20 years after local court convicted man in NDPS case, HC sets aside order

In its appeal against conviction, Jagtar’s counsel, KPS Virk, contended that as per the admitted case of the prosecution, the secret information was never reduced into writing by the investigating officer (IO) nor the same was ever sent by him to his immediate superior officer forthwith.

Also it was argued that the sampling was not done properly as only one sample was taken out of each bag, which is clear violation of the standing order issued by the GoI, which makes it mandatory that two samples should be drawn from recovered substance, failing which, the whole recovery procedure shall be vitiated.

Virk added that the sample seal was also missing and there was ample time with the investigating agency to join independent witnesses in the case, yet no independent witness was joined in the case.

Counsel for the state, opposing Virk’s statement argued that the IO had followed the complete procedure prescribed and there was no violation, as alleged. Apart from that it is a matter of common experience that independent witnesses do not join at the time of making recoveries of the contraband from the smugglers.

Hearing the matter, Justice NS Shekhawat said, “It has been held that the compliance of requirements of Section 42(1) and 42(2) of the NDPS Act in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer.”

“In this case, PW1 ASI Jaswinder Singh is the star witness of the prosecution who supported the case of the prosecution in all material particulars. However, in his cross-examination, he clearly admitted that he acted on receipt of the secret information, which was received by him at Achral Khurd village. He did not separately reduce the secret report into writing and did not send any intimation regarding the secret information to his higher officers in writing.”

The HC said, “The IO, for reasons best known to him, failed to adopt the procedure as prescribed by the statute and it creates serious doubt about the veracity of the prosecution case, especially, in view of the fact that the samples, which were sent to the FSL had only seal impressions of the police officials and the seal remained with the police officials throughout the investigation. Consequently, there was total non-compliance of the provisions of Section 52-A of the Act, which cannot be viewed lightly and the findings recorded by the learned trial Court are unsustainable.”

“In the present case, the original report under Section 57 of the NDPS Act was never brought on record before the trial court. Only a photocopy of report has been exhibited, which was objected to by the appellant during the course of evidence…Thus, it is apparent that in the instant case, the Investigating Agency was most negligent in conducting the investigation fairly and completely overlooked the procedure established by law,” held the HC.

The HC added, “Even sampling was not done properly…the police had sufficient time to join the independent witnesses, but no independent witness was joined, in spite of opportunity and time. This aspect of the matter also raised a serious question mark on the manner, in which, the recovery was effected and the investigation was conducted.”