Failure to comply with mandatory NDPS search safeguards rendered the recovery suspect and justified acquittal.

On 16 February 2007, a police party from the Local Crime Branch intercepted respondent No.1, Ganpatram Amraji Vishnoi, while he was travelling on a motorcycle near Lavana village.

The prosecution alleged that a pouch containing 500 grams of “liquid opium” was recovered from his possession, weighed and sampled in the presence of panch witnesses, and that the substance was intended to be delivered to respondent No.2.

A complaint was registered at Diyodar Police Station, and the respondents were charged under Sections 17(b), 22(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”).

The Trial Court acquitted both accused on 18 March 2008, holding that the prosecution had failed to prove the recovery, conscious possession and statutory compliance beyond reasonable doubt.

The State challenged the acquittal under Section 378(1) and (3) of the Code of Criminal Procedure, 1973.

1. Whether the Trial Court committed an error of fact or law in acquitting the respondents under Sections 17(b) and 22(b) of the NDPS Act.

2. Whether the prosecution established compliance with the statutory safeguards governing search, seizure, personal search and reporting under Sections 42, 50, 52 and 57 of the NDPS Act.

3. Whether the evidence sufficiently proved that respondent No.1 was in conscious possession of the alleged contraband and that respondent No.2 was involved in its intended delivery.

4. Whether the appellate court should interfere with the acquittal where the Trial Court’s view was a reasonable and legally sustainable view of the evidence.

The Court applied Sections 17 and 22 of the NDPS Act, which penalise contraventions relating to prepared opium and psychotropic substances respectively.

Section 42 requires an empowered officer acting on prior information to record the information and forward it to the immediate superior within the prescribed period; total non-compliance is impermissible, though delayed compliance may be accepted where adequately explained and no prejudice is caused, as held in Karnail Singh v. State of Haryana.

Section 50 requires the authorised officer to inform a person proposed to be personally searched of the right to be searched before a Gazetted Officer or Magistrate, and strict compliance is mandatory under State of Punjab v. Baldev Singh and Vijaysinh Chandubha Jadeja v. State of Gujarat.

Section 57 requires a report of arrest or seizure to be made to the immediate superior within forty-eight hours; non-compliance is assessed in relation to its effect on the reliability of the prosecution case.

The Court also applied the appellate principles in Chandrappa v. State of Karnataka, reaffirmed in Rajesh Prasad v. State of Bihar, Babu Sahebagouda Rudragoudar v. State of Karnataka and Ramesh v. State of Karnataka: an appellate court may reappreciate evidence in an appeal against acquittal, but the accused enjoys a strengthened or “double” presumption of innocence, and acquittal should not be disturbed where two reasonable views are possible.

The Court found that the prosecution evidence did not establish reliable compliance with the NDPS safeguards.

No station-diary entry or vehicle logbook was produced to substantiate the police party’s alleged departure for investigation, nor were the records of the underlying investigations produced.

Although the prosecution claimed that respondent No.1 had declined a search before a Gazetted Officer, there was no satisfactory proof that he understood the right allegedly communicated to him, particularly as he was a resident of Rajasthan and was not conversant with Gujarati.

The Court further noted that respondent No.2 was not present at the spot and was implicated allegedly on the basis of respondent No.1’s statement; the complainant could not properly use the accused’s statement to implicate another person, and there was no independent corroborative evidence of delivery, conspiracy or common activity.

The prosecution also failed to establish that the immediate superior had been duly informed of the arrest and seizure as contemplated by Section 57.

These defects, coupled with weaknesses in the evidence of the panch witnesses and goldsmith, created reasonable doubt regarding the alleged recovery and conscious possession.

Applying the restricted appellate approach to acquittals, the Court held that the Trial Court’s conclusions were supported by cogent reasons and were not perverse.

It held that the prosecution failed to prove beyond reasonable doubt the alleged possession of contraband by respondent No.1, the involvement of respondent No.2, and compliance with the relevant statutory safeguards under the NDPS Act.

Finding no illegality, perversity or manifest error in the Trial Court’s acquittal, the Court dismissed the State’s appeal and confirmed the judgment and order of acquittal dated 18 March 2008.

The bail bonds were cancelled, and the record and proceedings were directed to be returned to the Trial Court.