Case BriefsHigh Courts

Rajasthan High Court: Vijay Bishnoi J. allowed bail application filed by persons who were arrested for illegal possession of poppy straw; on the ground that the seizing officers did not follow the guidelines issued by Narcotics Control Bureau in regard of seizure, sampling and testing of the contraband.

Applicants herein were arrested for offences punishable under Sections 8, 15, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. They filed an application under Section 439 of the Code of Criminal Procedure for the grant of bail for the said offence which punishes the offender who contravenes rules related to poppy straw.

Counsels for applicant B. Ray Bishnoi and Kailash Khilery contended that statements of seizure officer and Intelligence Officer were recorded before trial court after the second bail application was rejected. They stated that several quantities of samples were collected from some of the bags and were mixed with poppy straw. Thus, it was clear that the seizure officer does not collect separate samples from each bag. It was further contended that the U.N. Kit test was not carried out on each bag before taking a small quantity of poppy husk for samples. Learned Public Prosecutor M.R. Pareek opposed the bail application.

The Court relied on Netram v. State of Rajasthan, 2013 SCC OnLine Raj 2892 where it was held that the essential requirement before drawing a representative sample is that the contents of each package have to be subjected to colour test by U.N drug testing kit. Once the test is conducted and the result indicates that all the packages are identical in all respects, then only a representative sample can be taken out after bunching the packages.

In the instant case, the samples from each bag containing poppy husk/poppy straw had not been collected and test by U.N. Kit had not been conducted on each bag. The Seizure Officer had simply taken out some quantity of narcotic drug from each bag and after mixing the same had taken out some portion for the sample. This act was not in conformity with the Standing Instruction No.1/88 issued by the Narcotics Control Bureau, New Delhi, particularly, Instruction No. 1.7 and, as such, it could not be said that the narcotic contraband recovered in the matter was of commercial quantity or above.

In view of the above and in view the fact that trial of the case was likely to take time, the applicants were granted bail.[Om Praksh Bishnoi v. Union of India, 2019 SCC OnLine Raj 1280, decided on 02-07-2019]

Case BriefsForeign Courts

Pakistan Supreme Court: A Full Bench comprising of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. dismissed a criminal appeal against the order of the Peshawar High Court where a Nigerian national was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997.

In the instant case, the respondent (a Nigerian national) was caught by the contingent of Anti Narcotics Force along with 25 kilograms of heroin. He faced trial before the Special Court (CNS) who returned with a verdict of guilty. He was convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 and was sentenced to imprisonment for life and a fine of rupees one million or five-year simple imprisonment in case of default. He appealed to the Peshawar High Court which acquitted him from the charge primarily on the ground that, contraband allegedly recovered was destroyed in violation of procedure provided under Section 516 A of the Code of Criminal Procedure, 1898. Aggrieved thereby, the State filed the instant criminal appeal.

Mr Muhammad Tariq Khan, learned ASC for the State contended that the destruction of the contraband under magisterial supervision ruled out the possibility of any foul play and thus strict non-compliance with the suggested procedure would not vitiate respondent’s culpability which was otherwise firmly established through massive evidence.

The Court held, “We would abstain to examine the vires of arguments raised before us in absence of the respondent, a Nigerian national, reported to have left Pakistan as in his absence the exercise would be merely an academic discussion without consequential impact.” Further, it was held, “we find it inexpedient to interfere with the impugned judgment as in the event of a reversal of the impugned view, a cumbersome procedure of respondent’s extradition would be a process far from convenient.”  Thus, the appeal was dismissed.[State v. Olufemi, 2019 SCC OnLine Pak SC 7, decided on 28-03-2019]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench of Annie John, J., allowed an appeal filed against the order of the trial court whereby accused was found guilty for the offence punishable under Section 58 of the Kerala Akbari Act.

The main issue that arose before the Court was whether the order of the trial court was good in law.

The Court observed that there was several loopholes in the investigation conducted by the police. Firstly, the sample of the contraband articles was sent to the Court after a delay for 4 days and such delay was unexplained by the prosecution. Secondly, the chemical analysis report was unclear and lastly, the forwarding note did not contain a sample seal. The appellant relied upon the case of Ramankutty v. Excise Inspector, Chelannur Range, 2013 (3) KHC 308, wherein it was held that an accused becomes entitled to the benefit of doubt if there is an unexplained delay on the part of the prosecution. The Court found this case applicable to the facts and circumstances of the instant case and it also observed that it was the duty of the prosecution to prove that the contraband articles were produced before the Court without any sort of tampering. The investigation under the Kerala Akbari Act could be conducted by the Akbari Officer appointed by the state government and every Akbari Officer had a territorial jurisdiction, however, in the instant case, the investigating officer was not authorized to investigate the matter since it was outside his territorial jurisdiction.

The Court after considering all the lacunae in the investigation held that the order of the trial court was liable to be set aside since it was based on such faulty investigation. Resultantly, the appeal was allowed and the order of the trial court was set aside.[Ravi v. State,2018 SCC OnLine Ker 4640, order dated 30-10-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Mukta Gupta, J. allowed an appeal filed against the order of the trial court whereby the appellant was convicted for an offence punishable under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The prosecution case was that one Romy (co-accused) was apprehended by the police while supplying contraband substance. Case property (46 grams of the contraband substance) was recovered from him. On Romy’s revealing that he is supplied the said contraband from the appellant, he was also apprehended. Case property (105 grams of the contraband substance) was also recovered from the appellant. The appellant was tried and convicted by the trial court as mentioned above. Aggrieved by the same, the appellant filed the instant appeal.

The High Court perused the record and found that as per the malkhana register, the alleged recovery of case properties from the two accused was deposited at the same time on 23 August 2012. However, the recovery from Romy had already been made on the previous day, i.e. 22 August 2012. In view of the Court, the contradiction with respect to deposit the case properties in malkhana pursuant to the two recoveries goes to the root of the matter. The same creates serious doubt in the link evidence that the case properties were kept in safe custody and were not tampered with. In such circumstances, the Court held that the appellant was entitled to benefit of doubt. The appeal was allowed and the convict was acquitted of the offence. [Earnest v. State (NCT of Delhi), Crl. A. 1112 of 2016, dated 27-8-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Surinder Gupta, J. dismissed an appeal filed against order of the trial court whereby the application filed by the prosecution under Section 311 CrPC was allowed.

The petitioner was facing the trial under Section 18 Narcotic Drugs and Psychotropic Substances Act, 1985.  As per the prosecution, the contraband recovered from the petitioner was initially deposited with MHC Dharam Singh and was later on handed over to HC Kulwant Singh. As such, being a material witness, MHC Dharam Singh was required to be examined to complete the link evidence in the case. The petitioner argued that the prosecution had closed its evidence. Thereafter, statement of the petitioner under Section 313 was recorded. Arguments were partly heard in which the petitioner raised an issue that the link evidence was missing in the case. It was alleged that in order to fill in the lacunae, the application under Section 313 was filed by the prosecution which was allowed by the trial court vide the order impugned.

The High Court perused the facts of the case and noted that it was apparent that the trial court found MHC Dharam Singh as a material witness. The instant was not a case where the petitioner was taken by surprise as the prosecution witness (Investigating Officer) had already disclosed that the case property (contraband recovered) was deposited with MHC Dharam Singh. It was a mere lapse that he was not examined before the conclusion of the prosecution evidence. The Court was of the view that the mere fact that application was moved after arguments had been partly heard or at the stage of defence evidence, is no reason to decline such application or curtail powers of the court to summon material witness. No error was found in the order of the trial court impugned herein. Accordingly, the revision petition was dismissed holding it to be sans merit. [Satyawan v. Vikas,2018 SCC OnLine P&H 1220, dated 01-06-2018]