Court
This case arose from the account made by the accused before the police. Yousuf Massi, the defendant-accused, informed the police that a firearm, live ammunition, and sachets of heroin were found in his home and the possession of the respondent-accused. Following these disclosures, recoveries were made, and the accused were charged in accordance with the applicable NDPS Act and Arms Act sections.
Similarly, he also informed the police that 9 packets of heroin are kept with another accused-Sham Lal. After police took Sham Lal under investigation, he disclosed that the packets of heroin are kept below the heap of bricks in the house. From all these recoveries samples were taken and forwarded to FSL.
To prove the guilt of the accused, the prosecution examined 16 witnesses. But the trial court found that the prosecution case stinks with numerous contradictions and discrepancies in material aspects. Therefore, the trial court accorded acquittal to the accused.
Judgment of the court
While, in the appeal, the court deals with two issues. One was the handing over of the custody of Sham Lal to the investigation agency and the second was the forwarding of samples to the FSL.
In regard to the first issue, the prosecution stated that the respondent was in Crime and Railways’ custody before being turned over to the investigative agency in the current case, which the court noted after carefully questioning the prosecution’s witnesses. However, the prosecution was unable to back up this assertion with any proof or documents, which seriously undermined their case.
And in the second issue, the court notes that according to the prosecution’s story, there were discrepancies between the time of receiving the contraband and the time of forwarding the contraband for analysis to FSL.
The court notes that It is important to remember that the legislature, in its wisdom, passed Section 55 of the NDPS Act to ensure that the officer in charge of the police station shall immediately take charge and keep the alleged contraband in safe custody, in order to rule out any possibility of tampering with the contraband, in light of stringent provisions regarding punishment and grant of bail. And held that due to discrepancies in evidence, the appeal stands dismissed.
