Independent witness on occurrence of narco seizure mandatory: HC

Excelsior Correspondent
Srinagar, May 29: As the prosecution failed to prove before the court that the recovered and seized contraband-drugs were kept in safe custody of police, High Court upheld the acquittal of drug-peddlers by the trial court.
The Division Bench of Justice Sanjay Dhar and Justice Rajesh Sekhri has held the prosecution appeal as devoid of merit and dismissed the same by holding the trial court judgment acquitting the accused-drug peddlers for not proving them as guilty by the prosecution.
“It is evident, therefore that failure on the part of prosecution to prove that the contraband after its recovery and seizure and after proper sealing and resealing in accordance with law, was kept in the safe custody of the Police Station and that samples were forwarded to the FSL without any delay, vitiates the trial”, Division Bench recorded.
The court after having considered the evidence led by the prosecution before the Trial Court in its entirety, considered that there is not only infraction of various mandatory provisions of NDPS Act, but prosecution evidence is found discrepant on material factual aspects.
“In this backdrop, there is no scope to raise hypothesis of guilt against the respondents-accused for the commission of offences, they have been charged with. Thus considered, we do not find any illegality and perversity in the impugned judgment of trial court”, DB concluded.
“As no independent or civilian has been associated with the investigation or the search recovery and seizure process as observed earlier, therefore, no such corroboration is coming forth in the present case and it is sufficient to shake the very foundation of the prosecution story”, Court recorded.
Court said that in the present case, source information was received by the Senior Police Officers 2 to 3 hours prior to the occurrence and, therefore, they had sufficient time to associate any civilian or independent witness to search, recovery and seizure.
Court said that it is not the case, where information was suddenly received during the Naka duty that there was no such time to associate independent witnesses to the recovery and seizure process.
Court holding the prosecution responsible for acquittal of the accused persons said another lacuna and fault, which has escaped the attention of Trial Court is that prosecution has failed to prove that contraband recovered in the present case was kept in the safe custody and forwarded to FSL is inconsonance with provisions of law and without any delay.
Court said the prosecution was obliged to prove that the contraband after its recovery and seizure from the accused was kept in safe custody, in the Malkhana of the concerned Police Station under proper entry in the Malkhana register and samples of the contraband were forwarded to FSL without any delay.