Narcotic Deugs and Psychitrophic Substance Act,1985

NARCOTIC DEUGS AND PSYCHITROPHIC SUBSTANCE ACT,1985

SEC-2(c)

Expression-“ Chemical Examiner”- It has been defined in Rule 2 (c) to mean “ the Chemical examiner or Deputy chief chemist or Shift chemist or Assistant chemical examiner, Government Opium & Alkaloid Works, Neemuch or, as the case may be, Ghazipur”- SC-NCC-2009-117.

SEC-20

Prosecution failed to prove that sample which was sent for chemical examination was taken from the same Charas which was shown to be recovered from accused- Creates a reasonable doubt in prosecution- No witness of public was taken and police party deposed that no public witness was available- Though the recovery was made near gas godown and municipal barrier on the road, where pubic witness were easily available, and that omission not calling the public witness or not making effort to collect public witnesses, created reasonable doubt on the prosecution case- UTT-NCC-2009-170.

As per prosecution Charas seized from accused, sealed as sample and remaining sealed separately- Held that the sample of contraband article submitted before S.D.M. had not been sent to the scientific laboratory and there was no report of chemical examination with regard to the said sample- In absence of any link to prove that the same sample was sent for chemical examination, created doubt-SC’s ruling referred – also omission of not procuring public witnesses, who were easily available at the spot, created doubt on the prosecution case- conviction set aside- UTT-NCC-2009-187.

Where prosecution failed to prove that sample sent for chemical examination were the same which were taken at the spot- prosecution also failed to disclose as to who took the sample from Malkhana for chemical analysis- No public witness of recovery- Report of seizure not sent immediate superior officer within 48 hours- Held compliance of Sec 57 was not mandatory but directory-Acquittal- UTT-NCC-2009-763.

SEC-25

Material witness- non examination of – effect of- Accused person not found in possession of any contraband- conviction of accused recorded U/S 25 of N.D.P.C. Act for abetment for having associated themselves with finding prospective buyers in disposing of the contraband allegedly found in possession of co accused- Non examination of informant without offering any explanation therefore- Prosecution case rendered doubtful- SC-NCC-2009-567.

SEC-37

Bail- provision of Sec 50 not seriously complied with-Act provides for stringent punishment- Where a statute confers drastic powers and provides for stringent penal provisions including the matter relating to grant bail- the condition precedent therefore must be scrupulously complied with- Released- SC-NCC-2009-567.

Sec-439(2)- Cancellation of bail- propriety of- Accused arrested on basis of statement of co accused, allegedly contraband 2 kg was recovered- apart from this statement no material in file- Seized article sent for chemical examination- sample found no contraband- accused released on bail- Prosecution sent second sample to another chemical examiner not designated as such rules- sample found contraband substance- After that bail cancellation not justified- SC-NCC-2009-117.

SEC-42

Sec 42 Effect of- Sec 42 mandates compliance of requirements contained there in- If the officer has reason to believe from personal knowledge or information given by any person- Taking down the information in writing is there fore very necessary to be complied with- Sub Section (2) of Sec 42 provides that such information reduced in writing should be communicated to his immediate superior officer within 72 hours- SC-NCC-2009-673.

SEC-50

Search in presence of a magistrate or before a gazzetted officer was not done- non compliance of Sec 50 vitiate the prosecution –A.C.C.-2005-Vol-52-Sum-page-8- Patana H.C.

Recovery memo for arrest and seizure of material- omission in- effect of- Recovery memo did not indicate as to why independent witnesses could not be procured for arrest and seizure- If police could not find witness they could have very well mentioned such fact in arrest and recovery memo- such omission on part of police to lead to interference that police did not try to get independent witnesses, which create doubts about recovery memo- NCC-2008-UTT-613, SC’s Rulings.

Charas recovered from bag of accused by police party headed by S.H.O- No evidence that accused were informed about their right of being searched in presence of a Magistrate or Gazetted Officer- Conviction bad- UTT-NCC-2008-952, SC’s Rulings.

Compliance of Sec 50 necessary even in case of chance encounter with the person suspected to be in possession- A.C.C. 2005-Vol-52-Sum-Page 14-Panjab & Hariana H.C.

Non compliance of mandatory provisions of Sec 50- Discrepancy in weight of sample allegedly taken and received by chemical analyst- acquittal- UTT-AIC-2004-feb-516.

Non compliance of- Effect- Empowered officer- Obligation and duty of – before search must inform the suspect- That he has the right to require his search to be conducted in presence of Gazetted Officer or a magistrate- Failure to so inform the suspect of his right would render the search illegal- Such failure would also render conviction and sentence to accused based solely on such recovery as illegal- SC-NCC-2009-477.

Search of accused’s house without complying with provision of Sec-50- Search carried out both by custom officer and police officers after sun set- Confession made by accused were retracted- Recording conviction under such circumstances not justified- SC-NCC-2009-567.

Bail-provision of Sec 50 not seriously complied with-Act provides for stringent punishment- Where a statute confers drastic powers and provides for stringent penal provisions including the matter relating to grant bail- the condition precedent therefore must be scrupulously complied with- Released- SC-NCC-2009-567.

Sec-50 applies only to search a person not extended to search of vehicle, container or bag- SC-AIC-2004 (14)-87.

SEC- 52-A

Effect of- Requirements under- Compliance of following aspects, mandatory –(1) Whether the search and seizure were properly effected (2) Whether the seized contraband was properly weighed (3) Whether the representative sample was properly drawn and sent to the laboratory and what is the report of the laboratory are- These aspects which can not be dealt lightly because any violation of any single aspect is likely to cause and create prejudice to the accused and may also result in miscarriage of justice- Bail granted-UTT-NCC-2009-617.

bail- 20 kg Charas alleged to have been recovered from possession of accused- Such contraband not weighed on the spot of recovery- Provision of section 52-A(2) not complied with- Fit case for bail- UTT-NCC-2009-577., UTT-NCC-2009-578.

SEC-52,52 A&57

Where prosecution failed to prove that sample sent for chemical examination were the same which were taken at the spot- prosecution also failed to disclose as to who took the sample from Malkhana for chemical analysis- No public witness of recovery- Report of seizure not sent immediate superior officer within 48 hours- Held compliance of Sec 57 was not mandatory but directory-Acquittal- UTT-NCC-2009-763.

Sec-55- Police to take charge of article seized and delivered- Non compliance- provision of- A serious infirmity in prosecution case- SC-NCC-2009-673.

Charas seized and sealed in 2 bundles- one bundle was sent for chemical analysis- Sample of seal, affixed on the seized article not sent to court- Prosecution no where shows that said article were kept in safe custody of police station- Bundle were produced before the court after two years- Chemical examiners report shows that there was only one seal of the CJM on the sample- Public witness not produced in court- held it is not ruled out that there was some manipulation in between the recovery and the time of sending the article to chemical examiner- Though the provision of Sec 52 &57 are not mandatory and are directory in nature but police party and I.O. can not totally ignore these provisions- Not safe to convict accused- UTT-NCC-2008-952, SC’s Rulings.

Compliance of Sec 52, 52 A mandatory- sample sent to chemical examination alleged to be weighing 250 gm found at forensic Science Laboratory 150 gm in weight- Contraband not having kept in safe custody in Malkhana till it was produced in court- Sample also not sent to FSL through magistrate- Register of Malkhana and HC incharge thereof not produced in court- Benefit of doubt goes to accused- UTT-NCC-2009-831.

SEC-60.63,52,53

Vehicle used in offence can be released Under Sec 451 and 457 Of Cr.P.C.- Due to N.D.P.S Act operation of Sections of 451,457 can not be excluded- BOM-Cr.L.J.-1989-1998.

SEC- 67

Confessional statement -Basing conviction solely thereon- propriety of- Where no contraband was found from his possession and he was prosecuted on the basis of statement of co accused of conspiracy with him regard to commission of offence made, under 8/18 of the Act with such other co accused- Such conspiracy not being proved by prosecution- Conviction not justified- SC-NCC-2009-673.