New Delhi, Jun 27 A Delhi court has acquitted a man booked under the Narcotic Drugs and Psychotropic Substances (NDPS) Act for allegedly carrying 10 kg of ganja, citing procedural breach and several other infirmities.
The court said the prosecution failed to comply with mandatory procedures prescribed under Section 52A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, which mandates the preparation of any inventory and clicking photographs and submitting it before a magistrate for verification.
Special Judge Jitendra Pratap Singh was hearing the case against Amjad Mandal, against whom the Vasant Kunj North police station had registered a case under the NDPS Act.
The court said the prosecution also failed to comply with rules mandating that a copy of any "secret information" had to be forwarded to the immediate superior officer of the seizing officer within 72 hours.
According to the prosecution, the narcotics squad of the southwest district received "secret information" that the accused was carrying ganja and proceeding towards Kishan Garh village on September 10, 2018, based on which Mandal was apprehended with 10 kg of ganja.
It said the samples were sent to the Forensic Science Laboratory (FSL), Rohini, for examination, and after completion of the investigation, a chargesheet was filed.
In an order dated June 2, the court said, "In cases relating to the offences under the NDPS Act, the prosecution is required to prove that the investigating agency carried out the investigation in compliance with the provisions of the Act.
"The investigating agency must adhere strictly to the legal procedure established during the search, ensuring transparency and fairness in the investigation," the court said.
It said Section 52A is one of the most important procedural safeguards incorporated in the NDPS Act, which was introduced to ensure complete transparency, accountability and to eliminate any possibility of tampering, substitution, or pilferage of the seized narcotic drug from the stage of seizure till the time the case property is produced before the court or examined in a laboratory.
The court said that the provision casts a mandatory duty upon the seizing officer to prepare a detailed inventory of the seized contraband and to make an application before a magistrate.
It said, "The statute further provides that any inventory, photographs, or list of samples certified by the magistrate shall be treated as primary evidence in the trial. This procedure is not directory but mandatory in nature, as it protects the rights of the accused in cases where the statute itself imposes a reverse burden of proof and provides for stringent punishments."
The court, however, said that in the present case, there was a complete absence of any evidence demonstrating compliance with Section 52A, and not a single witness examined by the prosecution said anything about moving any application before a magistrate.
"There is no evidence of preparation of any inventory before a magistrate or of any photographs having been taken in the magistrate's presence. This amounts to non-compliance of the mandatory procedure prescribed under Section 52A of the NDPS Act," the court said.
It said the prosecution's case is further weakened as no independent public witness joined the probe.
"Additionally, there is a complete absence of videography or photography of the search, seizure, and sampling proceedings. No video recording of the raid, apprehension of the accused, drawing of samples, or sealing process was done," the court said.
It also cited several other infirmities, such as material contradictions between the prosecution witnesses regarding the exact time of reaching the spot, the time of arrival and the duration of stay of a gazetted officer (ACP Pramod Kumar) and the time when sampling was done.
"There are also noticeable lapses in the chain of custody. The prosecution has failed to provide the necessary safeguards, which could have lent credibility to the recovered substance and its quantity," the court said.
It said another serious lapse was the non-compliance with mandatory provisions contained in Section 42 of the NDPS Act, according to which a copy of the "secret information" had to be forwarded to the immediate superior officer of the seizing officer within 72 hours.
"This lapse is particularly significant because the entire prosecution case is based on the recovery allegedly made pursuant to the said secret information. The violation of Section 42 strikes at the root of the legality of the search and seizure and deprives the prosecution of the benefit of the statutory presumptions," the court said.
Acquitting the accused, the court said that the prosecution had failed to prove its case against him beyond a reasonable doubt.
