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1 - 10 of 15 (0.22 seconds)Section 42 in The Narcotic Drugs And Psychotropic Substances Act, 1985 [Entire Act]
Section 18 in The Narcotic Drugs And Psychotropic Substances Act, 1985 [Entire Act]
State Of Orissa vs Kanduri Sahoo on 4 December, 2003
As far as delay is concerned, it has been held by the Division
Bench of this Court in Baggar Singh @ Gaggi's case (supra) and the
Supreme Court in State of Orissa v. Kandhuri Sahoo's case (supra) that the
delay in sending the sample of contraband to CFSL for analysis is not fatal
and on this ground the prosecution case cannot be brushed aside. So far as
the second contention of the learned counsel for the appellant is concerned,
it is admitted fact that provision of Section 42 of the Act is not applicable
because in this case the recovery was effected from the appellant from an
open public place, and for such recovery, the provision of Section 43 of the
Act is applicable which does not contain any such provision. Under Section
Crl.Appeal No.906-DB of 2006 -19-
43 of the Act, the Seizing Officer has the power of seizure of the articles
and arrest of a person, who is found to be in possession of any drug or
psychotropic substance in a public place where such possession appears to
him to be unlawful. In the instant case, on receiving the said information, a
raid was conducted. When the police party reached the spot, at that time the
appellant was standing on the gate of his house having a bag in his left
hand, from which 10 Kgs. opium was recovered. Therefore, in the instant
case, it cannot be said that the seizure was effected from the house of the
appellant. Therefore, in our opinion, the provision of Section 42 of the Act
is not applicable in the present case. However, we find force in the other
contentions raised by the learned counsel for the appellant, as referred to
above. Under the NDPS Act, the extent of burden to prove the foundational
facts on the prosecution is more onerous. A heightened scrutiny test would
be necessary to be invoked. For such type of cases, a higher degree of
assurance, thus, would be necessary to convict an accused under the NDPS
Act. Thus, after applying the above principles of law, we find that in this
case the prosecution has failed to prove the case against the appellant
beyond reasonable doubt.
Bhola Singh And Another vs State Of Punjab on 7 September, 1993
In Bhola Singh v. State of Punjab, 2005(2) RCR (Crl.) 520, this
Court has held that CFSL Form No.29 should be prepared by the
Investigating Officer at the spot and be deposited in the Malkhana along
with sealed contrabands. It has been further held that after sealing the
sample parcel of the contraband as well as remaining contraband, the seal
should be handed over to the independent person so that till the case
property had been deposited to the Forensic Science Laboratory, the same
should not be available to the prosecuting agency. This is necessary to
safeguard the possibility of the sealed contraband and the sample being
tampered with by the police official. It was further held that CFSL Form
should not only be prepared and sealed by the officer making seizure at the
place where the case property is seized from the accused, it should also be
sealed by the SHO, to whom the sample and the case property is handed
over and deposited in the Malkhana along with the sample parcel. It should
accompany the sample to Chemical Examiner.
Gurcharan Singh vs State Of Punjab on 10 August, 1962
In another case, titled as
Gurcharan Singh v. State of Punjab, 2005(4) RCR (Crl.) 681, the accused
was acquitted on the grounds that the seal affixed on seized opium was
given to the Head Constable and not an independent witness. The Seizing
Officer failed to prepare CFSL Form on the spot, which creates a further
doubt about the credibility of the entire prosecution exercise.
Gurjant Singh vs State Of Punjab on 3 September, 2002
Similarly, in Gurjant Singh v. State of Punjab, 2007(4) RCR
Crl.Appeal No.906-DB of 2006 -17-
(Crl.) 226, it was held by this Court that where the seal remained with the
police official after use and the CFSL Form was not prepared at the spot, it
creates a serious doubt in the prosecution case as filing of such Form is a
very valuable safeguard to ensure that the sealed sample is not tampered
with till the contraband is analyzed by the Forensic Science Laboratory. It
was further held that the seal not given to the independent witness but kept
with the Investigating Officer or with the raiding party, is also fatal to the
prosecution case as in that situation, the possibility of the sealed contraband
and the sample being tampered with, cannot be ruled out.
Ajay Malik & Ors vs State Of U.T on 22 June, 2009
In Ajay Malik & Ors. v. State of U.T., Chandigarh, 2009(3)
RCR (Crl.) 649, this Court while dealing with similar situation has observed
that two inferences could be drawn from such situation, i.e., either the FIR
was registered prior to the alleged recovery of the contraband or number of
FIR was inserted in the document after its registration. But in both
situations, it seriously reflects upon the integrity of the prosecution version.
While relying upon several other decisions, it was held that such serious
lapses in the prosecution case create a doubt to the prosecution theory.
Section 43 in The Narcotic Drugs And Psychotropic Substances Act, 1985 [Entire Act]
Baggar Singh @ Gaggi vs State Of Haryana on 12 August, 2009
As far as delay is concerned, it has been held by the Division
Bench of this Court in Baggar Singh @ Gaggi's case (supra) and the
Supreme Court in State of Orissa v. Kandhuri Sahoo's case (supra) that the
delay in sending the sample of contraband to CFSL for analysis is not fatal
and on this ground the prosecution case cannot be brushed aside. So far as
the second contention of the learned counsel for the appellant is concerned,
it is admitted fact that provision of Section 42 of the Act is not applicable
because in this case the recovery was effected from the appellant from an
open public place, and for such recovery, the provision of Section 43 of the
Act is applicable which does not contain any such provision. Under Section
Crl.Appeal No.906-DB of 2006 -19-
43 of the Act, the Seizing Officer has the power of seizure of the articles
and arrest of a person, who is found to be in possession of any drug or
psychotropic substance in a public place where such possession appears to
him to be unlawful. In the instant case, on receiving the said information, a
raid was conducted. When the police party reached the spot, at that time the
appellant was standing on the gate of his house having a bag in his left
hand, from which 10 Kgs. opium was recovered. Therefore, in the instant
case, it cannot be said that the seizure was effected from the house of the
appellant. Therefore, in our opinion, the provision of Section 42 of the Act
is not applicable in the present case. However, we find force in the other
contentions raised by the learned counsel for the appellant, as referred to
above. Under the NDPS Act, the extent of burden to prove the foundational
facts on the prosecution is more onerous. A heightened scrutiny test would
be necessary to be invoked. For such type of cases, a higher degree of
assurance, thus, would be necessary to convict an accused under the NDPS
Act. Thus, after applying the above principles of law, we find that in this
case the prosecution has failed to prove the case against the appellant
beyond reasonable doubt.